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[2018] ZAGPJHC 37
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F1 Steel CC v Tbhokisi Lelsimibi Steel Boxes and Tanks (Pty) Ltd (2017/40082) [2018] ZAGPJHC 37 (7 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
DATE:
7
th
MARCH 2018
CASE
NO
: 2017/40082
In
the matter between:
F1
STEEL
CC
Plaintiff
and
TBHOKISI
LELSIMIBI STEEL BOXES & TANKS (PTY) LTD
Defendant
JUDGMENT
ADAMS
J
:
[1].
This is an application by the plaintiff for summary judgment
against the defendant. The plaintiff’s claim against the
defendant
is for an amount of R1 425 828.80, being in
respect services rendered and goods supplied at the special instance
and
request of the defendant during the period from the January 2017
to June 2017. The amount claimed was based on the plaintiff’s
usual charges for the work done and the materials supplied in
connection with the services rendered.
[2].
In its affidavit resisting summary judgment, the defendant
does not deny that services were rendered and goods supplied at its
(the
defendant’s) special instance and request. Even more
telling is the fact that the defendant does not deny that the amounts
claimed by the plaintiff, as being the balance due on account, are
due and payable. What the defendant does say in somewhat equivocal
and vague terms is that ‘… the plaintiff did not provide
proof of the amount it claims to be owing’. In addition,
the
defendant in a one liner claims that the plaintiff owes it (the
defendant) the money owing by the plaintiff to the defendant
as ‘set
out in the statement attached to the resisting affidavit’. This
amount of R1 204 488.59, so it is
contended for by the
defendant, should be set off against any sums which may be owed by
the defendant to the plaintiff. This is
the sum total of the defences
raised by the defendant in its affidavit resisting summary judgment.
[3].
The attachment to the defendant’s
affidavit resisting summary judgment is a list, styled ‘Statement’,
dated the
31
st
December 2017, of tax invoices individually dated from the 1
st
April 2016 to the 1
st
of October 2017. It is instructive to note that the statement is
dated the 31
st
December 2017, which post – dates the date on which the summons
was issued and served.
This, in my view, constitutes material
to be considered by me in relation to the requirement of
bona
fides.
Each row of the list contained the date
of the invoice, the reference number, a description as ‘Tax
Invoice – Shot Blasting
Grid’ and the amount of that
specific invoice. No further details are given in relation to these
invoices and what they relate
to.
[4].
The defendant also raised a point
in
limine
to the effect that the defendant
before court, which is a private company, has been incorrectly cited
as a Close Corporation. This
compelled the plaintiff to apply, at the
commencement of the hearing of the application for summary judgment,
for leave to amend
the summons and the particulars of claim to
correct the citation of the defendant. Factually, the defendant
before court was a
Close Corporation until the 15
th
March 2017 when it was formally converted to a private company. The
defendant, as per the amended citation, is the correct defendant
and
the entity against which the plaintiff’s claim is directed. The
only question is whether the plaintiff is entitled to
summary
judgment in view of this minor discrepancy, which can best be
described as a misnomer.
[5].
It was clear from the opposing affidavit that the defendant is the
entity cited as per the intended amendment. The defendant
did not
object to the proposed amendment, and same was granted at the
commencement of the hearing of the application for summary
judgment.
Mr Britz, Counsel for the plaintiff, referred me to
Standard Bank
of SA Ltd v Naude and Another
,
2009 (4) SA 669
(ECP), in support
of his contention that the court could treat this as being merely an
error or oversight, and that the intention
was clearly to refer to
the defendant (the correct one and the one presently before court)
and to seek judgment against it. In
this regard, he also relied upon
the statement by Corbett JA in
Maharaj v Barclays National Bank,
1976 (1) SA 418
(A) at 423H that the court looks at the matter,
at the end of the day, on all the documents that are properly before
it.
[6].
Looking at all the documents
in casu
, notably the particulars
of plaintiff’s claim and the defendant’s affidavit
resisting summary judgment, it is abundantly
clear that the defendant
is
Tbhokisi Lelsimbi Steel Boxes and Tanks (Pty) Limited
. As I
understood the submission, it is that I should treat the reference in
the application and the affidavit in support of the
application for
summary judgment, when referring to a Close Corporation, as being
obviously erroneous and intended to refer to
the private company
defendant. I was urged to do so on the basis that the defendant
previously traded as and formerly was a Close
Corporation. I find
myself in agreement with these submissions on behalf of the
plaintiff. The point
in limine
is of a highly technical nature
and, in my view, the incorrect citation of the defendant in no way
detracts from the claim being
directed against the liable party. One
can, in my judgment, simply assume that because the defendant was
previously a CC, it must
mean that summary judgment is being sought
against it. Therefore, the aforegoing entitles me to read the
application for summary
judgment as saying that summary judgment is
being applied for against the defendant.
[7].
