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[2021] ZAGPJHC 893
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Mobile Telephone Networks (PTY) Limited v Olivier (43967/2017) [2021] ZAGPJHC 893 (12 May 2021)
IN
THE
HIGH
COURT
OF SOUTH
AFRICA
(GAUTENG
LOCAL DIVIS!ON,
JOHANNESBURG)
Case
No: 43967/2017
Not
Reportable
In
the matter between:
MOBILE
TELEPHONE
NETWORKS
(PTY)
LIMITED
Applicant
and
SHAWN
TREVOR
OLIVIER
Respondent
JUDGMENT
FRANCIS
J
1.
The
applicant brought an application
to
refer its
application
for monetary judgment
to
trial
in
terms
of
rule
6(5)(g)
of
the
Uniform
Rules
of
Court
owing
to a
dispute
of
fact
that
had
arisen
after
the
respondent
had
fi
le
d
his
answering
affidavit.
2.
In
the
monetary
application
the
applicant
sought
payment
of
R.56 664 747.64 with interest and
costs,
being
amounts
due
and
owing
by the respondent to the
appl
ica
nt
for
the
supp
ly
of
airtime
to
the
respondent
und
er
a
series of 47 invoices.
In
the answering
affidavit
the
respondent
raised a dispute
that
the
payments made by him were appropriat
ed
to
those
particular
4
7
invoices
which
had
been
paid
and
that
t
hose
invoices
could
not
find
a
claim
against
him.
3.
The
applicant's attorney
before
the
applicant had filed
·
its
replying
affidavit
wrote a letter dated 28 February 2019
to
the
respondent's
attorney
that
the
respondent
had
in
his answering affidavit raised factual disputes
in
relation to quantification
which
were
not
reasona
b
ly
foreseeable.
It
pointed out that it had
to
make
an
election
whether
to
persist
with
the
motion
proceedings
or
seek
a
referral
of
the
matter
to
trial
or
oral
evidence
.
It
attached
·
a
proposed
draft court
order
that the matter be referred to trial.
4.
On
4 March 2019 the respondent's attorney responded and stated that
any
factual
disputes that
may
have
arisen
were
reasonably
foreseeable if not
in
fact
foreseen and disagreed with the applicant's decision.
It
stated
further that it
denied
that
the applicant
has
an
election
as
referred to
in
its
letter.
Their
understanding is that
the
applicant
has the right to argue
at
the hearing of the
opposed
application
-
that
-
in
the
event of it
being
found
that
there
are
material
disputes
of
fact which
ren
de
r
the
matter incapable of
determination
on
motion
-
the
court
should
exercise
a
discretion
by
not
dismissing
the
application,
but
instead
to
refer
the
matter
to
tria
l
or,
if
the
issues
are
limited,
refer
those specific issues for the hearing of oral evidence.
In
response
the
respondent
would argue that the
appl
ication
should
be
dismissed
with
costs. The court
s
hould
exercise
its
discretion
and
make
an
order.
He
disagreed with
the
applicant's
proposal.
5.
It
is
common
cause
that the applicant and
respondent
concluded
a
pre-paid
distribution
agreement,
an
electronic
distribution
agreement
and
a
credit
facility
.
The
terms
of
the
agreements
are
set
out
by
the
applicant
in
its
founding
papers
.
The
applicant
provided
cellular
telephone
goods
(airtime)
under
the
aforesaid
agreements
to
the
respondent
,
including
those
detailed
in
the
applicant's
bundle
of
invoices
to
the
founding
affidavit
,
which
invoices
make
up
the
amount claimed
by
the applicant.
6.
It
is further common
cause
that
on 22 July 2015 the respondent
paid
the
applicant
an
amount
of
R2
800 000.00.
On
or
about
24
July
2015
the
applicant called up and received payment of the
respondent's
bank
guarantee in the amount of R20 170 000.00 (but the respondent denies
that
the
applicant was entitled
to
do
so).
In
addition, th
e
a
pplicant
received payment
of
an
amount of
R35
107
917.27 from its
c
redit
insurer.
After
the applicant had called
up
the
guarantee
,
it
had no securi
t
y.
7.
It
is
further
common
cause
that
t
he
respondent paid the applicant
the
various
amounts reflected in th
e
schedule
marked
C
.
The
respondent contended
that
those
payments
wer
e
earmark
e
d
in
r
espect
of the applicant's respective invoices in FA14.2 to its founding
affidavit but the applicant denied that
the
payments
were so earmarked and contended that they were allocated payments of
other invoices listed in the applicant
'
s
statement of account.
