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[2023] ZAFSHC 21
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Celanubusi (PTY) LTD v Amanzi Ahlo Bile Trading 25 (PTY) LTD t/a Trisch Industries (1715/2022) [2023] ZAFSHC 21 (3 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1715/2022
In
the matter between:
CELANUBUSI
(PTY)
LTD
Applicant
and
AMANZI
AHLO BILE TRADING 25 (PTY) LTD t/a
TRISCH
INDUSTRIES
Respondent
JUDGMENT
BEFORE
:
CHESIWE, J
DATE
RESERVED
: 15
SEPTEMBER 2022
DELIVERED
ON
:
This judgment was handed electronically by circulation to the
parties’
representatives by email. The date and time for
hand-down is deemed to be at 14h00 on 03 February
2023.
[1]
This is an application for summary judgment. The Plaintiff/Applicant
claim against
the Defendant/Respondent is for payment in the amount
of R698 340, 00 (six hundred ninety-eight thousand three hundred
and
forty). The application is opposed by the Respondent/Defendant.
[2]
The applicant seeks the following relief:
1.Payment of the sum
of R698 340, 00 (Six Hundred and Ninety Eight Thousand Three
Hundred and Forty Rands);
2.Interest thereon
temporae moare
3.Costs of suit.”
BACKGROUNG
[3]
Background on this matter is that during or about 01 February 2021,
the Applicant
duly represented by Busisiwe Ayanda Nombuso (Director
of the Applicant) and Respondent duly represented by Patricia
Thandeka Kojwane,
entered into a partly written and partly verbal
agreement (here on after referred to as “the agreement”).
In the agreement,
the Respondent was to hire two tipper trucks and
one water tank truck from the Applicant.
[4]
The material terms of the agreement were that the contract will
operate on a month
to month basis with either party entitled to
cancel it with a month’s notice. The Respondent would be liable
for payment
within five (5) days of receipt of the tax invoice. The
Respondent would be in breach of the agreement if payment is not made
and
the Applicant would immediately claim possession of the assets.
[5]
The Respondent breached the agreement and failed to make payment in
the sum of R698 340,
00 (Six Hundred and Ninety-Eight Thousand
Three Hundred and Forty Rand) within the required five (5) days.
[6]
The Respondent in its plea admitted to the existence of the agreement
between the
parties. However, the Respondent denied that payment was
due within five (5) days of receipt of the tax invoice. The
Respondent
pleads that the parties agreed that payment will be made
every three (3) to four (4) months when the municipality acquires its
equitable share. Furthermore, the Respondent pleads that the amount
owed to the Applicant is R216 480, 00 (Two Hundred and
Sixteen
Thousand Four Hundred and Eighty Rand).
[7]
The Applicant raised the following issue
for
the Court to determine, the amount owed to it and when such payment
is due and payable.
[8]
The Respondent requests this Court to make a determination on whether
the deponent of the
affidavit in the application for summary judgment
has the required personal knowledge of the matter, whether the
Respondent has
set out a
bona fide
defence and whether the
Respondent has satisfied the Court that the matter be referred to
trial.
[9]
The purpose of summary
judgment is to assist a plaintiff where a defendant who cannot set up
a
bona
fide
defence
or raise an issue to be tried, enters appearance simply to delay
judgment. (
Meek
v Kruger
)
[1]
[10]
In terms of Rule 32(2)(b), the plaintiff has to identify any point in
law and facts relied
upon which the claim is based. The plaintiff has
to briefly explain why the defence pleaded does not raise any issue
for trial.
It is not enough that the defendant did not have a
bona
fide
defence. On the other hand, the defendant has to disclose
the defence and the material facts upon which the defence is based
for
the court to make a determination as to whether the defendant has
a
bona fide
defence or not.
[11]
In terms of Rule 32(2)(b), the plaintiff in the founding affidavit
has to verify the cause
of action and the amount, if any, claimed,
and identity any point of law relied upon and facts upon which the
plaintiff’s
claim is based on and, explain briefly why the
defence as pleaded does not raise any triable issues.
[12]
The Applicant in the affidavit in support of the summary judgment
contends that the Respondent
breached the contractual obligation by
not paying the due amount of R698 340, 00 (Six Hundred and
Ninety-Eight Thousand Three
Hundred and Forty Rand) within five (5)
days of receipt of the tax invoice. The Applicant further disputes
that the Respondent
only owed R214 480, 00 (Two Hundred and
Sixteen Thousand Four Hundred and Eighty Rand) which is an incorrect
calculation in
terms of all the invoices that were issued to the
Respondent.
