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[2023] ZAFSHC 111
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Carospan (Pty) Ltd t/a Nashua Bloemfontein v New Beginnings Projects CC and Another (4906/2022) [2023] ZAFSHC 111 (19 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4906/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CAROSPAN
(PTY) LTD
t/a
NASHUA BLOEMFONTEIN
[Registration
number:
20[....]07
]
Plaintiff
and
NEW
BEGINNINGS PROJECTS CC
[Previously
known as
AMADWALA
TRADING
363 CC
]
[Registration
number:
20[....]23
] First
Defendant
PATRICK
PHUTI
[Identity
number:
8[....]8
]
Second
Defendant
HEARD
ON:
13
APRIL 2023
JUDGEMENT
BY:
P
R CRONJÉ, AJ
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 13h00 on 19 April 2023
JUDGEMENT
[1]
It is trite that the
purpose
of a summary judgment application is to allow the Court to summarily
dispense with actions that ought not to proceed to
trial because they
do not raise a genuine triable issue, thereby conserving scarce
judicial resources and improving access to justice.
Once an
application for summary judgment is brought, the applicant obtains a
substantive right for that application to be heard,
and, bearing in
mind the purpose of summary judgment, that hearing should be as
soon as possible. That right is protected
under section 34 of the
Constitution of the Republic of South Africa.
[1]
[2]
T
he
essential
requirement in summary judgment proceedings remains the same namely
whether or not a defendant, be it in the plea or the
affidavit
opposing summary judgment, has demonstrated the existence of a
bona
fide
defence
to the action by disclosing fully the nature and grounds of the
defence and the material facts relied upon for the
defence.
[2]
Background:
[3]
The Plaintiff (“Carospan”) instituted action against the
First Defendant (“NBP”) as
Principal Debtor for payment
of R173 785.00 in respect of arrear rental and service charges for
goods (printers, telephone systems
and a surveillance system),
pre-estimated liquidated damages of R90 713.16, immediate return
of the goods and damages to be
quantified later. The Second Defendant
(Mr Phuti) is sued as surety. The attorney for the “Defendants”
entered appearance
to defend, but as it will appear later herein, he
cannot continue, contrary to section 133 of the Companies Act
[3]
(the “Companies Act”), to defend on behalf of NBP.
[4]
Mr Phuti stood surety for the debt owed by NBP to Carospan in terms
of two written Deeds of Suretyship concluded
on 6 November 2015 and
20 February 2020 respectively. Carospan’s cause of action
against Mr Phuti is based on suretyship.
In clauses 2.1 of each of
the surety agreements, Mr Phuti bound himself as surety and
co-principal debtor for due and punctual
payment of “
all
monies
of whatsoever nature
which may become due
and owing from time to time by the Principal Debtor to the Creditor
arising from any cause of whatsoever nature
”.
[my emphasis] Clause 3.5 provides that “
any written
Acknowledgement of Debt signed by the Principal Debtor shall be
binding on the Surety/ies and this Deed of Suretyship
shall
be deemed to cover any indebtedness recorded in such Acknowledgement
of Debt
.” [my emphasis]
[5]
Clause 3.1 and 3.2 states that the suretyship shall operate as a
continuing covering security for any present
or future indebtedness
of NBP to Carospan and shall remain of full force and effect
notwithstanding any fluctuation in, or even
temporary extinction of
such indebtedness.
[6]
In terms of Clause 3.7 Carospan shall have the right to appropriate
any monies received from Mr Phuti to such
indebtedness of NBP.
[7]
Mr Phuti
renounced the benefits
of
non causa debiti,
errore calculi,
excussion
,
division
,
de duobus vel pluribus reis debendi,
no
value received and revision of accounts
. In the 2015
suretyship, Mr Phuti selected 10 Fransrand Street, Heuwelsig,
Bloemfontein (the Fransrand address), and in terms of
the 2020
suretyship, 5 Kenneth Kaunda Road, Bayswater, Bloemfontein as his
domicilium citandi et executandi
addresses. The Deeds of
Suretyship and the clauses therein, save for
jurisdictional
points raised in respect of two provisions, are not in dispute.
