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[2011] ZAGPJHC 99
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Scania Finance Southern Africa (Pty) Ltd v Go-liner Tours (Pty) Ltd (2010/50597) [2011] ZAGPJHC 99 (12 August 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2010/50597
DATE:12/08/2011
In
the matter between:
SCANIA
FINANCE SOUTHERN AFRICA (PTY) LTD
........................
Applicant
and
GO-LINER
TOURS (PTY)
LTD
................................................................
Respondent
(Registration number: 2007/016621/07)
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] In this opposed application the essential issue is whether the
respondent has breached the lease agreement in any way or to
such
material extent as to entitle the applicant to cancel the agreement.
[2] The applicant claims the return of some twelve (12) buses
identified in the notice of motion and founding papers. It is common
cause that the applicant leased the buses it claims to the respondent
pursuant to a number of written lease agreements concluded
between
the parties between June 2008 and December 2009.
[3] The application was initially launched on urgent basis during
December 2010. The urgent application was set down for 18 January
2011 but was never argued. The parties by agreement referred the
matter to the normal opposed motion court. Costs were reserved.
[4] The applicant contends that
the respondent has failed to make payment of the rentals due in terms
of the various lease agreements.
As a consequence, the applicant
submits that the respondent has committed other breaches of the lease
agreements entitling the
applicant to cancel the lease agreements and
claim the return of the buses. On 9 December 2010 the applicant’s
attorneys
of record addressed a letter to the respondent’s
attorneys purporting to cancel the agreement in terms of clauses 6(4)
and
6(5) of the General Terms and Conditions, Annexure “C”.
[5] The respondent, on the other hand, is opposing the application
on several grounds. In short, the respondent denies that there
was a
valid termination of the lease agreement on several basis, and
informed the applicant’s attorneys in December 2010
that any
legal action for the return of the buses will be defended. The
respondent argues that there is a series of lease agreements
on which
the applicant relies in the founding papers, but that the applicant
has failed to prove a valid termination in respect
of any one of the
12 agreements. The respondent also denies that it has failed to make
payments under the agreement even though
the respondent admits that
it encountered financial problems at some stage.
DISPUTES OF FACT AND THE APPLICABLE LEGAL PRINCIPLES
[6] Indeed a careful study of
the voluminous papers, namely the founding papers, answering
affidavit, and a challenged replying
affidavit, shows that there are
plainly factual disputes in the versions of the parties, as briefly
demonstrated later hereunder.
In dealing with disputes of fact in
motion proceedings, Conradie J in
Cullen
v Haupt
1988 (4) SA 39
(C) at p 40F-H, said:
“
I
have consulted some of the better known decisions concerning the
referral of applications to evidence or to trial. The leading
decision in this regard is, of course, Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162, where Murray
AJP said that if a dispute cannot properly be determined it may
either be referred to evidence or to
trial, or it may be dismissed
with costs, ‘particularly when the applicant should have
realised when launching his application
that a serious dispute of
fact was bound to develop’. The next of better known cases on
this topic is that of Conradie v
Kleingeld
1950 (2) SA 594
(O) at
597, where Horwitz J said that a petition may be refused where the
applicant at the commencement of the application should
have realised
that a serious dispute of fact would develop.
”
More recently in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para
[26]
, Harms DP said:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise in
the affidavits, a final order
can be granted only if the facts averred in the applicant’s (Mr
Zuma’s) affidavits, which
have been admitted by the respondent
(NDPP), together with the facts alleged by the latter, justifies such
order. It may be different
if the respondent’s version
consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible,
far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the
papers …
”
DISPUTES OF FACT IN THE PRESENT APPLICATION
[7] I deal with a few only
disputes of fact in the present matter. In para 14 of the founding
affidavit the applicant avers that
in June 2010 the respondent
experienced severe financial restraints, and the applicant provided
the respondent with a moratorium
of three months. In the answering
affidavit the respondent alleges that it entered into the moratorium
because the financial difficulties
were occasioned by the applicant’s
repossession of three buses. The respondent proceeds further to state
that the applicant
however continued to debit the respondent’s
bank account. In this regard the respondent annexes documentary proof
of such
debits. Second, the applicant on various allegations, and in
paragraph 28 of the founding papers concludes that the respondent
cannot afford the continuing use of the buses having regard to its
financial position. However, in the answering affidavit, the
respondent denies vehemently the allegation, and states that it is
capable of meeting its financial obligations, and has continued
to
make payments despite the applicant’s attempts to ensure that
the respondent fails in its endeavours. The respondent states
that it
has continued to make payments in terms of the agreements to the
applicant despite the fact that the amounts remained in
dispute, and
the parties were attempting to resolve the issues. In regard to the
applicant’s assertion that the respondent
was in arrears with
its payments, the respondent attaches to the answering papers an
accountant’s report, Annexure “LG7”.