[13]
The Respondent pleads and admit to the agreement, however, dispute
the indebtedness including
that payment was not to be made within
five (5) days of receipt of the tax invoice.
[14]
The Applicant in the
affidavit in
support of the summary judgment, clearly set out the contractual
agreement between the parties, whether this was partly
written or
partly oral. The Applicant explained that the parties agreed that the
Applicant would charge the rate of R300, 00 (Three
Hundred Rand) per
hour for usage of the movable assets, further that the Respondent
would be charged for the number of hours the
assets were in use.
[15]
The Applicant in its
heads of argument
[2]
, indicates
that is evidenced the amounts owed and are reflected as follows:
“
20.1 R182 160
in respect of invoice 11
20.2 R182 160 in
respect of invoice 10
20.3 R182 160 in
respect of invoice 8
20.4 R151 860 in
respect of part of invoice 7”
The
amount as reflected above amounts to R698 340, 00 (six hundred
ninety-eight thousand three hundred and forty) which the Applicant
avers is owed by the Respondent. The Respondent on its own version,
only admit to owing an amount of R216 480, 00 (Two Hundred
and
Sixteen Thousand Four Hundred and Eighty Rand), but does not furnish
evidence or plead on the outstanding balance.
[16]
The other issue as raised
by the Respondent, that there was an agreement regarding the invoice
being paid every three (3) to four
(4) months when the municipality
received its equitable share.
Annexure
“A”
[3]
paints a different picture. The Respondent received the invoice on 30
June 2021 and on 26 July 2021 and made payment of R223 000,00
(Two Hundred Twenty-Three Thousand). This trend of payment is further
noted on invoice 6 which is for 30 July 2021 of which a payment
of
R130 000,00 (one hundred and thirty thousand) was made on 30
August 2021.
Annexure
“A”
,
the reconciliation statement shows that the Respondent made payments
nearly on a monthly basis. The said arrangement of payment
being made
on the basis of three (3) to four (4) months can therefore not stand
nor would it make business sense for a company
to agree to payment
over such long periods.
[17]
The Respondent did not plead that the Applicant over charged it on
the invoices. Instead,
the Respondent simply denies the indebtedness
of the amount that is due and payable.
[18]
In my view, the Respondent has no
bona fide
defence and solely
gave notice to defend the matter to exclusively delay it. Nor does
the Respondent fully disclose the grounds
and nature of its defence,
except that it is only liable for the amount of R216 480, 00
(Two Hundred and Sixteen Thousand
Four Hundred and Eighty Rand).
[19]
The Court has an overriding discretion whether on the facts averred
by the Applicant, it
should grant summary judgment or on the basis
raised by the Respondent, such discretion is unfettered. If the Court
is in doubt
as to whether the plaintiff’s case is unanswerable
at trial, such doubt should be exercised in favour of the defendant,
the
summary judgment should be denied. The Court can exercise the
discretion and refuse judgment if the requirements for resisting
summary judgment have not been met.
[20]
In
Maharaj
v Barclays National Bank Ltd
[4]
,
Corbett JA stated as follows:
“
The grant of
the remedy is based on the supposition that the plaintiff’s
claim is unimpeachable and the defendant’s
defence is bogus or
bad in law.”
[21]
In
Mowschenson
and Mowscheson v Mercantile Acceptance Corporation of SA Ltd
[5]
, the Court stated as follows:
“
The proper
approach appears to me to be the one which keeps the important fact
in view that the remedy for summary judgment is an
extraordinary
remedy, and very stringent one, in that it permits a judgment to be
given without trial.”
[22]
The Respondent raised issue with regard to the affidavit in the
application for summary
judgment that the deponent had no personal
knowledge of the matter. The Respondent alleged that the partly
verbal and partly written
agreement was entered into by Lefa Kojwane
duly representing the Respondent and Mr Andile Msibi duly
representing the Applicant.
[23]
The Applicant denied the allegation and averred that Busisiwe Ayanda
Nombuso, the deponent
to affidavit in support of the summary judgment
is the sole director of the Applicant and does have personal
knowledge of the matter
to the extent that when the agreement was
entered into, the Applicant was duly represented by deponent.
[24]
In
Sibani
Group (PTY) Ltd v Doves Group (PTY) Ltd
[6]
,
Olivier, AJ stated as follows:
“
If the deponent
lacks personal knowledge of the material facts, the integrity and
veracity of the "evidence" placed before
the court may be
compromised.”