[8]
During March 2021, Mr Phuti in his personal capacity, and also on
behalf of NBP, signed an Acknowledgment
of Debt, accepting liability
for payment of R576 379.03 (exclusive of VAT). The Defendants
confirmed that the contents of the acknowledgement
was completed, and
signed by them, which contents were explained to them and they agreed
to the terms and conditions. The Defendants
inter
alia
undertook to pay attorney and client fees and interest on the amount
at a rate of 7.5% per annum to be calculated from date of
default, 14
February 2020. The acknowledgement does not form the basis of the
cause of action. Its existence was not denied, the
only defence
raised in respect thereof was that it is subject to the provisions of
the National Credit Act
[4]
(NCA).
[9]
The Defendants undertook to pay the capital amount in
monthly instalments of R40 000.00. The amount includes all
rental
amounts on all contracts between NBP and Carospan. In terms of Clause
5, the Defendants acknowledged that a certificate
setting out the
balance outstanding shall be binding and acceptable. They also agreed
that should they fail to make prompt payment
of the instalments on
the due date, the full outstanding balance together with interest and
costs will immediately be due and payable.
[10]
The Defendants agreed that in the event of them failing to comply
with the acknowledgment, Carospan may, without prior
notice to them,
issue summons against them for monies then due by them, apply for
judgment against them for the outstanding balance
in terms of the
acknowledgment on attorney and own client scale and apply to the
relevant Court for payment in terms of their offer
as contained in
the acknowledgment. Mr Phuti furthermore agreed to the issuing of an
emolument attachment order.
[11]
On 18 May 2022, Mr Jurie Schoeman of Carospan, issued a Certificate
of Balance (“certificate”) stating that
the arrear
account for rental and service charges amount to R173 785.22 (Claim
A). A document stating to be a breakdown of the
arrears was appended
to the particulars of claim. The total amount in that document
corresponds with the amount in the certificate
and the amount in
Claim A.
[12]
In a letter of demand to the Defendants, Carospan stated that the
arrear balance is R322 309.92 and future rentals for
the unexpired
period of the agreement is R109 821.72. In a certificate, also dated
18 May 2022, Mr Schoeman certified that NBP
is indebted to Carospan
for future rentals for the unexpired period in the amount of R90
713.16 (Claim B).
[13]
NBP did not file a plea or oppose the application for summary
judgment on the basis of its business rescue.
[14]
The pleadings were served on the Defendants on 13 October 2022. In a
letter marked “
without
prejudice”
dated
27 October 2022, Dlabantu Associates, a firm of attorneys who
appeared for the Second Defendant, stated that they have instructions
to settle and their client remains committed to amicable resolution
of the matter. Lack of service of the papers on Mr Phuti was
not
raised. In the letter, Mr Dlabantu confirmed that they hold
instructions from Mr Phuti to settle the matter and proposed payment
of R5 000.00 per month until full and final payment. The letters from
the Defendants were all marked “without prejudice”
but
were attached by Mr Phuti to his special plea. In doing so, privilege
was in my view, waived.
[5]
[15]
Mr Phuti pleads that they give Carospan notice of termination of the
agreements citing the challenging financial position
of NBP which led
it to be placed in business rescue.
[16]
On the conspectus of the above, it is therefore unquestionable that
binding agreements were concluded, performance was
rendered by
Carospan to NBP, NBP was placed under business rescue and did not
comply with its obligations, and that the amount
of R173 785.00 for
arrear rental and service charges is due and owing. The suretyship
agreements are also not in dispute, nor their
terms. Mr Phuti
therefore has to show that he has a
bona fide
defence.
Points in
limine
:
[17]
Mr Phuti raised points in limine in a Special Plea, which were
expanded in the opposing affidavit and which were further
expanded
during argument. I pause to mention that Mr Phuti did not personally
depose to the opposing affidavit, Mr Dlabantu, his
attorney did. I
entertained these points on the basis that Mr Phuti alleges that this
Court does not have jurisdiction. A defendant
is entitled in summary
judgement proceedings to raise issues relating to the process even if
s/he did not file an opposing affidavit.
[6]
No service of the
summons on Second Defendant
:
[18]
Although it was not pleaded, Mr Dlabantu, denied this Court’s
lack of jurisdiction. His references to cases in
respect of this
point were not included in his heads of argument and I requested Mr
Sander to file supplementary heads in respect
of the cases, which I
received.
[19]
Mr Dlabantu referred me to First National Bank of South Africa v
Ganyesa Bottle Store (Pty) Ltd
[7]
.
