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[2011] ZAGPPHC 148
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Weld-Cut Equipment (Pty) Ltd v Anthony Forrester t/a Amgas Industrial Equipment (35615/09) [2011] ZAGPPHC 148 (6 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 35615/09
DATE:O6/05/2011
In
the matter between:
WELD-CUT
EQUIPMENT (Pty)
Ltd
.........................................................................
APPLICANT
And
ANTHONY
FORRESTER
t/a
AMGAS INDUSTRIAL EQUIPMENT
….........................................................
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
defendants, for:
(1)
payment in the amount of R371 352, 59;
(2)
interest at the rate of 15,5 percent per annum, calculated daily and
compounded monthly in arrears, from 1 November 2008 to
date of
payment, both dates inclusive from 25 July 2009;
(3)
Attorney and client costs.
(4)
Further and/or alternative relief.
[2]
The plaintiff's claim arises from two written agreements concluded
between the parties. The first agreement is a distribution
agreement
concluded on or about 14 October 2005. This agreement was for the
distribution of industrial and medical gasses between
the plaintiff
and Tony Forrester, the distributors of the aforesaid commodities. A
copy of this agreement was attached to the summons
as annexure "A",
titled "Distribution Agreement".
[3]
The second agreement was a credit agreement concluded between the
parties on 18 October 2009. A copy of this agreement was attached
to
the summons as annexure "C" titled "distribution and
an oral agreement". The terms of the written agreement
are
contained in annexure "B". This agreement is titled "Credit
Agreement".
[4]
In the particulars of claim, the plaintiff alleged, inter alia, that:
"8. The Plaintiff
has performed all its obligations arising from agreement in that it
has:
8.1
Granted the defendant the facility, and
8.2
Appointed the defendant as a distributor in terms of the Distribution
Agreement and the Defendant accepted such appointment
as a
distributor of the Plaintiff for the re-sale of the gasses.
8.3.
Sold and delivered gases and cylinders to the Defendant as the
latter's special instance and request.
9.
As at 25 September 2008, the Plaintiff was indebted to the Plaintiff
in the sum of R371 352, 59 (three hundred seventy-one thousand
three
hundred and fifty two and fifty nine cents) which indebtedness is
confirmed by the Plaintiff statement which is attached
hereto as "E".
10.
The defendant has breached his obligations arising from the Credit
Agreement as well as the Distribution Agreement in that
he has failed
to make payment to the plaintiff of the sum of R371 352, 59 (three
hundred seventy-one thousand three hundred and
fifty two and ninety
five cents (sic)) either timeously or at all. 11 Notwithstanding
demand, the Defendant has failed to make
payments to the Plaintiff of
the sum of R371 352, 59 (three hundred seventy-one thousand three
hundred and fifty two and ninety
five cents (sic))."
[5]
The defendant in opposing the summary judgment application, inter
alia, denying that it is indebted to the plaintiff in the
claimed
amount or at all, and has raised a defence in limine. The defence is
that the plaintiff's particulars of claim are excipiable
by virtue of
various facts detailed in its opposing affidavit.
[6]
In summary judgments applications, what the court need to do is to
determine whether the defendant has disclosed fully the nature
and
grounds of his defence and the material facts upon which it is
premised, and (b) whether, on the facts disclosed, defendant
is
having a bona fide defence that is good in law.
The
court, in the exercise of its discretion, if it is of the view that
the defence raised is not bad in law, and that the case
of the
plaintiff is not unanswerable, will decline to grant summary
judgment; vide Tesven CC and Another v South African Bank of
Athens
1
.
[7]
In the matter of Marsh and Another v Standard Bank of SA LTD,
2
Blieden J restated the position in summary judgments as follows:
"Before dealing with
the merits of the appeal, it is necessary to discuss the provisions
of Rule 32(3)(b) and in particular
what the Rule, as interpreted by
our Courts over the years, requires of a Court in adjudicating
applications for summary judgment
where a defendant has relied on
this subrule.
1. The Rule requires the
defendant to set out in his affidavit sufficient facts which, if
proved at the trial, will constitute
an answer to the plaintiff's
claim. Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T); District
Bank Ltd v Hoosain and Others 1984 (4) SA 544 (C).
2. At the summary
judgment stage of the proceedings it is not for the Court to decide
any balance of probabilities or determine
the likelihood of the
deponent's allegations being true or false. Maharaj v Barclays
National Bank Ltd
1976 (1) SA 418
(A) at 426 where at A-E the
position is succinctly summarised by Corbett JA (as he then was) as
follows:
formulate his opposition
to the claim with the precision that would be required of a plea; nor
does the Court examine it by the
standards of pleading.'
3. The subrule does not
require the defendant to satisfy the Court that his allegations are
believed by him to be true. It is sufficient
if the defendant's
affidavit shows that there is a reasonable possibility that the
defence he advances may succeed on trial. Shepstone
v Shepstone
1974
(2) SA 462
(N) at 467A.
4. The Court must be
apprised of the facts upon which the defendant relies with sufficient
particularity and completeness so as
to be able to hold that if these
statements of fact are found at the trial to be correct, judgment
should be given for the defendant.
5. Summary judgment is an
extraordinary and stringent remedy and it is always necessary to keep
this in mind when exercising a discretion
whether to grant or refuse
it. Arend and Another v Astra Furnishers
6. A Court must be
careful to guard against injustice to the defendant who is called
upon at short notice and without the benefit
of further
particulars, discovery or
cross-examination to satisfy it that he has a bona fide defence.
Breitenbach v Fiat (supra at 227D-H)."
