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[2019] ZAECPEHC 9
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Adcock Ingram Critical Care Propriety Limited v Tiagen Industrial Proprietary Limited (3900/2018) [2019] ZAECPEHC 9 (12 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No: 3900/2018
Date
Heard: 5 February 2019
Date
Delivered: 12 February 2019
In
the matter between:
ADCOCK
INGRAM CRITICAL CARE PROPRIETARY LIMITED
Applicant
and
TIAGEN
INDUSTRIAL PROPRIETARY LIMITED
Respondent
JUDGMENT
GAJJAR
AJ:
[1]
This is an opposed application for summary judgment wherein the
plaintiff seeks an
order in the following terms against the defendant
arising from a contract concluded between the parties for the
rendering of services:
1.1
Payment of the amount of R548 045;
1.2
Interest at the applicable rate per annum
a tempore morae
to
date of payment;
1.3
Costs of the application.
[2]
Prior to the matter being argued, I
mero motu
raised a
prelimnary issue with the plaintiff’s counsel, Ms
Mokale
,
regarding compliance with the provisions of Rule 32(2). This
was with particular reference to the contents of the verifying
affidavit deposed to by the plaintiff’s Pharmaceutical Manager,
one Sadeck Kader (“Kader”) in that nowhere in
the
affidavit does the deponent state that ‘
in his opinion’
there is no
bona fide
defence to the action and that notice of
intention to defend has been delivered solely for the purposes of
delay.
[3]
The relevant portion of Kader’s affidavit reads as follows:
“
7.
I
can verify the-
7.1
cause of action set out in the particulars of claim; and
7.2 amount
claimed.
8. The
Respondent-
8.1 is
indebted to the Applicant in the amount of R548 045.00 (five
hundred and forty eight thousand forty
five rands) on the grounds set
out in the summons to the main action under the above case number;
and
8.2 does not
have a
bona fide defence to the Plaintiff’s claim and the
appearance has been entered solely for purposes of delay.”
[4]
In addressing me, Ms
Mokale
fairly conceded that the affidavit
deposed to by Kader did not comply with Rule 32(2). She, however,
attempted to persuade me that
such non-compliance was not fatal to
the plaintiff’s application by submitting that I needed to
adopt a ‘
civilised and flexible approach
’, the
rules are there for the court and the courts are not there for the
rules and further that substance should prevail
over form.
[5]
In making these submissions plaintiff’s counsel referred me to
the decision
of the full court in
Standard
Bank of SA Ltd v Carports for Africa CC and Others
[1]
.
In this matter the court was confronted with a verifying affidavit
where the deponent stated ‘
I
verily believe’
instead
of ‘
in
his opinion’
.
The court rejected the contention advanced on behalf of the defendant
that such non-compliance was fatal to the application
for summary
judgment. In doing so, it rejected adopting a formalistic
approach and held that a common sense approach should
be adopted and
that the basic principles of logic dictated that the words ‘
in
his belief’
is the equivalent of ‘
in
his opinion’.
[6]
In my view, the judgment in the
Standard
Bank of SA Ltd v Carports for Africa CC and Others
is distinguishable from the present matter as Kader does not even
employ the phrase ‘
I
believe
’
or ‘
I
verily believe
’
(compare
Afcol
Manufacturing Ltd v Pillay; Afcol Manufacturing Ltd v Buo
[2]
)
and it does not thus, in my view, assist the plaintiff.
[7]
In addition, I was referred to an unreported judgment in the matter
of
NIC’s
Joinery Close Corporation v Adlem and Others
[3]
where
the court was confronted with an unopposed application for summary
judgment, where in the verifying affidavit the word ‘
confirm
’
as opposed to ‘
verify
’
was used in respect of the amount due to the plaintiff. In
addressing this non-compliance with Rule 32(2), the court
stated the
following:
“
Strictly
speaking, of course, Nagel should have said that he verified the
plaintiff’s cause of action and the amount of the
claim.
However legal consequences should not be dependent upon the correct
recitation of a jingle, and while slackness in
the observance of the
rules is not be encouraged, form should not be allowed to triumph
over substance and technical imperfections
should not stand in the
way of the speedy and inexpensive resolution of litigation.
Accordingly, although
a court should not readily grant summary judgment where there is a
material defect in any of the formalities
required by Rule 32, where
it is clear that the rule has been substantially complied with and
there is no prejudice to the defendant,
a slight failure to comply
with the technical requirements of the rule should not stand in the
of relief being granted. After
all, the function of the court
is not to protect a dishonest defendant because the pleadings (or
summary judgment affidavit) of
a plaintiff are less than perfect.”
(
Footnotes omitted)
[8]
In similar vein I referred was to an unreported judgment in the
matter of
Oryx
Properties Ltd v Ukuvula Investment Holdings (Pty) Ltd
[4]
where the court referred to and endorsed earlier judgments relating
to technicalities and dilatory defences and held that such
defences
did not defeat a summary judgment application.