I understood his argument to be that the pleadings were not properly
served on Mr Phuti personally as the Fransrand-address is
not his
domicilium
citandi et executandi
address and that this constitutes a procedural defect in terms of
Rule 4 of the Uniform Rules of Court.
[20]
The return of service shows that it was served at 10 Frans Rumpff
Street and the Sheriff’s return states: “
Given address
[Fransrand] is believably known as Frans Rumpff Street and not
Fransrand as mentioned in the summons
”. In the special plea
issue was taken with the failure of Carospan to send a notice of
demand
to an email address and not the domicilium address in
the
2020
suretyship agreement. No issue was taken with the
Sheriff’s service on NBP. No issue was taken in the pleadings
with the
return of service on Mr Phuti at 10 Frans Rumpff Street. It
was not stated that he no longer resides there. Mr Dlabantu, in his
Supplementary heads of argument, states that the relevant address is
the one in the 2020 suretyship and that Mr Phuti was entitled
to
change his domicilium address from 2015.
[21]
Carospan, however, referred to both suretyship agreements in the
particulars of claim.
[8]
Carospan also referred to the letter of demand, dated 16 February
2022. where the Fransrand address as well as the disputed email
address reflects. In the special plea, Mr Phuti states that the
demand was never sent by
registered
post
to the domicile address in compliance with clauses 7 and 8 of the
2020 suretyship agreement but to an unknown email address, which
makes the claim premature on the basis of a lack of demand.
[22]
Mr Sander argues that Mr Phuti should have raised this as an
irregular step in terms of Rule 30, alternatively Rule 23
of the
Uniform Rules. Mr Phuti never utilised these Rules and rather pleaded
and filed an opposing affidavit.
[23]
Mr Dlabantu referred to Interactive Trading 115 CC and another v
South African Securitisation Programme and Others
[9]
.
Mr Sander argues that the matter is distinguishable as default
judgement was granted in the parties’ absence and that there
was no proper service. Mr Sander states that the matter is factually
and legally distinguishable. Mr Dlabantu also referred to
Vidavsky v
Body Corporate of Sunhill Villa
[10]
.
Mr Sander argues that it pertained to arbitration proceedings and
that the absent party did not receive any notice.
[24]
From the above I distil that Mr Phuti signed two suretyship
agreements. He elected domicile addresses in both. He did
not
categorically state that he does not reside at the address appearing
in the Sheriff’s return. I deem this to be a convenient
but
unsuccessful attempt to escape the consequences of his admission and
inter alia
to make payment of R5 000.00 per month. I am
satisfied that Mr Phuti is properly before Court. All the documents,
letters,
and his failure to deal with the return singularly or taken
together, leaves no doubt that Mr Phuti was properly served.
[25]
Mr Phuti did not plead over and prays that the Court grant him leave
to plead over in the event that the special pleas
are dismissed.
Business Rescue
:
[26]
He states that NBP was placed in business rescue and Carospan cannot
continue against it. Carospan does not presently seek
judgement
against NBP. That disposes of paragraphs 1 – 2.7 of the special
plea.
The action is
premature
:
[27]
He states that Carospan’s action is premature. In paragraph 3.4
of his plea he states: “
The Plaintiff never sent a demand to
the 2
nd
Defendant in compliance with clauses
7 and 8 of the deed
[of suretyship]
. The letter of demand
attached and marked “POC12”
[to the Particulars of
Claim]
to the poc
[Particulars of Claim]
was never sent by
registered post to the domicile address of the 2
nd
Defendant”
and that “
the email address used is
unknown to him and not his”
. Clauses 7 and 8 of the
suretyship agreements read as follows:
“
7.
The Surety/ies selects the address set out herein as his domicilium
citandi et executandi under this Deed of
Surety.
8.
Any notice or letter which is sent by the Surety/ies to the Creditor
or vice versa pursuant to this Deed
of Suretyship shall be deemed to
have been received by the recipient on the day but one following upon
the posting of such letter
provided that the same is posted by
prepaid registered post.”
[28]
The email address does not appear anywhere in documentation. I
understand the formulation of this part of his plea to
mean that he
complains about the method of service of the letter of demand and not
the address
per se
. The suretyship agreement does not oblige
Carospan to place Mr Phuti in
mora
.