[8]
The defence raised by the defendant is a point in limine. In the
matter of Lovemore v White 1978 (3) 254 (ECD) at 260 G-261B
it was
held that: Where the case in a summary judgment application can be
decided on a crisp point of law, there is no reason why
the judge who
heard the point being argued before him, should not decide that
point. That judge can be in no better position that
the trial court
to decide that crisp point of law.
[9]
The point in limine is, however, that the plaintiffs particulars of
claim are excipiable. In the matter of Hollandia Reinsurance
Co Ltd v
Nedcor Bank Ltd
3
3
Goldblatt J, as he then was, held that: "...summary judgment
proceedings are inappropriate for dealing with a clearly arguable
questions of law which should properly be dealt with on exception
(Edwards v Menezes
1973 (1) SA 229
(NC) and Shingadia v Shingadia
1966 (3) SA 24
(R))."
[10]
In the matter of Jowell v Bramwell-Jones and Others
4
it was stated that: "An exception that a pleading is vague and
embarrassing strikes at the formulation of the cause of action
and
not its legality: Trolip and Others v South African Reserve Bank
5
.
An
exception that a pleading is vague and embarrassing cannot be
directed at a particular paragraph within a cause of action. The
exception must go to the whole cause of action, which must be
demonstrated to be vague and embarrassing."
6
[11]
Rule 18 (6) requires that if the contract relied upon in the pleading
is written, a true copy thereof or that part of the contract
it is
relied upon must be annexed to that particulars of claim.
[12]
In casu, the plaintiff alleged in its particulars of claim, inter
alia, that:
"4.21 The defendant
agreed that all amounts due and payable to the Plaintiff from time to
time may be determined by a certificate
issued and signed by a
director or manager of the Plaintiff. Such certificate shall be prima
facie proof of the indebtedness of
the Defendant (see clause 12. 8 of
the Credit Agreement)."
[13]
Annexure "E", which I have referred to herein above, does
not come close to the certificate referred to in the previous
paragraph. It is also imperative in matters where a contract is
relied upon that the materiality thereof be specifically pleaded,
and
not by reference to a document, as is the case with annexure "E".
In Jowell v Bramwell-Jones and Others (supra) at
902B-G the Court
said: "It is still a question of fact in each case as to whether
sufficient particularity has been given.
When the lack of
particularity relates to mere detail, the remedy of the defendant is
to plead to the averment made and to obtain
the particularity he
requires:
(i)
either by means of discovery/inspection of document
(ii)
by means of a request for further particulars for trial of those
particulars which are strictly necessary to enable the defendant
to
prepare for trial.
Rule
18 is restrictive and sets out the bare minimum required of a factual
averment, while Rule 23 goes to a vagueness and embarrassment
which
strikes at the whole of the cause of action pleaded. As Cloete J said
in Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical
Repair
Engineering (Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(W) at 460
J-470, . . if a pleading both fails to comply with Rule 18 and is
vague and embarrassing, the defendant has a choice
of remedies' (i.e.
to proceed by way of Rule 23 or Rule 30). I agree with counsel that
the crucial distinction between Rules 23
and 30 may be summarised as
follows:
(a)
an exception that the pleading is vague and embarrassing may only be
taken when the vagueness and embarrassment strikes at the
root of the
cause of action as pleaded; whereas
(b)
Rule 30 may be invoked to strike out the claim pleaded when
individual averments do not contain sufficient particularity; it
is
not necessary that the failure to plead material facts goes to the
root of the cause of action."
[14]
It needs mentioning that paragraph 9 of the particulars of claim,
deals with the amount for which the defendant is indebted.
Such
indebtedness is merely confirmed by reference to annexure "E".
However, annexure "E" merely details debits
and dates and
reference numbers. Subparagraph 8.3 merely states that the plaintiff
"Sold and delivered gases and cylinders
to the Defendant at the
latter's special instance and request." There are no details as
to the quantity of the gases and cylinders
sold and the dates of such
sales. Evidence would have to be led so as to create a link between
subparagraph 8.3 and paragraph 9.
[15]
The defendant has a choice to decide whether he mounts an attack on
the particulars of claim through Rule 30 or Rule 23. In
my view, the
pleadings as they stand are indeed excipiable. In the event I were to
grant summary judgment, the defendant would
have been deprived, to
his prejudice, an opportunity of resorting to either of these rules.
I am of the view that the defendant
has demonstrated bona fides in
opposing the grant of the summary judgment. I need not decide whether
the point in limine would
prevail at the trial. What is of importance
is whether it is arguable, which I think it is.
[16]
I am of the view that in the circumstances of this case, I should
therefore be guided by what was said in Marsh and Another
v Standard
Bank ofSA LTD (supra) and exercise my discretion in favour of the
defendant and not grant summary judgment. I deem it
not necessary to
interrogate the rest of the defences raised by the defendants since
these would be better ventilated during trial.
[17]
In the result I make the following order:
1.
That the application for summary judgment is dismissed;
2.
That the defendant is granted leave to defend.
3.
That the costs of the summary judgment shall be costs in the course.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE OF JUDGMENT :
05/05/2011
APPLICANT'S ATT :
HAMMOND POLE MAJOLA.
APPICANTSADV : RC
CHRISTIE
RESPONDENTS' ATT : R.C.
CHRISTIE INC
RESPONDENTS ADV : ADV J
MINNAAR
1
2000
(1) SA 268
(SCA) at 277G-278A.
2
2000(4)
SA 947 at 949B-950B.
3
1993
(3)
SA 574
(WLD) at 576H.
4
1998
(1) SA 836
(WLD) at 899F-G.
5
[1993] ZASCA 54
;
1993
(3) SA 264(A).
6
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(WLD) at 899F-G.