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[2011] ZAGPPHC 187
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Hendrick Gideon Van Der Merwe t/a Flame and Grill Queenswood and Another v Meondo Trading 445 CC (A377/2010) [2011] ZAGPPHC 187 (8 September 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
CASE NO. A377/2010
DATE:08/09/2011
In
the matter between:
HENDRICK
GIDEON VAN DER MERWE t/a
FLAME
..........................................
First Appellant
AND
GRILL QUEENSWOOD
DAVID
DANIEL VAN DER MERWE t/a FLAME
&
...........................................
Second Appellant
GRILL
QUEENSWOOD
and
MEONDO
TRADING 445
CC
..................................................................................
Respondent
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
[Reference
is also made to the parties' heads of argument. This is
acknowledgement thereof].
(1.1) This is an appeal
against a summary judgment granted in favour of the Respondent who
was the Plaintiff in the summary judgment
application before the
Honourable Magistrate Dr L.T. Mkanzi, handed down on the 25
th
March 2010.
(1.2) This is an appeal
against the whole of the order and judgment handed down as aforesaid.
[2]
THE GIST OF THE MATTER:
(2.1) The Appellants
(Respondents in the Court a quo founded their appeal on 3 grounds).
(2.2) The Respondent
submits that all 3 grounds are technical in nature and hold no water.
[3]
THE LAW:
It is trite law:
(3.1) Summary judgment
was labelled as being very extraordinary and very stringent.
(3.2) Although still in
principle extraordinary and strict, these elements (labels) have been
watered down (at least to some extend).
See: ERASMUS - Superior Court
Practice on B1 - 206 and 206A:
"The
object of rule 32 is very much the same as that of the English Order.
The rule was designed to prevent a plaintiff's claim,
based upon
certain causes of action, from being delayed by what amounts to an
abuse of the process of the court In certain circumstances,
therefore, the law allows the plaintiff after the defendant has
entered appearance, to apply to court for judgment to be entered
summarily against the defendant, thus disposing of the matter without
putting the plaintiff to the expense of a trial. The procedure
is not
intended to shut out a defendant who can show that there is a triable
issue applicable to the claim as a whole from laying
his or her
defence before the court
The remedy provided by
the rule has for many years been regarded as an extraordinary and a
very stringent one in that it doses the
doors of the court to the
defendant and permits a judgment to be given without a trial. In Joob
Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture
[2009(5) SA 1 (SCA) at 11G - 12D] the Supreme Court of Appeal, in
holding that the time has perhaps
come to discard iabeis such as
'extraordinary' and 'drastic', stated:
'The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out. In the Maharaj
case [9] 1976(1) SA
418(A) at 425G - 426E at 425G-426E, Corbett JA was keen to ensure,
first, an examination of whether there has
been sufficient disclosure
by a defendant of the nature and grounds of his defence and the facts
upon which it is founded.
The
second consideration is that the defence so disclosed must be both
bona fide and good in law. A court which is satisfied that
this
threshold has been crossed is then bound to refuse summary judgment."
(My emphasis)
(3.3) A bona fide defence
should be disclosed - the defence should be bona fide not the
defendant - See ERASMUS
atB1 -223:
"'Bona fide
defence.' All that the court enquires, in deciding whether the
defendant has set out a bona fide defence, is: (a)
whether the
defendant has disclosed the nature and grounds of his or her defence,
and (b) whether on the facts so disclosed the
defendant appears to
have, as to either the whole or part of the claim, a defence which is
bona fide and good in law.
Bona
fides in the subrule cannot be given its literal meaning; the subrule
does not require the defendant to establish his or her
bona fides; it
is the defence which must be bona fide..."
(3.4) If there is a
defence made out, the Court MUST give
leave, in aii other
instances the Court MAY still give leave.
See ERASMUS B1 -231.
"Subrule (6): 'The
court shall give leave to defend.' It has been held that in terms of
this subrule a superior court has no
discretion to grant summary
judgment if the defendant is
otherwise
entitled to defend; there is only a discretion to refuse. The purpose
of subrule is that the plaintiff's claim is not
to be defeated by
what is only a partial defence. The affidavit by a defendant
resisting a claim to summary judgment should - where
defendant knows
the amount by which the plaintiff's claim should be reduced -
indicate the amount payment whereof is to be resisted.
The plaintiff
will then be entitled to summary judgment for the undisputed
balance." (My emphasis)
(3.5) It must be valid in
law and an attack on the language will not do, neither will technical
defences - See ERASMUS atB1 -225
and B1 -226.
[4] GROUNDS OF APPEAL:
(4.1) First ground:
4.1.1 The first and
second appellants aver that in the affidavit in support of the
application for summary
judgment, the respondent
referred to the appellants in singular form instead of plural.
4.1.2 No reference to
this point has been made in the affidavit resisting summary judgment.
4.1.3 I find in view of
paragraph (3.5) above, that it holds no water.
(4.2)
Second ground:
4.2.1 The second ground
of appeal raised by the first and second appellants is in respect of
the fact that the respondent has subsequent
to the launching of the
application for summary judgment supported by the relevant affidavit
confirming the facts filed an application
to amend particulars of
claim to the effect that the name of the first appellants in
paragraph 2 was merely spelled incorrectly
in paragraph 2 of the
particulars of claim, and paragraph 17 of the particulars of claim
referred to second and third defendants
whilst it should have
referred to first and second defendants.
4.2.2 This ground is in
my view merely cosmetic and not material.
4.2.3 In any event,
during no point in time could or have the first and second appellants
been prejudiced by the miss spelling of
two digits in the first
appellants name, or the reference to second and third defendants.
4.2.4 Thus, I find no
merit in this ground.
(4.3)
Third ground of appeal:
4.3.1
As a third ground of appeal the first and second appellants raised
the point that the lease agreement properly signed by all
parties
concerned and relied on by the respondent was subject to the
condition that the lease agreement between the respondent
and the
previous owner of the business, Mr Ehrich would prevail until such
time as the appellants had duly performed in terms of
the purchase
agreement towards Mr Ehrich.
4.3.2 Clause 30 of the
lease agreement only deals with WAIVER, CONCESSION AND
REPRESENTATIONS.
4.3.3 The respondent has
at no point in time ever been involved in any agreement of Mr Erich's
sale of business to the appellants,
has never been a party thereto
and could never been bound thereby in any manner, so the argument
goes.
4.3.4 However, there are
at least prima facie indications that some negotiations / dealings /
conversations were going on with Mr
Erich.
4.3.5 The letter is
convincing enough persuading me that at the very least, the
discretion to grant leave should have been exercised.
[5]
CONCLUSION:
(5.1) I am of the view
that the appeal should be upheld.
(5.2) Therefore I suggest
that the following order should be made:
" (i) The appeal is
upheld with costs.
(ii)
The magistrate's order is substituted with the
following:
(a) Leave is granted to
the defendants to defend;
(b) Costs will be costs
in the cause."
GOODEY
AJ
I
agree and it is so ordered
PRINSLOO
J
Heard: 08/09/2011
Judgment: 08/09/2011
On behalf of the
Appellants: Adv P Vermeulen - Pretoria
Attorneys:
ROETS
& VAN RENSBURG INC.
Pretoria
Tel:
012 344 6111
Ref:
CL J van Rensburg/er/RRQ006
On
behalf of the Respondent: Adv EA Lourens - Pretoria
Attorneys
NATALIE
VISAGIE ATTORNEYS
17
Belfry Close, Silver Village, Silverlakes Service by fax: 0866 154
075 / 086 613 9868