A claim was submitted
in business rescue
:
[29]
Carospan submitted a claim to the business rescue practitioners in
the amount of R432 131.64. Mr Phuti appended
to his plea a list
of creditors of NBP that shows that its creditors’ claims in
the business rescue amount to R141 926 522.00
(one-hundred
and forty-one million, nine-hundred and twenty-six thousand,
five-hundred-and-twenty-two rands) the bulk, R74 666 010.63
(seventy-four million, six-hundred-and-sixty-six thousand and ten
Rand and sixty-three cents), owing to the South African Revenue
Service (SARS). He does not deny that Carospan’s claim is due
and payable. He could not as he signed an acknowledgement of
debt on
behalf of NBP to which I shall refer later.
[30]
Relying on clause 3.9 of the suretyship, he states that he will only
be liable for the balance remaining after Carospan’s
claim was
paid by the business rescue practitioners. He states that his
liability is accessory, that Carospan cannot institute
action against
him alone, that Carospan must prove an enforceable claim, and that he
will only then be jointly and severally liable.
By referring to the
claim already submitted and not raising any doubt about it, his
statement that it has to be proven is disingenuous.
[31]
Clause 3.9 provides for two scenarios. Clause 3.9.1 provides that the
surety undertakes not to prove a claim in the event
that NBP is
placed under business rescue (the contract refers to judicial
management). Clause 3.9.2 provides that Carospan shall
be entitled to
accept any dividend from the business rescue practitioners “
without
prejudice to it’s
[sic]
rights against the Surety/ies
under this Deed of Suretyship …
”. Carospan can thus
immediately claim from Mr Phuti. Nothing in the suretyship agreements
impede Carospan to claim from him
apart from NBP.
Discrimination
:
[32]
Mr Phuti claims that his constitutional right to equality will be
infringed if NBP is protected against claims for debt
whilst in
business rescue
[11]
whereas he
does not enjoy the same protection.
[33]
Section 136(1) of the Act caters specifically for employees,
shareholders and directors. There exists unique contractual
nexuses
between a company and these persons.
[34]
It cannot be
unfair
discrimination/differentiation to secure
payment from co-principal debtors, even where their liability is
accessory.
[35]
Mr Sander, for Carospan, referred me to Taljaard and Another v Land
and Agricultural Development Bank of South Africa
and Others
[12]
where it was sought that
section
1 of the Companies Act be declared unconstitutional in that it
allegedly unfairly discriminates between natural persons
on the one
hand and juristic persons such as companies and close corporations on
the other.
[36]
In Taljaard
supra
the test in
Harksen
v Lane NO and Others
[13]
,
where the Constitutional Court tabulated the stages of an enquiry
into a violation of the equality clause, was quoted. The first
stage
is to determine whether the provision differentiate between people or
categories of people and if so, whether the differentiation
bear a
rational connection to a legitimate government purpose. If it does
not then there is a violation of section 8(1)
[14]
.
The second stage is to determine whether the differentiation amounts
to “unfair” discrimination. If it has been found
to have
been on a specified ground, then unfairness will be presumed.
[15]
If on an unspecified ground, unfairness will have to be established
by the complainant. If, at the end of this stage of the enquiry,
the
differentiation is found not to be unfair, then there will be no
violation of section 8(2)
[16]
.Mr
Phuti did not advance discrimination on a specified ground and I find
that he failed to establish any other ground. The Court
in Taljaard
supra
found that it was not unfair discrimination.
[37]
In
Investec
Bank Ltd v Bruyns
[17]
the
Court held:
”
18.
In my view the statutory moratorium in favour of a
company that is undergoing business rescue proceedings is a
defence in personam. It is a personal privilege or benefit
in favour of the company. As was stated in the SA Fire case
(at 310E-F) the essence of a defence in rem is that the
defence attaches to the claim itself in the sense that the defence
(if upheld) shows that the claim against the principal debtor is
invalid or has been extinguished or discharged. A defence in
personam, by contrast, arises from a personal immunity of the
debtor in respect of an otherwise valid and existing obligation.
Clearly the moratorium afforded by s
133(1)
falls
into the latter class. The obligations of the company as principal
debtor are not extinguished nor discharged and their validity
is in
no way impaired. Indeed, with the consent of the business rescue
practitioner or the court the obligations may be enforced.
