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[2021] ZAGPJHC 722
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Bravura Solutions (Pty) Ltd v A1 Capital (Pty) Ltd (12632/2020) [2021] ZAGPJHC 722 (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
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
DEFENDANT: Adv
Potgieter SC
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)