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[2022] ZAFSHC 299
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Securitas Specialised Services (Pty) Ltd v Down Touch Investments (Pty) Ltd (4591/2021) [2022] ZAFSHC 299 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
4591/2021
In
the matter between:
SECURITAS
SPECIALISED SERVICES (PTY)
LTD
Plaintiff
and
DOWN
TOUCH INVESTMENTS (PTY)
LTD
Defendant
HEARD
ON:
25 AUGUST 2022
DELIVERED
ON:
04
NOVEMBER 2022
JUDGMENT
BY:
MTHIMUNYE AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15:00 on 04 November
2022.
[1]
This is an opposed application for summary judgement. The applicant,
who is the plaintiff
in the main action is Securitas Specialised
Services (Pty) Ltd, a private company with limited liability, duly
incorporated in
terms of the
Companies Act 71 of 2008
, with
registration number 2004/035860/07, and registered address or
principal place of business at Grayston Ridge Office Park,
Block C,
144 Katherine Street, Sandton.
[2]
The Defendant in the main action and a Respondent in this application
is Downtown
Investments (Pty) Ltd, a private company with limited
liability, duly incorporated in terms of the
Companies Act 71 of
2008
, with registration number 2004/4034226/07, and registered
address or principal place of business at 511 Long Road, Welkom.
[3]
On or about 9 November 2018 the applicant and the respondent
concluded an agreement
in terms of which the applicant was to provide
security services over the respondent’s property in exchange
for a fee payable
on the due date notwithstanding whether or not the
applicant had dispatched an invoice. The agreement was to endure for
a period
of 18 (eighteen) months and would be deemed to have been
automatically renewed for a further period of 12 (twelve) months for
an
adjusted tariff applicable at that time, subject to three (3)
calendar months’ cancellation notice, which period of notice
may not commence to run prior to the expiry of the 12 months’
period, as provided in Clause 5, which reads:
“
The agreement shall continue
for a period of 18 months calculated from the commencement date as
reflected on the Schedule and shall
be deemed to have been renewed
automatically thereafter for a further period of 12 months at a time
at Securitas then current tariff
for services prevailing from time to
time. Each such period of 12 months is hereinafter referred to as
“the contract period”.
Provided, however, that either
party may give to the other not less than three consecutive calendar
months’ written notice
of cancellation hereof, which period of
notice may not commence to run prior to the expiry of the relevant
contract period”.
[4]
On 2 April 2021 the Respondent furnished the applicant with a written
one-month Notice of
Termination, in contravention of the provisions
of the contract. The applicant then sued the respondent for an amount
of R1 554 114.75
(One Million, Five Hundred and Fifty-Four,
One Hundred and Fourteen Rand and Seventy-Five Cents) being the
outstanding invoice
for services rendered during the contract period
(R1 047 112.89) and contractual damages arising from the
respondent’s
breach of the contractual terms (R507 001.86).
[5]
The applicant, contending that the respondent’s plea raises no
bona fide
defence or triable issue, brought this application
for summary judgment. The purpose of a summary judgement is to afford
a plaintiff
a speedy remedy to obtain relief where a defendant has
failed to raise a bona fide defence or a triable issue. In
Joob
Joob Investments (Pty)Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA)
the Supreme Court of Appeal held:
“…
In South Africa, the
summary judgement procedure was not intended to shut a defendant out
from defending unless it was very clear
indeed that he had no case in
the action. It was intended to prevent sham defences from defeating
the rights of parties by delay,
and at the same time causing great
loss to plaintiffs who were endeavouring to enforce their rights.
[6]
The respondent, in its opposing affidavit, contended that the
applicant’s claim
be dismissed on the basis that, amongst
others, it is not a liquidated claim. This particular defence was not
raised in the plea,
which plea contained the following defences:
6.1. That it was a tacit
or imputed term of the security contract between the two parties that
the contract was terminable
on reasonable notice once the
construction contract between the respondent and a third party (ACSA)
in terms of which the respondent
was to provide security services to
ACSA for the duration of the construction contract.
6.2. In the alternative
and in the event the court finds that the tacit term pleaded cannot
be imported, the respondent
pleads that Clause 5 of the security
contract is unduly oppressive if it is to be applicable even if the
entire substratum for
the security contract disappears and further
that it goes against public policy or is unconscionable in the
circumstances of this
case.
