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[2023] ZAGPJHC 952
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Centrality (Pty) Ltd v Lebakeng and Others (54065/2021) [2023] ZAGPJHC 952 (25 August 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
No: 54065/2021
In the matter between:
CENTRALITY
(PTY) LTD
Applicant
and
MATETE
JOSEPH LEBAKENG
First
Respondent
MPATI
M LEBAKENG
Second
Respondent
LBK
CONSULTING (PTY) LTD
Third
Respondent
Delivered:  This
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 25 August 2023.
JUDGMENT
CARRIM AJ
Introduction
[1]
This is an application to refer the main
application to trial in terms of Rule 6(5)(g) for the first and
second Respondents and
Ms Barnard, the architect that had been
appointed by the Applicant, to give evidence and for them to be
cross-examined (“the
transfer application”).
The main application
[2]
The main application was launched in
November 2021 by the Applicant in which it claims the amount of
R570 081.47, together
with interest thereon from the
Respondents, jointly and severally.
[3]
The essential dispute between the parties
revolves around the supply of glass and aluminium fittings by the
Applicant to the Respondents
on a property at 77 Monaghan Farm,
Lanseria.
[4]
The
Applicant’s version is that it supplied the Respondents with
aluminium and glass fittings and installed same at the property.

The Applicant acknowledges that the Respondents had disputed the
amount claimed on the basis that the installation was not in
accordance with the SANS specifications and the workmanship was
poor.
[1]
The
Applicant alleges that despite attempting to resolve this, the
Respondents have not specified what it is that they are dissatisfied

