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2023
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[2023] ZAGPJHC 1276
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Mix Telematics Enterprise SA (Pty) Ltd v Logic Logistics Group (Pty) Ltd (2023/011581) [2023] ZAGPJHC 1276 (8 November 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
2023/011581
Date
of Judgment: 08 November 2023
Reportable:
No
Of
interest to other judges: No
In
the matter between:
MIX
TELEMATICS ENTERPRISE SA (PTY) LTD
Applicant
And
LOGIC
LOGISTICS GROUP (PTY) LTD
Respondent
JUDGMENT
GREEN
AJ:
1 The Plaintiff commenced
an action against the Defendant to recover amounts which it alleges
are owing pursuant to a written Agreement
concluded between the
parties.
2 In terms of the
Agreement the Plaintiff provided vehicle tracking services to the
Defendant, and an agreed monthly fee was to
be paid.
3 The plaintiff’s
claim consists of two amounts, both of which are rooted in the
agreement. The first amount relates to amounts
which are due by the
defendant in respect of services provided by the plaintiff in the
past (“the past amounts”). The
second amount relates to
an amount that is alleged to be payable arising out of the
defendant’s cancellation of the agreement
(“the future
amounts”)
4 On 31 May 2022 Mr Le
Grange sent an email to the Plaintiff’s representative.
This email records the following:
Good afternoon Gregory.
Please advise whether Mix
telematics has a specific cancellations department I need to contact?
Alternatively, we would
like to give one month notice of termination to Mix Telematics and
would not be needing Mix' services from
30 June 2022.
5 The Plaintiff claims
that the email sent by the Defendant on 31 May 2022 is a notice to
cancel the Agreement. Following
on that the Plaintiff alleges
that the cancellation of the Agreement activates the provisions of
clause 19.3 of the Agreement which
provides:
“
In the event
that the Customer terminates the Agreement Mix Telematics shall be
entitled to claim immediate performance by the Customer
of all its
obligations outstanding under this Agreement, which shall include but
not limit all service fees that would otherwise
have become due and
payable during the term of this Agreement.”
6 On 21 June 2022 the
Plaintiff sent a letter to the Defendant. This letter
acknowledges “
receipt of your cancellation request
”
and provides a “
settlement amount
” of
R1,357,075.03. The balance of this letter records:
Kindly note that the
above settlement amount excludes any outstanding payments on the
account.
The above settlement
amounts are valid for 14 days. If you settle after this date, you
will be required to request a new settlement
figure by contacting our
Client Retentions team.
Please note that the
above settlement values do not include any unpaid subscriptions on
your account and outstanding balances are
therefore still payable.
Kindly find our contact
details below for future correspondence should you require assistance
anytime in the future.
7 In its plea, and
affidavit opposing summary judgement, the Defendant denies that the
letter of 31 May 2022 was a letter of cancellation.
8 Mr Smit, who appeared
for the Plaintiff, urged on me that the final paragraph of the letter
of 31 May 2022 is an unequivocal cancellation
of the Agreement.
He made the point that the Defendant unequivocally stated that it
would not require the Plaintiff’s
services from the end of June
2022, and that is consistent only with a cancellation of the
Agreement. Whilst this point is not
without some force, it is a point
built on a paragraph which is said to be in the alternative.
9 The Plaintiff’s
response to the letter of 31 May 2022, which is embodied in its
letter of 21 June 2022, is somewhat equivocal
on whether the
Agreement has been cancelled. The Plaintiff’s letter of
21 June 2022 provides a settlement amount, but
records that if the
settlement is not paid within the specified time, then a further
settlement amount should be requested.
This suggests that the
Plaintiff did not understand that the Defendant had cancelled the
Agreement, because if the Agreement had
been cancelled the amount
that would be owing in respect of service fees for the balance of the
Agreement beyond the date of cancellation
would be fixed, and would
not be subject to revision as the Plaintiff suggests in its letter.
10 A further point
of relevance is that the letter of 21 June 2022 invites the Defendant
to contact the Plaintiff in future.
If the Agreement had been
cancelled there would be no reason for the Defendant to again contact
the Plaintiff.
11 In my view, and
given that this is a summary judgement application, the Defendant’s
defence on the cancellation of
the Agreement which gives rise to the
Plaintiff’s claim for the future amounts cannot be said to be a
defence that is not
raised
bona fide
or raised solely for the
purpose of delay.
12 During the
argument, Mr Bruwer, who appeared for the Defendant, correctly, in my
view, accepted that the Defendant has
not raised any defence for the
past amounts in respect of the services provided by the Plaintiff.
It follows that the Plaintiff
is entitled to judgment against the
Defendant for the past amounts. Mr Bruwer agreed, again correctly in
my view, that the claim
for past amounts is a claim for R663,669.49
13 In neither the
summons nor the application for summary judgement does the Plaintiff
include a claim for interest on amounts
that are owing. For
that reason the order that I will give does not reflect that interest
is payable.
14 As to costs, the
Plaintiff has been successful in obtaining a not insubstantial
judgement against the Defendant.
No defence to the claim for
the past amounts was raised, and instead the Defendant persisted in
its denial of being liable to pay
those amounts until the application
was argued.
15 I have
considered whether the costs of the summary judgement application
ought in someway to be apportioned given that
judgement will only be
granted for the past amounts. That would in my view, not be an
appropriate way to consider costs because
substantially the same
costs would have been incurred if the Plaintiff had only proceeded
for summary judgement only in respect
of the past amounts.
Therefore in the exercise of my discretion in respect of costs, I
will order that the Defendant is to
pay the costs of this summary
judgement application. The agreement provides for costs to be paid on
the attorney and client scale
and that is scale on which costs are
claimed in the summons and the application for summary judgment.
16 I accordingly
order that:
1. The Defendant is
to pay to the Plaintiff R663,669.49.
2. The Defendant is
granted leave to defend the Plaintiff’s claim in the amount of
R1,423,551.51.
3. The Defendant is
to pay the Plaintiff’s costs of this summary judgement
application on the attorney and client scale.
Ian
Green
Acting
Judge of the High Court
8
November 2023
On
behalf of the Applicant:
Adv.
M. Smit
Instructed
by:
Cliffe
Dekker Hofmeyr Inc.
On
behalf of the Respondent:
Adv.
J Van Rooyen
Instructed
by:
Donn
E Bruwer Attorneys.