8.
It
was
contended
on
behalf
of
the
applicant
that
the
applicant
did
not
reasonably
foresee
that
the
respondent
would
dispute
the quantification of its claim.
The
respondent
had
in
the
prior
correspondence
stated
that
he
was
unable
to
confirm
the
amount
until
he
had
concluded
a
reconciliation
of his accounts and that
was
in
July
2015, and was
in
the
process
of doing so
.
The
respondent
produced
no
such
reconciliation.
As
such,
a
dismissal
of
the
application is not
appropriate
-
the
factual
dispute
was
not
foreseeable by the
applicant
and
the
applicant
made
the
election
to
seek
a
referral
once
this
dispute arose after the respondent had filed
his
answering
affidavit
raising the dispute
for
the first
time.
The
respondent's
dispute
is
contrived
but
this issue
is
most
appropriately
resolved
by way of trial proceedings after
discovery.
9.
It
was
further
contended
by
the
applicant
that even
if
the
court
found that there was foreseeable
factual
disputes
,
it
ret
ai
ns
a
discretion
and could nonetheless order a referral.
This
has
been
done
so as to not
cause
further unnecessary expense that would
arise
from a dismissal and subsequent
issuing
of action proceedings.
A
further
consideration
that
must
be
relevant
in
this
case is the extensive
prejudice
that the applicant may
suffer
if
the application
is
dismissed and
its
very
substantial
claims
against
the
respondent
are then
potentially
extinguished
by
prescription.
10.
It
was
contended
on
behalf
of
th
e
res
po
ndent
that
it
was
clear
from
a
mere
reading
of
the
respondent's
account
with
the
applicant,
that
the
payments
in
question
were
intend
ed
to
settle
those
4
7
invoices.
This
much
so
it
was
contended
appears
from
the
applicant's
own
statement
of
account
attached
to
its founding
affidavit
as
FA14.
l,
read
w
ith
the
sched
ule
attached to the
applicant
'
s
repl
ying
affidavit
as
RA4.
Had
the
applicant
applied
its
mind
reasonably
and
diligently
to
its
own
books
of account, it
would
immediately
realise
that
those
47
invoic
es
had
been
paid
by
the
respondent,
he
having
earmarked
them
as
s
uch
.
In
s
u
ch
event, the
applicant
wou
ld
-
obviousl
y
-
not
have
institu
ted
proceed
in
gs
for verbatim of
the
same
4
7
in
vo
ice
s
.
11.
It
was furthe
r
contended
by
the respondent that the app
l
icant's
contention
that it
could
not
re
a
sonably
have
foreseen
th
at
the
respondent
woul
d
re
ly
on
the
defence
of
payment
and
that
a material dispute of fact wou
l
d
ar
i
se
therefrom,
is
unte
na
ble
.
Any
reasonable
business
person
in
the
applicant's
position
would
have
a
nd
sh
ould
have
seen
,
from
its
own
books
of account,
that
thos
e
invoices
had
been
earm
a
rked
and
allocated
by
the
respondent
when
makin
g
his
payments.
12.
It
was
further
contende
d
by
the
respondent
that
the
applican
t
in
its
repl
ying
affidavit, apparently
realising
the
dilemma
that
it
faced,
sought
to
contradict its
fou
nding
affidav
i
t
by
alleging
that
there are 34 other
invoices
(w
hich
do
not
form
part
of
the
claim
formulated
i
n
the
founding
papers),
which
remain
unpaid
and
that
the
respondent
is
indebted
to
it
in
respect
of
those
other
invoices
.
The
applicant has attached to its founding
affidavit
cop
ie
s
of
the 34
invoices
on which it did
not
rely
in
its
founding
papers.
It
is
impermissible
for
an
applicant
to
effectively jettison its claim as formulated
in
its
founding papers and to
substitute
it with a
ne
w
claim formulated
for
the first time in
reply.
The
dispute of fact
relating
to
the
respondent's
earmarking
of
his payments in respect of
the
specific
47 invoices on which the applicant has founded
its
claim
,
was
reasonably
foreseeable
and
that
the
application
ought
to
be
dismiss
ed
with
costs on that basis alone.
13.
The
respondent
had
further contended
that
the
applicant
was
obliged
to
register
as
a
credit provider under the
National
Credit
Act
and
that the agreements on which it relied as its cause
of
action
were
unlawfu
l
agreements
and
are
consequently
void
as
contemplated
in
section
40(
4)
read
with
section
89
of the NCA.
