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[2021] ZAGPJHC 121
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Bravura Solutions (Pty) Ltd v A1 Capital (Pty) Ltd (12632/2020) [2021] ZAGPJHC 121 (13 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 12632/2020
NOT REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date:
13 May 2021
In
the matter between:
BRAVURA
SOLUTIONS (PTY) LTD
PLAINTIFF/APPLICANT
and
A1
CAPITAL (PTY) LTD
DEFENDANT/RESPONDENT
Coram:
Majavu AJ
Heard
:
11 May 2021
Delivered:
13
May 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
digital system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be
14h00
on 13 May 2021
.
Summary:
Application for summary judgement. Parties concluded an
acknowledgement of debt, respondent seeks to nullify it on the
basis
of non-fulfilment of a suspensive condition and non-initialling of a
clause conferring jurisdiction to this court, attacks
jurisdiction of
the court and yet it files a counterclaim in same proceedings, held
court has jurisdiction and AOD enforceable,
no legally cognisable
defence or triable issue raised by respondent, judgement granted in
favour of the applicant, with costs on
attorney own client as
provided for in the agreement, plus interest.
ORDER
(a)
The respondent is ordered to make payment to the applicant in the
amount of R 10 000 000,00
(ten million rand).
(b)
Interest thereon at the rate of 11.5% per annum from 31 March 2020 to
date of payment.
(c)
The respondent is ordered to pay costs on an attorney and own client
scale, including
the costs consequent upon the employment of counsel.
Majavu
AJ
Introduction
Let
me start off by expressing my gratitude to counsels for the detailed
heads of argument and “speaking notes/ presentation”,
which I found very helpful and masterfully crafted.
[1]
This is an opposed application for summary judgement.
[2]
The plaintiff instituted action against the defendant by way of a
simple summons,
which was in turn opposed by the defendant on 29 June
2020.
[3]
On 10 July 2020 the plaintiff duly served its declaration to which
the defendant responded
with a plea and counterclaim on 18 August
2020.
[4]
The application for summary judgement was resisted by the respondent
and the basis
of the defence was set out in its affidavit.
Brief
factual matrix
[5]
For the sake of convenience and ease of reference, the parties will
be referred to
as the applicant and respondent respectively.
[6]
The applicant claims payment from the respondent in the amount of R
10 000 000,00
(ten million rand) in terms of an
acknowledgement of debt (“AOD”) concluded by A1 Capital
in favour of the applicant
on 20 December 2019 (“the first
AOD”) and another one on 14 January 2020 (“the second
AOD”).
[7]
For all intents and purposes, the first and second AOD are identical,
save for the
deletion of the words “
jurisdiction of the
Magistrates’ Court in terms of section 45 of act 32 of 1944 as
amended” and
replaced with the following words “
the
non-exclusive jurisdiction of the Gauteng Local Division” at
the end of clause 7.
Of significance and a point at which parties
later part ways, is the fact that the defendant did not counter
initial next to the
amendment which was inserted in manuscript by the
plaintiff. This
non-initialling
, according to the respondent,
the denudes the second AOD of its legal efficacy.
[8]
For the sake of completeness, I hasten to add that the second AOD was
subsequently
counter initialled by the defendant’s
representative at clause 7,
albeit
this was done on 14 January
2020.
[9]
It is common cause that the substance of either version of the AOD
was an unambiguous
acknowledgement by the respondent of its
indebtedness to the applicant in the amount of R 15 000 000,00
(fifteen million
rand), inclusive of all interest and costs, reckoned
from 20 December 2019. This was further coupled with terms of payment
recorded
as follows:
[9.1]
R 2 000 000, 00 (two million rand) on or before 31 January
2020;
[9.2]
R 3 000 000, 00 (three million rand) on or before 29
February 2020;
[9.3]
R 2 500 000, (two million five hundred and thousand rand)
on or before 31 March 2020;
[9.4]
R 2 500 000,00 (two million and five hundred thousand rand)
on or before 30 April 2020;
[9.5]
R 2 500 000,00 (two million and five hundred thousand rand)
on or before 31 May 2020; and
[9.6]
R 2 500 000,00 (two thousand and five hundred thousand
rand) on or before 30 June 2020.
