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[2014] ZAGPJHC 433
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Lewis Kaplan Import & Export CC T/A Kaplan Quantity v Shine Sharks (Pty) Ltd T/A Serengetti Lounge (19395/14) [2014] ZAGPJHC 433 (8 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO: 19395/14
DATE: 08 OCTOBER
2015
In
the matter between:
LEWIS
KAPLAN IMPORT
& EXPORT CC t/a
KAPLAN
QUANTITY
.......................................................................................................
APPLICANT
And
SHINE
SHARKS (PTY) LTD t/a
SERENGETTI
LOUNGE
..............................................................................................
RESPONDENT
J
U D G M E N T
WEINER
J
:
1.
The Applicant claims payment from the
respondent for goods sold and delivered during the period
28
August 2013 to 3 October 2013. The Respondent does not dispute that
goods were sold and delivered to it. It, however, states
that certain
of them were defective and that on occasion, there was short
delivery.
2.
The Respondent contends that it has a valid
defence to the Plaintiffs’ claim and a counterclaim. The
Respondent refers to
letters that were sent to the plaintiff as well
as a supplementary affidavit in which these allegations are dealt
with. The Respondent
states that, as early as May 2013, there were
defective goods delivered and, as a result, it has suffered damages.
3.
On the Respondent’s affidavit it
appears that the alleged defective goods were delivered in August or
before. There is, however,
no allegation that the goods delivered in
September and October were defective. This has not been raised by the
Respondent in either
of the two affidavits and accordingly, in my
view, the Applicant would be entitled to judgment for the amount
owing for those months.
4.
The question is whether or not the
Respondent’s counterclaim (which is in excess of what the
plaintiff claims) should be taken
into account by this Court, in
granting leave to defend, against the full amount of the Plaintiff’s
claim, including the
amount due for September and October.
5.
The Respondent’s counterclaim reads
as follows:
“
On
more than one occasion, the Applicant failed to deliver timeously and
when delivery did transpire more often than not the quantities
were
short of the amount ordered. Significantly of material concern was
the defective nature of the particular batch of leather
that was
delivered during or about August 2013, the August batch. The
Respondent used the August batch to supply lounge suites
to one of
the Respondent’s largest customers, Union Furniture Outlets
(“UFO”). The leather cracked and the colour
came off.
As a result UFO was inundated with complaints and gave rise to a
series of refunds to UFO customers and returns.
The Respondent
states this has severely impaired the Respondent’s relationship
with UFO and the Respondent incurred significant
expenses in having
to replace the defective lounge suites. It suffered a subsequent loss
of business and continues to suffer losses
as a result of the August
batch which was defective.”
6.
The respondent then sets out its damages in
an amount of
R599 300.00 which it calculates as follows:
1)
R65 000,00 in relation to additional
costs incurred by the respondent having to procure replacement
leather as a result of
the applicant’s non-delivery.
2)
R216 700.00 in relation to costs
incurred by the respondent in replacing defective lounge suites, net
of any salvage costs
received by the Respondent, for defective lounge
suites.
3)
R317 600.00 in lost profits as a
result of a reduction in orders from UFO following the damage to the
respondent’s reputation
with UFO as a result of the defective
August batch.
7.
The respondent contends that this is
sufficient for the court to grant leave to defend and it does not
have to set out anything
more.
8.
In
my view, this flies in the face of authorities dealing with defences
and counterclaims that go back to as early as the case of
Breitenbach
v Fiat S.A. (EDMS) BPK
[1]
.
This was referred to and confirmed in
Soil
Fumigation Services Lowveld CC v Chemfit Technical Products
(Pty) Ltd
[2]
where Brand JA said the following:
“
The
defendant’s contention in the Court
a
quo
was that its unliquidated counterclaim for damages constituted a
bona
fide
defence,
as contemplated in Rule 32(3)(
b
)
of the Uniform Rules of Court, to the whole of plaintiff’s
claim, despite the fact that the plaintiff’s claim was
for more
than double the amount of the counterclaim.” The Court then
said that the
court
a quo’s
interpretation of the remarks of Corbett J in the
Stassen
v Stoffberg
[3]
case were incorrect.