”
Non-compliance with
the National Credit Act
:
[38]
Mr Phuti, not having pleaded it in the special plea, for the first
time raised non-compliance with the provisions of
the NCA in the
opposing affidavit. He states that the agreements are credit
agreements as Carospan billed NBP periodically and
charged a fee
and/or interest payable and that the periodic billing was monthly. He
states that Carospan was compelled to register
and that leases are
covered as credit agreements. It is common cause that Carospan is not
registered.
[39]
Does this Court have to entertain a reference to the NCA when it was
not raised in the special plea? I believe this is
mandatory. In Blue
Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt and Others
[18]
the Court held:
“
[17]
It is clear from s 129(1)(a) and (b) that
prior
to commencing legal proceedings to enforce
an agreement, the credit provider
must
deliver a
written notice to the consumer wherein attention is drawn to the
default in repayment, setting out various options open
to him or her
whereby the pressure of the default could be alleviated. In other
words, it is a
mandatory
requirement which must
be satisfied before judgment can be granted for recovery of the
outstanding debt.
” [my emphasis]
[40]
Are the agreements on which Carospan relies credit agreements?
Section 1 of the NCA defines a lease as:
”‘
lease’
means an agreement in terms of which - (a) temporary possession of
any movable property is delivered to or at the direction
of the
consumer, or the right to use any such property is granted to or at
the direction of the consumer; (b) payment for the possession
or use
of that property is - (i) made on an agreed or determined periodic
basis during the life of the agreement; or (ii) deferred
in whole or
in part for any period during the life of the agreement; (c)
interest, fees or other charges are payable to the credit
provider in
respect of the agreement, or the amount that has been deferred;
and
(d)
at the end of the term of the agreement, ownership of
that property either - (i) passes to the consumer absolutely; or (ii)
passes
to the consumer upon satisfaction of specific conditions set
out in the agreement
.” [my emphasis]
[41]
The agreements do not afford NBP any rights to ownership during or at
the termination of the agreement as required by
paragraph (d) of the
definition. The rentals were furthermore payable monthly in advance.
This does not bring the agreements within
the ambit of the NCA.
[42]
In Absa Technology Finance Solutions (Pty) Ltd v Viljoen t/a
Wonderhoek Enterprises
[19]
it
was held:
”
12.
...
The
defendant never acquires ownership of the goods
.
I pause to mention that this means that the Agreement is not a
"lease" for the purposes of s 8(4)(e) because a lease as
defined in s 1 of the NCA is an agreement in terms of which, amongst
other things, ownership of the goods passes to the consumer
at the
end of the term of the agreement. As has been observed,
the lease contemplated by the NCA is not a lease at all
(Guide to the National
Credit Act, Scholtz
et
al,
8-9
per JM Otto) but the old hire purchase agreement.
...
33.
... A common law lease such as the Agreement does not involve the
provision of credit either as defined in the NCA
or as the term is
generally understood in commerce.
A lessor who buys goods for the
purpose of leasing them to a specific lessee does not extend credit
to such a lessee, regardless
of how the lessor calculates the rentals
he wishes to receive, any more than does a landlord who buys a
building not for his own
use but for the purpose of accommodating
tenants
.
34.
...
The legislature has decided
that common law leases not providing for the deferral of an amount
owed should not be hit by the NCA.
Persons of business are fully
entitled to regulate their affairs to take advantage of this
legislative decision.
”
[my
emphasis]
[43]
The NCA makes it clear that a surety shall be protected by the Act
when the principal debtor is protected.
[20]
In
casu
,
this is not applicable.
Non-compliance with
the General Law Amendment Act 50 of 1956
:
[44]
Contrary to his acceptance of the suretyships in the special plea, he
now states that the agreements are invalid because
they do not comply
with the formal requirements of the General Law Amendment Act 50 of
1956. But for stating that they are unenforceable
as they do not
define the nature and do not set out the amount of the principal
debt, the precise basis for this argument is not
evident. It is trite
that a suretyship agreement can be for a limited or unlimited period,
for defined or general performance,
in a stated amount, for all debt
of whatsoever nature and for an indeterminable period. There is no
merit in this defence. This
was not pleaded in the special plea.
There is no defect in the agreements.
[21]
Certificates of
balance
:
[45]
Mr Phuti attacks the certificates averring that they purport to be
conclusive proof of the amount and that the clause
is
contra bones
mores
. All the agreements provide that the certificates are
prima
facie
proof of all the matters stated therein. There is no
provision that it is conclusive proof.
