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2023
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[2023] ZAECMKHC 135
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Filzo Eneterprises (Pty) Limited and Others v Meyers Hire (Pty) Limited (621/2023) [2023] ZAECMKHC 135 (5 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 621/2023
In
the matter between:
FILZO
ENETERPRISES (PTY) LIMITED First Applicant / First
Defendant
LEON
FILLIS
Second Applicant /
Second Defendant
NOSIPHO
FILLIS
Third
Applicant / Third Defendant
and
MEYERS
HIRE (PTY) LIMITED
Respondent
/ Plaintiff
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Govindjee
J
[1]
The applicants (referred to for convenience
as ‘the defendants’) apply for leave to appeal against a
judgment of this
court handed down on 12 September 2023. This follows
an order in favour of the respondent (‘the plaintiff’)
following
an application for summary judgment, granting payment in
the amount of approximately R1,5 million in respect of hire costs,
and
approximately R75 000 for agreed tyre excess costs, interest
and costs on an attorney and client scale. The defendants were
granted leave to defend the balance of the plaintiff’s claims.
[2]
Condonation was granted for the late filing
of the application during the hearing.
[3]
The points in issue on the merits are
narrow. Firstly, the defendants submit that the court erred in
finding the amount of some
R1,6 million in respect of hire costs to
be capable of speedy and prompt ascertainment. Secondly, the court
should not have given
effect to the plaintiff’s election to
allocate payments, totalling some R100 000,00, made by the
defendants to damages
which had not been proved.
[4]
Both these issues were debated at length
during the application for summary judgment itself, and were
addressed in the judgment
sought to be appealed. As to the first
point, it was emphasised that the defendants admitted the rates of
hire, as well as the
total of the invoices rendered, so that the
amount claimed was capable of speedy and prompt ascertainment and was
for a liquidated
amount in money. There is nothing to gainsay this
conclusion.
[5]
The focus of the application was, as was
the case during the application for summary judgment, on the second
point, pertaining to
the allocation of ‘credits’
totalling approximately R100 000,00. This point was considered
and addressed as follows
in the judgment:
‘
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 to 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. 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.’
(footnote omitted.)
[6]
It may be added that clause 3.1.9 of
the general terms and conditions applicable to the agreement
confirmed that the first defendant
agreed to pay to the plaintiff all
costs incurred in repairing any damage of any nature whatsoever to
the vehicle.
[7]
In
essence, the only basis for challenging the summary judgment is that
the plaintiff could have applied the payment received of
approximately R100 000,00 to the outstanding hire costs account,
amounting to R1,6 million, so that summary judgment ought
to have
been refused. Ultimately, what the defendants fail to accept is that
the manner in which the plaintiff proceeded is a consequence
of its
own, admitted, agreement. Absent any challenge to the interpretation
of the relevant clause, cited above, and absent any
authorities
suggesting the contrary, I am unable to conclude that an appeal on
the basis averred would have a reasonable prospect
of success.
[1]
There is also no other compelling reason why an appeal should be
heard.
[8]
Finally, it may be added that the pleaded
defence was that ‘the amount due on the said invoices are
disputed and denied’.
That plea morphed into the averment, in
the opposition to the application for summary judgment, that the
‘credits’
had been impermissibly allocated, and that the
amount for hire costs would have been reduced if the credits had been
allocated
to that heading. As Mr
Brown
,
for the plaintiff, pointed out, the defence presented was an evolving
one. Reading the plea with the defendants’ opposing
affidavit,
the defence presented was bad in law and the court’s exercise
of its discretion to grant summary judgment would
not readily be
overturned when considering the varying basis for the defence. This
is an additional basis for refusing the present
application.
Order
[9]
The following order is issued.
1.
The application for leave to appeal is
dismissed with costs.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
29 November 2023
Delivered:
05 December 2023
Appearances:
For the Applicants /
Defendants: Adv
Somandi
St
George’s Chambers, Makhanda
Instructed
by: Mellissa
Marais Hoffman Attorneys
Applicants’/Defendants’
Attorneys
C/o:
SCJ and Co Inc.
40A
Somerset Street
Makhanda
Tel:
046 622 2152
For
the Respondent / Plaintiff: Adv
Brown
St
George’s Chambers, Makhanda
Stirk
Yazbek Attorneys
Applicant’s
Attorneys
C/o: Whitesides
Attorneys
53
African Street
Makhanda
Tel:
046 622 3546
[1]
S
17(1)
(a)
(i)
of the Superior Courts Act, 2013 (Act 10 of 2013). See
Four
Wheel Drive Accessory Distributors CC v Rattan NO
2019 (3) SA 451
(SCA) at 463F: there must be a sound, rational basis
for concluding that an appeal would have a reasonable prospect of
success.