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2023
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[2023] ZAECMKHC 96
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Meyers Hire (Pty) Limited t/a Meyers Hire v Filzo Enterprises (Pty) Limited and Others (621/2023) [2023] ZAECMKHC 96 (12 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 621/2023
In
the matter between:
MEYERS
HIRE (PTY) LIMITED t/a MEYERS HIRE Applicant
and
FILZO
ENTERPRISES (PTY) LIMITED First
Respondent
LEON
FILLIS
Second
Respondent
NOSIPHO
FILLIS Third
Respondent
JUDGMENT
Govindjee
J
[1]
The plaintiff (‘Meyers Hire’)
and the first defendant (‘Filzo’) entered into various
agreements for the
lease of trucks on credit. The trucks were duly
delivered and invoices sent between 31 December 2020 and 4 February
2023. Filzo
opposes an application for summary judgment in respect of
hire costs, tyre excess costs, damages to vehicles and wasted legal
costs,
together with related relief.
Outstanding
hire costs
[2]
Meyers Hire was contractually entitled to
appropriate payments made by Filzo to any part of the account, at its
own discretion.
It alleges that Filzo has failed to pay a sum of
almost R1,6 million in respect of invoices rendered between April
2022 and February
2023, and attached a schedule of invoices in
support. Filzo disputes the amount claimed on these invoices, but not
an agreement
that interest would be payable in respect of all late
payments (at the maximum rate prescribed by the National Credit Act)
and
that Meyers Hire would be entitled to collection costs and costs
on an attorney and client scale.
[3]
The opposing affidavit states the
following:
‘
I
have admitted that I am indebted to the plaintiff but I deny that I
am indebted to the plaintiff for the amount claimed. It is
common
cause between the plaintiff and the defendants that the trucks were
returned to the plaintiff around December 2022. The
plaintiff has
then rendered an invoice for January and February 2023 which are
months the trucks were not in my possession but
the possession of the
plaintiff … The plaintiff has incorrectly included the
following amounts [for January 2023] …
It is further clear
from annexure POC 11.1 that the first defendant was in credit in
respect of the following vehicles …
in the total amount of
R99 695,42. The plaintiff has impermissibly allocated those
credit amounts to the damages which have
not been proven yet instead
of allocating them to the outstanding hire costs …’
[4]
It
must be accepted that the claim under this heading is based on an
agreement for hire costs. Filzo admits the rates of hire, the
details
of the leases, the vehicles delivered, updated quotations and the
like, as well as the total of the invoices rendered.
The amount is
capable of speedy and prompt ascertainment and is for a liquidated
amount in money.
[1]
Filzo’s
defence is in reality is a part-defence based on credits totalling
approximately R100 000,00, together with
an argument that
applying these credits to the outstanding hire cost amount would
impact on interest and VAT calculations.
[5]
The
difficulty with accepting this argument is that Filzo accepts the
copy of the written application for credit, attached to the
particulars of claim, as constituting part of the agreement. Clause
4.2 of the terms and conditions provides that ‘[t]he
customer
acknowledges that a company is entitled in its own discretion to
appropriate any payment made by the customer, to any
part of the
account which it may elect.’ On a plain reading, the clause was
broadly crafted so that Meyers Hire was contractually
entitled to do
what it did by crediting payments received to its sub-account for
alleged damages in respect of certain vehicles,
rather than to the
outstanding amount for hire costs.
[2]
That contractual entitlement is unchallenged so that this portion of
the opposition is unarguable and the disclosed defence is,
in this
respect, not bona fide.
[6]
There
is, however, doubt whether Meyers Hire was entitled to invoice Filzo
as it did in January 2023, so that leave to defend must
be given in
respect of an amount totalling some R20 000,00 under this
heading. Uniform Rule 32(6)
(b)
(ii)
provides that judgment may be entered against the defendants in
respect of the balance, amounting to R1 574 261,43.
[3]
[7]
It is trite that summary judgment is a
drastic remedy based on the supposition that a plaintiff’s
claim is unimpeachable,
and the defendants’ defence is bad in
law. The court has an overriding, unfettered discretion whether, on
the facts averred
by the plaintiff, it should grant summary judgment
or, on the basis of the defence raised, it should refuse it, even if
the requirements
for resisting summary judgment have not been met. In
my view the plaintiff’s case under this heading is
unanswerable, so
that summary judgment is appropriate.
Damages
to vehicles
[8]
Meyer’s Hire also claims summary
judgment for damages to vehicles, both whilst in Filzo’s
possession and for damages
on returned vehicles, totalling almost R1
million. The issue is whether this is a liquidated amount.
[9]
In
Leymac
Distributors Ltd v Hoosen and Another
,
[4]
the plaintiff had sold a bus to the first defendant under a
hire-purchase agreement which provided, inter alia, that should the
purchaser fail to pay any instalment, the seller would be entitled to
terminate the agreement, re-take possession of the bus and
have it
valued. When the seller exercised these rights, and claimed the
difference between the unpaid balance and the independent
valuation
of the bus, this claim was held to be for a ‘liquidated amount
in money’. An amount claimed for expenses
incurred in having
the bus towed to recover possession thereof was, however, held to be
‘manifestly not a claim for “a
liquidated amount in
money”’. This was on the basis that the claim was for
damages representing expenditure allegedly
incurred by the plaintiff
in having the bus towed. The amount of these damages would not be
liquidated until the court had assessed
the quantum thereof, by the
exercise of its own judgment as to whether the alleged expenditure
was reasonable and necessarily incurred
as a result of a breach of
contract. That being the case, the court concluded that the question
whether the claim was capable of
‘speedy and easy proof’
was irrelevant.