with and have not attended meetings scheduled with the Applicant’s
representative, in an effort to resolve the dispute.
[5]
The Respondents filed a notice to oppose
but had failed to file an answering affidavit in time. The matter was
enrolled on the unopposed
roll for 20 October 2022.  The matter
was removed from the unopposed roll because Respondents filed their
answering affidavit
on 19 October 2022. The Respondents seek
condonation of the late filing of the answering affidavit, which was
granted by me at
the commencement of the hearing.
[6]
In their answering affidavit in the main
application, the Respondents seek a dismissal of the application due
to material disputes
of fact and misjoinder. They dispute the
liability of the first and second Respondents on the basis that they
were acting in a
representative capacity for third Respondent. They
dispute the amount claimed and have brought a counterapplication.
[7]
The
Respondents’ version is that after the Applicant had installed
the aluminium and glass fittings, it issued a certificate
of
conformance which stated that the materials complied with technical
specifications and the installation was done in accordance
with SANS
10400-1990- Part N and SANS 10137.
[2]
[8]
After the second and third Respondents
moved into the property, glaring deficiencies in the workmanship were
identified and in all
instances the Applicant was invited to correct
these, without success. The Respondent then enlisted the assistance
of Ms Barnard,
to liaise with Thinus (Mr Thinus Cloete), the
Applicant’s employee.
[9]
There have been various requests by Ms
Barnard for the Applicant to rectify the various defects however, the
Applicant has failed
and/or neglected to attend to the defects.
[10]
Having observed a great degree of poor
workmanship in the installation of the products by the Applicant and
the quality of the products,
the third Respondents then appointed the
services of the Association of Architectural Aluminium Manufacturers
of South Africa (“AAMSA”)
to conduct a full inspection of
the products supplied and installed by the Applicant. A copy of the
report is attached as Annexure
“FA16” to the founding
affidavit.
[11]
The AAMSA report made key findings
regarding the quality of the products supplied and the flaws in the
installation thereof.
It is unnecessary to deal with these in
greater detail save to say that the report makes adverse findings in
relation to the materials
supplied and the applicable standard of
installation of the products.
[12]
The
findings of the AAMSA report were shared with the Applicant who
through its attorneys categorically disputed the AAMSA findings
but
agreed to replace/rectify certain concerns raised in the report and
provided a further quotation of R284 646.65, dated
26 October
2021 to fix these issues which it alleged were not in its scope of
work.
[3]
[13]
Ms
Barnard has attached a confirmatory affidavit.
[4]
[14]
The
Applicant did not file a replying affidavit to the Respondents’
answering affidavit in the main application. Instead,
it filed this
application for the matter to be referred to trial some five months
later.
[5]
(‘transfer
application’)
[15]
The Applicant was late in filing its
replying affidavit in the transfer application and sought condonation
thereof which was granted
by me at the commencement of the hearing.
The transfer
application
[16]
The Applicant submits that it seeks
transfer of the matter to trial because oral evidence would need to
be heard and witnesses would
need to be cross-examined in respect of
-
[16.1]
The factual basis of non-payment by the
Respondents of the amount claimed.
[16.2]
The liability of the first and/or second
Respondent for the amount claimed which is now being denied.
[16.3]
The version of Ms Barnard, the architect,
as reflected in the Applicant’s founding affidavit when
compared to a confirmatory
affidavit in the Respondent’s
answering affidavit is conflicting.
[16.4]
The counterclaim, being in the nature of
damages, cannot be adjudicated by motion proceedings.
[17]
The Applicant alleges that it became aware
of these disputes of fact only when the Respondents filed their
answering affidavit in
the main matter.
[18]
The Respondents deny that the Applicant
could not have foreseen at the time it launched motion proceedings
that several factual
disputes were likely to arise given the
pre-litigation correspondence between the parties. The Applicant in
its own founding affidavit
refers to the dispute raised by the
Respondents.
[19]
Despite knowing that there was already a
material dispute of fact in relation to the payment claimed, the
Applicant still elected
to proceed on application.  Instead of
dealing with the Respondents answering affidavit, it now brings this
application to
avoid having its main application dismissed.
[20]
Respondents
oppose the transfer application on the basis that Applicant was aware
that a material dispute of fact was likely to
arise given the
pre-litigation history of this matter and that application should be
dismissed, alternatively decided in favour
of the Respondents based
on the guidance provided by
Plascon
Evans
.
[6]
The general approach
to Rule 6(5)(g)
[21]
Rule
6(5)(g) provides:
[21.1] “
Where an
application cannot properly be decided on affidavit the court may
dismiss the application or make such 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,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order 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 trial with appropriate
directions as to pleadings or definition
of issues, or otherwise
”.
[22]
In
National
Director of Public Prosecutions v Zuma (Mbeki and Another
Intervening)
[7]
the SCA stated that:
[22.1]
“
In
general motion proceedings, unless concerned with interim relief, are
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special, they cannot be used to resolve
factual issues because they are not designed
to determine
probabilities. It is well established under the Plascon-Evans rule
that where in motion proceedings disputes of fact
arise on the
affidavits, a final order can be granted only if the facts averred in
the Applicant’s affidavits which have
been admitted by the
Respondent, together with the facts alleged by the Respondent,
justify such an order
.”
[8]
[23]
It is trite
that where a dispute of material fact arises it is generally
undesirable to endeavour to decide an application upon
affidavit.
In such a case, it is preferable to hear the witnesses before coming
to a conclusion.
[9]
[24]  Whenever a
genuine dispute arises in the affidavits about a material fact, the
Court may deal with the matter in terms
of its discretion in various
ways.  The emphasis here is that the decision whether to refer
to oral evidence or dismiss is
in the Court’s discretion.
[25]  However, if
neither party asks that the matter be referred to oral evidence or to
trial the court will not do so
mero motu
. Even if there is an
application for referral to trail – as is the case here –
the court may elect to adopt a robust
approach avoiding
fastidiousness and decide the issue on affidavits. Caution to this
approach has however been voiced.
[26]
If the
dispute of fact should have been foreseen by the Applicant, the court
may dismiss the application.
[10]
Evaluation
[27]  During
argument the Applicant made a somewhat curious submission that the
transfer application ought not to be decided
by reference to the main
application. I am not sure what was meant to be conveyed by this
submission.  The fact that the Applicant
itself has asked that
the matter be referred to oral evidence, because of material disputes
of fact that have arisen in the main
application is the
raison
d’etre
for its transfer application.  In other words,
in bringing the transfer application, the Applicant accepts that
material disputes
of fact have arisen in the main application that
cannot be resolved on the affidavits.
[28]  Mr Prophy was
at pains to point out that the only issue before me was to decide
whether the matter should be referred
to trial and nothing more.
To suggest that I should have no regard to the main application does
nothing but create an artificial
line between the two applications
and possibly create a pretext for  a point of appeal.  I
cannot arrive at a decision
of the merits of the transfer application
without having regard to the extent of the disputes of fact between
the parties and when
the Applicant first became aware of them.
[29]  However, in
bringing the transfer application prematurely without the merits of
the main application being heard, the
Applicant has possibly created
a further conundrum for itself which I discuss later.
[30]
It
is manifestly clear that the Applicant in its own founding affidavit
in the main application acknowledges that pre-litigation
disputes
existed between the parties.
[11]
The
Applicant was aware that the Respondents were unhappy with the
quality of and workmanship of the glass and aluminium fittings.