[10]
In terms of clause 2 of the AOD, interest was not payable on the
Capital debt unless the respondent
breached its payment terms. In
that event, interest would be levied at a rate of 11.5
per annum
from date of breach.
[11]
The AOD further contains a further condition that the applicant would
withdraw the liquidation
application issued in the High Court of
South Africa, KwaZulu-Natal Division, Durban under case number
8538/2019 upon the conclusion
of the AOD. As a consequence of the
applicant’s signature to either version of the AOD, the
applicant consented to the withdrawal
of the liquidation application.
[12]
It is common cause that the second AOD was indeed counter signed on
14 January 2020 by the respondent,
resulting in the actual withdrawal
of the liquidation application being filed on 15 January 2020.
[13]
As contemplated in terms of the AOD, two payments were subsequently
made in the amount of R 2 000 000,00
(two million rand) and
R 3 000 000,00 (three million rand) on 31 January and 29
February 2020 respectively. No further
payments were made between
March and June 2020 as provided for in the AOD, for reasons which
have neither been advanced, nor are
relevant for purposes of this
application, thus leaving the unpaid balance in the amount of R
10 000 000,00 (ten million
rand), excluding interest and
costs, which would be triggered in the event of a breach by the
respondent. I will attend to that
aspect as part of the order I
intend to make.
[14]
The applicant duly sent a notice of breach on 13 May 2020 and
afforded the respondent 7 (seven)
days to rectify the breach, failing
which the applicant would claim the acceleration of the balance only
when the Capital debt.
Needless to say, the respondent did not take
up the invitation and the breach remained un-rectified.
[15]
It seems to me that barring the technical points raised by the
respondent, to which I will return
later, the salient facts are
common cause. Of particular importance, is the observation which I
made and invited the respondent’s
counsel to persuade me
otherwise, and he was constrained to make the concession. The
quintessential
point being whether or not the underlying
indebtedness to the applicant is disputed or not. Correctly in my
view, the respondent’s
counsel was driven to accept the
existence of the indebtedness, regardless of any consequent legal
arguments he sought to advance.
I am fortified in my view, having
invited the respondent’s counsel to have regard to the wording
of the resolution signed
by three directors of the respondent, in
which they plainly admit the indebtedness by the respondent to the
applicant and specifically
authorising Mr Kannigan to conclude the
necessary AOD, which was subsequently done.
[16]
The respondent’s counsel, could not gainsay the observation
which I made. In fact, I pertinently
pointed that out and indicated
that the unambiguous
ipse dixit
emanating from the
respondent’s own resolution, if anything, reinforces the view
that there can be
no
genuine
, bona fide
, sustainable
defence or any triable issue in relation to or against the applicants
claim.
[17]
The defences were fashioned out as two, however in essence they are
inextricably intertwined.
I will accordingly deal with them as such.
[18]
Firstly, the contention that the AOD lapsed one day
[1]
before A1 Capital (respondent) communicated its acceptance of the
amended acknowledgement of debt by the invocation of a so-called
“suspensive condition” inserted in the AOD by anyone
Capital’s attorney; and
[19]
Secondly, that the court lacks jurisdiction. This is purportedly due
to the fact that the amendment
at paragraph 7 of the AOD, which was
inserted by manuscript and to the effect of replacing magistrates’
court with
this
court for proposes of jurisdiction, had not
yet been counter initialled by the respondent’s representatives
at the time (on
20 December 2019). This, according to the
respondents, divests the High Court of its jurisdiction to the extent
that the AOD which
was annexed to the declaration ought to be read to
refer to the jurisdiction of the magistrates’ court.
