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[2023] ZAFSHC 362
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Massmart Wholesale (Pty) Ltd v Country Meat Market Ladysmith CC t/a Country Meat Market and Others (1249/2023) [2023] ZAFSHC 362 (15 September 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: 1249/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MASSMART
WHOLESALE (PTY) LTD
APPLICANT
and
COUNTRY
MEAT MARKET
FIRST
DEFENDANT/ RESPONDENT
LADYSMITH
CC t/a COUNTRY
MEAT
MARKET
(Registration
Number: 2006[…])
HAROLD
ADRIAN LEACH
SECOND
DEFENDANT/ RESPONDENT
(Identity
Number 75[…])
PETER
JAMES VICKERY
THIRD
DEFENDANT/ RESPONDENT
(Identity
Number 75[…])
GRAIG
JOHN ANNANDALE
FOURTH
DEFENDANT/ RESPONDENT
(Identity
Number 70[…])
HEARD
ON:
24 AUGUST 2023
DELIVERED
ON:
15 SEPTEMBER 2023
Introduction
[1]
On 24
August 2023, I made an order dismissing summary
judgment application against the Third and Fourth Respondents with
costs. I reserved
reasons therefor. These are my reasons.
Brief
Background
[2]
The
Plaintiff, Massmart Wholesale (Pty) Ltd (Massmart), issued combined
summons against the First Defendant, Country Meat Market
Ladysmith CC
trading as Country Meat Market (Country Meat Market), Harold Adrian
Leach (Second Defendant), Peter James Vickery
(Third Defendant) and
Graig John Annandale (Fourth Defendant). Plaintiff sued for the
amount of R954 643.20 plus interest
on the capital amount at the
prime rate as charged by ABSA bank limited from time to time plus 2.5
% per annum, from due date to
date of final payment.
[1]
From
the Particulars of Claim, it is germane that the debt arises from a
written contract entered into between Shield Buying and
Distribution
(PTY) LTD (Shield), and Country Meat Market for supply of goods. The
Second, Third and Fourth Defendants signed deeds
of suretyship in
which they bound themselves co-principal debtors for Country Meat
Market’s indebtedness to Shield.
[3]
Upon service of summons on them, the Third and Fourth
Defendants (the
Defendants) entered intention to defend and subsequently filed a plea
in which is raised several special pleas
as well as a plea on the
merits. The First and Second Defendants did not defend the matter.
The case against them thus falls outside
the ambit of this judgment.
[4]
Subsequent to receiving the plea on behalf of the Defendants,
and
notwithstanding the defences raised in the plea, Plaintiff filed an
application for summary judgment against them. The application
for
summary judgment was opposed by them.
Plaintiff’s
Summons and Application for Summary Judgment
The
Particulars of Claim
[5]
Without convoluting issues, I deem it relevant that I
pause, at this
stage, to explain that I will refer to relevant portions of the
Particulars of Claim as I proceed along with my
reasons. I trust the
importance for doing so will become apparent later on in this
judgment.
[6]
The
following allegations appear from the Particulars of Claim
[2]
:
1.
The above Honourable Court has jurisdiction
to hear this matter by
virtue of the fact that, in terms of clause 18 of the written
agreement, the parties’ consent to the
jurisdiction of the
Magistrate’s Court. Further, the First Defendant’s
principal place of business.(
sic
) Alternatively, the whole
cause of action arose within the courts area of jurisdiction.
[7]
The deed of
suretyship Plaintiff relied on for its claim against the Third
Defendant, was signed by the Third Defendant on 9 March
2009 at
Newcastle, KwaZulu- Natal and countersigned on behalf of Shield by
its duly authorised representative on 1 April 2009 at
Johannesburg,
Gauteng
[3]
. The deed of
suretyship the Plaintiff relied on for its claim against the Fourth
Defendant, was signed by the Fourth Defendant,
on 10 March 2009, at
Harrismith, and countersigned on behalf of Shield by its duly
authorised representative on 1 April 2009 at
Johannesburg,
Gauteng
[4]
. The facts
outlined in this paragraph and paragraph 6 of this judgment are among
those put forth by the Defendants in attacking
the Plaintiff’s
claim on the grounds of this court’s lack of
jurisdiction.
[8]
In paragraph 7 of the Particulars of Claim the Plaintiff
continues to
allege that:
On or about 01
April 2009, at Johannesburg, the Plaintiff, duly represented by an
authorised employee, and the first defendant
represented by the third
defendant, entered into a written agreement (“the Agreement”)
A copy of the Agreement is annexed
hereto and marked as annexure
“CM2” and the Plaintiff prays that the terms thereof be
incorporated herein as if specifically
pleaded.
[5]
[9]
Annexure
CM2 however, is a copy of a contract entered into between Shield and
Country Meat Market
[6]
. From
what appears
ex
facie
annexure CM2 to the Particulars of Claim, the current Plaintiff was
not a party to this agreement. This too, is among the various
grounds
on which the action was defended and an application for summary
judgment opposed by the Defendants.
[10]
In paragraphs 21 and 22 of the Particulars of Claim the following is
alleged:
1.
