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[2019] ZAGPJHC 302
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Ferrero Inthemba RSA Proprietary Limited v Hlubi National Proprietary Limited (1949/2019) [2019] ZAGPJHC 302 (16 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 1949/2019
In
the matter between:
FERRERO
INTHEMBA RSA PROPERIETARY
LIMITED APPLICANT
AND
HLUBI
NATIONAL PROPRIETARY
LIMITED RESPONDENT
JUDGMENT
TWALA
J
[1]
In this opposed summary judgment application, the applicant seeks an
order against the respondent for payment of the sum of
R3 325 338.75
together with interest at the rate of 12% per annum, alternatively, a
rate 2% above the prime bank
landing
lending
rate as determined by the applicant’s bankers, from 21
st
January 2019 to the date of final payment and the costs of suit
including the costs of counsel.
[2]
At the commencement of the hearing, the applicant raised the issue
that the respondent is not properly before Court since it
failed to
file an application for condonation for the late filing of its
affidavit resisting summary judgment as directed by the
Judge in the
previous hearing. A director of the respondent appeared personally on
the previous occasion and was directed by the
Judge to secure the
services of counsel and bring an application for condonation for the
late filing of the affidavit resisting
summary judgment the director
intended to hand up on that day.
[3]
Counsel for the respondent contended that the respondent was not
aware of the directive to file an application for condonation
and
therefore applied to Court to hand and move the application. In
the interest of justice, the Court allowed the condonation
application.
[4]
It is common cause that on the 19
th
of January 2017 the parties concluded an agreement whereby the
respondent became a distributer of the products of the applicant.
It
is not in dispute that it was a term of the agreement that the
responded will have a credit facility with the applicant for
the
products the applicant sell and deliver to the respondent which shall
be due and payable by the respondent within 30 days from
the date of
the relevant statement or invoice for goods sold issued by the
applicant. It is further not in dispute that products
were sold and
delivered by the applicant to the respondent and the respondent has
made payment on some invoices.
[5]
It is contended by counsel for the respondent that the invoices
attached to the particulars of claim to the summons do not correctly
reflect the agreed price of the products as agreed between the
parties and the respondent has fully paid the applicant in accordance
with the agreed pricing between the parties. Further, that the
deponent to the affidavit supporting the summary judgment application
does not have personal knowledge of the material facts of the matter
as he has no knowledge of the agreed terms between the parties
in
relation to pricing. Since the invoices on which the claim is based
are incorrect, so it is contended, the applicant’s
claim is
therefore excipiable.
[6]
Counsel for the applicant submitted that, according the agreement
between the parties there was no fixing of the price for the
products. The agreement provided that a product price and pack are
subject to change without notice and will be those ruling at
date on
which the order is received and confirmed
by the
respondent. Where the respondent was entitled to discount or the
goods or product was damaged on delivery and returned to the
applicant, a proper credit note was passed for such goods against the
relevant invoice. The respondent made a payment of R840 000
after receipt of the summons which amount was credited to the account
of the respondent leaving a balance in the sum R2 485 338.75.
[7]
It is contended further by counsel for the applicant that Invoice
464464 dated the 27
th
of November 2017 list goods at a costs price of R689.59 which were
discounted by 25/87% resulting in a cost price of R511.19 (excluding
VAT). It is noted on the same invoice that of the 3240 boxes
invoiced, 42 were return to the applicant since they were wet or
damaged. On the 1
st
of December 2017 the applicant passed credit note number CRT 276460
(Inv: 464464) in the amount of R24 475.77.
[8]
It is trite that for a defendant to successfully resist an
application for summary judgment, it must satisfy the Court that
it
has a bona fide defence and must disclose fully the nature of the
grounds of the defence and the material facts relied upon
for such
defence.
[9]
In the case of
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA)
,
the Court stated the following:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out. In the Maharaj
case at 425 G-426E,
Corbett JA, was keen to ensure first, an examination of whether
t
here
has been sufficient disclosure by the defendant of the nature and
grounds of his defence and the facts upon which it is founded.
The
second consideration is that the defence so disclosed must be both
bona fide and good in law. A court which is satisfied that
this
threshold has been crossed is then bound to refuse summary judgment.
Corbett JA also warned against requiring of the defendant
the
precision apposite to pleadings. However, the learned judge was
equally astute to ensure that recalcitrant debtors pay what
is due to
a creditor.”
[10]
I agree with counsel for the applicant that the respondent never
raised an issue about pricing at any stage except in these
proceeding. In the e-mail correspondence of the 8
th
of September 2017, the prices were confirmed by both parties as the
correct price agreed upon. Again, on the 12
th
of June 2018 the e-mail correspondence confirms the price charged on
invoices as correct. There is no merit in the argument that
tax
invoices do not reflect the agreed price and that the discounts that
the respondent was entitled to were not factored in the
invoices and
the interest charged is disproportionate as it is based on incorrect
figures. I am of the view that it is just a rus
e
and not a bona fide defence and is intended to delay the applicant
from obtaining the relief it is entitle to.
[11]
I have considered the annexure A to the applicant’s heads of
argument although the respondent enjoyed me not to. I am
in agreement
tha
t
a party is not entitled to bring additional documents in summary
judgment applications. However, it is not that the applicant brought
a new matter in reply but was responding to the defence raised by the
respondent in its reply which it could not have foreseen
or
anticipated. The annexure to the heads is a spread-sheet of the
invoices and credit notes to show which invoices were credited
and
for how much. I concluded that this was valuable information to
assist the Court to come at the correct decision.
[12]
In casu, I hold the view that the respondent has failed to
demonstrate that it has a bona fide defence which is good in law.
I
am the respectful view therefore that summary judgment should succeed
in the amount claimed in the summons minus the sum of R840 000
which both parties agree that it was paid after the summons were
issued.
[13]
In the circumstances, I make the following order:
1.
The
respondent is to pay the applicant the amount of R2 485 338.75;
2.
The
respondent is to pay interest to the applicant interest at the rate
of 12% per annum, alternatively, a rate 2% above the prime
bank
lending rate as determined by the applicant’s bankers, on the
amount of R2 485 338.75 from 21 January 2019
to the date of
final payment;
3.
The
respondent is to pay the costs of suit including the costs of
counsel.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 6
th
August 2019
Date
of Judgment: 16
th
August 2019
For
the Applicant: Adv M Musandiwa
Instructed
by: Webber Wentzel Attorneys
Tel:
011 530 5867
For
the Respondents: Adv. J C Bornman
Instructed
by: SKV Attorneys
Tel:
011 781 2392