The situation that arose in the
Naude
matter is no different
from that in the present case. There the claim lay against two
defendants and the application was brought
against both of them. The
affidavit verified the cause of action, the allegations in the
summons and the amount owing in respect
of both defendants. However,
the statement of the deponent's opinion was that 'the respondent
have' no
bona fide
defence, and that notice of intention to
defend had been delivered solely for the purposes of delay. In my
view, the fact that
the entire application related to both
respondents, and the fact that the singular reference to 'respondent'
was followed by the
plural verb 'have', clearly indicated that this
was nothing more than an inadvertent typographical error, and that
appears to have
been the approach adopted by the court. In other
words, the papers, properly construed showed that the application was
being brought
against both defendants, and the single reference to
'respondent' did not alter this.
[8].
A more pertinent decision is that of
Standard Bank of South Africa
Ltd v Roestof
,
2004 (2) SA 492
(W), where Blieden J dealt with an
affidavit couched in the plural in a case where there was only one
defendant. The learned judge
held that a reading of the summons and
mortgage bond, together with the affidavit (he did not mention the
notice of motion in the
application for summary judgment), left no
doubt that what was being verified was a cause of action against the
defendant alone.
Of course, if that was correct, as a matter of the
proper interpretation of the documents, then the resulting conclusion
would
necessarily be that the affidavit was not defective because it
correctly verified the facts on which the cause of action against
the
only defendant was based.
[9].
As I indicated these cases are comparable to the present one, where
there can be little doubt that the intention was to seek
summary
judgment against only the defendant before court. In those cases the
court, as a matter of construction of the documents,
held that the
plural references were inadvertent errors and that properly construed
in the light of all the documents, they should
be construed as
singular. It is easy to construe plural references as being mere
error and intending the singular where the only
possible claim is
against a single defendant. That is also the situation in the present
case. Having regard to the documents before
the court, it is easy to
construe the reference to the CC as a reference to the defendant. It
can safely be said that in this matter
the difficulty is due to the
fact that the defendant had recently been converted from a CC to a
private company. That can be said
with a measure of certainty.
[10]. I
am further strengthened in my aforesaid view by what was said in the
Roestof
matter. Blieden J had this to say at 496F – H:
'A
reading of Rule 32 as a whole makes it plain that, once there is an
affidavit by the plaintiff, or someone acting on its behalf,
who can
swear positively to the facts verifying the cause of action and the
amount, if any, claimed, stating that in his opinion
there is no
bona
fide
defence to the action and that intention to defend was
delivered solely for the purposes of delay, the plaintiff is entitled
to
summary judgment unless the defendant has complied in some way or
other with the requirements of Rule 32(3). If the papers are not
technically correct due to some obvious and manifest error which
causes no prejudice to the defendant, it is difficult to justify
an
approach that refuses the application, especially in a case such as
the present one where a reading of the defendant's affidavit
opposing
summary judgment makes it clear beyond doubt that he knows and
appreciates the plaintiff's case against him.'
[11].
I find myself in agreement with this approach. I am of the view that
this passage is a correct statement of the position under
rule 32(2).
[12].
There is therefore no merit in the defendant’s point
in
limine
.
[13].
Uniform Rule of Court 32(3)(b) requires the defendant to satisfy the
court by affidavit that they have a bona fide defence
to the
plaintiff’s claim. ‘
Satisfy’
does not mean
‘
prove’
. What the rule requires is that the
defendant set out in its affidavit facts which, if proved at the
trial, will constitute an
answer to the plaintiff’s claim. If
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff
in his summons are disputed or new facts are
alleged constituting a defence, the court does not attempt to decide
these issues
or to determine whether or not there is a balance of
probabilities in favour of the one party or the other.
[14].
While it is not incumbent upon the defendant to formulate their
opposition to the summary judgment application with the precision
that would be required in a plea, none the less when they advance
their contentions in resistance to the plaintiff’s claim
they
must do so with a sufficient degree of clarity to enable the court to
ascertain whether they have deposed to a defence which,
if proved at
the trial, would constitute a good defence to the action. Affidavits
in summary judgment proceedings are customarily
treated with a
certain degree of indulgence, and even a tersely stated defence may
be a sufficient indication of a
bona fide
defence for the
purpose of the rule. If, however, 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
.
[15].
If the affidavit lacks particularity regarding the material facts
relied upon and falls short of the requirements of the subrule,
the
court may not be able to assess the defendant’s
bona fides
but it may still, in an appropriate case, exercise its discretion in
favour of the defendant if there is doubt whether the plaintiff’s
case is unanswerable.
[16].
All that the court enquires, in deciding whether the defendants have
set out a
bona fide
defence, is: (a) whether the defendants
have disclosed the nature and grounds of their defence; and (b)
whether on the facts so
disclosed the defendants appear to have, as
to either the whole or part of the claim, a defence which is
bona
fide
and good in law.
[17].