It
had failed to register as a
credit
provider
and the application should
be
dismissed
with costs.
14.
The
issues
for
determination
is
whether
the
application
should
be
dismissed with costs by
reason
of
what the
respondent
contends
were
foreseeable
factual disputes
of
referred
to
trial.
If
a
referral
to
trial
is
orde
red
whether
costs
should
be
co
sts
in
the
cause
or
paid
by
the
respondent.
Whether
condonation
should
be
granted
for
the
applicant's
late
delivery
of
its replying
affidavit.
15.
The
referr
al
application
was
brought
in
terms
of
rule
6(5)(g) which reads as follows:
"Where
an
app
li
cation
cannot
properly
be
decided
on
affidavit
th
e
court
may
dismiss the application
or
make
such
an
order
as
it
deems fit
with
a
view
to
ensuring
a
just
and
expeditious
decision.
in
particular,
but
without
affecting
the
generality
of
the
aforegoing
,
ir
may
direct
that
oral
evidence
be
heard
on
specified
issue
s
with
a
view
to
resolving
any
dispute
of
fact
and
to
that
end
may
o
rd
er
any
deponent
to
appear
personally
or
grant
leave
for
such
deponent
or
any
other
person
to
be
subpoenaed
to
appear
and
be
examined
and
cross examined as
a
witness
or
it may refer the matter to
tr
ial
with
appropriate
directions
as
to
pleadings
or
definition
of
issues,
or
otherwise.
"
16.
It
is trite that if the material
facts
are
in dispute
and
there
is no request for the hearing of oral evidence,
a
final
order
will
only
be
granted
on
notice
of
motion if the
facts
as
stated
by
the
respondent
together
with
the
facts
alleged
by
the
applicant
that
are
admitted by
the
respondent.
The
subrule
is
of
wide import
and
empowers the court, where an application cannot properly be
decided
on
affidavit,
to
make
such an order
as
it
deems fit with
a
view to
ensur
in
g
a
just
and
expeditious
decision.
In
this
regard
see
Moosa
Bros
&
Sons
(Pty)
Ltd
v
Rajah
1975
(4) 87
(D)
at
91
A.
17.
It
is trite that
as
a
general
rule
an application
for
the
hearing of oral
evidence
must
b
e
made
in
limine
and
not
once
it
becomes
clear
that
the
applicant
i
s
fai
ling
to
convi
nce
the
court
on
papers or
on
appeal.
In
th
is
regard
see
Law
Society, Northern Province
v
Mogami
2010(1)
SA
186
(SCA)
at
195C.
The
circumstances
must
be
exceptional
before
a
cour
t
will
permit
an
applicant
to
apply
in
the
alternative
fo
r
the
matter
to
be
referred
to
evidence
should
the
main
argument
fail.
It
is
undesirable
that
a
court
mero
motu
orders
a
referral
to
oral
evidence.
18.
It
is
trite
that
a
court
has
a
wide
discretion
in
resolving
to
refer
a
matter
to
evidence.
The
court is enjoined to examine the allege dispute of fact and see
whether
there
is
a
real
dispute
of
fact
which
cannot
be
satisfactorily
determined
without
the
aid
of
oral
evidence.
If
this
is
not
done
a
respondent
might
be
able
to
ra
is
e
fictitious
issues
of
fact
and
thus
delay
the
hearing
of
the matter
to
the
prejudice
of
an
applicant.
The
test
is
a
stringent
one
that
is
not
easily
satisfied.
Vague
and
unsubstantial
allegations
are
insufficient
to
raise
the
kind
of
dispute
of
fact
that
should
be
referred
for
oral
e
v
idence
.
A
court
must
take
a
robust,
common-sense
approach
to
a
dispute
on
motion
and
not
hesitate
to
decide an
issue
on affidavit
merely
because
it may
be
difficult
to
do
so. This
approach
must,
however
,
be
adopted
with
caution
and
the
court
should
not
be
tempted
to
s
e
ttle
disputes
of
fact
solely
on
the
probabilities
emerging
from
the
affidavits
without
giving
due
consideration
to
the
advantages of
viva
voce
evidence
.
19.
It
is
trite
that
a
court
should
in
deciding
disputed
facts
in
application
proceedings
,
always
be
cautious
about
deciding
probabilities
in
the
face
of
conflicts of
facts
in
the affidavits.
