Ellisras Brandstof and Olieverspreiders (Pty) Ltd and Others v Q4 Fuel (Pty) Ltd (Appeal) (HCAA10/2024 ; 10146/2022) [2025] ZALMPPHC 151 (11 August 2025)
REPORTABILITY SCORE: 70/100 Appeal — Motion proceedings — Genuine dispute of fact — Appellants appealed against the judgment of the court a quo which granted the Respondent's application for payment of an alleged outstanding balance under a Loan Agreement. The Appellants contended that there was a material dispute regarding the calculation of the debt, which could only be resolved through oral evidence at trial. The court a quo found no genuine dispute of fact. The appeal court held that the court a quo erred in determining the matter on affidavit alone, as the disputes raised were genuine and required a trial for resolution. The appeal was upheld, and the matter was referred to trial.
Case Note
Ellisras Brandstof and Olieverspreiders (Pty) Ltd & Others v Q4 Fuel (Pty) Ltd
Limpopo Division, Polokwane – Appeal Case Number HCAA10/2024
Judgment delivered 11 August 2025
Reportability
This decision is reportable because it revisits, clarifies and applies the Plascon-Evans rule on disputes of fact in motion proceedings. It also emphasises the duty of an applicant to set out its cause of action fully in the founding affidavit and not attempt to repair defects in reply. The judgment is therefore significant for practitioners who elect to proceed by way of notice of motion in circumstances where material factual controversies are foreseeable.
The court’s treatment of Rule 6(5)(g) of the Uniform Rules of Court, and its insistence that factual disputes be ventilated by oral evidence or trial rather than paper, has broader procedural importance. It serves as a reminder that applications ill-suited to motion procedure may be struck down on appeal, even where the court a quo granted substantive relief.
Finally, the judgment is noteworthy for commercial litigants because it stresses that reconciliation mechanisms and formulae agreed in loan or supply agreements must be honoured. A failure to follow contractual reconciliation procedures can render the quantum of a claim genuinely disputed and unsuitable for final relief on affidavit.
Cases Cited
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (Supreme Court of Appeal)
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (Appellate Division)
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (Cape Provincial Division)
Legislation Cited
No statutory enactment was directly applied; the matter turned on procedural rules and the common law.
Rules of Court Cited
Uniform Rules of Court, Rule 6(5) – in particular Rule 6(5)(g) dealing with referral to oral evidence or trial where motion proceedings cannot properly resolve factual disputes.
HEADNOTE
Summary
The appellants appealed against a High Court order that had granted the respondent final relief on motion for recovery of R1 541 217 alleged to be outstanding under a fuel-supply loan agreement. They argued that genuine disputes of fact existed regarding reconciliation of the outstanding balance, rendering motion procedure inappropriate. The Limpopo Division agreed, holding that the court a quo should not have decided the matter on affidavit because essential factual components—especially the contractual reconciliation mechanism and whether branding costs formed part of the capital—were in dispute and inadequately addressed in the founding papers.
Key Issues
Whether the court a quo erred in finding no real dispute of fact and in granting final relief on motion.
Whether the respondent satisfied the onus of proving the quantum of its claim.
Whether Rule 6(5)(g) required the matter to be referred to oral evidence or trial.
Held
The appeal succeeded. The court a quo misdirected itself by overlooking material factual disputes that could not be resolved on the papers. The order granting payment to the respondent was set aside and substituted with an order referring the matter to trial. Costs of the appeal were awarded to the appellants.
THE FACTS
The first appellant operates a petrol-station and fuel distribution business supplied by the respondent. Under a written loan agreement the respondent advanced capital and undertook to pay branding costs directly to suppliers. Clause 6 required the parties each month to reconcile sales volumes, interest, capital and branding cost, sign off the figures and thereby determine the outstanding balance.
A demand letter claimed R1 541 217 as the unpaid balance. When the appellants queried the calculation the respondent instituted motion proceedings instead of action. In its founding affidavit it asserted, in general terms, “full compliance” with the agreement and attached a self-compiled reconciliation. Only in reply did it allege that the appellants’ failure to participate in monthly reconciliations justified a unilateral calculation.
The appellants, while admitting the agreement, disputed quantum, highlighted the absence of agreed reconciliations and noted that the reconciliation seemed to omit the R1 000 000 branding costs. They contended that oral evidence was necessary to establish the true balance, if any.
THE ISSUES
The court had to decide, first, whether the motion procedure was appropriate in light of the disputes raised. Second, it had to determine if the respondent had discharged the onus of proving the amount claimed. Finally, it considered the proper course: dismissal of the application, or referral to oral evidence or trial under Rule 6(5)(g).
ANALYSIS
The court revisited the principles in Plascon-Evans and National Director of Public Prosecutions v Zuma, stressing that final relief on motion is permissible only where the facts, assessed on the respondent’s version, still entitle the applicant to judgment. Where probabilities must be weighed, motion procedure is unsuitable.
Here the supposed indebtedness hinged on a contractual formula requiring joint monthly reconciliations. The respondent’s own papers were silent on compliance with that mechanism, and its attempt to fix the omission in reply contravened the rule that an applicant must stand or fall by the founding affidavit. Because the appellants squarely disputed the calculations and pointed to the unexplained exclusion of branding costs, a real and material factual dispute existed.
Applying Rule 6(5)(g), the court held that the dispute was foreseeable; the respondent ought to have proceeded by action. The court therefore found that the court a quo had no basis to grant final relief and should have referred the matter to trial. The appeal was thus upheld.
REMEDY
The judgment and order of 27 July 2023 were set aside. In their place the court ordered that the application be referred to trial, with directions for the exchange of pleadings and discovery. The respondent was ordered to pay the costs of the appeal as well as the wasted costs occasioned by the application procedure.
LEGAL PRINCIPLES
A litigant seeking final relief on motion must allege and prove every element of its cause of action in the founding affidavit; defects cannot be cured in reply.
Under the Plascon-Evans rule, where genuine factual disputes arise on material issues the applicant can succeed only if the respondent’s version is so far-fetched or untenable as to be rejected on the papers. If not, the matter must be dismissed or referred to oral evidence or trial under Rule 6(5)(g).
Contractual clauses prescribing a specific reconciliation or accounting mechanism create a substantive obligation. Failure to follow that agreed process can render the amount claimed unliquidated and hotly disputed, thereby disqualifying the claim from summary determination in motion proceedings.