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2023
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[2023] ZAKZPHC 107
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Van Rensburg v Joubert and Another (596/2023P) [2023] ZAKZPHC 107 (13 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
596/2023P
In the matter between:
DAVID SCHALK JANSE VAN
RENSBURG
PLAINTIFF
And
CORNELIUS IGNATIUS
MICHAEL JOUBERT
FIRST DEFENDANT
MURRY ROBERT MOXHAM
SECOND DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Plaintiff is seeking summary judgment against First and Second
Defendant jointly and
severally the one paying the other to be
absolved for payment of the sum of R675 000.00 plus interest thereon
and costs of suit.
The application is opposed by First and
Second Defendants.
[2]
The claim arises from the sale of a pyrolysis charcoal plant which
was sold by Plaintiff
to Defendants for the sum of R760 000.00.
The sale was in terms of a written agreement of sale entered into
between the parties
and signed on 16 June 2020. Defendants paid
a deposit of R60 000.00 and one payment of R25 000.00 thus leaving
the balance
of R675 000.00 which is being claimed.
[3]
It is common cause that Plaintiff delivered the said plant to
Defendants who installed
the plant and sometime later expressed the
view that it was not producing the quality of charcoal that was
guaranteed to them.
Defendants admit that the agreement of sale
was signed and the terms and conditions contained therein. They
however rely
on what they refer to as a report by an expert relating
to the production by the plant and certain letters between the
parties
proving the quality of the charcoal it would produce.
The basis for their defence accordingly does not arise from the terms
of the agreement but from these other factors to which I have
referred. They further rely as a defence on the Consumer
Protection
Act. A counter claim was also filed seeking specific
performance from Plaintiff.
[4]
It is submitted on behalf of Plaintiff that the terms of the contract
are not disputed
and that no guarantee as to production was given.
Two defences are raised. Firstly that it is not fit for the
purpose
for which it was purchased and secondly that of the Consumer
Protection Act. It was submitted that after delivery of the
plant it was common cause that it did produce bio-char and that there
was no correspondence about problems with the said machine.
It
was submitted that Defendants did not prove that there was any defect
in the machine. The agreement was never terminated
and no
defence good in law was raised by Defendants. It was not
disputed that the plant could produce the only issue was
the extent
and quality thereof for which no guarantee was given as it was sold
as is.
[5]
It was further submitted that the Consumer Protection Act was not
applicable and that
nowhere in the answering affidavit does it set
out which provisions of the Consumer Protection Act is being relied
upon.
It was further submitted that the counter claim was
without any substance as it merely referred to certain paragraphs of
the plea
which contained the allegations as to the plant not
operating in terms of the guarantee when no such guarantee was given
in terms
of the agreement.
[6]
It was submitted on behalf of Defendants that they had a
bona fide
defence and that it was a triable issue. It was submitted
that reliance was placed on section 5(1)(a) of the Consumer
Protection
Act. It was further submitted that the laboratory
report which appears at page 36 was relied upon and accordingly the
plant
was not producing what it was purchased for and that
accordingly there was a valid defence and Plaintiff therefore
breached the
agreement. Defendants have raised valid defences
and that accordingly the application for summary judgment should be
dismissed
with costs.
[7]
In response it was submitted on behalf of Plaintiff that the report
attached by Defendants
was not an expert report and that there was no
implied warranty in terms of the Consumer Protection Act. There
was no cancellation
of the agreement but only an order seeking
specific performance.
[8]
Paragraphs 5 of the agreement of sale specifically states that the
plant is sold as
a used plant with no guarantees after production has
been proved. In paragraph 3.1 it sets out that the plant was
sold as
is and the plant was inspected by the purchasers and that it
was a pyrolysis charcoal plant. The certificate/report which
Defendants rely upon as the guarantee relating to the production of
the said plant was done on 2 March 2018 and 5 March 2018 where
it
indicated a fixed carbon percentage of 97.2 %. This was
approximately over two years before the agreement was entered
into.
It is contended on behalf of Defendants that this report is a
guarantee given to them that it would produce 97 % pure
bio-char
where it was only producing 83 % pure bio-char.