[5]
[10]
I accept
Mr
Somandi’s
submission, and the
authorities upon which he relies, that it would be inappropriate to
grant summary judgment for the claim for
damages allegedly caused to
the vehicles. Leave to defend is granted in respect of these parts of
the overall claim.
Claim
for tyres
[11]
The agreement made provision for Meyer’s
Hire to include sets of tyres as part and parcel of the various lease
agreements.
Although the original amount claimed for the costs of
tyres over and above the agreed quantity was disputed, Meyer’s
Hire
pleaded that, following negotiation, an agreement had been
reached so that an amount of R74 536,81 remained overdue.
[12]
In
response, while denying liability ‘for any amount in respect of
damages of the trucks / vehicles’, Filzo admits the
core
averment, confirming that ‘it was a compromised amount agreed
upon’. The amount having been agreed, the claim
is liquidated
and, absent a bona fide defence having been disclosed fully on the
papers, Meyer’s Hire is entitled to summary
judgment for that
amount.
[6]
There is no
justifiable reason to decide differently.
Wasted
costs for registration of mortgage bond
[13]
Mr Brown
fairly
conceded that there appeared to be no basis for summary judgment in
respect of this claim, given the manner in which the
claim has been
pleaded and the seemingly incongruous references to the various
defendants. Leave to defend is granted in this respect.
Interest
and attorney and client costs
[14]
The Uniform Rules afford the court a wide
discretion to make such order as to costs as to it may seem just. The
plaintiff has enjoyed
substantial success and is entitled to the
costs of the application. The plaintiff’s contractual
entitlement to claim interest
on the outstanding sums at the maximum
possible interest rate in terms of applicable legislation, as well as
costs of suit on an
attorney and client scale, is not disputed, and
follows.
Order
[15]
The following order is issued:
1.
Summary judgment is granted in favour of
the plaintiff against the defendants, jointly and severally the one
paying the others to
be absolved, for:
1.1
payment in the amount of R1 574 261,43,
in respect of hire costs; and
1.2
payment in the sum of R74 536,81, for
agreed tyre excess costs.
1.3
interest on these amounts, at the maximum
permissible interest rate in terms of the National Credit Act, 2005
(Act 34 of 2005),
calculated a
tempore
morae
to date of payment.
1.4
Costs of suit on a scale as between
attorney and client, together with interest thereon calculated at the
legal rate from a date
fourteen days after taxation to date of
payment.
2.
The defendants are granted leave to defend
the balance of the plaintiff’s claims.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
05 September 2023
Delivered:
12 September 2023
Appearances:
For
the Applicant: Adv
Brown
Chambers,
Makhanda
Instructed
by: Stirk
Yazbek Attorneys
Applicant’s
Attorneys
C/o: Whitesides
Attorneys
53
African Street
Makhanda
Tel:
046 622 3546
For
the Respondents: Adv
Somandi
St
George’s Chambers, Makhanda
Instructed
by: Mellissa
Marais Hoffman Attorneys
Respondent’s
Attorneys
C/o: SCJ
and Co Inc.
40A
Somerset Street
Makhanda
Tel:
046 622 2152
[1]
See
Leymac
Distributors Ltd v Hoosen and Another
1974 (4) SA 524 (D).
[2]
Clause
3.1.9 of the general terms and conditions applicable to the
agreement confirms that Filzo agreed to pay to Meyers Hire
all costs
incurred in repairing any damage of any nature whatsoever to the
vehicle. Whether the plaintiff is entitled to summary
judgment for
amounts allegedly due as damages is a separate issue, considered
below.
[3]
JNOG
Teale & Sons (Pty) Ltd v Vrystaatse Plantediens (Pty) Ltd
1968
(4) SA 371
(O).
It
is undisputed that the second defendant bound himself as surety for
the due performance by the first defendant of all its obligations
to
the plaintiff arising from the terms of the agreement. The second
and third defendants are married in community of property.
It is
alleged that the second defendant executed the Deed of Suretyship in
the ordinary course of his trade and business and
that no written
consent of the third defendant was accordingly required by virtue of
the provisions of
s 15(6)
of the
Matrimonial Property Act, 1984
.
There is no basis for the defendants’ denial in this respect
and the point was not argued, so that the third defendant
is bound
accordingly.
[4]
Leymac
Distributors
above
n 1
at
527F-G.
[5]
Ibid
at 528E-H.
[6]
See SF van Niekerk
et
al
Summary
Judgments – A Practical Guide
(1998) (LexisNexis) 3-7, citing
Oos-Randse
Bantoesake Administrasieraad v Santam Versekeringsmaaatskappy (Bpk)
(2)
1978 (1) SA 164
(W) at 168G and following.