The latter
report sets out a number of discrepancies in the applicant’s
accounting. For example, the report mentions that:
“
Based
on the audit carried out in the Scania Finance Southern Africa (Pty)
Ltd statements for Go-Liner Tours for the period July
2008 to
September 2010 we observe that Scania Finance were charging debit
orders for the buses under finance leases at a much higher
rate than
the ones agreed upon and signed for on the original contracts …
The differences are huge such that we have failed
to come up with an
audit trail and subsequently do not understand what has been going on
as the table below shows:
”
The report then proceeds to table the amounts paid by the respondent
as against those recorded by the applicant. It shows a variance
of
R3 545 277,06. In this regard, the respondent, correctly in my view,
argues that it is clear that the accounting should be resolved
by
accountants. This will undoubtedly require discovery of all the
relevant invoices, payments, allocations, credits, and insurance
payouts.
The third dispute relates to
the applicant’s contention that it had valid reasons, and
proceeded to cancel the agreement
on 9 December 2010 because of the
respondent’s alleged failure to make payments. The
respondent denies the allegation.
The respondent asserts that the
applicant has not demonstrated which of the lease agreements have
been allegedly cancelled,
and has chosen instead to effect a single
termination letter in respect of 12 separate agreements, on the
version on the applicant.
The respondent consistently denies that
the amounts due to the applicant have not been paid and states that
a proper reconciliation
of the account is called for. On a proper
reading of the applicant’s letter of cancellation, Annexure
“E6”
to the founding papers, it appears doubtful
whether it was in fact a true cancellation of the agreement. The
relevant paragraph
thereof, paragraph (5) reads as follows:
“
Your
client has failed to honour its obligations in terms of the lease
agreement concluded with our client and our client
is
entitled to terminate the agreement immediately
.”
(underlining added)
It is not unequivocally conveyed
that the applicant in fact cancels the agreement. The contentions of
the respondent may have merit.
In
Spies
v Lombard
1950 (3) SA
460
(T) at 486H, Van den Heever JA said:
“
Before
he can claim cancellation, it seems to me, appellant has to establish
that the misuse is so serious in degree as to justify
the invocation
of that remedy. The test to be applied has been propounded in the
authorities and cases by the use of different
expressions. I do not
propose to enumerate them as to my mind they all convey the same
notion.
”
In the present matter and, in my
view, the reliance by the applicant on
North
Vaal Mineral Co Ltd v Lovasz
1961 (3) SA 604
(T) is slightly misplaced.
ADDITIONAL DISPUTES OF FACT
7.2 Indeed there are other
glaring disputes of fact on other issues. These include whether or
not the applicant refused to inspect
the buses; whether or not the
buses are currently serviced and in a roadworthy condition; whether
or not the respondent has insurance
cover for the buses; whether or
not the respondent has paid the licence renewal fees for the buses;
whether or not some of the
buses are in the possession of the
applicant; and the correctness of the certificate of balance issued
by the applicant etc.
[8] In my view, all the
abovementioned disputes of fact are clearly not capable of resolution
on affidavits when regard is had
to the legal principles stated
earlier in this judgment. Neither are the disputes of fact capable
of resolution by a common-sense
approach as suggested in
Soffiantini
v Mould
1956 (4) SA
150
(E) at 154G-H. These are genuine disputes of fact. The
respondent’s allegations do not
prima
facie
amount to “
bald
or uncreditworthy denials, raises fictitious disputes of fact, are
not palpably implausible, far-fetched or so clearly untenable
that
the court is justified in rejecting them merely on papers
”,
as stated in
NDPP v
Zuma (supra)
.
CONCLUSION
[9] For all the above reasons, I
conclude that the disputed issues raised in this application ought
properly be ventilated in a
trial. In view of the importance of the
matter to both parties, as well as the amount involved and the
property of the applicant,
and in the exercise of my discretion, it
will be unfair to summarily dismiss the application. This is so in
spite of the rather
strong indications, as argued by the respondent,
that the applicant must have foreseen timeously that such disputes of
fact will
arise in application proceedings. I have in coming to the
above conclusion not considered the replying affidavit since the
respondent
contends that it was filed out of time with no
accompanying application for condonation therefor.
ORDER
[10] The following order is made:
The application is referred to trial.
The notice of motion and the founding affidavit shall stand as
simple summons and the answering affidavit as entry of appearance
to
defend.
The applicant shall file its
declaration within twenty (20) days of this order.
Thereafter the applicable
provisions of the Uniform Rules of Court are to apply.
The costs of the proceedings to
date, including the costs previously reserved, and the costs of
today, are reserved.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT N v R
POTGIETER SC
ASSISTED
BY H A VAN DER MERWE
INSTRUCTED BY SENEKAL
SIMMONDS INC
COUNSEL FOR THE RESPONDENT A P
JOUBERT SC
ASSISTED BY N ADAMS
INSTRUCTED BY TASNEEM MOOSA
ATTORNEYS
DATE OF HEARING 30/3/2011
DATE
OF JUDGMENT 12/8/2011