About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 583
|
|
Northern Lights Trading 123 (Edms) Bpk v ACM Shopfitter Bk (22532/2007) [2010] ZAGPPHC 583 (16 February 2010)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO:
22532/07
DATE:
16 FEBRUARY 2010
In the matter
between
NORTHERN LIGHTS
TRADING 123 (EDMS)
BPK
.........................................................................
Applicant
and
ACM SHOPFITTERS
BK
.................................................................................................................
Respondent
CATTLE BARON STEAK
RANCH FRANCHISING (PTY)
LTD
..................................................
Third
Party
IN RE:
ACM SHOPFITTERS
BK
....................................................................................................................
Applicant
and
NORTHERN LIGHTS
TRADING 123 (EDMS)
BPK
......................................................................
Respondent
CATTLE BARON STEAK
RANCH FRANCHISING (PTY)
LTD
..................................................
Third
Party
JUDGEMENT
DAVEL AJ
[1]
The present matter originally came to court in the opposed motion
court on 13 June 2008 where the applicant (respondent in
reconvention) sought an order against the respondent (the applicant
in reconvention) for payment of the amount of R560 885.50, together
with interest from 5 April 2007 at 15.5% per annum,
alternatively
,
a declarator that the applicant is entitled on the basis of a
reservation of ownership to remove the goods delivered and installed
at the Cattle Baron Restaurant. Rosebank, against repayment of the
amount of R454 781.43 to the respondent. In order not to confuse
matters unduly, I will refer to the parties as per the original
application.
[2] The applicant.
ACM Shopfitters CC, a closed corporation represented by Grobler,
based its claim on an agreement, “the
shopfitting agreement’,
allegedly concluded in November 2006 between the applicant and the
respondent, Northern Lights Trading
123 (Pty) Ltd. a private company
represented by the director Korb, to arrange and install the Cattle
Baron Restaurant in Rosebank
[3] The respondent's
case was based on a franchising agreement between the respondent and
the franchisor, Cattle Baron Franchising
Company (Pty) Ltd,
represented by the managing director. Dick, with its main office in
the Cape Province. The crux of the respondent's
case was the
allegation that the "shopfitting agreement" was not
concluded between the applicant and the respondent,
but rather
between the applicant and the franchisor.
[4]
Two distinctly different versions were portrayed in the affidavits
presented to court and the papers, no doubt, contained several
disputes as to facts. In
Fakie
v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) Cameron JA stated as follows in this regard:
[55]
That conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court for more
than 80
years. Yet motion proceedings are quicker and cheaper than trial
proceedings and. in the interests of justice, courts have
been at
pains not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald denials. More
than 60 years
ago, this Court determined that a Judge should not allow a respondent
to raise 'fictitious' disputes of fact to delay
the hearing of the
matter or to deny the applicant its order. There had to be a bona
fide dispute of fact on a material matter
. This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected out of hand, without recourse to
oral evidence. In
Ptascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-5 per Corbett JA, this Court extended the ambit
of uncreditworthy denials. They now encompassed not merely those that
fail to raise a
real,
genuine
or bona fide dispute of fact but also allegations or denials that are
so far-fetched or clearly untenable that the Court
is justified in
rejecting them merely on the papers
[56] Practice in
this regard has become considerably more robust, and rightly so. If
it were otherwise, most of the busy motion
courts in the country
might cease functioning But the limits remain, and however robust a
court may be inclined to be. a respondent’s
version can be
rejected in motion proceedings only if it is fictitious' or so
far-fetched and clearly untenable that it can confidently
be said, on
the papers alone, that it is demonstrably and clearly unworthy of
credence. (Footnotes omitted.)
Also
see
Rosen v Ekon
2001
(1) SA 199
(W) at 215B-D, where Wunsh J stated as follows:
Bearing
in mind the approach to contradictory affidavits mandated by
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 635H-636C. but agreeing with the statement in
Truth
Verification Testing Centre v PSE Truth Detection CC and others
1998
(2) SA 689
(W) at 689I-J, referred to by the applicant’s
counsel, that the so called ‘robust, common sense approach’
which
was adopted in cases such as
Soffiantini
v Mould
1956
(4) SA 150
(E) in relation to disputed issues on paper ‘should
also be applied in assessing a detailed version which is wholly
fanciful
and untenable'. I consider the respondent's defence to be
unsustainable.
1
[5]
The applicant's version was corroborated on vital issues by
accompanying affidavits. One such affidavit was filed by Naude,
a
project manager in the employee of Cattle Baron Steak Ranching
Franchising (Pty) Ltd. It confirmed several allegations contained
in
the applicant's founding and replying affidavits with regard to
certain important facts, such as his involvement as project
manager,
the drafting of a "fault list" with Grobler and the fact
that these shortcomings were attended to. to the satisfaction
of
Korb. It also confirmed the fact that Korb accepted liability.
Another example of a confirming affidavit was that of Du Plessis,
the
managing director of Patin Trading 167 (Pty) Ltd, a filial of Cattle
Baron Franchise Company (Pty) Ltd. He corroborated the
applicant on
very important facts such as the “key money”, his dealing
with Korb and receiving payment directly from
Korb. Furthermore he
was dear on the fact that Korb was the person that accepted the
quotes and explained satisfactorily the dust
and plaster on the
kitchen equipment that was ta<en over by the respondent from the
previous owner of the premises. He confirmed
that the work was
completed and inspected by Korb at some stage.
