About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 77
|
|
Wesbank, A Division of Firstrand Bank Limited v Dependable Aluminium (Pty) Ltd and Others (10086/2022P) [2023] ZAKZPHC 77 (10 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 10086/2022P
In
the matter between:
WESBANK,
A DIVISION OF FIRSTRAND
PLAINTIFF
BANK
LIMITED
and
DEPENDABLE
ALUMINIUM (PTY) LTD
FIRST DEFENDANT
NICHOLUS
DEVANZO PILLAY
SECOND DEFENDANT
JARED
ENRICO PILLAY
THIRD DEFENDANT
NIGEL
MICHAEL ANGELO PILLAY
FOURTH DEFENDANT
JUDGMENT
Nicholson
AJ:
[1]
The plaintiff seeks summary judgment in terms of rule 32 in the
following terms:
'1.
Payment of the sum of R127,912.32;
2.
Interest thereon at the rate of 2% per annum, calculated from 28 July
2022 to
date of final payment;
3.
Costs of suit on the scale as between attorney and client.'
[2]
It is common cause that on 2 February 2018 that an entity styled, The
Rental Company
Trust and first defendant concluded a written
agreement
[1]
, styled a master
rental agreement ('the agreement'), for the rental and delivery of
various goods. It is further common cause that
the Rental Company
Trust ceded and assigned its rights and obligations arising out of
the agreement to plaintiff
[2]
.
Further still, it is common cause that on 25 January 2019, second,
third and fourth defendants executed a deed of suretyship,
in terms
of which second, third and fourth defendants accepted liability
jointly and severally along with first defendant for any
debt arising
out of the agreement
[3]
.
[3]
The material terms of the agreement were that first defendant would
take possession
of the goods against monthly payments of R4 444.86
inclusive of VAT, from 7 February 2018 for a period of 36 months. The
plaintiff
asserts that the first defendant failed to comply with its
obligations in terms of the agreement, and as of 28 July 2022,
remained
indebted to the plaintiff in the amount of R127 912.32.
[4]
The defendants dispute the debt on two grounds. Firstly, a plea of
prescription is
raised, where it is averred that defendants' debt
became due and payable on 7 March 2019 alternatively 30 April 2019 in
terms of
a settlement agreement arising out of an action sued out of
the Durban Magistrates' Court under case no 9641/2019; and secondly,
whether the quantum of the debt payable, is in terms of the
certificate of balance filed with the summons.
[5]
Plaintiff confirms that a claim was prosecuted in terms of the
agreement out of the
Durban Magistrates' Court but asserts that such
claim was withdrawn on 21 October 2022 and avers that on 5 December
2019, a payment
of R4 000 had been made by defendants, and such
amount interrupted prescription in terms of
s 14(1)
and (2) of the
Prescription Act 68 of 1969
.
[6]
In the affidavit opposing summary judgment, the defendants aver that
the matter before
the Durban Magistrates' Court was concluded on 19
June 2019 when the parties concluded a settlement agreement in
respect of the
capital sum owing, and the legal costs incurred by the
plaintiff in the amount of R130 999.49, which would be paid in
monthly instalments
of R2 000 per month commencing from 1 July 2019.
The defendants averred that the R4 000 paid on 4 December 2019 was
therefore in
respect of the settlement agreement and not in respect
of the agreement. Accordingly, so argued by defendants, the R4 000
did not
interrupt prescription.
[7]
Defendants further aver, that even if the plaintiff now relied on the
settlement agreement,
that the debt in terms of that agreement would
have prescribed on 31 December 2022.
[8]
Rule 32 of the Uniform Rules reads:
'(2)
(a) Within 15 days after the date of delivery of the plea, the
plaintiff shall deliver a notice of application for summary
judgment,
together with an affidavit made by the plaintiff or by any other
person who can swear positively to the facts.
(b)
The plaintiff shall, in the affidavit referred to in subrule (2) (a),
verify the cause of
action and the amount, if any, claimed, and
identify any point of law relied upon and the facts upon which the
plaintiff's claim
is based, and explain briefly why the defence as
pleaded does not raise any issue for trial.
(c)
If the claim is founded on a liquid document a copy of the document
shall be annexed
to such affidavit and the notice of application for
summary judgment shall state that the application will be set down
for hearing
on a stated day not being less than 15 days from the date
of the delivery thereof.
