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[2014] ZASCA 79
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Stamford Sales & Distribution (Pty) Limited v Metraclark (Pty) Limited (676/2013) [2014] ZASCA 79 (29 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 676/2013
In
the matter between:
STAMFORD
SALES & DISTRIBUTION (PTY) LIMITED
….................................. APPELLANT
and
METRACLARK
(PTY)
LIMITED..............................................................................
RESPONDENT
Neutral
citation
:
Stamford
Sales & Distribution v Metraclark
(676/2013)
[2014] ZASCA 79
(29 May 2014)
Coram
:
Lewis and Mhlantla JJA and Swain AJA
Heard
:
23 May 2014
Delivered:
29 May
2014
Corrected:
4 June 2014
Summary
:
Claim for summary judgment by
cessionary of claim – verifying affidavit – knowledge by
deponent of all of facts of cause
of action by cedent against debtor
not required – fact-based enquiry whether positive assertion by
deponent reliable.
Order
On
appeal from
the South Gauteng High Court, Johannesburg, (Victor J
sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Swain
Aja
(
Lewis
and Mhlantla JJA
concurring):
[1]
Summary judgment was granted by the South
Gauteng High Court (Victor J) in favour of the respondent, Metraclark
(Pty) Ltd (Metraclark),
against the appellant, Stamford Sales and
Distribution (Pty) Ltd (Stamford) for payment of the sum of
R700 000.00 together
with interest and costs.
[2]
The present appeal, which is with the leave
of the court a quo, requires for its determination the resolution of
two issues.
(a)
Whether the verifying affidavit in support of the application for
summary judgment by Metraclark complies with the requirement
in rule
32(2) of the Uniform Rules of Court (the rules), that it be made by a
person ‘who can swear positively to the facts
verifying the
cause of action’; and
(b)
whether Stamford’s affidavit opposing the grant of summary
judgment discloses a bona fide defence to Metraclark’s
claim,
as required by rule 32(3)
(b)
of the rules.
[3]
Metraclark’s claim against Stamford
is based upon a cession by Quali Cool CC (the cedent) of its book
debts to Metraclark.
It is alleged by Metraclark in its particulars
of claim that the cedent is indebted to it in the sum of
R1 621 694.60
which the cedent has failed to pay.
[4]
Metraclark’s claim against Stamford
is pleaded as follows:
‘
The
Defendant is indebted to the cedent in the sum of R700 000.00
(seven hundred thousand rand) for services rendered and/or
goods
supplied by the cedent to the Defendant, at the Defendant’s
special instance and request during or about the period
October 2010
to January 2011, which amount is due, owing and payable by the
Defendant to the cedent.’
[5]
Metraclark advised Stamford of its rights
in terms of the cession and that Stamford was obliged to make payment
of all sums owing
by Stamford to the cedent directly to Metraclark.
On this basis Metraclark alleges that the sum of R700 000.00 is
due, owing
and payable by Stamford to Metraclark.
[6]
As a consequence of Stamford’s
failure to make payment to Metraclark, summons was issued which
Stamford defended, giving rise
to Metraclark’s application
before the court a quo for summary judgment.
[7]
Metraclark’s cause of action against
Stamford, based upon Metraclark’s locus standi as a cessionary
of the claim of
the cedent against Stamford, gave rise to the
challenge (raised only when leave to appeal against the judgment was
argued) that
the deponent to the verifying affidavit in the summary
judgment application was unable to swear positively to the facts
verifying
the cause of action. In others words, the deponent as a
representative of Metraclark (the cessionary) did not have personal
or
first-hand knowledge of the claim of the cedent as against
Stamford.
[8]
The verifying affidavit reads as follows:
‘
I,
the undersigned
JANE
WILLIS-SCHOEMAN
do
hereby make oath and state:
1.
I am the National Credit Manager of the Applicant herein and I am
duly authorised to depose to this affidavit on behalf of the
Applicant.
2.
The facts contained herein are both true and correct and are within
my personal knowledge and belief.
3.
The Applicant’s file pertaining to the above-captioned matter
which contains,
inter alia,
a cession of book debts in favour
of the Applicant, proof of the Applicant’s claim against Quali
Cool CC and all correspondence
entered into by the Applicant and/or
its attorney with the Respondent, is currently in my possession and
under my control and I
am fully conversant with the content thereof.
4.
I have read the Combined Summons in this action and can and hereby do
swear positively to the facts and verify all the causes
of action and
the total amount claimed by the Applicant therein.
5.
I verily believe that the Respondent does not have a
bona fide
defence/defences to any of the Applicant’s causes of
action, and that Notice of Intention to Defend has been entered
solely
for the purposes of delay.
WHEREFORE
I pray that the Court will grant Summary Judgment against the
Respondent in favour of the Applicant in terms of the Notice
to which
this Affidavit is annexed.’
[9]
As pointed out in
Maharaj
v Barclays National Bank Ltd
1976 (1)
SA 418
(A) at 423G-H one of the aids to ensure that the claim of the
plaintiff is unimpeachable and that the defendant’s defence
is
bogus or bad in law is that the verifying affidavit should be deposed
to by the plaintiff ‘or by someone who has personal
knowledge
of the facts’. If however, ‘the affidavit fails to
measure up to these requirements, the defect may, nevertheless,
be
cured by reference to other documents relating to the proceedings
which are properly before the Court. . . The principle is
that, in
deciding whether or not to grant summary judgment, the Court looks at
the matter “at the end of the day” on
all the documents
that are properly before it. . .’