To this end, the Respondent had enlisted the assistance of the
architect, Ms Barnard, who had been appointed by the Applicant,
a
fact which the Applicant was aware of.  In an email dated 14
April 2021 to Mr Thinus Cloete, the deponent to the founding

affidavit of the Applicant, Ms Barnard attempted to follow up the
status of a range of defects and to check on each door for the
same
defects.
[12]
In
a further email from  Ms Barnard to Mr Cloete, dated 3 May 2021,
she expresses her dismay that the no progress was made
since her last
communication and seeks clarification from Mr Cloete as follows:
“
except
for the site visit you did without feedback to the owner or myself.
You have given commitment for this Wednesday 5
May to mr. Lebakeng?
Please inform us in writing what you are planning to rectify by
when
”
.
[13]
[31]
The
Applicant had been furnished with the AAMSA report, which it attached
to the founding affidavit as Annexure “FA16”.
[14]
[32]  It may be that
the Applicant disagrees with the findings of the AAMSA report and
which aspects of the defects identified
were included in the scope of
work agreed between the parties. However, what the Applicant cannot
deny is that prior to bringing
its main application it itself was
fully aware of a dispute about the quality of the goods supplied and
the workmanship which were
the subject of the invoice it demanded
payment for.
[33]  In reply to
the Respondents submission that the Applicant did not become aware of
these material disputes of fact only
after the answering affidavit
was filed, Mr Prophy submitted that the Applicant could not have
foreseen that first and second Respondent
would dispute liability or
that Ms Barnard would confirm the Respondents version.
[34]
However,
this version is not supported by the pre-litigation correspondence.
In a letter addressed to the Applicant’s
attorney Jennings by
first Respondent dated 3 August 2021
[15]
(in response to a letter of demand sent by Jennings Inc), the first
Respondent advises the attorney that Centrality was doing work
for
LBK consulting (third Respondent) and not “ourselves”.
The Applicant itself in its founding affidavit refers
to this
letter.
[16]
It may be of course that the Applicant disagrees with this, as
submitted in these proceedings.  But it was appraised
of the
fact that the first and second Respondents had disputed their
liability as far back as 3 August 2021.
[35]
As
to Ms Barnard’s confirmatory affidavit, the Applicant was fully
aware of the defects she had identified and her concern
that these
had not been attended to.
Ms
Barnard held a meeting at the house with Thinus and walked through
all the defects. Ms Barnard then sent an email on 14 April
2021 to
Thinus in which she outlined several issues.
[17]
On
3 May 2021 a further email was sent to Thinus from Ms Barnard in
which she noted that no progress had been made by the Applicant.
[18]
[36]
In the recent case of
Economic
Freedom Fighters and Others v Manuel
,
the SCA re-affirmed that generally a court will dismiss an
application when, at the time that the application is launched, an

Applicant should have realised that a serious dispute of fact was
bound to develop.  It went further to state that bringing
an
application to claim relief that is not appropriate to be sought in
motion proceedings, will ordinarily be an
a
fortiori
case –
[36.1]
“
[114] We
now deal with the alternative relief sought by Mr Manuel in his
notice of motion, namely, the referral of the issue
of quantum to
oral evidence. It is true that a court, in motion proceedings, in
terms of Uniform Rule 6(5)(g), has a discretion
to direct that oral
evidence be heard on specified issues with a view to resolving a
dispute of fact or, in appropriate circumstances,
to order the matter
to trial. Generally, however, a court will dismiss an application
when, at the time that the application is
launched, an Applicant
should have realised that a serious dispute of fact was bound to
develop
.
We
would add that bringing application proceedings claiming relief that
is not appropriate to be sought in such proceedings, will
ordinarily
be an a fortioricase.”
[19]
[37]  It was clear
that Applicant had full knowledge of the disputes between the parties
prior to bringing the main application
and should have foreseen that
material disputes of fact were likely to arise.
[38]
The
Applicant in seeking to avoid a dismissal of this application relied
on the Constitutional Court decision in
Mamadi
and Another v Premier of Limpopo Province and Others
[20]
in support of the submission that courts should be hesitant to
dismiss applications in terms of Rule 6(5)(g). Mr Prophy submitted

that were I to dismiss this application, the main application would
still be alive, and the parties would be back at square one.