(3)
The defendant may-
(a)
give security to the plaintiff to the satisfaction of the court for
any
judgment including costs which may be given; or
(b)
satisfy the court by affidavit (which shall be delivered five days
before
the day on which the application is to be heard), or with the
leave of the court by oral evidence of such defendant or of any other
person who can swear positively to the fact that the defendant has a
bona fide defence to the action; such affidavit or evidence
shall
disclose fully the nature and grounds of the defence and the material
facts relied upon therefor.
(4)
No evidence may be adduced by the plaintiff otherwise than by the
affidavit referred to
in subrule (2), nor may either party
cross-examine any person who gives evidence orally or on affidavit:
Provided that the court
may put to any person who gives oral evidence
such questions as it considers may elucidate the matter.'
[9]
In the circumstances, plaintiffs affidavit is limited to:
'(a)
a verification of the cause of action and the amount, if any,
claimed;
(b)
an identification of any point of law relied upon;
(c)
an identification of the facts upon which the plaintiffs claim is
based; and
(d)
a brief explanation as to why the defence as pleaded does not raise
any issue for triaI
[4]
.'
[10]
It is further trite that a plaintiff may not go into the
merits of the matter or disclose
any evidence and must confine
himself to what is allowed by the uniform rules.
[5]
[11]
It is apparent that the plaintiff went beyond what is allowed in
terms of the uniform rules because:
11.1
It not only attempts to expand on the merits contained in the summons
in the affidavit supporting summary
judgment, but also attempts to
use the supporting affidavit as a replication to plead over the issue
of prescription. Usually,
when a special plea such as prescription is
taken, the opposing party delivers a replication, and those papers
then serve before
the trial court. It is unusual for the replication
to be contained in the affidavit supporting summary judgment; and
11.2
Plaintiff went beyond verifying the course of action as contained in
the particulars of claim because
the explanation of a settlement
agreement was for the first time explained by plaintiff in the
affidavit supporting summary judgement
as it was never pleaded in the
particulars of claim.
[12]
To resist summary judgment, in their opposing affidavit, the
defendants must merely depose to
facts that if proved at trial with
admissible evidence, would constitute a defence to the plaintiffs
action.
[6]
[13]
While the thrust of plaintiff's argument before me was that the
settlement agreement did not
eliminate or novate the agreement but
merely strengthened and/or reinforced it because the settlement
agreement constituted an
unconditional agreement as opposed to a
compromise. In my view these, together with the point on prescription
are for the trial
court to determine and not an issue for summary
judgment.
[14]
Ms Van Reenen, who appeared for the defendants, in my view correctly
points out that once the
point of prescription together with the
point regarding the quantification of the debt was taken, the usual
order refusing summary
judgment should have been taken, and the
matter should not have served before me on the opposed motion court
roll. For that reason,
despite the fact that in these matters' costs
are normally in the cause, I am of the view that the plaintiff must
pay the costs.
Order
[15]
In the result, I make the following order:
1.
The application for summary judgment is refused.
2.
The defendants are granted leave to defend the action.
3.
The plaintiff is to pay the costs of the summary judgment
application.
NICHOLSON
AJ
Date
heard:
26 July 2023
Judgment
handed down:
10 August 2023
Appearances
For
plaintiff/applicant:
Mr SP
Anderton
Instructed
by:
Allen
Attorneys Inc
57
Swapo Road
Durban
North
Ref:
G ALLEN/WES?/0769
c/o
Botha & Olivier
239
Peter Kercheff Street, Pietermaritzburg
For
first to fourth
defendants/respondents:
Ms C
Van Reenen
Instructed
by:
K
Asmall Attorneys
6
Ellis Road
Westville
Durban
c/o
Asif Essa & Company
195
Boshoff Street Pietermaritzburg
[1]
Index to Summary Judgement Application: Paragraph 8 at page 4 read
with page 16 / paragraph 9 at Page 37
[2]
Index to Summary Judgement Application: Paragraph 11 at page 6 /
While, denied in defendants·heads of argument, the surety
is
not listed in defendants' heads of argument as a point for
determination - See paragraph 2
[3]
Index to Summary Judgement Application: Paragraph 14 at page 6 read
with page 25
[4]
DE van Loggerenberg Erasmus: Superior Court Practice (RS 21, 2023)
at D1-402G
[5]
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC and another
2010 (5) SA 112 (KZP).
[6]
Standard
Bank of SA Ltd v Friedman
1999 (2) SA 456
(C) at 462G.