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[2022] ZAECELLC 13
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Garden to Floors (Pty) Limited v Black Civils (Pty) Limited and Others (1188/2021) [2022] ZAECELLC 13 (1 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, EAST LONDON)
Case
No: 1188/2021
In
the matter between:
GARDEN
TO FLOORS (PTY) LIMITED
Plaintiff
And
BLACKTOPS
CIVILS (PTY) LIMITED
First Defendant
XHOLILE
ELSON
DASHEKA Second
Defendant
THAMSANQA
DASHEKA Third
Defendant
JUDGMENT
BESHE
J:
[1]
Plaintiff issued provisional
sentence summons against defendants calling upon them to immediately
pay, jointly and severally, the one paying the others to be absolved,
an amount of R890 812.10 together with interest thereon.
It is
alleged that the amount claimed is for the hiring of plant equipment
from the plaintiff in terms of a plant hire agreement
which is
attached as well as invoices in compliance with
Rule 8 (3) of the
Uniform Rules
of this court. It is alleged that second and third
defendants bound themselves as sureties in respect of first
defendant’s
debt to plaintiff.
[2]
In response to the provisional
sentence summons, second defendant who describes himself
as a
director of the first defendant,
Mr Xholile Dasheka
deposed to
answering affidavit in terms of
Rule 8 (5)
. The ground upon
which liability is disputed is essentially that the claim is not
founded on a liquid document or liquidated claim
and not premised on
any services delivered or on agreed amounts.
[3]
In the next paragraph however,
Mr Dasheka
states that after receipt of a letter of demand,
they engaged with plaintiff and pointed out that according to their
calculations,
the amount due was R279 623.00 on the invoices.
Further that, subsequent to that, two payments were made. That as at
the time
of issuing of the summons the outstanding amount was
R279 623.00. This was followed by yet another payment of
R139 812.00,
resulting in the current outstanding amount being
R139 811.00.
[4]
Mr Dasheka
goes on to
assert that the agreement the plaintiff is relying on is in respect
of different / previous project which has since
been concluded in
respect of which there are no outstanding payments. He further
asserts that the plaintiff is intent of importing
the terms of the
previous agreement to the new agreement. Furthermore, that neither
the third defendant nor himself stood surety
for first defendant’s
debt in respect of the latter agreement.
[5]
In reply, plaintiff denies that
equipment is hired in respect of specific projects and
asserts that
it is hired in respect of all projects to be carried out by the
defendants. Hence the agreement relied upon makes
no mention of a
“Raymond Mhlaba” Project. The court’s attention is
drawn to
Clause 4
of the agreement relied upon.
Clause 4
provides that the hire is for a definite period but if the equipment
is not returned at the expiry of that period, the hirer of
the
equipment will continue upon the same terms and conditions for an
indefinite period. According to the plaintiff, the defendants
only
off hired the plant on 30 June 2021. A letter to this effect is
attached. Regarding the assertion that the claim is not based
on a
liquid document, plaintiff draws the court’s attention to
paragraph 31 of the terms and conditions of hire of plaintiff’s
equipment which provides that a certificate issued by a director or
manager of the plaintiff as to the existence of and the hirers’
indebtedness to the plaintiff shall be sufficient and satisfactory
proof thereof for the purpose of
inter alia
, provisional
sentence. A certificate to this effect is annexed to plaintiff’s
summons as well as detailed invoices. According
to the plaintiff, the
documents relating to notification of the payments attached by the
defendants are irrelevant as they relate
to a period prior the
invoices on which the present claim is based.
[6]
The issue to be decided is
whether the plaintiff has made out a case for a provisional
sentence
judgment, which will be so if the defendants have no valid defence to
the claim and are merely playing for time as plaintiff
suggests.
