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[2014] ZAGPJHC 32
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Esofranki Civils (Pty) Ltd v Eyethu Translodge and Plant Hire (Pty) Ltd (45335/13) [2014] ZAGPJHC 32 (26 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 45335/13
In
the matter between
ESOFRANKI
CIVILS
(PTY)LTD
APPLICANT
And
EYETHU
TRANSLODGE AND PLANT HIRE (PTY)
LTD
RESPONDENT
JUDGMENT
Windell
J:
INTRODUCTION
[1]
This is an application for summary judgment.
[2]
The applicant and the respondent entered into a Sub Contract
Agreement on 14 February 2012. The respondent was the contractor
on
behalf of the Madibeng Local Municipality for the construction of the
Jericho road to Makgabetlwane Road Bus Route. The respondent
appointed the applicant as its sub-contractor in respect of the
construction of a 60 m bridge on Jericho road. The contract price
was
R 6 558 488.36
[2]
In terms of the contract progress payments would be made monthly in
respect of work done or as agreed on the schedule of deviation.
The
amount of the progress payment would be calculated by reference to
measurement of the work done. Tax invoices for progress
payments were
to be submitted within three days of the date of measurement and
payment of work accepted as completed would be made
within seven days
of the date of the defendant being paid by the Madibeng Local
Municipality or within 30 days of the date of the
tax invoice if
suitable discount was accepted by the defendant.
[3]
The applicant alleged in its particulars of claim that it complied
with its obligations in terms of the agreement and that it
had
submitted the tax invoices to the respondent. The respondent was
therefore indebted to the applicant in an amount of R 3 730 113.68.
The applicant further alleged that the respondent was duly paid for
the work by the Madibeng Municipality but failed to make payment
to
the applicant.
[4]
The applicant stated in par 10 of the particulars of claim that the
respondent had made payments to the applicant by reason
of the
operation of set-off. The applicant attached a document to the
summons reflecting the payments made by the respondent and
the
outstanding amount. The respondent is
therefore
indebted to the applicant in an amount of R 2 314 673.36.
[5]
The respondent opposed the application for summary judgment. In the
answering affidavit the respondent submitted the following:
Par
8. During the period 25 October 2012 up to 20 July 2013 the
respondent made various payments to the applicant amounting to
R
2 087 422.32 for work done.
Par
9. The respondent admits that it encountered financial difficulties
during the course of the contract period resulting in
non-payment of
the other invoices due to the applicant.
Par
11. During September 2012 the parties, in order to satisfy the
outstanding invoices, agreed orally that the respondent leases
its
construction vehicles to the applicant on another project at Kusile
Power Station.
Par
12. The respondent submitted that the implied and/or tacit terms of
the oral agreement were:
v
The
respondent will issue invoices for the work done to the applicant as
payment due.
v
The
applicant will then deduct the amount against the principle debt
owed.
v
The
applicant’s foreman on site would sign the time and the work
sheets pertaining to the operation of the construction vehicles
and
would provide the respondent with the time sheets.
v
According
to the respondent’s calculations the time sheets completed by
the applicant’s foreman and the hours of work
of the
construction vehicles satisfied the debt due to the applicant.
[6]
Counsel for respondent submitted that the amount claimed in the
summons is not liquidated and the alleged debt is not based
on a
liquid document. A liquidated amount is an amount in which the
monetary value has been ascertained or which is susceptible
to prompt
ascertainment. The annexure attached to the summons wherein the
amounts owed to the applicant were set out, was never
disputed by the
respondent. The respondent agreed that there was a set-off agreement
and stated in its opposing affidavit that
the amount claimed had been
extinguished by way of this set- off agreement. In these
circumstances I find that the amount claimed
is a matter of simple
calculation. I am satisfied that the debt is a liquidated amount.
[7]Counsel
for respondent also submitted that the applicant alleged a set-off in
its particulars of claim but failed to set out
the particulars of the
agreement. It therefore does not comply with Rule 32 as the
particulars of claim lack sufficient particularity
to sustain the
applicant’s claim and are excipiable or irregular. It is common
cause that there was a set off agreement between
the parties. The set
off agreement mentioned in the particulars of claim reduced the
amount owed to the plaintiff. The applicant
provided the dates on
which these amounts were set-off against the debt. It also provided a
schedule reflecting the exact amounts
that were deducted from the
debt. I find that the summons disclosed a cause of action and is not
excipiable.
[8]
In an application for summary judgment the respondents must set out
the nature and grounds of their defence to enable the Court
to
establish whether the defence or counterclaim is bona fide and good
in law.
[9]
In
Maharaj
v Barclays National Bank Ltd 1976(1) SA 418 (A)
on page 426 Corbett JA noted the following:
“
It
connotes, in my view, that, while the defendant need not deal
exhaustively with the facts and the evidence relied upon to
substantiate
them, he must at least disclose his defence and the
material facts upon which it is based with sufficient particularity
and completeness
to enable the Court to decide whether the affidavit
discloses a bona fide defence.”
[10]
In Erasmus “Superior Court Practise Service” Edition 39
on page B1-222 the learned author summarizes the position:
“
While
it is not incumbent upon the defendant in formulating his opposition
to the summary judgement application to do so with the
precision that
would be required in a plea, none the less when he advances his
contentions in resistance to the plaintiff’s
claim he must do
so with a sufficient degree of clarity to enable the court to
ascertain whether he has deposed to a defence which,
if proved at the
trial, would constitute a good defence to the action.
[11]
In
Breytenbach
v Fiat SA (Edms) Bpk 1976(2) SA 226 T at 228
Colman
J found the following:
“
What
I would add, however, is that if the defence is averred in a manner
which appears in all the circumstances to be needlessly
bald, vague
or sketchy, that will constitute material for the Court to consider
in relation to the requirement of
bona
fides
.”
[12]
The respondents must comply with the requirements of the sub-rule and
set out the “nature” and the “grounds”
of
their defence. These two words are not synonyms or alternatives.
Facts must be placed before the court to give effect to the
word”grounds” in the sub-rule. This must be done with
sufficient particularity and completeness as to be able to hold
that
if these statements of facts are found at the trial to be correct,
judgement should be given for the defendant. See
Shepstone
v Shepstone
1974 (2) SA 462
(N
).
[13]
It is trite that a debtor relying upon payment does not only carry
the onus of proving payment but also that the payment relied
upon
extinguished the debt relied upon by the plaintiff. The debtor must
accordingly prove that he paid the debt in question and
not simply
that a payment was made to the creditor. See
Brink
v Oberholzer 1966(2) PH F104.
[14]
The respondent alleged that according to its calculations using the
time sheets completed by the applicant’s foreman
and the hours
of work of the construction vehicles, that the debt due to the
applicant was satisfied. The respondents did not provide
any details
for the calculations, the time sheets or the hours of work of the
construction vehicles even though the documents are
in its
possession. The allegations are extremely vague and sketchy
[15]
Taken into consideration all these circumstances I am convinced that
the respondent did not disclose a bona fide defence. I
cannot
exercise my discretion in favour of the respondent.
[16]
In the result the following order is made:
Summary
judgment is granted against respondent for an amount of R
2 314 673.36
Interest
at 15,5% per annum from date of service of summons to date of
payment.
Cost
of the suit.
________________________
L.
Windell
Judge
of the South Gauteng High Court
Counsel
for applicant
: Adv. A. Jacobs
Counsel
for respondent
:
Adv. S Kabelo
Date
of hearing
:
20 February 2014
Date
of judgment
:
26 February 2014