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[2017] ZAECPEHC 33
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Beattie v Latjieskloof Beleggings (Pty) Ltd (1432/2017) [2017] ZAECPEHC 33 (30 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISON, PORT ELIZABETH
Case
No.: 1432/2017
Date
Heard: 13 June 2017
Date
Delivered: 20 June 2017
In
the matter between:
KAY
BEATTIE
Plaintiff
and
LATJIESKLOOF
BELEGGINGS (PTY) LIMITED
Defendant
JUDGMENT
EKSTEEN
J:
[1]
The
plaintiff, an estate agent who was previously employed by the
defendant, seeks summary judgment against the defendant for payment
of certain commissions which she contends were earned during the
period of her employment with the defendant.
[2]
The
plaintiff was employed in terms of the provisions of a written
contract. The material portion of the written contract
for
purposes of the summary judgment proceedings provide:
“
5.
REMUNERATION
5.1
The Agent shall receive 50% (fifty percent) of the commission earned
by her on all registered
re-sales.
5.2
…
5.4
No commission shall therefore be considered earned and payable until
the
commission has been collected by and become payable to the
Company.
5.5
…
5.7
In the event that the Company or another staff member or agent are
required
to finalise a sale because of the Agent’s absence, for
whatever reason, the commission payable on such a sale, shall be
allocated
in accordance with Company policy prevalent at the time,
unless otherwise agreed upon.”
[3]
In the
particulars of claim the plaintiff alleges that an amount of
R98 975,46 is due to her in consequence of services rendered
by
her in concluding the sale of certain immovable property listed in
the particulars of her claim. In addition she alleges
that she
is entitled to R62 034,38 in respect of “building
commission” arising from services rendered by
her in
accordance with the contract of employment. She contends that
the defendant has received the commissions due in respect
of these
transactions.
[4]
In response
to the application for summary judgment, one Germishuys has deposed
to an affidavit on behalf of the defendant.
A number of
defences relating to breaches of numerous clauses of the contract of
employment are alleged. Mr
van
Rooyen
,
who appeared on behalf of the defendant in the summary judgment
proceedings, correctly, in my view, acknowledged that, save as
set
out below, the defendant has not disclosed fully the nature and the
grounds relied upon for these defences nor the material
facts.
In these circumstances it is not necessary for present purposes to
deal with these defences raised in the opposing
affidavit.
[5]
The amount
claimed in respect of building commissions may be briefly dealt
with. The defendant annexed to the opposing affidavit
a
schedule of the transactions in respect of which the plaintiff claims
building commissions. The summons is silent as to
the manner in
which or when building commission was earned. Germishuys
states, however:
‘
It
is also noteworthy that the “building commissions” …
is in respect of work conducted after registration of
the relevant
transactions. In the Respondent’s office the
administration relating to the building commissions could,
and did
only take place after Applicant left Respondent’s employ.
Applicant therefore did not conduct any work that
would justify the
building commissions she attempts to claim in her Summons.’
[6]
Germishuys
annexed a schedule to his affidavit setting out the transactions
relied upon by the plaintiff and reflecting the date
of each
transaction and the date of registration thereof. In each case,
but one, the property was only registered after the
resignation of
the plaintiff. The effect hereof is that, on an acceptance of
the averment of Germishuys, the work and administration
in respect of
“building commissions” only occurred after plaintiff had
departed. In these circumstances Mr
Moorhouse
,
on behalf of the plaintiff, acknowledged that the defendant has set
out a
bona
fide
defence
in respect of the building commissions and that leave should be
granted to the defendant to defend the action in respect
of the
building commissions.
[7]
In respect
of the sales commissions Germishuys declares that the plaintiff
resigned from the employ of the defendant on 15 April
2016 and left
immediately. As a result of her resignation and immediate
departure he states that other agents and/or staff
members of the
defendant had to conclude the plaintiff’s pending sales.
As set out earlier he annexed to his affidavit
a schedule which
reflects the dates of the sales and the dates of registration of the
properties. Germishuys states that
from the list it is
important to note that only one transaction was concluded during the
plaintiff’s employ with the defendant.
In the
circumstances other staff members of the plaintiff had to conclude
the work involved in finalising the transactions after
the
plaintiff’s resignation. Germishuys relies on the
provisions of clause 5.7 of the employment contract which is
quoted
earlier herein and declares accordingly that deductions were to be
made from the commission which accrues to the plaintiff
as a result
of the said sales.
[8]
It is
evident from the schedule annexed to the opposing affidavit that all
the sales relied upon by the plaintiff were in fact concluded
prior
to plaintiff’s resignation and all but one were registered
after her resignation. Whilst Germishuys declares
that other
staff members of the plaintiff had to conclude the work involved in
finalising the transactions he does not take the
court into his
confidence in declaring what the prevailing policy envisaged in
clause 5.7 was at the time. He does not explain
what work
remained to be done in respect of the registration of the property
after the contracts of sale had been concluded nor
what portion of
the commission was to be allocated to such staff in terms of the
prevailing policy.
[9]
Mr
van
Rooyen
,
on behalf of the defendant, argues, however, that whilst it may be
that the plaintiff is entitled to commission in respect of
all those
sales a
bona
fide
and valid defence has been raised to a portion of the claim, although
it cannot be quantified on the information before me.