This
is
so
because
affidavits are
settled
by
legal
advisers
with
varying
degrees
of
experience,
skill
an
d
diligence,
and
a
litigant
should
not
pay
the
price
of
an adviser's
shortcomings
.
A
court
will
dismiss an application of the applicant
s
hould
he have realised when launching his
application
that
a
serious
dispute
of
fact
incapable
of
resolution
on
the
papers, was bound
to
develop.
It
does not nece
ssarily
follow
that
because
a
dispute
of fact is reasonably
foreseeable
that
an
application
will
be
dismissed
with
costs.
There
may
be
circumstances
present that will
persuade
a
court to
order
the
parties
to
go to
trial
together
with an
order
that
costs
of
the application
be
costs in
the
cause
or
that the
costs
stand
over for determination
at
trial.
20.
I
have carefully considered
the
application
before
me.
It
is clear
that
the
applicant
had
already
as early as 28
February
2019
b
efore
it
had
filed
its replying affidavit
requested
th
at
the
matter be referred to
trial
in
terms
of
rule
6(5)(g).
This
was rejected
by
the
respondent
on
4
March 2019.
The
application for referral
to
trial
was
made
in
limine.
This
is not one
of
those
applications where the applicant had despite the fact
that
a
dispute
had
arisen in
the
application
decided
to enrol the matter for a hearing
in
the
motion
court
to
argue
that
no
dispu
te
of
fact had arisen and if the court was to find that such a dispute had
arisen that the matter should be
referr
ed
to trial.
The
respondent had agreed with the applicant that the primary
iss
ue
at
this juncture is whether
the
application
should be referred to
trial
or
whether it
should
be
dismissed.
21.
It
cannot
be
said
that
the applicant reasonably foresaw
that
a
factual dispute would
ar
ise
when
it proceeded on motion and
despite
such
knowledge persisted
by
way of application.
When
the
dispute
arose it properly made the election to
see
k
a
referral
to
trial.
I
am
satisfied
that
proper case
has
been
made for this matter
to
be
referred
to
trial.
The
trial
court would be
in
a
better
position
to
render
a just and expeditious decision taking
into
account
the nature and quantification of the claim.
It
will be inappropriate for
me
to
comment
on the merits of the applicant's
claim
and
the
defence
raised
by
the
respondent since this is a matter that should be determined
by
the trial court. The
same
applies
to
the
issue about
whether
the applicant
was
a credit provider
in
terms
of
the
provisions
of
the National
Credit
Act.
22.
Since
the matter is being r
e
ferred
to
trial
it
becomes
strictly
speaking
unnecessary
to consider the application
for
condonation for the late filing of the replying affidavit but I
am
satisfied
that
a proper
case
has
been
made
for condoning
the
late filing of
the
replying
affidavit.
23.
This
brings
me
to
the
issue of costs.
The
applicant
contended
that
the respondent should
have
accepted its proposal that the matter be referred to trial on an
unopposed
ba
sis
and
that the costs incurred
after
the delivery
o
f
the
answering
affidavit
should
be
paid
by
the respondent prior to
this
being costs
in
the
action.
24.
I
do
not
agree
with
the
applicant's contentions on
the
issue
of
costs.
An
appropriate
order
would
be
that costs be costs in the action.
25.
In
the
circumstances
I
make
the following order:
25.1
The
matter
is
referred
to
trial
with
the following directions:
25.1.1
the
applicant's notice of motion stands as its
simp
l
e
summons
as the plaintiff
in
the
trial;
25.1.2
the
respondent's
answering
affidavit
stands
as
his notice of
intention
to
defend
as
the defendant
in
the
trial;
25.1.3
the
applicant
shall deliver its declaration within 20 court
days
of date of
this
order
;
25
.1.4
the
further
exchange of pleadings and procedure be governed
by
the
rules of this court
applicab
le
to
act
ion
proceedings·
25
.
1.5
costs
are costs
in
the
action.
FRANCIS
J
JUDGE
OF THE HlGH COURT
FOR
APPLICANT
BM GILBERT WITH MCJ VAN
KER
KHOVEN INSTRUCTED BY
VILJOEN
FRENCH & CHESTER INC
FOR
RESPONDENT
J BOTH SC INSTRUCTED
BY
MARTIN
HENNIG
ATTORNEYS
DATE
OF HEARING
9
NOVEMBER
2020
DATE
OF
JUDGMENT
12
MAY
2021