[20]
It appears that the jurisdiction point is anchored on the first
version of the AOD, to the extent
that the proposed insertion with
reference to the high court’s jurisdiction remained
un-initialled by the respondent.
[21]
In the event that I find that indeed this court lacks jurisdiction,
it would not be necessary
to deal with the merits with specific
reference to the validity of the AOD. However, if I were to find that
this court has jurisdiction,
then I would be obliged to determine the
issue of the validity of the AOD and by necessary implication deal
with and make a determination
regarding the defence mounted for
proposes of resisting the application for summary judgement.
Jurisdiction
point
[22]
It is noteworthy that in its plea, the respondent instituted a
counter claim against the applicant
in the amount of R5 000 000,00
(five million rand). This is in relation to the two payments referred
to in 9.1 and 9.2
above. In my considered view, this very fact is
counterintuitive to the challenge by the respondent of
this
court’s jurisdiction. How can it be, that
this
court
lacks jurisdiction to entertain the main claim of the applicant on
the one hand and yet be clothed with the same jurisdiction
to
entertain counterclaim at the instance of the same respondent, who
vociferously challenged
this
court’s jurisdiction
apropos
the claim at the instance of the applicant? This
clearly demonstrates that the respondent cannot, in all seriousness,
persist with
such an assertion. This is speaking differently through
both sides of the same mouth.
[23]
What stands out about this matter is that, at the time when the
application for summary judgement
was launched, attached to the
supporting affidavit, is the second version of the AOD, which was
properly counter initialled by
the respondent and having been so
confirmed by Ms Saner, the respondent’s legal representative,
in an email to which such
the amended version was attached, on 14
January 2020. This is undisputed. In fact, Ms Saner goes so far as
asking the applicant’s
legal representatives to proceed, as
initially agreed and contemplated, with the filing of the withdrawal
of the provisional liquidation
proceedings in Kwa Zulu Natal
Division, Durban, which was subsequently done, the very next day, on
15 January 2020.
[24]
Allied to this, the respondent seeks to suggest that because the
suspensive condition contained
in clause 5 with reference to the
provisional liquidation proceedings being withdrawn by the 13 January
2020, was not fulfilled,
in that, such a withdrawal was only filed on
15 January 2020 (2 days later) and in fact 1 day after
it
had
signed the amended (2
nd
) AOD, then the AOD falls away.
Again, nothing is stated by way of actual denial of the respondent’s
indebtedness to the applicant.
[25]
In order to determine this matter correctly, one needs to establish
whether or not the parties
intended (the true suspensive condition)
if one has regard to the overall facts and context. A closer reading
of clause 6 and 7
seems to militate against the contention advanced
by the respondent. The effect of the AOD (on either version) remains
undisturbed
by the technical point which the respondent seeks to
take, namely the non-fulfilment of the suspensive condition.
Ordinarily, at
the heart of any AOD is an
unambiguous
acknowledgement of indebtedness
.
On the facts before me, there is nothing proffered by the respondent,
to suggest that such indebtedness is either in doubt or
in any form
or shape disputed. I am fortified in my view by the unambiguous
wording of the resolution of the board of directors
of the
respondent, in which the three directors
unanimously
agreed to authorise the
conclusion of such an acknowledgement of debt. It does so in clear
and concise terms
[2]
. In fact,
one such director, Mr Kannigan, is the signatory to the AOD. It also
seems logical and it makes commercial sense for
the provisional
liquidation proceedings to be withdrawn, only after the conclusion of
an AOD on terms and conditions which both
parties agreed with.
Otherwise, there would simply be no incentive for the applicant
in
casu
to
withdraw its separate proceedings in the KZN division. This is
precisely why such withdrawal only happened post receipt of the
duly
amended and counter signed version, as sent to the applicant’s
attorneys by Ms Saner, on behalf of the respondent. Most
tellingly,
on 14 January 2020, a day after the supposed that expiry date of the
fulfilment of “a suspensive condition”
Ms Saner expressly
instructs the applicant’s representative to proceed and file
the withdrawal of the liquidation proceedings
[3]
as contemplated in the self-same AOD. No point was taken regarding
the expiry of that AOD on account of non-fulfilment of any suspensive
condition.
