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[2022] ZAKZPHC 55
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Bluebird Logistics (Pty) Ltd v Zululand Bus Services CC and Another (7328/2021P) [2022] ZAKZPHC 55 (21 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 7328/2021P
In
the matter between:
BLUEBIRD
LOGISTICS (PTY)
LTD APPLICANT
and
ZULULAND
BUS SERVICES CC FIRST
RESPONDENT
MDUDUZI
WILFRED
SITHOLE SECOND
RESPONDENT
JUDGMENT
BEZUIDENHOUT
J
:
[1]
Applicant brought an application for summary judgment in the sum of
R2 411 909-87
together with interest thereon and costs on a scale as
between attorney and client. In addition it sought an order
that a
list of property as set out in the notice of motion be
declared especially executable and ordering that Applicant be
entitled to
attach and remove the said movable property from
Respondents. It also sought an order declaring the movable
property executable
generally hypothecated in terms of the bond.
The application was opposed by Respondents who had filed their plea
and an opposing
affidavit.
[2]
The affidavit in support of the application for summary judgment was
signed by one
Pieter Sarel Nicolaas Swart, a director of Applicant.
He stated that he was involved in the day to day business activities
of Applicant and that he had perused and familiarised himself with
all the documentation and records pertaining to the debt owed
relating to this matter and all the pleadings therein. He
confirmed that the facts contained therein and in the particulars
of
claim are within his personal knowledge and correct. He further
contends that Respondents do not have any
bona fide
defence
and entered notice of intention to defend and their plea solely for
the purpose to delay the matter.
[3]
Respondents raised various points
in limine
which will be
dealt with firstly. It was submitted that the deponent to the
affidavit did not set out that he was duly authorised
to bring the
application and that it was therefore not authorised. This
issue has been decided in the case of Ganes and Another
v Telecom
Namibia Ltd
2004 (3) SA 615
(SCA) where it was held that the deponent
to the affidavit need not be authorised to either bring the
application or depose to
the affidavit but that it is necessary that
the attorney be authorised to do so. If the opposing side was
of the view that
the attorney was not authorised then the procedure
in terms of rule 7 had to be followed.
[4]
It was contended that the deponent could not swear positively to
verify the cause
of action and amount as he did not have the
requisite personal knowledge. His knowledge of the facts is not
direct but derived
from a perusal of the documents furnished to him
alternatively discussions which he may have had. He does not
have the requisite
personal knowledge to depose to the affidavit.
The deponent is a director of Applicant a private company. He
has knowledge
of the day to day activities as set out in the
affidavit and acquainted himself with all the documents relating to
the claim and
also has personal knowledge thereof. This is
sufficient as is set out in the case of Shackleton Credit Management
(Pty) Ltd
v Microzone Trading 88 CC and Another
2010 (5) SA 112
(KZP).
[5]
The deponent had to verify each and every amount that may be claimed
in the summons
and particulars of claim. There are at least
four causes of action set out and the failure of the deponent to
verify each
and every cause of action renders the application fatally
defective. In paragraphs 9 and 10 of the affidavit in support
of
the application for summary judgment the deponent confirms the
cause of action as in the amended declaration. It refers to
the
particulars of claim as amended and to the claim as set out therein.
It is accordingly sufficient to establish exactly
what the causes of
action are and that the fact the affidavit of the deponent merely
states cause of action and not causes of action
does not take the
matter any further.
[6]
It was submitted the relief sought by Applicant in paragraphs 4 and 5
of the notice
of the application are incompetent for an application
for summary judgment. They relate to the issue of declaring
certain
movable property specially executable and that the movable
property generally hypothecated in terms of the bond be declared
executable.
It was submitted on behalf of Respondent that
uniform rule 32(1) specifically sets out the causes of action upon
which an application
can be brought for summary judgment and that
this relief does not fall therein. It was submitted on behalf
of Applicant that
the declaration of executability of movable
property is ancillary relief to the judgment as well as the
hypothecation of a notarial
bond and is permissible in summary
judgment proceedings. I was referred to the decision of Nedperm
Bank Ltd v Verbri Projects
CC
1993 (3) SA 214
(W) at 219 C –
D. It was submitted on behalf of Respondents that the relief
sought was not that of perfecting the notarial
bond. In this
matter it was held that to declare movable property executable was
ancillary relief which could be granted.