Mr Phuti raised no defence to the amounts and his attack is at best
bald, vague, and sketchy.
[46]
In Nedbank Limited v van der Westhuizen NO and Others
[22]
it was held:
”
[18]
The certificates of balance that constitutes prima facie proof
of the amount outstanding cannot be rebutted
by bald, vague, or
sketchy denials by the defendants which leaves the court guessing as
to the basis for the denials.
The
defendants have failed to set out any factual grounds on which it
challenges the amounts set out in the certificates of balance
or
whether or not the applicant rendered an accurate account. In
addition, the defendants have simply ignored the fact that they
renounced the benefits of non numeratae pecuniae, non cause
[sic] debiti, errore calculi and the revision of accounts.
The
renunciation of the exception non causa debiti places the
onus of proving the non-existence of a causa on
the
defendants. The defendants have disclosed no facts on which a court
may find that they are not bound by their contractual election
to
renounce these benefits
.
The defendants have accordingly, failed to disclose material facts
which, if proven at trial, would constitute a valid counterclaim
to
the plaintiff's claim
.”
[my emphasis]
Failing to plead over
– “the Cape Practice”
:
[47]
Mr Phuti did not plead over “
as to plead over at this stage
… in the absence of the 1
st
Defendant
will be prejudicial to him
”. He prays that his special plea
be upheld and that leave to plea over be granted should the special
plea be dismissed.
[48]
In the affidavit in support of summary judgement, Carospan affirmed
the basis of the claims against Mr Phuti and contends
that the points
in law and facts raised in the special plea does not disclose a
defence.
[49]
He, notwithstanding his admissions of the agreements and debt due,
states that there is a “
serious dispute regarding the
amount
” if the amount in the summons and the amount
submitted to the business rescue practitioners is compared. It was
incumbent
on him to set out facts to show that the amount/s are
wrong.
[50]
Mr Sander submitted that Mr Phuti cannot plead twice. Mr Dlabantu,
for Mr Phuti, referred me to “the Cape practice”
which
provides that pleading over was not necessary when special pleas were
raised.
[51]
In
R
Data (Pty) Ltd v Nordic Light Properties (Pty) Ltd
[23]
reference was made to “the Cape practice” of double
pleading:
“
15.
The practice relating to pleading over has not been
uniform. It has been accepted in a number of cases that where
a
defendant raises a special plea of, for example, arbitration as a
condition precedent to the right of action, he is not required
to
plead over on the merits (see Cilliers et al Herbstein & Van
Winsen: The Civil Practice of the High Courts of South Africa
(5ed)
Vol. 1 at p 603). If the special plea fails to achieve its objective,
the court will allow the defendant an opportunity of
delivering a
plea on the merits. Although this approach has not always been
followed in other jurisdictions, in the Western Cape
pleading over on
the merits has usually not been insisted upon, especially when a
defence such as want of jurisdiction or lis pendens
has been raised
.”
[52]
The “Cape practice” was considered in the Western Cape
Division of the High Court by Binns-Ward J in Absa
Bank Limited v
Meiring
[24]
. In that matter,
the Defendant also raised a special plea and did not plead over. The
Court granted an order refusing summary judgment
upon request of and
by agreement between the parties but found it necessary to address
“the Cape practice”, at least
in the context of summary
judgment. I quote extensively from the judgement:
“
[12]
‘The Cape practice’ originated long before the
adoption of the Uniform Rules in January 1965. It was probably
inspired by the practice in Roman Dutch law, described in Herbstein
and Van Winsen op cit, that ‘it was not necessary to
plead over
when special defences such as lack of jurisdiction, ... The practice
did not exist in a procedural environment that
allowed for summary
judgment applications (which were introduced in this country only in
the early 20th century), and more especially
the procedure currently
in place in terms of the recently amended Rule 32.
[13]
As the title implies, one of the objects of the Uniform
Rules was to eliminate or reduce the incidence of differing
rules of
procedure in the various provincial and local divisions of the
erstwhile Supreme Court. The purpose of procedural rules
of court has
always been, and remains, the efficient administration of justice,
and any construction of them that would conduce
to a hampering effect
would be dubious;
[14]
Rule 22 does not make provision for the piecemeal
pleading of defences, and it is difficult to conceive how permitting
a defendant to disclose its defences in stages might in any
contribute to the efficient and cost-effective administration of
justice.