The Applicant would then have to withdraw its application and issue
summons.  The interests of justice required that the dispute
be
referred to trial for expeditious resolution.
[39]
Mamadi
however is distinguishable on the facts.  In that case the court
was dealing with the relationship between Rule 6(5)(g) and
Rule 53.
At the core of that matter was whether the High Court, in a review
application of the findings of the Kgatla Commission
and the
decisions of the Premier of Limpopo province,  had exercised its
discretion judicially.  This was a matter that
dealt with the
impact of administrative decisions on the lives of ordinary
citizens.
[40]  The facts of
this case differ.  First this matter concerns a dispute between
private parties, a dispute that was
already foreshadowed in
pre-litigation correspondence.  The Applicant, in full knowledge
of the possible disputes between
it and the Respondents, nevertheless
elected to proceed with motion proceedings.
[41]  Even if I am
to assume, for arguments’ sake, in favour of the Applicant that
it could not have anticipated at the
time of commencing motion
proceedings that Ms Barnard’s version might change or the
counterclaim brought by the Respondents
in the answering affidavit,
it does not explain why it waited
five
(5) months
before bringing the transfer application.  In that time, even on
its own version that it became aware of the disputes
of fact only
after the Respondents answering affidavit, which version I must
stress is not supported by its own documents, it could
have withdrawn
the application and issued summons.  It elected not to do so.
In my view the Applicant has itself caused
delays in the expeditious
resolution of this matter that it now argues for.
[42]  During
argument there was, as expected, some degree of elision between the
two applications.  Both parties referred
to the affidavits in
the main application, in support of their submissions. As discussed
previously the Respondent asked that “the
application be
dismissed, alternatively decided in its favour in terms of
Plascon
Evans
”, without clarifying whether it was referring to the
main application or the transfer application or both.
[43]
In
Room
Hire Co (Pty) Ltd v Jeppe Mansions (Pty) Ltd
[21]
it
was stated that:
[43.1]
“
It
is obvious that a claimant who elects to proceed by motion runs the
risk that a dispute of fact may be shown to exist. In that
event (as
is indicated infra) the Court has a discretion as to the
future course of the proceedings. If it does not consider
the case
such that the dispute of fact can properly be determined by
calling viva voce evidence under Rule 9, the parties
may be
sent to trial in the ordinary way, either on the affidavits as
constituting the pleadings, or with a direction that pleadings
are to
be filed. Or the application may even be dismissed with costs,
particularly when the applicant should have realised when
launching
his application that a serious dispute of fact was bound to develop
.
It is certainly not proper that an applicant should commence
proceedings by motion with knowledge of the probability of a
protracted
enquiry into disputed facts not capable of easy
ascertainment, but in the hope of inducing the Court to apply Rule 9
to what is
essentially the subject of an ordinary trial action
.”
(
my
emphasis
)
[44]  In this
matter, the issue is not merely that of foreseeability or
probability, namely whether the Applicant could have
foreseen that a
dispute of fact would arise at the time it launched the application,
but rather of an election made by the Applicant
in full and actual
knowledge of the pre-litigation disputes between the parties. A
dismissal of the transfer application would
of course leave the main
application alive. However, the consequences for the Applicant in
such event have been caused by the Applicant
itself by electing to
proceed in this manner.
[45]  In the
circumstances, the following order is made–
[45.1] The application to
transfer the matter to trial brought in terms of Rule 6(5)(g) is
hereby dismissed.
[45.2] The Applicant is
to pay the Respondents’ costs for this application on an
attorney and client scale.
Y CARRIM
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
APPEARANCES
COUNSEL FOR APPLICANT:
Adv E Prophy
INSTRUCTED BY:
Jennings Incorporated
COUNSEL FOR
RESPONDENTS:
Adv T Mosikili
INSTRUCTED BY:
Dyasi Incorporated
DATE OF THE HEARING: 31
July 2023
DATE OF JUDGMENT: 25
August 2023
[1]
See
Founding Affidavit para 4.2 and para 6.9 as at CaseLines section
005-20.
[2]
Section
009-51 on CaseLines.
[3]
Section
009-52 on CaseLines.
[4]
See
Annexure AA9 at section 009-65 on CaseLines.
[5]
Section
010-1 on CaseLines.
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A).
[7]
All SA 243 (SCA) 2009 (2) SA 279 (SCA).
[8]
Paragraph
[26].
[9]
Harms
Civil
Procedure in the Superior Courts B-8
and the authorities listed in fn 2 at B-59.
[10]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T).
[11]
Paras 4.2 and 4.3 of the Founding Affidavit. 005-4 and 005-5.
Also para 6.10 at 005-14
[12]
Section
009-60 on CaseLines.
[13]
Section
009-62 on CaseLines.
[14]
Section
005-62 on CaseLines.
[15]
Section
009-50 on CaseLines.
[16]
Para 6.8 of the Founding Affidavit 005-14
[17]
See
Annexure “AA7” at section 009-61 on CaseLines.
[18]
See
Annexure AA8 at section 009-66 on CaseLines.
[19]
[2020]
ZASCA 172
;
[2021] 1 All SA 623
(SAC);
2021 (3) SA 425
(SCA) at
[114]
.
[20]
(CCT
176/21)
[2022] ZACC 26
;
2023 (6) BCLR 733
(CC) (6 July 2022).
[21]
1949 (3) SA 1155
(T) at 1162