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[2023] ZAECMKHC 23
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Tractor World v Mzwali (CA 105/2022) [2023] ZAECMKHC 23 (14 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA 105/2022
In
the matter between:
TRACTOR
WORLD
Appellant
and
MZIMKHULU
GEORGE MZWALI
Respondent
JUDGMENT
Rugunanan
J
[1]
In proceedings before the East London
Magistrate’s Court from which this appeal emanates, the
appellant and the respondent
were respectively the defendant and the
plaintiff and will hereafter for convenience be referred to as such.
[2]
The plaintiff instituted action against the
defendant claiming repayment of the amount of R27 025. The
subject matter of the
claim concerned the sale of a mechanical ‘JBH
2 row maize planter’ (the planter), which the plaintiff
purchased from
the defendant during March 2019.
[3]
The appeal lies against the magistrate’s
order in which he granted the plaintiff summary judgment for the
aforesaid amount
together with interest and costs.
[4]
The plaintiff has elected to abide the
decision of this Court.
[5]
Central to the plaintiff’s claim is
that the planter sold by the defendant was latently defective.
[6]
In addition to alleging that the defendant
breached the agreement for which he seeks cancellation, the plaintiff
further alleges
in the particulars of claim that:
‘
8.1.1 The
[planter] was defective in that it did not dispense maize seeds to
the ground’
and
‘
9.
… the [planter] could not be used for planting maize.’
[7]
The defendant’s complaint is that the
plaintiff did not plead the actual latent defect/s but merely their
consequence or effect.
From what follows in this judgment, the
defendant’s own version reveals knowledge of the defects as
will be evident from
an analysis of its plea and its opposing
affidavit. In my view this detracts from the argument that the
defendant has put up a
case for a
bona
fide
defence to have resisted summary
judgment.
[8]
Under
the present formulation of the amended rule 14 of the rules of
practice in the Magistrates’ Courts, summary judgment
proceedings are competent once a defendant has delivered a plea.
Although the amended rule (as with the rule 32 of the Uniform
Rules
applicable in the High Courts) has raised the bar and onus for
securing summary judgment
[1]
, a
defendant who opposes such an application must still show that it has
a
bona
fide
defence to the action and must disclose fully the nature and grounds
of the defence and the material facts relied upon for such
defence.
[2]
[9]
In
the judgment of Binns-Ward J in
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
[3]
the position is put out as follows:
‘
[T]he
test for determining whether summary judgment should be given remains
unaffected by the amendments … A defendant is
able to defeat
an application for summary judgment by showing that it has a bona
fide defence. It does that by doing what the subrule
enjoins:
disclosing “fully the nature and grounds of the defence and the
material facts relied upon therefor”. What
that entails in
practice was set out in Colman J’s classical formulation in
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228B-H, which has been consistently endorsed
by the late Appellate Division and the Supreme Court of Appeal.’
[10]
In the citation of the
Breitenbach
case referred to in
Tumileng
supra
, the
word ‘fully’ was not accorded a literal meaning and was
held to convey no more than that there be material facts
sufficiently
full to persuade the court that what the defendant has alleged, if it
is proved at trial, will constitute a defence
to the plaintiff’s
claim.
[11]
I am unreservedly in agreement with what
has been elucidated in the abovementioned cases and would conclude by
parity of reasoning
that precisely the same considerations apply as
regards the current formulation of rule 14(3)(b) applicable in the
magistrates’
courts.
[12]
Having said that, the essential issue to be
determined in this matter is whether the defendant has shown that it
has a
bona fide
defence.
[13]
Unpersuaded that the defendant proffered
sufficient particularity to demonstrate a
bona
fide
defence, the magistrate granted
summary judgment. In addition, he found (albeit on insufficient
detail in the papers) that the
plaintiff cancelled the agreement, and
that the defendant’s retention of the purchase price and the
planter implied that
it accepted return thereof. In my view, these
considerations assume less significance as opposed to the essential
issue for determination.
[14]
In its plea to the particulars of claim the
defendant’s version is set out as follows:
‘
Ad
paragraphs 8, 9, 10 and 11 thereof:
7.1
Save to admit that the plaintiff returned the planter to Tractor
World, the remainder of the allegations
contained in these paragraphs
are denied and the plaintiff is put to the proof thereof.