All the indicators point the other way. …
[15]
If the intention had been to entrench the Roman Dutch
procedure mentioned above, one would have expected the rule
maker do
have done so expressly. … Rule 23(4), which provides ‘Whenever
any exception is taken to a pleading or an
application to strike out
is made, no plea, replication or other pleading over shall be
necessary’, suggests that the rule
maker did apply its mind to
the issue of pleading over. It chose to spell out when pleading over
was not required.
[16]
In the circumstances there was much to be said for the view expressed
by Flemming J in Beckett Construction
supra, concerning the
interpretation of Rule 22.
It is an interpretation that has
enjoyed endorsement by the Constitutional Court in Crompton Street
Motors CC t/a Wallers Garage
Service Station v Bright Idea Projects
66 (Pty) Ltd t/a All Fuels
[2021] ZACC 24
(2 September
2021);
2021 (11) BCLR 1203
(CC);
2022 (1) SA 317
(CC)
at para 33, where
Mhlantla J stated that ‘(g)enerally, when a special a plea is
raised, all the defences on which the defendant
intends to rely must
be raised at the same time. This is so because, should the special
plea fail, there would be no further opportunity
to plead over on the
merits
.’ … In addition to Beckett Construction, the
Constitutional Court judgment (loc. cit.) cited Thyssen v Cape St
Francis
Township (Pty) Ltd
1966 (2) SA 115
(E) at 116G, where O’Hagan
J stated ‘If Rules 22 and 23 are read together one gains the
impression that Rule 22 envisages
the pleading of all defences at one
and the same time. It is otherwise in the case of an exception where
all the Court is concerned
with is the content of the pleading
attacked’.
[17]
…
[18]
…
[19]
The delay, unnecessarily increased costs and
inconvenience occasioned in the current matter by the defendant’s
failure to plead over serve to demonstrate that the administration of
justice would be better served by interpreting rule 22 to
require a
defendant to plead over, and by recognising that it does not leave
scope for the continuation of ‘the Cape Practice’.
The
implications of the amended rule 32(2)(b) have made it opportune to
spell that out unambiguously, whereas it had previously
perhaps not
been exigent to do so.
[20]
It follows that a defendant in a summary judgment
application which has failed to plead all its defences will
be
required to apply to amend its plea if it seeks to add any for the
purposes of its opposition to summary judgment.
A defendant’s
failure to have pleaded such defences initially will be material and,
in addition to all the usual requirements
to obtain the indulgence of
being granted leave to amend, will require convincing explanation if
it is to exclude the possibility
that a court might infer delaying
tactics and a lack of bona fides
. An additional effect will be
that such a defendant will ordinarily have to bear the wasted costs
of the application for leave
to amend and those occasioned by any
attendant postponement of the summary judgment application.
[21]
In the current case I was content, against the background of
prevailing uncertainty about the continuing
acceptability of ‘the
Cape practice’, to make the orders agreed to by the parties.
The object of this judgment is to signal that will not be
the case in the future
.
” [my emphasis]
[53]
R Data
supra
did not refer to Absa Bank Limited v Meiring
supra
.
[54]
The “Cape practice” should not be applied in the matter
before me as it sets no precedent in this Division.
I am unaware of
such practice in the Free State and Binns-Ward J clearly had
reservations about its application, with which I respectfully
agree.
Conclusion
:
[55]
I conclude that there is no merit in the special pleas or the
arguments advanced before me by Mr Phuti’s representative.
The
special plea is therefore dismissed with costs. Mr Phuti did not
plead over and I conclude that he has no
bona fide
defence and
that appearance to defend, the filing of the special plea and
arguments were presented merely to delay.
[56]
I am satisfied that a proper case for payment of R173 785.22 was
made.
[57]
Claim B is for pre-estimated liquidated damages of R90 713.16.
In support of this claim, Carospan relies on the
Master Rental
Agreement concluded on 20 February 2020; a document with heading
Breakdown of Future Rentals for the period 1 June
2022 – 28
February 2023; and a certificate issued on 18 May 2022.
[58]
Mr Phuti raised no pertinent defence to the merits of the claim. I am
not confident in granting judgment for Claim B
and exercise my
discretion against granting judgment for this amount.
[59]
It is common cause that the
causa
for the possession of the
goods exist between Carospan and NBP. As section 133 of the Companies
Act impedes litigation against
NBP, and as I have no knowledge
whether Mr Phuti is in possession of the goods or not, I cannot make
an order in respect of Claim
C.