[10]
This court in
Dean
Gillian Rees v Investec Bank Limited
(330/13)
[2014] ZASCA 38
(28 March 2014), in dealing with the issue
of whether personal knowledge of all of the facts forming the basis
for the cause of
action, had to be possessed by the deponent to the
verifying affidavit, said the following in para 15:
‘
As
stated in
Maharaj
,
“undue formalism in procedural matters is always to be
eschewed” and must give way to commercial pragmatism. At the
end of the day, whether or not to grant summary judgment is a
fact-based enquiry
.
Many summary judgment applications are brought by financial
institutions and large corporations. First-hand knowledge of every
fact cannot and should not be required of the official who deposes to
the affidavit on behalf of such financial institutions and
large
corporations. To insist on first-hand knowledge is not consistent
with the principles espoused in
Maharaj
.’
(My emphasis.)
In
my view, as long as there is direct knowledge of the material facts
underlying the cause of action, which may be gained by a
person who
has possession of all of the documentation, that is sufficient.
[11]
The enquiry, which is fact-based, considers
the contents of the verifying affidavit together with the other
documents properly before
the court. The object is to decide whether
the positive affirmation of the facts forming the basis for the cause
of action, by
the deponent to the verifying affidavit, is
sufficiently reliable to justify the grant of summary judgment. Those
high court decisions
which have required personal knowledge of all of
the material facts on the part of the deponent to the verifying
affidavit are
accordingly not in accordance with the principles laid
down by this court in
Maharaj
.
[12]
An insistence upon personal knowledge by a
deponent to a verifying affidavit of all of the material facts
forming the basis for
the cause of action, where the cessionary of a
claim seeks summary judgment against the debtor, in most cases would
effectively
preclude the grant of summary judgment. The consequences
of this narrow approach is illustrated by the decision in
Trekker
Investments (Pty) Ltd v Wimpy Bar
1977
(3) SA 447
(W). It was held that it had to appear from the verifying
affidavit that the facts relating to the claim of the cedent against
the debtor were within the knowledge of the deponent who was able to
swear positively thereto. The deponent in such a case was prima
facie
making the affidavit on behalf of a cessionary and there was nothing
in the affidavit to indicate that the deponent had any
connection
with the cedent, which presumably would have enabled him to acquire
this knowledge. To insist on personal knowledge
by the deponent to
the verifying affidavit on behalf of the cessionary of all of the
material facts of the claim of the cedent
against the debtor,
emphasises formalism in procedural matters at the expense of
commercial pragmatism.
[13]
In the present case the deponent who is the
National Credit Manager of Metraclark states that she is in
possession of the file relating
to this matter, which contains inter
alia the cession of books debts, which is Annexure A to the
plaintiff’s particulars
of claim. The cession provides in
clause 5.5 as follows:
‘
The
Customer undertakes on a quarterly basis, commencing on the first day
of the month following its signature of this Agreement,
to deliver to
the Company its current age analysis reflecting all moneys owed to
the Customer by the Debtors and on demand to deliver
all relevant
information in documentary form or otherwise to the Company to enable
the Company to claim moneys owed to the Customer
from the Debtors.’
[14]
From the allegations made by Metraclark in
its particulars of claim as set out in para 4 supra, it is clear that
in accordance with
this provision in the cession Metraclark obtained
details from the cedent of the amount of the debt, its nature and the
period
during which the services and/or goods were supplied to
Stamford. The information supplied by the cedent to Metraclark also
resulted
in the attorneys of Metraclark writing to Stamford (Annexure
B to Metraclark’s summons) advising them of the cession of its
book debts and stating that Stamford was a debtor of the cedent. In
this regard the deponent states that included in the file in
her
possession is all of the correspondence between Metraclark, its
attorney, and Stamford.
[15]
On the particular facts of this case and on
a conspectus of the verifying affidavit together with the other
documents referred to,
I am satisfied as to the reliability of the
statement by the deponent in the verifying affidavit that she is able
to ‘swear
positively to the facts and verify all the causes of
action’.
[16]
I accordingly turn to the issue of whether
Stamford’s opposing affidavit discloses a bona fide defence in
terms of rule 32(3)
(b)
.
What is conspicuously absent from Stamford’s affidavit is any
attempt to ‘disclose fully the nature and grounds of
the
defence and the material facts relied upon therefor’ as
required by rule 32(3)
(b).
This is particularly so as Stamford admits a trading relationship
with the cedent.
[17]
When faced with the specific claim for
payment of R700 000.00 for goods and/or services supplied to it
during a defined period,
namely October 2010 to January 2011 it
should have been a simple exercise for Stamford to set out what goods
or services it received
from Quali Cool CC during this period,
together with the payments it made to Quali Cool CC. This would
constitute a sufficiently
full disclosure of the material facts to
persuade a court that if proved at trial Stamford would establish its
defence that it
has paid the cedent in full:
Maharaj
supra at 426A-D.
[18]
However, Stamford simply makes the bald
allegation that it was informed by the cedent that no money was owed
by Stamford to the
cedent. In support of this assertion a copy of an
email allegedly received from the accounts department of the cedent
is attached
without any verification. Why Stamford seeks to rely
entirely upon assertions by its creditor, the cedent, and not its own
records,
to support its defence that it has paid the cedent in full,
is not explained. I am accordingly satisfied that Stamford has failed
to disclose a bona fide defence to the claim of Metraclark.
[19]
The following order is made:
The
appeal is dismissed with costs.
K
G B SWAIN
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant: A P J Els
Instructed
by:
Van der Merwe &
Associates, Johannesburg
Honey
Attorneys, Bloemfontein
For the Respondent:
K Bailey SC
Instructed
by:
Hooker
Attorneys, Johannesburg
Webbers
Attorneys, Bloemfontein