…
7.3
During March or April 2019, the defendant returned the planter to
Tractor World in East London. Upon
returning the planter, the
plaintiff informed Smith verbally of the following:
7.3.1
That prior to returning the planter to Tractor World, the plaintiff
had taken the planter to another mechanic
to modify the planter and
such modifications were done on the dispensing shoot.
7.3.2
The problem the plaintiff was experiencing with the planter was that
there was a build-up of the seed in
the dispensing shoot. In an
attempt to resolve this problem, the plaintiff’s mechanic
welded the plate inside of the dispensing
shoot to change the angle
of the dispensing shoot to prevent the build-up of the seed in the
dispensing shoot. However, even after
these modifications have been
done on the dispensing shoot, they failed to resolve the issues of
the seed build-up in the dispensing
shoot.
7.4
The plaintiff showed Smith the modifications which had been done on
the planter’s dispensing shoot.
Smith informed the plaintiff
that as a result of the modifications which had been effected on the
planter, Tractor World would
not [be] able to return the planter to
the supplier, but would instead attempt to fix the issues that were
plaguing the planter.
7.5
After the planter was returned to Tractor World, Smith took the
planter apart to repair it. Smith went
systematically through the
planter process, and, among other things:
7.5.1
he found damage to the split bearing and replaced same;
7.5.2
he found that the drive wheel to the driver of the planter boxes was
slack (the chain was slack) and he
adjusted same;
7.5.3
he refitted the planter plates;
7.5.4
he adjusted the clearances between the planter box and the seed plate
face;
7.5.5
he refitted the discharged pipes.
…
7.7
After Smith had finished with the aforementioned repairs, he called
the plaintiff and requested
him to bring maize in order to test the
planter. The plaintiff agreed to bring the maize, however he never
brought the maize to
test the planter.’
[15]
In the opposing affidavit the deponent on
behalf of the defendant makes the following assertions:
‘
18.1
The defendant has denied any defect on the planter.
18.2 The
alleged defect relied upon by the plaintiff in his particulars of
claim is that the planter did not dispense
maize seeds to the ground.
This alleged defect is located on the dispensing shoot of the
planter.
18.3 The
repairs effected by the defendant on the planter were not done on the
dispensing shoot, the defendant did not
interfere with the dispensing
shoot.
18.4 The defendant
did not conduct any modifications on the planter. It was the
plaintiff who modified the planter.’
[16]
Arising from the version put up by the
defendant are the following noteworthy observations:
[17]
The defendant has identified the latent
defect. It was,
‘
on the dispensing
shoot of the planter’; and it caused,
‘
a
build-up of seed in the dispensing shoot’.
[18]
While the defendant acknowledges that the
plaintiff’s mechanic had effected a modification the defendant,
on its own version,
pleads that:
‘
[It]
attempt[ed] to fix the issues that were plaguing the planter’.
[19]
In doing so, repairs were effected to the
components listed in paragraphs 7.5.1 to 7.5.5 of the plea.
[20]
Thereafter the defendant requested the
plaintiff to bring maize seed so that the planter could be tested.
[21]
The
defendant’s version, considered as a whole
[4]
,
plainly indicates that it knew what issues were troubling the
operation of the planter (
inter
alia
the build-up of seed); it identified them in its pleadings and, by
its own admission, had repaired them.
[22]
In argument before us defendant’s
counsel was hard-pressed to concede that there is a manifest
inconsistency between, on the
one hand paragraph 7.1 of the plea in
which the latent defects are denied, and on the other hand the
identification of issues that
troubled the operation of the planter.
[23]
He contended nonetheless that these were
issues disparate from the more significant being the warranty on the
planter having been
voided by the modification effected by the
plaintiff’s mechanic. Hence, if viewed from that
perspective – which
he contended the magistrate ought to have
done – the inconsistency did not render the plea devoid of
a
bona fide
defence.
[24]
I have difficulty with this argument.
[25]
What follows are my reasons.
[26]
First, all that the defendant has pleaded
is that: ‘as a result of the modifications which had been
effected on the planter,
Tractor World would not [be] able to return
the planter to the supplier’. It has not been pleaded nor is
mention made in
the defendant’s opposing affidavit whether
special conditions pertaining to the existence and operation of the
warranty were
present at the conclusion of the sale agreement –
in particular, it cannot be determined if what is asserted as a
defence
is in the guise of an express or implied warranty with
conditions exercised either at the instance of the seller or at the
instance
of the supplier/manufacturer. Moreover, the operation of the
warranty as between the defendant and the supplier, or as between the
plaintiff and the defendant, or as between the plaintiff and the
supplier, is the other unknown factor. The nature of the warranty
and
the identity of the party at whose specific instance the warranty
falls to be invoked is not evidenced in the pleading.
