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[2021] ZAGPJHC 359
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Dunlop Industrial Africa (Pty) Ltd v Bhailal (17118/2020) [2021] ZAGPJHC 359 (1 June 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 17118/2020
REPORTABLE:
/ NO
OF
INTEREST TO OTHER JUDGES: /NO
REVISED.
DATE: 1/6/2021
In the matter between:
DUNLOP
INDUSTRIAL AFRICA (PTY)
LTD
Plaintiff
and
NAEEMA
BHAILAL
Defendant
JUDGMENT
MAKUME
J
:
[1]
This is an application for summary judgment in which the Plaintiff
claims payment
of the sum of R547 127.13 plus interest from the
Defendant. It is alleged that during the period May 2015 to December
2019 whilst
the Defendant was in the employment of the Plaintiff as
and internal sales manager she unlawfully misappropriated that amount
to
herself.
[2]
The amounts that the Defendant unlawfully appropriated to herself is
set out in Annexure
“A” to the particulars of claim.
[3]
In her special plea and plea on the merits dated the 15
th
October 2020 the Defendant pleads that:
i)
The
Plaintiff’s Claim prescribed because the cause of action arose
during 2015 and summons was only issued on the 7
th
August 2020 after a period of three years and accordingly in terms of
Section 11 of Prescription Act number 68 of 1969 any claim
that arose
prior to the 7
th
August 2017 had become prescribed.
ii)
Secondly
that the amount claimed is not liquidated and thus incapable of being
adjudicated in a summary judgment application.
iii)
That
in the event the court finds that the amount claimed is liquidated
that the Defendant conditionally admits that she may have
in error
over claimed commission in the amount of R177 905,68.
[4]
In issue in this application is the following:
a)
Is the amount claimed liquidated or not.
b)
Has such amounts or part thereof become prescribed.
[5]
The basis for claiming that the amount being sued for is not
liquidated according
to the Defendant is because it is alleged to
have been stolen money and nothing more. This is incorrect. In the
matter of
Kleynhans vs Van der Westhuizen N.O. 1970(2) page 742 AD
a trial court had found that the claim which was based on the
commission of theft was a liquidated claim for purposes of Section
9(!) of Act 24 of 1936 (The Insolvency Act).
[6]
The decision in Kleynhans (supra) was cited with approved by
Trengove
J in Irvin & Johnson Ltd v Basson 1977 (3) (T) 1067
.
[7]
I am satisfied that the amount claimed in the particulars of claim is
liquidated and
suffices for the Plaintiff to apply for summary
judgment.
[8]
The second leg of this application is, having decided that the amount
is liquidated
and taking into consideration the admitted amount of
R177 905.68 whether that amount has become prescribed or not.
[9]
The Defendant has admitted the amount mentioned above on condition
that this court
does not find in her favour on the issue of
prescription.
[10]
Annexure A to the particulars of claim has dates that commenced on
the 28
th
March 2018 which means that whatever is admitted
can never be said to fall within the prescription date. That amount
having been
admitted the condition falls off and the Plaintiff is
entitled to payment of that amount of R177 905.68.
[11] As
regards the balance the Defendant besides raising the issue of non-
joinder she also mentions
that in the disciplinary enquiry the
Plaintiff only alleged an amount of R300 000.00 to have been
misappropriated or stolen.
[12] The
Defendant has in my view raised a triable issued regarding the
balance of R370 031.45.
[13] In
the result I make the following order:
ORDER:
1.
Summary
Judgment is granted in the sum of R177 095.68.
2.
The
balance of R370 031.45 is referred to trial
3.
The
costs of this application shall be costs in the trial.
DATED at JOHANNESBURG this the day of
JUNE 2021.
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF HEARING
:
24 MAY
2021
DATE OF JUDGMENT
: 01 JUNE
2021
FOR PLAINTIFF
:
ADV HC BOTHMA
FOR DEFENDANT
:
ATT
VALLY