[26]
I agree with the submission by the applicant’s counsel that,
indeed, as at 14 January 2020,
the parties are
ad idem
and had
the clear intention that such AOD should have commercial operation.
If that was not the case, firstly one would have expected
the
respondent not to bother to initial in the amended version of the AOD
a day later than 13 January 2020, secondly, it would
also not make
any sense for the respondent’s representatives to remind the
applicants representatives to proceed with the
withdrawal of the
provisional liquidation proceedings, unless, the respondent intended
to follow through with what was contemplated
in the second version of
the AOD. This is in fact what transpired. There was nothing which
suggested the contrary intention by
the respondent, post 15 January
2020 until 31 January 2020 when it made its first payment in the
amount of R 2 000 000,00
(two million) as clearly ordained
in the AOD. There was a further payment made on 29 February 2020 in
the amount of R 3 000 000,00
(three million). These
developments clearly reinforced the view that the respondent could
never have regarded the so-called non-fulfilment
of the suspensive
condition as any bar from its compliance with the terms of the AOD. I
am therefore at a loss to appreciate the
contention that the
withdrawal of the provisional liquidation proceedings two days later,
should sound the death knell to a commercial
arrangement, which was
clearly within the contemplation of the parties. It is clear, that
such withdrawal could
not
have happened on 13 January 2020,
due to the delay solely occasioned by the respondent.
[27]
The subsequent conduct of the respondent cannot be said, as its
counsel contended, to be of no
moment, if one has regard, not only to
the text, but the context, purpose and the overriding facts. If
anything, such subsequent
conduct militates against any possible
argument suggesting that the respondent did not intend any commercial
consequences to flow
from its signature of the amended AOD on 14
January 2020. In interpreting commercial memorials by competent
contracting parties,
one has to interpret and prefer interpretation
which would lead to a reasonable and commercial sense, without
necessarily inventing
new conditions and terms for the parties. In
this matter, if one were to prefer an interpretation contended by the
respondent,
it remains my considered view, that such would lead to a
commercial absurdity. In fact, such an interpretation would be
repugnant
to, or inconsistent with the respondent’s own
subsequent conduct, at the very least until the end of February 2020.
The “
Damascus Road”
experience which it encounters
when the payment due at the end of March 2020 was not forthcoming,
can hardly come to its belated
assistance.
This
, I am
disinclined
to do. I am accordingly persuaded that the
“suspensive condition” relied on by the respondent is not
“a true
suspensive condition” and thus cannot mortify the
validity of the AOD.
Rectification
[28]
Simply put, rectification of the written agreement is a remedy
available in instances where the
agreement, through a common mistake,
objectively discernible, does not reflect the true intention of the
contracting parties or
where it erroneously does not record the
agreement between the parties. It goes without saying that the
predominant requirement
for rectification is, a common continuing
intention of the parties, which is not reflected in the agreement.
(see B v B
[2014] ZASCA 14
at para 20). In the case before me, it is
clear that the parties intended to continue with the terms of the
AOD, notwithstanding
the expiry of the date of 13 January 2020, as
the respondent itself only complied with its end of the bargain a day
later, on 14
January 2020 and through its legal representatives,
proceeded to instruct the applicant to file the intended and
contemplated notice
of withdrawal of the liquidation proceedings on
15 January 2020. This was done by the applicant. In further pursuance
of the material
terms of the AOD, with specific reference to the
payment plan, the respondent proceeded to effect two payments on the
dates specified
in the same agreement (AOD), which were both made
after 13 January 2020. It is therefore mind-boggling that the
respondent seeks
to escape from the legal efficacy of that AOD on the
basis of non-fulfilment of a suspensive condition, with reference to
the date
of 13 January 2020, when through its own conduct, it clearly
performed in accordance there with. This is a textbook case of an
instance where rectification aimed at reflecting the true intention
of the parties is appropriate. It is further trite that the
onus is
on the party claiming rectification to show, on a balance of
probabilities, that it should be granted.