In the matter of NPGS
Protection and Security Services CC and Another v Firstrand Bank Ltd
2020 (1) SA 494
(SCA) it dealt with declaring immovable property
executable. Although summary judgment can be brought for the
monetary relief
it has to be accompanied in this division by an
application in terms of rule 46 to declare immovable property
executable and accordingly
the said decision is distinguishable from
the present situation. Although it may be ancillary as set out
in the decision
of Nedperm Bank I am not satisfied that it is relief
which is to be granted with an application for summary judgment.
[7]
It was submitted on behalf of Applicant that the statements were
attached and there
was an acknowledgment of debt. If it was
paid Respondent could easily have put up proof of payment which they
did not do.
The bonds are attached to the particulars of claim
and the acknowledgment of debt as well. There is accordingly no
tangible
defence that can be determined and that the defences are
merely to delay. I was referred to the decision of JoobJoob
Investments
v Stocks Mafundla (ZEK) 2009 (5) SA (1) (SCA) where it
was held that there must be a triable issue. Further that
summary
judgment proceedings must no longer be regarded as
extraordinary and drastic and that one should rather concentrate on
the proper
application of the rule. There must be a sustainable
defence. It was submitted that Respondent admitted that he was
supplied with fuel from time to time and that the invoices were
annexures to the founding affidavit. Respondent had to prove
that he had made the necessary payments which was not done and
therefore there was no triable issue.
[8]
There is further no dispute that the acknowledgment of debt was
signed by the Second
Respondent on behalf of First Respondent.
Respondents on 17 June 2021 paid the sum of R 100 000-00 and R150
000-00 in March
and April 2021. The decision not to supply
Respondent with fuel was a business decision that was taken by
Applicant.
No proof in respect of the arrear invoices was
provided and the onus of payment has not been discharged and the debt
of R 1 211
908-87 falls due.
[9]
It was submitted on behalf of Respondent that all that Respondent
needs to show is
that there is an issue which could be proved at
trial and it does not need to prove that it is true. It is
sufficient if
Respondents affidavit shows a reasonable possibility
that the defence advanced may succeed at trial. I was referred
to Marsh
and Another v Standard Bank of South Africa Ltd
2000 (4) SA
947
W at 950.
[10]
It was submitted that Respondents have set out in their opposing
affidavit facts which will constitute
a good defence.
[11]
In their plea Respondent denies that it is indebted to Applicant in
the sum of R 2.5 million.
It is contended that Second
Respondent was a member of Imyameka Trading CC and that after
payments were made there was an amount
due to Jubane Petroleum Pty
(Ltd) and that Imyameka was placed into business rescue on 23
December 2015. Jubane’s claim
is included in the business
rescue plan and Jubane was paid the dividend and Imyameka’s
liability to Jubane was lawfully
extinguished. Imyameka was
also in July 2017 placed under liquidation. There is an action
still pending where Jubane
instituted action against Second
Respondent and his father based on a suretyship agreement and a
surety bond.
[12]
Applicant purchased Jubane and took over the debts owing to Jubane as
a going concern.
Thereafter Petro Fuel purchased the debts
owing to Applicant as a going concern. Second Respondent was
advised by representatives
of Applicant that as he was the sole
member of First Respondent he remained liable for the debts to Jubane
and had to sign the
acknowledgment of debt otherwise they could not
continue to supply him with diesel. As a result of these
representations
the acknowledgment of debt was signed. The said
misrepresentation was incorrect. The acknowledgment related to
a claim
for payment of R 2.5 million in respect of petroleum
delivered by Applicant to First Respondent. No such delivery
had taken
place between them.
[13]
Second Respondent was not liable to Jubane because he had not signed
the suretyship agreement
and therefore there was no debt owed to
Applicant by Second Respondent who would otherwise not have signed
the acknowledgment of
debt if they had not been misled. In
annexure “B” there is a debit entry on the 15 March 2021
of the transfer
R 2.5 million with no explanation therefore.