[25]
Also taking cognisance that a mere assertion under oath by a deponent
in an affidavit swearing
positively to the facts should not be
regarded as sufficient. There should be good ground in laying and
relying to the Court in
order for the Court to believe that the
deponent fully appreciates the meaning of these words. (
Maharaj
Supra
)
[26]
The deponent in her amended affidavit in support of the summary
judgment, stated as follows:
“
2.
Being sole director of the Plaintiff, I have personal knowledge of
the matter, I had personally represented
the Plaintiff when entering
into the agreement with the Defendant, which agreement forms the
subject matter of the action launched
by the Plaintiff under the
aforesaid case number.
3.
I am also in charge of and manage the accounts department of the
Plaintiff, and as a result I have in
depth detailed knowledge
pertaining to the Plaintiff’s debtors.”
[27]
Correspondence attached (
Annexure “LK7”)
to the
Respondent’s answering affidavit resisting summary judgment,
shows communication between a certain Busisiwe Msibi
and Lefa Kojwane
(deponent) regarding payments that were to be made. It is further
noted in
Annexure
“
LK6”
about an enquiring
into the payment of R246 840, 00 (Two Hundred and Forty-Six
Thousand Eight Hundred and Forty Rand) that
was due by the Respondent
to the Applicant.
[28]
The Respondent in the answering affidavit states as follows:
“
21.1 …the
outstanding amount as at October 2021 was R246 840. 00, appended
hereto marked annexure ‘LK 6’.
I made further payment to
the Plaintiff in the amount of R30 000. 00 leaving a balance of
R216 480.00.”
[29]
As per
Annexure “A”
of the particulars of claim,
an amount of R30 000, 00 (Thirty Thousand Rand) was received on
12 November 2021 against an outstanding
balance of R546 180, 00
(Five Hundred Forty-Six Thousand One Hundred and Eighty Rand).
[30]
The Respondent in the
answering affidavit admits that it does not give an explanation for
being liable for the alleged outstanding
amount due to the Applicant,
but can only state that the Applicant’s calculations are
incorrect.
[7]
[31]
The deponent to the
affidavit in support of the summary judgment states under oath and
indicating that she had personal knowledge.
Failure of the Respondent
to “
quantify
with sufficient particularity, the reasons or alternatively the
computation of the alleged outstanding balance of R216 480,
00
(Two Hundred and Sixteen Thousand Four Hundred and Eighty Rand)”
[8]
can only be concluded to mean that indeed there is bare denial on the
part of the Respondent and such is
mala
fide.
[32]
In my view, the deponent to the affidavit in support of summary
judgment swore under oath
and appreciating the meaning of these
words. And in the absence of quantification of the alleged
outstanding balance of the R216
480, 00 (Two Hundred and Sixteen
Thousand Four Hundred and Eighty Rand) it is a further view by this
Court that the deponent to
the affidavit to the summary judgment has
personal knowledge of the matter. Although this is disputed by the
deponent to the answering
affidavit,
Annexures “LK 6”
and “
LK 7”
affirms correspondence between the two
deponents albeit the disputed amount that is due and payable. The
Court therefore has no
reason to doubt the deponent’s affidavit
in support of the summary judgment and that she has personal
knowledge of the matter.
CONCLUSION
[33]
Both take cognisance of the partly written partly verbal agreement
and the existence thereof.
Thus, the Respondent cannot at this stage
when the money is due and payable raise issues that will delay
payment.
[34]
In my view, the Respondent has no
bona fide
defence and only
entered a defence to delay the matter. I therefore see no reason why
the Applicant cannot be granted the relief
sought.
[35]
Accordingly, the following order is made:
1. The Respondent is
ordered to pay the Applicant the amount that is due and payable in
the sum of R698 340, 00 (six hundred
and ninety-eight thousand
three hundred and forty);
2. Interest thereon
payable
temporae morae
;
3. Costs of suit.
CHESIWE,
J
On
behalf of the Applicant:
Adv. M Karolia
Instructed
by:
Du Toit Lampbrechts
On
behalf of the Respondent:
Adv. MCM
Pieterse
Instructed
by:
Madri Du Preez Attorneys
[1]
1958
(3) SA 154
(T) at 159H-160A
[2]
Applicant’s Heads of Argument, page 72
[3]
Page 19 of the Plaintiff’s Particulars of Claim
[4]
1976
(1) SA 418 (A)
[5]
1959 (3) SA 362
(W) at 366
[6]
(3620/2020) [2022] ZAGPJHC 770 (15 September 2022) at paragraph [16]
[7]
Page 7 of the Defendant’s Answering Affidavit at paragraph
21.2
[8]
Page 7 of the Affidavit in support of Summary Judgment paragraph 23