[29]
To the extent that the applicant applies, in these proceedings, for a
rectification to change
the words “suspensive condition”
to “term” and the date, “13 January 2020” to
15 January 2020”,
the court is indeed
competent
to
consider such an application and to determine it. Having considered
the entire undisputed factual matrix, as well as any real
prejudice
that could be potentially suffered by the respondent (and I found
none), mindful of the fact that the true indebtedness
to the
applicant is not in dispute, I have no hesitation in permitting the
rectification sought by the applicant. By its own subsequent
conduct,
the respondent has, in any event acquiesced and acted as if the
rectification had in fact been given effect to. I accordingly
find
that the applicant has successfully crossed the hurdle and discharged
the onus resting on it.
[30]
In the affidavit resisting summary judgement, the respondent contends
that “the claim for
rectification cannot be dealt with in
summary judgement proceedings” and in the result, argues that
the AOD does not support
the money claimed by the applicant. That is
simply incorrect.
[31]
In the matter of
PCL
Consulting (Pty) Ltd T/S Phillips Consulting SA v Tresso Trading 119
(Pty Ltd
[4]
Cloete JA
considered this question,
whether
summary judgement applications were competent to consider a
rectification of an agreement.
At
paras [4] he had to the following to say “ I therefore, with
respect agree with the judgement of Coetzee J in
Malcomess
Scania (Pty) Ltd v Vermaak and another, to the extent that it holds
that the plaintiff who alleges that the written contract
should be
rectified is confined to what the plaintiff alleges is a true
agreement between the parties, and cannot (in the absence
of an
express indication to the contrary) rely in the alternative upon the
terms of the written agreement as they stand, but I
am constrained to
disagree with that judgement to the extent that it suggests that
summary judgement is incompetent, even where
both parties are ad idem
as to the respect in which they are written contract does not reflect
the agreement between them. [5]
in summary judgement proceedings the
plaintiff is required, in terms of rule 32 (2), to verify the cause
of action-not to verify
that it will be able to prove the cause of
action. The cause of action in the present matter is that the
defendant had the 4
th
floor office in
Fedsure towers from the plaintiff, in consequence of which it became
obliged to pay the amounts totalling ….,
Which it failed to
do. The plaintiff was therefore not obliged to cross the evidential
hurdle of proving that, despite the provisions
of the written lease
which are referred to the 6
th
floor office, it was
4
th
floor office which was
in truth led to the defendant. Had the defendant placed in issue what
the terms of the agreement were, the
plaintiff would have been
obliged to prove its version of the agreement at the trial and
summary judgement would have had to have
been refused. But the
defendant did not do this..”
[32]
It is clear from the above that the Supreme Court of Appeal accepted
that the courts dealing
with summary judgement applications are
indeed permitted to consider and pronounce on the rectification
agreement on which the
creditor’s claim depends. This is on all
fours with what transpired in this case. The applicant placed
undisputed facts before
this court which fall to be considered and
dealt with, when interpreting the AOD. In this case, the respondent
did not even bother
to engage or otherwise remonstrate with the
submissions of the applicant. It could not do so, as, on its own
version, it clearly
acquiesced and acted in accordance with what is
contemplated in the AOD. This is why in my view, the issue regarding
the non-fulfilment
of the suspensive condition, as well as the non-
initial of clause, which deals with this court’s jurisdiction,
are an afterthought
,
and of no legal moment.
Rule
32
[33]
As I indicated in the opening paragraph, what is before me is an
application for summary judgement.
The applicable rule is the amended
rule 32
[5]
, due to the fact that
this claim is based on a liquid document (AOD)
[34]
For purposes of this matter, “
rule 32 (2) specifically
provides that a notice of application for summary judgement, must be
accompanied by an affidavit made by
the applicant or any other person
who can swear positively to the facts
verifying
the
cause of action and the amount, claimed and stating that in his
opinion there is no bona fide defence to the action…..”.