[6]
On the other hand. Korb's affidavit contained inaccuracies, such as
the fact that it referred to an annexure “BC6”
as being
email to the franchisor where
prima
facie
it
was a fax from Protech Facilities Management CC. Furthermore,
annexure "BC1” also created suspicion because the heading
clearly states, “ESTIMATED SETTING UP EXPENDITURE -
HARTENBOS
"
(own emphasis) which justified an inference that it couid not be
relevant in the present matter. Not a single confirming
affidavit was
presented to corroborate the allegations in the answering affidavit.
The replying affidavit by the respondent also
contained bare denials
without any substance and farfetched, untenable statements, eg. that
the work on the ceiling was not acceptable
ie. sub-standard and
poorly executed, that the air-conditioning was faulty, that there was
no variation order regarding the "shop
front”, that the
applicant acted as both shopfitter and project manager (while from
the documents presented to court it was
clear that the respondent
himself sourced quotation), that annexures “B” “BC1”
and "BC2" contained
not merely an estimate of what setting
up costs could probably entail while the headings explicitly stated:
"
ESTIMATED
SETTING
UP EXPENDITURE" (own emphasis) etc.
[7] The respondent's
version was considered to be unsustainable. On the one hand his
argument entailed that there was no agreement
between the parties,
but on the other hand he did at some stage admit that he owed the
applicant money. The "dispute”
regarding the parties to
this shopfitting agreement seemed far-fetched. The papers made it
clear that Korb concluded the agreement
for a company to be
registered and that company was then duly registered. At no stage was
there any uncertainty regarding the identity
of the shopfitting
company. One could have expected that the franchisor and/or its
employees would have confirmed the allegations
made by the
franchisee, but the contrary happened.
[8] In light of the
above, I found the respondent's version to be unsustainable and
unworthy of credence. I found some allegations
and denials of the
respondent to be far-fetched and untenable in motion proceedings. The
respondent's version was therefore rejected.
[9]
The respondent furthermore sought an order declaring that Cattle
Baron Franchising (Pty) Ltd, “the third party" is
liable
to indemnify the respondent against any money judgment if such a
money judgment is awarded against the respondent. A third
party
notice was served on the third party by the respondent in terms of
Rule 13 of the Uniform Rules of Court. However, the third
party
notice was issued in the form of a declaration and not in the form of
an affidavit. It therefore contained no facts or evidence.
The
applicant as
dominus
litis
chose
the forum, in this case the motion court. However, the respondent
decided that disputes of fact will arise and issued a declaration
to
secure a referral to trial. The issue in respect of the third party
notice could not be referred to trial because what the respondent
sought from the third party was an indemnity.
[10]
Counsel for the third party convincingly argued in the opposed motion
court that Rule 6(14) of the Uniform Rules makes the
other Rules
mutatis mutandis
applicable
to motion proceedings. The words
“
mutatis
mutandis"
mean
“all necessary changes having been made"
2
or
“subject to necessary alterations"
3
.
In this context the necessary changes related to adopting the
appropriate proceedings. Applying motion court proceedings, it would
have meant issuing or delivering the third party notice in the form
of an affidavit. The only other way to bring the issues between
the
respondent and the third party to the court's attention would have
been to deal with it in the answering affidavit. However,
this was
not the route that the respondent took.
[11] In the light of
the above, the following order was made:
ORDER
1.
Proceedings against the third party are dismissed with costs.
2. The respondent is
ordered to pay the amount of R560 855.50 with interest on this amount
from 5 April 2007 at a rate of 15.5%
to the applicant.
3. The respondent is
ordered to pay the costs of this application.
[12]
The Respondent filed an Application for Leave to Appeal on the
2A
r
June
2008, but due to unknown circumstances the application only came to
my attention in September 2009 and the Application for
Leave to
Appeal was argued on 18 September 2009.
[13] Due to the fact
that the original court file was not available, judgment was reserved
and counsel for the parties were requested
to compile a duplicate of
the file.
[14] The Application
for Leave to Appeal related to the whole of the order of the 13
:h
June 2008. I find it possible that another court may come to a
different finding.
The following order
is made:
ORDER:
1. Leave to appeal
the order made on 13
th
June 2008 is granted.
2. Cost to be cost
in the cause.
ATTORNEYS
FOR THE APPLICANT:
DJ
STEYN ATTORNEYS
012-3464201(TEL)
ATTORNEYS
FOR THE RESPONDENT
:
MICHAEL
POPPER & ASSOCIATES
012-3254185(tel)
ATTORNEYS FOR THE
THIRD PARTY:
HONEY ATTORNEYS
011-6561452(TEL)
COUNSEL
ON BEHALF OF THE APPLICANT:
ADV
R S SULLIVAN
COUNSEL
ON BEHALF OF THE RESPONDENT
ADV C WOODROW
COUNSEL
ON BEHALF OF THE THIRD PARTY
1
See also
Tecmed
(Pty) Limited v Hunter and Metha
[2008]
JOL 21468
(W).
2
Black's
Law Dictionary
Bryan
A. Garner (ed) 8
th
ed Thomson West Publishing (2004) at 1044.
3
Dictionary
of Legal Words and Phrases
vol
3 R. D. Claassen. LexisNexis (IV97) at 74.