The Plaintiff was previously known and traded
as Shield Buying and
Distribution (Pty) Ltd and on 30 November 2020 and at Sandton,
Massmart Wholesale and Shield Buying &
Distribution (Pty) Ltd
(both duly represented) concluded a Merger Agreement in terms of
which inter alia the shares, assets and
businesses of Massmart
Wholesale and Shield Buying & Distribution (Pty) Ltd were merged.
2.
The contents of the Merger Agreement are confidential
and a copy
thereof is accordingly not attached to this (
sic
) particulars
of claim.
[11]
What is stated in these preceding paragraphs also forms part of the
Defendants’
grounds for opposing the Plaintiff’s claim.
Summary
Judgment Application
[12]
Rule 32 of the Uniform Rules, provides that:
(1) The plaintiff may,
after the defendant has delivered a plea, apply to court for summary
judgment on each of such claims in the
summons as is only —
(a) on
a liquid document;
(b) for
a liquidated amount in money;
(c) for
delivery of specified movable property; or
(d) for
ejectment;
together with any claim
for interest and costs.
[13]
The following appears from paragraphs 3 and 4 of
the Founding Affidavit in the summary judgment application:
3.
I verify the cause of action as contained in the Applicant’s
Summons and
[7]
Particulars of
Claim and confirm that the Respondent is indebted to the Applicant in
the amount of R954 643,20 (nine hundred
and fifty- four thousand
six hundred and forty-three rand and twenty cents) as set out in the
Particulars of Claim annexed to the
Summons in this matter.
4.
I say this as in my capacity as aforesaid, I have been involved in
the Applicant’s claim
against the Respondents. I have in my
possession and under my control
inter alia,
the
Applicant’s
outstanding statements of account relating to this matter which I
attach hereto as Annexure “A
” (own emphasis)
[14]
Annexure A to the Particulars of Claim comprises, on the fore of it,
a tax invoice in the amount of R129,
987.22. On the next page, a
debtors reconciliation of open items. From these appear comments
indicating that some amounts were
credited twice; to be reversed;
duplicated and some already paid. On the page that follows is what is
termed analysis of reconciled
balance. On this, appears comments such
as, “
Member
says invoice total are incorrect-supplier invoices and pod’s
have been requested from supplier
”
and so annexure A continues.
[8]
[15]
Advocate Swanepoel on behalf of the Defendant’s argued, and
correctly so, that annexure A, relied upon
by the Plaintiff in its
summary judgment application is neither a liquid document nor the
amounts reflected therein liquidated
amounts of money. Only during
argument did Counsel for the Plaintiff allude that she had some form
of liquid document that was
handed to her on the morning of the
application. Whatever document that was or whatever its nature,
remains irrelevant because
it did not form part of the summary
judgment application papers before this court.
[16]
Annexure A, on the face of it, is not a liquid document nor the
amount reflected on it as claimed by the
Plaintiff, a liquidated
amount of money. These amounts are neither agreed upon not capable of
speedy and prompt ascertainment.
[9]
Although replete with issues already highlighted in the body of these
reasons, and objected to by the Defendants in their plea
and opposing
papers; I find it unnecessary to deal with the merit or demerit of
each and every aspect raised by the Defendants.
Suffice to say,
Plaintiff failed to comply with rule 32(1)(a) and 32(1)(b) of the
Uniform Rules. For these reasons the application
for summary judgment
against the Defendants was dismissed with costs.
MS
THAMAE, AJ
On
behalf of Plaintiff/ Applicant:
Advocate
A Swanepoel
Instructed
by:
TALBOT
ATTORNEYS
On
behalf of Third and
Fourth
Defendants:
Advocate
D. Hattingh-Boonzaaier
Instructed
by:
Mathopo
Moshimane Mulangaphuma Incorporated
Trading
as DM5 incorporated
C/O
McIntyre Van Der Post
[1]
See
Plaintiff’s Particulars of Claim, page 42 of the bundle
[2]
Page
36 of the Bundle, Paragraph 6 of the Particulars of Claim
[3]
Page
95 – 104 of the Bundle ( annexure CM5 to the Particulars of
Claim)
[4]
Page 106 – 115 of the Bundle ( annexure CM6 to the
Particulars of Claim)
[5]
Page
36 of the bundle.
[6]
Page
50 of the bundle.
[7]
Page
12 of the Bundle.
[8]
Page
70 – 83 of the Bundle.
[9]
Lester Investments (Pty) Ltd v Narshi
1951 (2) SA 464
(C); Fatti’s
Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
1962 (1) SA 736
(T). In Botha v W Swanson & Company (Pty) Ltd 1968 (2) PH F85
(CPD) Corbett J put the test as follows:‘[A] claim cannot
be
regarded as one for “a liquidated amount in money”
unless it is based on an obligation to pay an agreed sum of
money or
is so expressed that the ascertainment of the amount is a mere
matter of calculation.’See also Commercial Bank
of Namibia Ltd
v Trans Continental Trading (Namibia)
1992 (2) SA 66
(NmHC) at 72–3;
First National Bank of South Africa Ltd v Myburgh
2002 (4) SA 176
(C) at 186E–H; Nedcor Bank Ltd v Lisinfo 61 Trading (Pty) Ltd
2005 (2) SA 432
(C) at 437H; Tredoux v Kellerman
2010 (1) SA 160
(C)
at 166D–E; Blakes Maphanga Inc v Outsurance Insurance Co Ltd
2010 (4) SA 232
(SCA) at 240D–241C.