[27]
To sum up, I consider that the nature and
grounds of the defence and the material facts relied upon therefor
have not been pleaded.
I am therefore loath to make the assumption
that the warranty would be enforceable at the instance of the
defendant because it
does not find support either in the plea or in
the opposing affidavit.
[28]
Second,
a seller has a residual obligation imposed by operation of the
law not to sell goods that are defective.
[5]
Paragraphs 7.4 and 7.5 of the defendant’s plea indicates that
the defendant recognised issues that affected the operation
of the
planter and despite the alleged breach by the plaintiff, the
defendant proceeded to take the planter apart and repair
it. On these
facts and for reasons aforementioned, the warranty defence comes to
naught.
[29]
Third, the argument for the defendant does
not accord with the construction of the defendant’s pleaded
version. The reason
therefor is that the defendant’s pleadings
must be interpreted on the basis of how they are formulated. On that
approach
it is clear that the defendant identified issues and did
repair-work. Its knowledge of the seed build-up and the specific
components
of the planter to which repairs were effected is –
on a proper construction of its plea – inconsistent with the
denial
of defects in paragraph 7.1 of the plea and in paragraph 18.1
of the opposing affidavit.
[30]
It
was submitted for the defendant that the denial must be understood
in the context of plaintiff’s failure to have alleged
the
existence of latent defect/s
[6]
.
It does not behove the defendant to belatedly criticise the plaintiff
for not alleging the existence of the defect/s
[7]
– when self-evidently the particulars of claim comprehend that
the planter was substantially impaired for the purpose for
which it
was sold or for which it is commonly used, and that the defendant
took it upon itself to identify glitches and fix them.
[31]
The defendant’s denial is
disingenuous and conflicts with its pleaded version that repairs for
issues that plagued the planter
were effected. The build-up of seed
in the dispensing shoot was one of the issues identified by the
defendant. From this perspective
of the defendant’s pleadings
the rationale for requesting the plaintiff to bring seed (despite the
protestation that no repair-work
was done to the dispensing shoot),
quite plainly points towards testing the planter to ascertain if the
issue persisted after repairs
were effected.
[32]
In the circumstances, and contrary to the
submission by counsel for the defendant, I am satisfied that the
plaintiff’s founding
affidavit (terse as it is) unmistakably
and correctly asserts that the defendant’s plea does not
dispute that the planter
was latently defective.
[33]
For the above reasons I am unpersuaded:
32.1 that the nature and
grounds of the warranty and the material facts relied upon therefor
have been pleaded, and
32.2 that the defendant’s
denial of defects in contradiction of its pleaded version that the
planter was repaired, has merit.
[34]
Accordingly, what has been alleged by the
defendant, if proven at trial, will not constitute a
bona
fide
defence.
[35]
In the result the appeal is dismissed.
____________________________
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
BESHE
J
:
I agree.
_________________________
N.
G. BESHE
JUDGE
OF THE HIGH COURT
Appearances:
For
the Appellant:
C.
D. Kotze
Instructed
by Abdo & Abdo
c/o
Netteltons Attorneys
Makhanda
Tel:
046-622 7149
(Ref:
I. Pienaar)
For
the Respondent:
No
Appearance
Khaya
Dywanisi Attorneys Inc.
King
William’s Town
Tel:
043- 6109 / 084 219 7049
(Ref:
M052)
Date
heard: 03 March 2023
Date
delivered: 14 March 2023
[1]
Standard
Bank of SA Ltd v Rahme and Another
[2019] ZAGPJHC 287 para 8.
[2]
Standard
Bank of SA Ltd and Another v Five Strand Media (Pty) Ltd and Others
[2020] ZAECPEHC 33 para 12.
[3]
[2020] 52 para 12.
[4]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
[2020] ZAWCHC 28
para 4 including the footnote thereto wherein
reference is made to
Maharaj
v Barclays National Bank
1976 (1) SA 418
(A) at 423.
[5]
See
Barnard
and Another v De Klerk
[2020] ZAECPEHC 38 para 10 and the authorities cited in the
footnotes thereto.
[6]
Mkhize
v Lourens and Another
2003 (3) SA 292
(TPD) at 294B-E.
[7]
Mkhize
v Lourens and Another
2003 (3) SA 292
(TPD) at 294B-E.