[60]
Claim D is for the quantification of damages which cannot be
adjudicated in summary judgement proceedings. To the extent
necessary, I grant leave that Carospan may approach Court on the
balance of the claims for which judgment is presently not granted.
Costs
:
[61]
The Plaintiff asks for costs
de bonis propriis
against Mr
Dlabantu as attorney for Mr Phuti. I gave Mr Phuti opportunity to
address this in supplementary heads of argument. Having
considered
the request and the submissions of Mr Dlabantu carefully, I conclude
that it would not be inappropriate in the circumstances.
ORDER
:
Summary
Judgment is granted against the Second Defendant for:
1.
The special plea is dismissed with costs.
2.
Payment of R173 785.22;
3.
Interest on the aforesaid amount at the prescribed rate of interest
per annum from date of demand until
date of final payment;
4.
Cost of suit on attorney and client scale;
5.
Claims B, C and D stand over for later adjudication.
P R
CRONJÉ, AJ
Counsel
for Plaintiff: Adv
A Sander
Attorneys
for Plaintiff: Peyper
Attorneys
Bloemfontein
Attorneys
for Second Defendant: Mr T.O. Dlabantu
Dlabantu
& Associates Inc
Bloemfontein
[1]
See:
Raumix Aggregates (Pty) Ltd v Richter Sand CC and Another and 8
other cases (2019/8153; 2019/6412; 2017/14846X; 2019/12142;
2019/10245; 2019/7918; 2019/14870; 2018/37011) [2019] ZAGPJHC 386;
2020 (1) SA 623 (GJ) (4 October 2019)
[2]
See: Standard Bank of South Africa Limited and Another v Five Strand
Media (Pty) Ltd and Others (745/2020) [2020] ZAECPEHC 33
(7
September 2020) at para [14]
[3]
71 of 2008
[4]
34 of 2005
[5]
Competition
Commission of South Africa v Arcerlormittal South Africa Ltd and
Others (680/12) [2013] ZASCA 84; [2013] 3 All SA
234 (SCA); 2013 (5)
SA 538 (SCA) (31 May 2013)
[6]
Van Niekerk et al, Summary Judgment – A Practical Guide, Lexis
Nexis, Issue 12, p. 11-14(4)
[7]
1998 (4) SA 565 (NC)
[8]
Pleadings, para 14
[9]
(2119/2017) [2019] ZALMPPHC 10;
2019 (5) SA 174
(LP) (29 March 2019)
[10]
2005 (5) SA 200
SCA
[11]
Section 133 of the Companies Act
[12]
(1094/2022)
[2022] ZANCHC 59 (11 October 2022); See also: ABSA Home Loans
Guarantee Company (RF) (Pty) Ltd and Another v ERF 1404
Dainfern CC
and Others (41403/2019) [2022] ZAGPJHC 490 (28 July 2022)
[13]
(CCT9/97)
[1997] ZACC 12
;
1997 (11) BCLR 1489
;
1998 (1) SA 300
(7
October 1997)
[14]
Now section 9 in the 1996 Constitution
[15]
The specified grounds are
race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience,
belief, culture, language and birth.
[16]
S 9(2) in the 1996 Constitution
[17]
(19449/11)
[2011] ZAWCHC 423
;
2012 (5) SA 430
(WCC) (14 November
2011)
[18]
(499/2015)
[2016] ZASCA 98
;
2016 (6) SA 102
(SCA) (3 June 2016)
[19]
(2008/28978) [2010] ZAGPPHC 10;
2012 (3) SA 149
(GNP) (2 March
2010); See also: Absa Technology v Michael’s Bid a House
(212/2012
[2013] ZASCA 10
(26 February 2013) at [27]
[20]
Section 8(5)
[21]
See:
Hei
Way Supply (Pty) Ltd v Simons (6314/19P) [2021] ZAKZPHC 94 (16
November 2021) [para [12]
[22]
(31244/2020)
[2021] ZAGPJHC 452 (3 March 2021); See also: Nedbank v Botha and
Another- 2016 JOL 36735 FB
[23]
(17865/2020)
[2022] ZAWCHC 137
(6 June 2022)
[24]
(3508/2021)
[2022] ZAWCHC 31
;
2022 (3) SA 449
(WCC) (14 March 2022)