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[2013] ZAGPJHC 288
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Joshek Foto Enterprises t/a Kameraz v Blueprint Strategic Marketing Communications CC (25340/2013) [2013] ZAGPJHC 288 (8 November 2013)
REPORTABLE
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO: 25340/2013
08 November 2013
In the matter between:
JOSHEK FOTO
ENTERPRISES t/a KAMERAZ
...................................
Plaintiff
and
BLUEPRINT STRATEGIC
MARKETING
COMMUNICATIONS
CC
..................................................................
Defendant
J U D G M E N T
MASHILE, J:
[1]
This is an application for summary judgment by which the Applicant
seeks payment of an amount of R312 220.00
[2]
The background facts are that on or about 27 November 2012 to 11
February 2013 the parties concluded a verbal agreement for
the sale
and delivery of goods at the special instance and request of the
Respondent.
[3]
In compliance with the agreement the Applicant delivered goods to the
value of R312 220.00 to the Respondent. It rendered three
discrete
invoices amounting in all to R312 220.00.
[4]
Formal demand notwithstanding the Respondent failed to make payment
of the amount of R312 220.00 and the Applicant issued and
served
summons upon the Respondent claiming the amount.
[5]
The Respondent reacted to the summons by making an offer to settle
the amount in three instalments and made the first payment
of R100
000.00. The Applicant responded thereto as follows:
“
Good
Morning Brendan
Thank you very much
for you letter and proof of first payment. We herewith wish to advise
that it is our instruction to accept your
proposal for 3 payments,
for the capital amount. Our client however is only prepared to accept
same if legal costs and interest
in inclusive thereof.
Please confirm.
Kind
Regards
”
[6]
The Respondent did not reply to the letter but having paid the first
amount of the three instalments, R100 000.00, subsequently
served and
filed its Notice of Intention to Defend the action.
[7]
The Applicant launched an application for summary judgment. In
addition to the affidavit in support of summary judgment containing
the standard averments, the Applicant inserted the following
paragraphs which read:
“
3.
I hereby advice the above Honourable court that on 19 July 2013,
after the Defendant/Respondent received the Summons, they paid
the
amount of R100 000.00 towards settlement of the amount claimed in the
Summons. Attached herewith and marked as Annexure A is
a copy of such
proof of payment received from the Defendant/Respondent.
4.
I furthermore confirm that I accepted the settlement offer made by
the Respondent/Defendant on 22 July 2013, in which I will
accept the
capital amount in three instalments, and the interest and legal costs
in settlement. I also confirmed receipt of payment
in the amount of
R100 000.00. Attached herewith and marked as Annexure “B”
is a copy of the letter accepting payment
5.
I therefore confirm that the amount outstanding and claimed as per
the Summary judgment is now only R212 220.00.
”
[8]
The Respondent opposed the summary judgment application and the
reasons for its opposition are firstly, that the Applicant’s
initial cause of action was based on goods sold and delivered at the
special instance and request of the Respondent. The Applicant’s
acceptance of the offer of settlement meant that the first cause of
action was no longer available to it. The Respondent argues
that the
Applicant was obliged to sue in terms of the settlement agreement.
[9]
Secondly, the Applicant cited the Respondent as a close corporation
instead of a company albeit that all other information such
as
address, contact particulars, registration number and other
information was correct and proved that the close corporation was
in
fact the company.
[10]
These two defences, which the Respondent believed to be bona fide,
constituted the basis of what the Respondent maintained
would render
the claim of the Applicant against it assailable.
[11]
With regard to the defence that the wrong party has been sued, the
Respondent conceded that it was technical and for that reason
it was
prepared to withdraw it. The court having been satisfied that it was
indeed a cosmetic typing error, it allowed an amendment.
Close
corporation was as a result substituted for proprietary limited
[12]
It is now convenient to turn squarely to the Respondent’s main
defence being that the claim of the Applicant became settled
and the
Applicant’s claim ought to have been based thereon.
[13]
The Respondent’s offer was prompted by the claim of the
Applicant as captured in the summons. It is plain that the Applicant
also accepted the offer directly induced by the contents of its
summons. Being for goods sold and delivered at the special instance
and request of the Respondent.
[14]
At the time when the offer was made an action for a claim based on
goods sold and delivered had been instituted. It follows
that the
payment of R100 000.00 could not have been made in respect of the
so-called settlement agreement. It was instead, part
of the three
instalments proposed by the Respondent.
[15]
The fact that the Applicant chose to introduce three paragraphs
explaining the discrepancy of the amount in the summons and
the one
for which he was praying in the summary judgment application is of no
consequence.
[16]
In fact, it happens all the time that a party would come to court
opposing a summary judgment having partly liquidated part
of the
debt. In that event the Applicant would normally acknowledge receipt
of payment and accordingly pray for a lesser amount
at the time of
the hearing.
[17]
I am still to hear a party raising as a defence the fact that it has
made part payment and that in consequence the cause of
action has
changed. That argument is untenable and devoid of any merit and
stands to be rejected.
[18]
In the premises the application for summary judgment succeeds and I
make the following order:
1.
Summary judgment is granted.
2.
The letters CC in the name of the Respondent are removed and
substituted therefor with (Pty) Ltd; and
3.
Respondent is to pay the costs.
B
MASHILE
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
Date
of Hearing: 25/10/2023
Date
of Judgment: 08/11/2013
Counsel
for Applicant: Adv. Robert Scholtz
Instructed
by: Meijers Attorneys
Counsel
For Respondent: Adv. A. Scott
Instructed
by: De Kooker Attorneys