Brand
JA
[4]
went on to state:
“
I
do not agree that Corbett J must be understood to have said that
where a counterclaim raised by the defendant is for less than
the
plaintiff’s claim, the defendant can establish his
bona
fides
only by paying the balance into
Court. Such sentiment would be in conflict with the dictates of logic
and ordinary human experience.
After all, a dishonest defendant is
even more likely to inflate his unliquidated counterclaim to the
extent where it exceeds the
amount of the plaintiff’s claim.”
In relation to the detail to be contained in the counterclaim, Brand
JA held:
“
With
reference to the second part of the counterclaim, which is for lost
sales commission, the opposing affidavit is so devoid of
any factual
foundation that it can hardly be said to comply with the requirements
of Rule 32(3)(
b
).”
[5]
Brand JA dealt with the third part of the counterclaim which was for
alleged loss of profit. He found that this claim too
was devoid
of any factual foundation and thus it was impossible to determine
whether it was
bona
fide
or otherwise.
[6]
9.
Brand
JA referred to Colman J’s exposition in
Breitenbach
v Fiat
[7]
in saying that the Defendant “failed ‘to disclose fully
the nature and the grounds of [its counterclaim] and the material
facts relied upon therefor as required by Rule 32(3)(
b
).”
[8]
Brand JA concludes:
“
What
remains to be considered is whether, in these circumstances, the
court
a
quo
should have exercised its overriding discretion to refuse summary
judgment in the defendant’s favour. I think not. For the
reasons I have stated above, a Court should be less inclined to
exercise its discretion in favour of a defendant in a matter such
as
this, where the answer to the plaintiff’s claim is raised in
the form of a counterclaim as opposed to a defence to the
plaintiff’s
claim in the form of a plea. Moreover, the Court can only exercise
its discretion in the defendant’s favour
on the basis of the
material placed before it and not on the basis of conjecture or
speculation.”
[9]
10.
In the present case the material placed
before this Court amounts to the following:
1)
The Respondent has not raised a defence to
the claim for the goods that were delivered in September and October.
2)
The only defence is in the form of the
counterclaim.
3)
If one has regard to the facts giving rise
to the counterclaim, they do not fall within the definition of a full
disclosure of the
nature and grounds of the claim and the material
facts relied upon therefor.
11.
It seems to me that it would have been a
relatively simple task for the Respondent in its counterclaim (after
some time has passed
since August 2013) to set out precisely how each
of these costs and damages has been calculated. The figures are not
based on any
documentation, which must exist. Invoices, credit notes
relating to replacement goods and returned goods must be in the
Defendant’s
possession to corroborate the claims. But for
whatever reason, it chose not to do so. Whether this is because
it did not
have the facts at hand or because these figures cannot be
substantiated, this Court cannot determine as there is nothing before
it. It might be that there are several counterclaims which the
Respondent may have in relation to certain of the goods. It will
have
the opportunity to raise the counterclaim in the trial, as the
Applicant has not sought judgment on the full amount but only
the
amount owing for the September and October deliveries.
12.
In relation to costs the Applicant has been
substantially successful and is therefore entitled to same.
13.
Summary judgment will accordingly be
granted against the Respondent for:-
1.
Payment of R223 141,11.
2.Interest
thereon at the rate of 15,5% per annum from
3 November 2013 to
date of payment.
3.
Costs of suit.
4.
In respect of the balance of the amount
claimed, leave to defend is granted.
WEINER
J
APPEARANCES:
For
Applicant: M.D Silver
Instructed
By: Moss Cohen & Partners
For
Respondent: G.D Wickins
Instructed
By: Norton Rose South Africa
Date
of Hearing: 13 November 2014
Date
of Judgment: 08 October 2014
[1]
1976
(2) SA 226
[T]
[2]
2004
(6) SA 29
(SCA) at [2]
[3]
1973
(3) SA 725
(C)
[4]
Soil
Fumigation Supra at [8]
[5]
Soil
Fumigation Supra at [22]
[6]
Ibid
at [23]
[7]
Supra
at
[25]
[8]
Ibid
at [24]
[9]
Ibid
at [25]