The defendant is not at this stage required to persuade the court of
the correctness of the facts stated by it or, where the
facts are
disputed, that there is a preponderance of probabilities in their
favour, nor does the court at this stage endeavour
to weigh or decide
disputed factual issues or to determine whether or not there is a
balance of probabilities in favour of the
one party or another. The
court merely considers whether the facts alleged by the defendants
constitute a good defence in law and
whether that defence appears to
be
bona fide
. In order to enable the court to do this, the
court must be apprised of the facts upon which the defendants rely
with sufficient
particularity and completeness as to be able to hold
that if these statements of fact are found at the trial to be
correct, judgment
should be given for the defendant.
[18].
In terms of subrule (5): ‘
The court may enter summary
judgment.’
The word ‘
may’
in this
subrule confers a discretion on the court, so that even if the
defendant’s affidavit does not measure up fully to
the
requirements of subrule (3)(b), the court may nevertheless refuse to
grant summary judgment if it thinks fit. The discretion,
clearly, is
not to be exercised capriciously, so as to deprive a plaintiff of
summary judgment when he ought to have that relief.
[19].
Applying these principles
in
casu
, I am satisfied that in its
resisting affidavit the defendant has not demonstrated a
bona
fide
defence on the merits of the
plaintiff’s claim.
[20].
Rule 32(3)(b) requires that the defendant's
affidavit 'shall disclose fully the nature and grounds of the defence
and the material
facts relied on therefor'. This means that the
defendant is at least required, as per
Traut
v Du Toit
,
1966 (1) SA 69
(O) at 70 –
71:
‘
om
die Hof breedvoerig in te lig omtrent sy verweer, en die feite waarop
dit berus ten minste so volledig uiteen te sit dat die
Hof 'n oordeel
kan vel of 'n
bona
fide
verweer teen die eis by die verhoor uitgemaak kan word’.
[21].
The Court cannot pay regard to general and
vague allegations which do not contain specific facts on which the
purported defence
is based. Cf
Central
News Agency Ltd v Cilliers
,
1971 (4) SA
351
(NC) at 353. See too
Maharaj v
Barclays National Bank Ltd
,
1976 (1) SA
418
(A) at 426.
[22].
For starters, the first ‘defence’
of the defendant to the effect that the plaintiff has failed to
furnish it with the
relevant invoices is not a defence. Not only does
the defendant's affidavit not set out any material facts on which
this defence
can, at least
prima facie
,
be sustained but it alleges no defence to the individual amounts
claimed. The defendant does not suggest any basis as to why it
is not
liable for the balance of the amount due by it on account. I am of
the view that the defendant’s ‘defence’
that it is
entitled to withhold payment because it has supposedly not been
furnished with copies of the orders and delivery notes
relating to
the individual invoices, can and should be rejected out of hand. The
point is that the defendant does not dispute the
fact that the
plaintiff had rendered the services as categorically alleged by the
plaintiff. In any event, I find it hard to believe
that the defendant
would have been paying up to August 2017 on account of his
indebtedness to plaintiff, if it honestly believed
that it was not
liable on the invoices rendered.
[23].
As far as the defendant’s alleged
counterclaim against the plaintiff is concerned, this contention is
not supported by any
of the necessary factual details. Nowhere in the
affidavit is there any suggestion that this 'defence' relieved the
defendant of
the obligation to pay to the plaintiff the amounts due
in respect of the individual invoices. The defendant has limited
itself
to an assertion, unsupported by any material facts, that it
has a counterclaim made up of a list of invoices, but has not
suggested
any basis for holding that this constitutes a legal defence
to the plaintiff’s claim. I have also alluded
supra
to my reservations regarding the
bona
fides
of this counterclaim if regard is
had to the fact that the list was compiled on a date subsequent to
the date on which the summons
was served.
[24].
In my view therefore the contention that
the plaintiff did not provide proof of the amount claimed cannot
constitute compliance
with the first defendant's obligation to
satisfy the Court that it has a
bona
fide
defence to the claim now before
me. The second defence on the merits relates to the defendant’s
alleged counterclaim, which,
as I have indicated is sorely lacking in
detail.
[25].
The plaintiff is therefore entitled to
summary judgment.
Order
Accordingly,
I make the following order:
Summary
Judgment is granted in favour of the plaintiff against the defendant,
as follows for:
1.
Payment of the sum of R1 145 828.80.
2.
Payment of interest on the said amount of
R1 145 828.80 at the rate of 10.25% per annum from the 1
st
September 2017 to date of final payment.
3.
Payment of plaintiff’s cost of suit.
_________________________________
L ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
1
st
March 2018
JUDGMENT DATE:
FOR
THE PLAINTIFF:
7
th
March 2018
Adv
W S Britz
INSTRUCTED
BY:
Malherbe
Rigg & Ranwell Inc
FOR
THE DEFENDANT:
Adv
E Coleman
INSTRUCTED
BY:
Mouton
& Williams Attorneys