[9]
The question which arises is whether or not the absence of the phrase
‘
in my opinion’
in a verifying affidavit can be
condoned.
[10]
Rule 32(2) provides that an application for summary judgment shall be
accompanied by:
“
an affidavit
made by himself (Plaintiff) or by any other person who can swear
positively to the facts
verifying the cause of action
and the amount claimed, if any, claimed and
stating
that
in his opinion
there is no bona fide
defence to the action and that the notice of intention to defend has
been delivered solely for the purpose
of delay” (
emphasis
added)
.
[11]
In
Group
Areas Development Board v Hassim and Others
[5]
the court refused summary judgment as the deponent to the verifying
affidavit failed to state ‘
in
his opinion’
and by implication holding that compliance with rule 32(2) was not a
mere formality.
[12]
In
Fischereigesellschaft
F Busse & Co. KG v African Frozen Products (Pty) Ltd
[6]
the court held that the verifying affidavit must,
inter
alia
,
contain a statement by the deponent that
in
his opinion
there is no
bona
fide
defence to the action and that the notice of intention to defend has
been delivered solely for the purpose of delay.
[13]
I align myself with the judgments in
Hassim
and
Fischereigesellscaft
. Accordingly I am of the view that
non-compliance with Rule 32(2) in the present instance cannot be
condoned as compliance
therewith is not merely a matter of form but
substance.
[14]
For the reasons stated, I am of the view that the admitted
non-compliance with Rule 32(2) is
fatal to the plaintiff’s
application.
[15]
Although I was invited by the defendant’s counsel, Mr
Moorhouse
, to only deal with the preliminary issue I declined
the invitation and asked counsel for both parties to address me on
the merits,
particularly as the defendant filed an opposing
affidavit.
[16]
Thus, to the extent I may be mistaken in my view regarding the
consequence of the non-compliance
with Rule 32(2), I shall briefly
deal with the defendant’s grounds of opposition, which can be
summarised as follows:
16.1
the plaintiff failed to plead whether the agreement concluded
between
the parties was oral, in writing, or partly oral and partly in
writing;
16.2
failure to plead the defendant’s alleged breach; and
16.3
the plaintiff is indebted to the defendant.
[17]
Naturally the defendant would only need to succeed in any one of the
aforesaid grounds to defeat
the application.
[18]
Insofar as the first ground is concerned, the defendant in essence
relies on plaintiff’s
non-compliance with Rule 18(6), which
provides that a party who in his pleading relies upon a contract
shall state whether the
contract is written or oral and when, where
and by whom it was concluded, and if the contract is written a true
copy thereof or
of the part relied on in the pleading shall be
annexed to the pleading.
[19]
It is trite that where a pleading does not comply with Rule 18 the
other party has the option
to either proceed in terms of Rule 30 or
Rule 23 (see:
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
[7]
).
[20]
The plaintiff has pleaded the following with reference to the
contract:
‘
4.
At all relevant or material times and in particular during the
conclusion of the services
agreement (“Services Agreement”),
leading to this action, …
5.
On or about 30 October 2017, the plaintiff entered into discussions
(“Discussions”)
with the view of concluding the Service
Agreement.’
[21]
Pleading as the plaintiff has, in my view, falls short of the
requirements of Rule 18(6) in that
there has been no allegation as to
whether the agreement was oral, in writing alternatively partly oral
and partly in writing and
what the precise terms of the contract were
and also when and where the contract was concluded. (See
Vorster
v Herselman
[8]
).
[22]
In light of the afore-going, I am of the view that the first ground
of opposition is sustainable
and further the plaintiff’s claim
is not unanswerable as presently pleaded (see:
Edwards
v Menezes
[9]
and generally
Soil
Fumigation Services v Chemfit Technical Products
[10]
).
[23]
For the reasons stated, the plaintiff’s application for summary
judgment cannot succeed.
[24]
The following order will thus issue:
24.1
summary judgment is refused;
24.2
the defendant is granted leave to defend;
24.3
the costs of the application shall be costs in the cause.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv D Mokale instructed by Shandu Attorneys
Incorporated, Sandton c/o
BLC Attorneys, Port Elizabeth
For
Respondent: Adv A Moorhouse
instructed by RJM Attorneys, Port Elizabeth
[1]
1998 (4) SA 811
(W) at 813G-814B
[2]
[1996] 1 All SA 426
(SE) at 432d
[3]
ECD, case number 3350/2006 delivered on 2 April 2007
[4]
Case No. 2014/2017, Eastern Cape Local Division, Port Elizabeth
[5]
1964 (2) SA 327 (T)
[6]
1967 (4) SA 105
(C) at 107H to 108B
[7]
1992 (4) SA 466
(W) at 469J-470J
[8]
1982 (4) SA 857
(O) at 861F
[9]
1973 (1) SA 299
(N) at 304-5
[10]
2004 (6) (SCA) 29 at para [10] and [11]