If the claim is founded on a liquid document (AOD), a copy of the
document
shall
be annexed to such affidavit in the notice of
application for summary judgement….” In this case, the
AOD is indeed
attached to the supporting affidavit which accompanies
the application for summary judgement. Mr Munnik, who is a director
of the
applicant and the very individual who concluded the AOD on its
behalf, has duly verified the cause of action on which the claim
is
based and has positively sworn to the facts pertaining to the matter.
He has further set out why in his view, the applicant
does not
believe that the respondent has raised a
genuine and bona fide
defence which gives rise to any
triable
issue. Barring the
contention by the respondent with reference to “the
non-fulfilment of the suspensive condition”
on which I have
already indicated that I am not persuaded, there is absolutely no
indication by the respondent as to what it’s
true defence, on
the merits would be, if any at all, which could have entitled them to
proceed to trial at some future date. It
is quite clear that the
respondent has no defence; otherwise, it would have raised it to
enable me to make an assessment regarding
its genuineness, and not so
much to make a final determination on its prospects of success.
[35]
The novelty with regard to the amended rule, is the requirement that
an application for summary
judgement can only be proceeded with
after
the defendant has filed a plea. This is sound, as it enables the
plaintiff to carefully assess the nature of the defence raised
before
it considers to pay to bring an application for summary judgement. In
this case, mindful of the cause of action and the
fact that the claim
is based on a liquid document, it seems self-evident that no genuine
defence has been raised.
[36]
The onus resting upon an applicant for summary judgement was aptly
stated as follows by Bins-Ward
J
inTumileng
Trading CC v National Security and Fire (Pty) Ltd
[6]
:
“
for the
reasons given later with regard to the cases before me, I consider
that the amended rule 32 (2) (b) makes sense only if
the word
‘genuinely’ is read in before the word ‘raise’
so that the pertinent phrase reads’ explain
briefly where the
defence as pleaded does not genuinely raise any issue for trial. In
other words, the plaintiff is not required
to explain that the plea
is acceptable. It is required to explain why it is contended that the
pleaded defence is a shame.”
[37]
Put differently, the honourable court is required to consider whether
the defence raised by the
respondent in its plea and affidavit
resisting summary judgement, is a genuine defence or raises any
triable issue or whether it
is contrived, with the intention to delay
the inevitable and undisputed debt. This, presupposes a balancing act
against the contentions
by the applicant, weighed against those by
the respondent. It is clear from both the plea and affidavit
resisting summary judgement,
that the respondent is relying on an
overly formalistic technicality, which has nothing to do with its
undisputed
acknowledgement of liability towards the applicant.
The
non-initial
of the clause which deals with the
jurisdiction of this court, as well as the non-fulfilment of “a
suspensive condition”
are, in the context of this case,
de
minimus
. I agree with the applicant’s counsel on that
score. On more than one occasion, I pointedly asked the respondent’s
counsel whether or not,
in truth, form and/or substance,
it
could be contended by the respondent that it is
not
indebted
to the applicant as memorialised in the AOD or at all. That question
was avoided and eventually, the respondent’s
counsel indicated
that “
I cannot take the point further than that”
(sic). Belated as it was, I believe that concession was well made.
[38]
The practical effect of permitting the respondent in this case to
proceed to trial, would simply
be to delay the inevitable. It is
either the respondent has raised a genuine defence at this stage of
the proceedings, or it has
not. None can be manufactured along the
way to trial. If one were to borrow with approval, from the
dictum
of Bins-Ward J, I would say it is apparent that the defence mounted
by the respondent is a
sham
intended to delay the inevitable
in that, money is owed and is indeed due and payable the applicant,
admittedly, on its own resolution
signed by three of its directors,
including Mr Kannigan and who consequently signed the two versions of
the AOD.