6.3. That the parties did
not sign the “Agreement and Schedule of Services Permanent
Contract” an argues
that to the extent that it may be found to
be severable, it is not valid and enforceable.
[7]
The applicant raised issues with the fact that there is no harmony
between the Defendant’s
plea and the affidavit resisting
summary judgment, because the defence of the applicant’s claim
not being a liquid document
was not raised in the plea, which plea,
according to the applicant. is just a bare denial. This is true only
in as far as that
particular defence is concerned, however, the plea
contains a number of other defences which are incorporated in the
affidavit
opposing summary judgement. These are all articulated in
para [6] above and will not be repeated herein. This court accepts
that
one of the defences (liquidated claim) was not raised in the
plea and agrees with the applicant that the defendant cannot be
allowed
to introduce this in its opposing affidavit, however there
are other defences raised in both the respondent’s plea and
opposing
affidavit, on the basis of which this court may make a
determination of whether or not they are
bona fide
and / or
raise triable issues.
[8]
Both parties went to lengths on their papers about the sustainability
and validity
of the defences that the respondent has raised or not
properly raised in the affidavit, for example whether or not the
plaintiff
is entitled to claim contractual damages under the
circumstances; that the tacit term defence neither raises a bona fide
defence
nor a triable issue as it is a matter of interpretation by
the court. All these are not before this court for determination,
neither
do they add any weight to whether or not the applicant is
entitled to summary judgement. What is before this court is to decide
if the respondent has succeeded in raising a
bona fide
defence
or a triable issue, if not, the applicant would then be entitled to
the relief it seeks.
[9]
For a summary judgement application to succeed, other than complying
with the prescribed
process in terms of Rule 32 of the Uniform Rules
as amended, the applicant must prove that the defendant has no
bona
fide
defence or a triable issue and has entered a notice to
defend as a delaying tactic. The respondent’s duty is to
demonstrate
that the converse is true. It is not a requirement that
such defence should have a probability of success. The legal
principles
governing summary judgement proceedings were elegantly
dealt with in
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) 426,
where the Appellate Division held:
“ …
One of the ways in
which a defendant may successfully oppose a claim for summary
judgement is by satisfying the court by affidavit
that he has a bona
fide defence to the claim. Where the defence is based upon facts, in
the sense that material facts alleged by
the plaintiff in its
summons, or combined summons, are disputed or new facts are alleged
constituting a defence, the Court does
not attempt to decide these
issues or to determine whether or not there is a balance of
probabilities in favour of the one party
of the other. All that the
Court enquired into is: (a) whether the defendant has ‘fully’
disclosed the nature and grounds
of its defence and the material
facts upon which it is founded, and (b) whether on the facts so
disclosed the defendant appears
to have, as to either the whole or
part of the claim, a defence which is both bona fide and good in law.
If satisfied on these
matters, the Court must refuse summary
judgement wholly or in part, as the case may be. The word “fully”,
as used in
the context of the Rule (and its predecessors), has been
the cause of some judicial controversy in the past. It connotes, in
my
view, that, while the defendant need not deal exhaustively with
the facts and the evidence relied upon to substantiate them, he
must
at least disclose his defence and the material facts upon which it is
based with sufficient particularity and completeness
to enable the
court to decide whether the affidavit discloses a bona fide defence.”
[10]
Even when an opposing affidavit lacks sufficient particularity on
material facts upon which the
respondent relies, the court is
empowered, in circumstances it deems appropriate, to exercise
discretion in favour of the respondent
where there is doubt on
whether the applicant’s case is unanswerable –
Tesven
CC v South African Bank of Athens
2000 (1) SA 268
(A).
Having
considered the papers and all the submissions made before me, I am
persuaded that the respondent has raised a
bona fide
defence
and triable issues. It follows therefore that this application must
fail.
[11]
In the result, I make the following
order
:
1.
The application is dismissed.
2.
Costs in the cause
DP
MTHIMUNYE AJ
Appearances:
On
behalf of applicant:
Adv J Scheepers
Chambers,
Bloemfontein
Instructed
by:
Symington & De Kok
On
behalf of respondent: Adv W
A Van Aswegen
Chambers,
Bloemfontein
Instructed
by:
Peyper Attorneys