[10]
Rule
32(3)(b) requires of a defendant opposing the grant of summary
judgment to satisfy the court by affidavit (or evidence) that
he has
a
bona
fide
defence to the action. In order to do so he is required to
disclose fully the nature and the grounds of the defence and the
material facts relied upon. Rule 32(6) provides that where a
court at a hearing of summary judgment proceedings determines
that
the defendant is entitled to defend part of the claim the court shall
give leave to the defendant to defend that part of the
claim and
enter judgment against him as to the balance of the claim, unless
such balance has been paid to the plaintiff.
[11]
In
Joob
Joob Investments (Pty) Ltd v Stocks Mvundla Zek Joint Venture
2009 (5) SA 1
(SCA) at 11H-12D the Supreme Court of Appeal set out
the approach to summary judgment proceedings as follows:
“
In
the
Maharaj
case 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. Corbett JA also warned against requiring of
a defendant the precision apposite to pleadings.
However, the learned
judge was equally
astute to
ensure that recalcitrant debtors pay what is due to a creditor.”
[12]
In
considering an application for summary judgment the court is called
upon to strike a balance. On the one hand it seeks
to assist
the plaintiff whose right to relief is being balked by the delaying
tactics of a defendant who has no defence, while
on the other hand it
is reluctant to deprive a defendant of his normal right to defend,
except in a clear case. (Compare
Skead
v Swanepoel
1949 (4) SA 763
(T) at 767;
Standard
Bank of SA Limited v Naudé
and
Another
2009 (4) SA 669
(E) at 672C-676D and
Sekretaris
van Landboukrediet en Grondbesit v Loots
1973 (3) SA 296
(NC) at 298.) It has also been held that it is
only where a court has no reasonable doubt that the plaintiff is
entitled
to judgment as prayed, or that the plaintiff has an
unanswerable case, that summary judgment will be granted. (See
Edwards
v Menezes
1973 (1) SA 299
(NC) at 304-5.)
[13]
Where,
however, the rule requires of a defendant to “satisfy”
the court the defendant is required to set out in
his affidavit facts
which, if proved at the trial, will constitute an answer to the
plaintiff’s claim or part thereof.
(See
Breitenbach
v Fait SA (Edms) Beperk
1976 (2) SA 226
(T).) A defendant is therefore required to set
out the facts and the particulars. Whilst a defendant is not
required
to set out his defence with the precision required of
pleadings, nonetheless he must do so with a sufficient degree of
clarity
to enable the court to ascertain whether he has deposed to a
defence which, if proved at the trial, would constitute a good
defence
to the action. Where the defence relied upon is set out
in a manner which appears in all the circumstances to be needlessly
bald, vague or sketchy, that will constitute material for the court
to consider in relation to the requirement of
bona
fides
(see
for example
Breitenbach
v Fait SA
supra
;
Neuhoff
v York Timbers Limited
1981 (4) SA 666
(T);
Standard
Merchant Bank v Rowe
1982 (4) SA 671
(W) at 678).
[14]
On a
consideration of the affidavit of Germishuys measured against the
principles set out above I consider that the defendant has
failed to
set out facts, which if proved at the trial, would constitute a valid
defence in law. As set out earlier it is
common cause that all
the property sales relied upon by the plaintiff were in fact
concluded prior to her resignation. Germishuys
makes the bald
allegation that other members of staff were required to perform work
in finalising the registration of the property.
No facts are
set out in the affidavit in respect of the nature of these functions
which would enable the court to adjudicate on
the extent of the work
which was required to be performed or the
bona
fides
of the defence. It is inherent in the defence raised and argued
in the summary judgment proceedings that there is an acknowledgment
that the plaintiff is entitled to the payment of certain amounts of
commission, however, Germishuys has made no attempt to quantify
either the plaintiff’s entitlement or the value of the work
performed by other agents and, as recorded earlier, the
prevailing policy of the defendant is not disclosed.
[15]
In all the
circumstances I do not consider that the defendant has established a
bona
fide
defence,
as envisaged in rule 32(2) in a manner which accords with the
authorities which I have set out above. In the result
the
plaintiff is entitled to judgment in the amount of R98 975,46 in
respect of sales commission. The defendant, in
line with the
concession made by Mr
Moorhouse,
is entitled to leave to defend the claim in respect of building
commissions.
[16]
The only
remaining issue to consider relates to the costs of the application
for summary judgment. The plaintiff’s claim
as set out in
the summons is in the total amount of R161 009,83. Before
me counsel were agreed that the amount falls
squarely within the
jurisdiction of the magistrates’ court. In these
circumstances, in the absence of cogent considerations
to the
contrary, that the plaintiff’s entitlement to costs should be
limited to the appropriate magistrates’ court
scale.
[17]
In the
result, I make the following order:
1.
The
defendant is ordered to pay to the plaintiff the amount of R98 975,46
as and for erf commission.
2.
The
defendant is granted leave to defend the plaintiff’s claim in
respect of building commissions.
3.
The
defendant is ordered to pay the plaintiff’s costs occasioned by
the application for summary judgment on the appropriate
magistrates’ court scale.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv A Moorhouse instructed by Kaplan
Blumberg Attorneys, Port
Elizabeth
For
Defendant: Adv C van
Rooyen instructed by Carlo Swanepoel Attorneys c/o Wouter
Minnie
Attorneys, Port Elizabeth