[39]
In any event, the indebtedness as recorded in the AOD (both versions)
was not subject to any
event been fulfilled, nor was it obligation to
make the payment of the debt subject to any event. The debt itself
had already been
incurred long before the AOD was concluded. It is
plain that the AOD was required for purposes of protecting the
applicant’s
rights, with reference to the intended withdrawal
of the liquidation proceedings in KZN.
[40]
There is nothing untoward with that arrangement in the commercial
scheme of things. It is therefore
unsurprising that the withdrawal of
the liquidation proceedings had to be preceded by the duly signed
AOD, to enable the applicant
to proceed with an application for
summary judgement, in the event of a default by the respondent. On
the other side of the coin,
once the AOD had been signed by both
parties and the applicant, for whatever reason, fails or refuses to
withdraw the liquidation
proceedings, similarly, the respondent would
be entitled to a withdrawal on the strength of the duly signed AOD.
These are the
commercial consequences, which are indeed
businessman-like, which both parties contemplated.
[41]
For purposes of this application, I need not concern myself with
determining the substantive
merit of the defence, nor with
determining its prospect of success. All I need to do, as I have done
in this case, is an assessment
of whether or not the pleaded defence
is legally cognisable and genuinely advanced. In this case
none
has been advanced, let alone genuinely, barring the legal
technicalities which I have not been persuaded by. It therefore
stands
to reason, that the applicant is entitled to the relief it
seeks.
[42]
I fail to see what utility would be derived if an unmeritorious case
such as
this one
, were to be permitted to proceed to trial. If
anything, it remains my considered view that that would be an abuse
of court processes.
The courts, in the adjudication of disputes,
generally frown upon overly formalistic and technical quibbles, which
have nothing
to do with the true merits of the case. This is a
classic case where an end must be put to what could easily be a
protracted litigation,
wherein the respondent, clearly has no
defence, whatsoever. Should this not be the case, the unintended
consequence would be that
an applicant, worthy of a judgement in its
favour, could potentially be strung along by an errant respondent,
having to further
finance protracted and frivolous litigation.
Needless to say, this also puts an undue strain on the already
overstretched judicial
resources. This cannot be countenanced.
Respondent’s
counterclaim
[43]
The respondent has not made out a case for its counterclaim. This
finding is consistent with
my earlier finding, as I had found the AOD
to the extant and unassailed by any challenge by the respondent.
Order
[44]
In the result I make the following order.
[44.1]
The respondent is to make payment to the applicant in the amount of R
10 000 000,00 (ten million rand)
[44.2]
Interest thereon at the rate of 11.5% per annum from 13 March 2020 to
date of payment.
[44.3]
the respondent is ordered to pay costs on an attorney and own client
scale, including the costs consequent upon the
employment of counsel.
Z M P MAJAVU
Acting Judge of the
High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
11 May 2021
JUDGMENT
DATE:
13 May 2021
FOR THE
PLAINTIFF:
Adv CHJ Badenhorst SC
INSTRUCTED
BY:
Ulrich Roux & Associates
FOR THE
Adv Potgieter SC
DEFENDANT:
INSTRUCTED
BY:
Senekal Simmonds Inc. Attorneys
[1]
13 January 2020, as the amended version was counter initialled only
on 14 January 2020 and sent to the applicant's attorney by
the
respondent's attorney on the same day. This resulted in the
withdrawal of the provisional liquidation proceedings in case
it and
being withdrawn on 15 January 2020.
[2]
[3]
Ms requested Mr Badenhorst in her covering email to "kindly 7
file your client's notice of withdrawal of the liquidation
application in terms of clause 5".
[4]
2009
(4) SA 68 (SCA)
[5]
Rule 32 of the Uniform Rules of Court, rule 32 (1) (a) “where
the defendant has delivered notice of intention to defend,
the
plaintiff may apply to court for summary judgement on each of such
claims in the summons as is only- (a) a liquid document
[6]
2020 JDR 0747 (WCC)