[7]
In the matter between
Twee
Jonge Gezellen v Land and Agriculture Development Bank
[1]
it was stated that “
the
purpose of provisional sentence has always been to enable a creditor
who has a liquid proof of his or her claim, to obtain a
speedy remedy
without recourse to the expensive, time consuming and often dilatory
process that accompany action proceedings following
upon an illiquid
summons
”.
It was further stated that it precludes a defendant who does not have
a valid defence from “
playing
for time
”.
[8]
On a reading of the papers
filed, I am satisfied that the claim is founded on a liquid
document,
it is a liquid claim, based on the agreement, statement account by
plaintiff’s official covering the period concerned
as well as
the detailed invoices.
[9]
In the
Twee
Jonge Gezellen
[2]
matter the Constitutional Court developed the common law to provide
for courts to have a discretion to refuse provisional only
where
there defendant demonstrates:
(i)
an
inability to satisfy the judgment debt
.
In this regard, the defendants have made it clear that the company is
in all respects solvent even though paying R890 872.
10 will
have a disastrous effect on their business.
[3]
So, clearly the defendants are able to satisfy the judgment debt;
(ii)
an even balance of prospects in the main case on the papers; and
(iii)
a reasonable prospect that oral evidence may tip the balance of
prospective success in his or her favour.
[10]
On the facts raised on the papers, do the
defendants enjoy prospects of success in the main case? It is
difficult to discern the defences raised by the defendants as they
are contradictory. They range from alleging that the claim is
not
based on a liquid document, to disputing the amount outstanding on
the basis that certain payments were made. Their calculations
however
bring the amount close to the one claimed by the plaintiff. They also
contend that the claim is in respect of a separate
agreement and
plaintiff seeks to import the terms of that agreement to a latter
one. Yet, the agreement produced by the plaintiff
as having been
entered into by the parties makes no reference to a particular
project. Even though the defendants have taken the
liberty to annex
certain documents to their answering affidavit, they do not provide a
separate / subsequent agreement entered
into by the parties. I am of
the view that the defendants do not enjoy a prospect of success in
the main case. On the contrary,
the possibility of the defendants
“
playing for time
” as it were, cannot be excluded.
Plaintiff has drawn the court’s attention to the stance that
was adopted by the defendants
in response to the issuing of summons.
It is common cause that the defendants issued a
Rule 30
notice.
This resulted in a postponement of the matter pending the outcome of
defendants’ application in terms of
Rule 30 (2)
, with
the defendants directed to file the
Rule 30 (2)
application
within the time frames as stipulated in the said rule. Costs were
reserved. However, no such application was forthcoming.
I am
satisfied that the plaintiff has made out a case for the granting of
a provisional sentence judgment in its favour.
[11]
Accordingly, provisional sentence is granted in
favour of the plaintiff against the defendants jointly and
severally,
the one paying the others to be absolved, for:
1.
Payment of an amount of R890 812.10.
2.
Interest on the said amount at the prevailing legal rate as from 1
August 2021.
3.
Costs of the application, which costs shall include the reserved
costs of the 5 October 2021.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff
Adv:
V S Notshe SC
Instructed
by SJ
SKOSANA ATTORNEYS
261
Oxford Street
EAST
LONDON
Ref:
G/CL1578
Tel.:
072 928 5008
For
the Defendants
Adv: L A Roux
Instructed
by PEYPER
ATTORNEYS
C/o
BATE CHUBB & DICKSON ATTORNEYS
Suite
3, Norvia House
34
Western Avenue
EAST
LONDON
Ref:
Pieter van Zyl
Tel.:
043 – 532 5761
Date
Heard
5 May
2022
Date
Reserved
5 May
2022
Date
Delivered
1 July 2022
Judgment
handed down electronically by circulation to the parties’ legal
representatives via email and release to SAFLII.
The
date and time of handing down of the judgment is deemed to be 12h00
on the 1 July 2022.
[1]
2011
(3) SA 1
CC at [18].
[2]
Supra
at 24 E – G.
[3]
Paragraph
[11] of the answering affidavit page 40 of the indexed papers.