[9]
If this certificate was to be a guarantee of the bio-char the machine
could produce
one would have expected it to be incorporated in the
agreement as on Defendants version they were given this before they
signed
the agreement. It appears to just be a report of what
the machine was producing in 2018.
[10]
It is also noteworthy from the emails of which copies are attached to
the plea that on 19 March
2021 Second Defendant stated “Is
there any way that you can come up to the plant and help us with the
process as we obviously
got something seriously wrong. The
plant has been set up so you should be able to see what the problems
are.”
[11]
In response thereto Plaintiff replied that he has an international
expert which is available
and stated “I think you are clearly
doing something wrong.” It is apparent from these letters
that Defendants
were seeking assistance as they were of the opinion
that they may be doing something wrong and there is nothing in their
letters
that it is not producing according to the guarantee that was
provided. It is only in the plea, after summons had been issued
by Plaintiff against Defendants, that Defendants then raises the
issue that the guarantee was provided. The letter of one
Phipps
they attach as support that it is not producing correctly also
clearly states that “from photo’s” he has
perused.
He did not inspect the said machine.
[12]
In my view the Consumer Protection Act is not applicable as it was a
term of the written agreement
that no guarantee was being provided,
that Defendants had inspected the plant and purchased it as is.
The allegations in
respect hereof are vague, bold and substantiated.
The matter must be considered in terms of what is contained in the
papers.
[13]
In Defendants counter claim they plead that the terms and conditions
of the agreement as pleaded
by Plaintiff be incorporated into the
counter claim by reference. They allege that the breach is set
out in paragraphs 5
to 7 of Defendants plea and be incorporated in
the claim in reconvention. They then request that the breach be
remedied and
claim specific performance in terms of the alleged
guarantee provided by Plaintiff.
[14]
In paragraphs 5 to 7 of their plea it is set out that the agreement
was concluded at a time when
Plaintiff was informed what the plant
was acquired for and that it was sold as being capable of producing a
product known as bio-char
with a purity of 97.2%. That it is
not suitable for that purpose, could not produce it and only produced
bio-char at a purity
of 83% or less. As already referred to
above the agreement specifically sets out that if there is any
variation thereof it
must be in writing and signed by both parties.
It further sets out in paragraph 13.1 that neither party shall be
bound by
any representation, warranty, promises or the like not
recorded in the agreement.
[15]
It is noteworthy that if the requirement that it had to be of 97%
purity was so important it
did not form part of the agreement.
The terms of the agreement are clearly set out, signed by the parties
and the defences
raised by Defendants do not disclose a
bona fide
defence which is sustainable or valid in law for the reasons which I
have set out. Further the bold allegation that the Consumer
Protection Act applies is also insufficient and is not a
bona fide
defence. It is vague and does not set out what it is
specifically alleged.
[16]
As the counter claim is based solely upon the reasons set out in the
plea for the failure of
Plaintiff to comply with the terms of the
alleged guarantee which is not in the written agreement it also does
not disclose any
claim against Plaintiff.
[17]
Accordingly Defendants have not shown that they have a
bona fide
defence which is sustainable in law or a
bona fide
counter
claim and therefore the application must succeed.
ORDER
Summary judgment is
granted in terms of paragraphs 1, 1.1, 1.2 and 1.3 of the notice of
application for summary judgment.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
10
OCTOBER 2023
JUDGMENT
HANDED DOWN ON:
13
OCTOBER 2023
COUNSEL
FOR PLAINTIFF:
B
B DE BEER
Instructed
by:
Olivier
and Pinto Inc. Attorneys
Pretoria
Tel:
0878222142/0824660186
Ref:
LIT – J1
Email:
info@olivierpinto.co.za
c/o:
Botha & Olivier Inc. Attorneys
Pietermaritzburg
Tel:
033 3427190
Ref:
Sanet Botha/cls/O.44
Email:
cathys@bando.co.za
COUNSEL
FOR DEFENDANTS:
T
C REDDY
Instructed
by:
E
W Van Zyl Attorneys
Johannesburg
Tel:
011 4721473/011 4721640
Ref:
EWVZ//M910
Email:
ewvanzyl@ewvanzylatt.co.za
c/o
Viv Greene Attorneys
Pietermaritzburg
Tel:
033 342 2766
Ref:
Email:
anasia@vglaw.co.za