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[2009] ZAECPEHC 42
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Bricks v O'Brien Contractors CC (1781/09) [2009] ZAECPEHC 42 (27 August 2009)
IN THE HIGH COURT OF SOUTH AFRICA
NOT REPORTABLE
EASTERN CAPE,
PORT ELIZABETH
Case No. 1781/09
Date
delivered: 27 August 2009
In the matter between:
SIBANYE
BRICKS
Plaintiff
and
O’BRIEN CONTRACTORS CC
Defendant
JUDGMENT
EKSTEEN AJ:
The plaintiff claims payment of the amount of R164 662,50 from the defendant
in respect of goods sold and delivered. The plaintiff
alleges that during
February 2009 he entered into an oral agreement with the defendant, represented
by one O’Brien, for the
supply by the plaintiff of concrete blocks to the
defendant.
The essential terms of the alleged agreement are that the plaintiff would
supply blocks in such quantities as the defendant may request
at a purchase
price of R7,50 per block inclusive of VAT and transport to Jansenville. The
defendant, for its part, undertook to
pay the purchase price of the cement
blocks so delivered by not later than the end of the week in which the blocks
were delivered
to defendant, alternatively, on demand.
Pursuant to the said agreement the plaintiff proceeded to deliver to the
defendant concrete blocks at the special instance and request
of the defendant.
In consequence of the said deliveries the plaintiff contends that the defendant
became liable to him in the amount
of R226 800. The plaintiff has made payment
of the sum of R60 000. In the circumstances the defendant claims from the
plaintiff
payment on the sum of R164 662,50.
The defendant has entered an appearance to defend and the plaintiff proceeded
to claim summary judgment.
In the opposing affidavit filed on behalf of the defendant by the said
O’Brien in the summary judgment proceedings the defendant
admits being
liable to the plaintiff but disputes the amount of his indebtedness.
O’Brien contends that to the knowledge of
the plaintiff the amount owing
is not ascertainable and therefore not liquidated. He accordingly contends that
the defendant does
have a
bona fide
defence.
O’Brien sets out the basis for the aforestated contentions as
follows:
“It is admitted that the plaintiff and the defendant entered into an
agreement that plaintiff supply cement blocks to the
defendant. During
delivery of aforesaid increasingly defective loads were delivered in that many
of the blocks were of such poor
standard and broken to the extent that it could
not be used. So much so that some of the last loads delivered were of such poor
quality that the defendant invited the plaintiff to inspect the loads delivered.
The plaintiff agreed that the material was not fit
for the purpose and it was
agreed that credit would be passed. To date no agreement was reached about the
quantity of the defective
blocks nor on the amount of credit that will be passed
in favour of the defendant. The amount claimed is the aggregate for all the
blocks delivered inclusive of the defective blocks.”
Mr
Vlok
, who appears on behalf of the plaintiff, submits
that this allegation does not comply with the requirements of Rule 32 (3)(b) in
that it does not disclose a
bona fide
defence to the action and does not
disclose fully the nature and the grounds of the defence. In particular it is
argued that it
is incumbent upon the defendant to state how many bricks were
defective and to what extent. In the absence of such averments, it
was
submitted that the defendant has failed to disclose fully the nature and grounds
of his defence.
I consider that the defendant has set out sufficient to establish the nature
and grounds of his defence and the
bona fides
thereof. The defendant
contends that the plaintiff has inspected the quality of the goods and
acknowledged that a large quantity
of the goods were not fit for the purpose for
which were purchased. He undertook to pass credit for the defective goods. The
defence
raised is accordingly that by the admission of the plaintiff a
significant percentage of the blocks delivered were not fit for the
purpose for
which they were sold and that a substantial credit would be passed. The number
of bricks which the plaintiff would charge
for has not been agreed.
O’Brien does not state the number of bricks which he contends were so
inferior as to be unfit for the purpose for which they
were bought but, in my
view, that does not necessarily justify the granting of summary judgment. In
Border Concrete Company v Knickelbein
1982 (2) SA 648
(ECD)
Zietsman J, considering a similar defence stated as follows at 651D-G:
“I do not think that the learned Judge in the
Herb Dyers
case meant to lay it down as a general rule that summary judgment should be
granted in all cases where the defendant, in response
to a claim for goods sold
and delivered or for services rendered, states that he disputes the amount
claimed by the plaintiff but
is unable to state exactly what amount he does owe.
If he can show that he has a
bona fide
defence to at least part of the
plaintiff’s claim, and if to the best of his ability he discloses the
nature and grounds of
his defence and the material facts he relies upon
therefore, this may well be sufficient to avoid summary judgment being granted
against him even if he admits that he does owe something, but cannot at that
stage say precisely what sum he owes, particularly where
he has tried without
success to obtain details of his claim from the plaintiff. Each case must be
decided on its own special facts,
and it must not be forgotten that summary
judgment is an extraordinary and stringent remedy in that it permits a final
judgment to
be given against the defendant without trial (cf
Arend and
another v Astra Furnishers (Pty) Ltd
1974 (1) SA 298
(C)).”
In the present case I am satisfied that the defendant has shown that he does
have a defence to a material portion of the claim and
the plaintiff has
undertaken to provide him with particulars of the credits which will be passed.
In these circumstances he is unable
to state the extent of his
liability.
In any event, should I be incorrect in concluding that the defendant has
complied with the provisions of Rule 32(2)(b) then, in any
event, I am of the
view that this is the type of matter where I would feel obliged to exercise my
discretion against the granting
of summary judgment. Compare
Sylko Paper
Company (Pty) Ltd v Castle Supermarket
1977 (3) SA 698
(N).
The
order that I make is therefore that:
1. summary judgment is refused;
2. the defendant is granted leave to defend the action; and
3. the
costs of the application for summary judgment are to stand over for
determination by the trial court.
____________________
J W
EKSTEEN
ACTING JUDGE OF THE HIGH COURT