There are accordingly two actions against Second Respondent at least
where different
parties claim payment of the same indebtedness by
Imyameka which was extinguished by payment of the dividend in terms
of the business
rescue plan. It is contended that the
acknowledgment of debt is not in respect of products supplied to
Frist Respondent but
that was supplied to Imyameka which went into
business rescue and later into liquidation. They accordingly
deny that they
are in arrears. It was further submitted that
there are common directors between Jubane, Applicant and Petro Fuel.
Applicant must therefore have been aware of the adoption of the
business rescue plan and the payment thereunder. It was further
contended that the acknowledgment of debt was taken over by Petro
Fuel and that Applicant has no
locus standi
to institute the
action. This interaction is not dealt with by Applicant
and is an issue which needs to be addressed
by discovery and at
trial.
[14]
It is further contended that payment was made in the sum of R 1 000
000-00 in the mistaken belief
that the acknowledgment of debt was
lawfully concluded and validly binding and therefore Respondent would
have a counter claim
against Applicant for the repayment thereof.
It is contended that there are allegations which require
Applicant to
replicate to and are triable issues. It is further
contended that from the plea it was clear that there was a
bona
fide
defence and that Respondents should accordingly be granted
leave to defend the said matter.
[15]
In the decision of Independent Electoral Commission v Krans
Onspannings
1997 (1) SA 244
(TPA) it was held at 249 that a defendant
does not need to prove his defence. This means that the court
does not need to
evaluate the evidence or to reach a conclusion that
the defence probably will succeed. It refers to the decision of
Soorju
v Pillay 1962 (3) SA 906 (N) at 908 G:
“
I
consider this test a guide to the meaning of the same words in the
rule of the magistrate’s court. A defendant must
consequently set up his defence honestly, disclose fully the nature
and grounds of it, insofar as it relies upon facts, lay before
the
court facts which if proved will be a good defence. The defence
must accordingly not be set out vaguely.
[16]
It was held in Breitenbach v Fiat South Africa Eds Bpk
1976 (2) SA
226
(TPD) at 229 that the word “may” confirms a
discretion on the court that even if the defendants affidavit does
not
measure fully up to the requirements of sub rule 3 (b) of rule 32
the court may nevertheless refuse to grant summary judgment if
it
thinks fit. The discretion must however not be exercised
capriciously so as to deprive a plaintiff of summary judgment
when he
ought to have that relief.
[17]
The Court will not be disposed to granting summary judgment where
giving consideration to the
information before it is not persuaded
that Applicant has an unanswerable case.
[18]
In the present matter what is set out in Respondents opposing
affidavit is much of what is set
out in the plea which was filed.
It is lengthy plea which provides much detail. In both the
affidavit and the plea
it is alleged that there had been various
takeovers of the company and that business rescue proceedings had
been completed in terms
of which certain payments were made and that
that extinguished the debts. It also contends that debts were
taken over and
businesses as going concerns.
[19]
The issue that the acknowledgement of debt was signed under duress as
they were told that they
had to sign it or would not be provided with
further fuel does not in my view disclose a defence. However,
that on its own
is not sufficient to prevent summary judgment.
The further issues raised in the papers are complex relating to the
different
takeovers business, business rescue proceedings and
payments made and whether there is any payment due at this stage.
It is alleged by Respondents that they in actual fact have a counter
claim due to the payment that they had made. From a
reading of
the affidavit and the plea it would appear that there may possibly be
defences that may be proved at trial. Although
it may be a
borderline case, it is in my view considering all the factors
mentioned that summary judgment be refused in the circumstances.
Accordingly
the following order is made:
1.
Summary
judgment is refused.
2.
Respondents
are granted leave to defend the matter.
3.
Costs
are reserved.
BEZUIDENHOUT
J.
JUDGMENT
RESERVED ON: 25
AUGUST 2022
JUDGMENT
HANDED DOWN ON: 21
SEPTEMBER 2022
COUNSEL
FOR APPLICANT: D
M B BOND
Instructed
by: Pagdens
Attorneys
c/o
W.H.A. Compton Attorneys
Pietermaritzburg
Tel:
033 342 33339
Ref:
Tony Compton
COUNSEL
FOR RESPONDENTS: D
DHEODUTH
Instructed
by: T.
Giyapersad Inc.
Tel:
031 566 4763
Ref:
Z35 (B) / UG
c/o
Schoerie & Sewgoolam Inc.
Pietermaritzburg
Tel:
033 845 9330