About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 55
|
|
Liq Investments CC v Parkers Store Limpopo (Pty) Ltd (6374/2020) [2021] ZALMPPHC 55 (4 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 6374/2020
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
In
the matte between:
LIQ
INVESTMENT CC:
APPLICANT
And
PARKERS
STORE LIMPOPO (PTY) LTD:
RESPONDENT
JUDGMENT
Transmitted by email
to the parties’ legal representatives and posted on SAFLLI. The
judgment is deemed to have been handed
down at 10:00 on Wednesday the
4
th
August 2021.
SEMENYA DJP
[1] This is an opposed
application for summary judgment brought by the plaintiff against the
defendant. The applicant issued summons
in which the following relief
is sought:
1.
Payment of the sum of R1 080 773.00;
2. Interest on the
abovementioned amount at the rate of 5% per annum from 9 September
2019 to date of payment;
3. In addition to the
interest of 5% per annum, a monthly interest of R100 000.00 from
01 October 2019 to date of payment;
4. Costs of the suit.
On page 6 of the
particulars of claim, the prayers are stated as follows:
(a) Payment of the
capital amount of R1 080 773. 00 (One Million, Eighty
Thousand Seven Hundred and Seventy-Three Rand),
together with
interest thereon of R54 038. 00 (Fifty-Four Thousand and
Thirty-Eight Rand) being 5%, a monthly interest of
R100 000.00
(One Hundred Thousand Rand) for each month the loan remains unpaid
and outstanding commencing October 2019 to
date of payment;
(b) Payment of costs of
the suit.
[2] The claim arises out
of a partly oral, partly written agreement of a short term loan in
the amount of R1 080 773.00,
entered into between the
plaintiff, represented by a Mr Maxwell Sibanda, the sole member of
the plaintiff and the defendant, represented
by a Mr Godknows Munetsi
on the 26 August 2019. The plaintiff further relies on the
acknowledgement of debt allegedly made by the
defendant’
attorney on the defendant’s instructions.
[3] The defendant filed a
special plea and a plea to the particulars of claim. In the special
plea, the defendant avers that the
plaintiff’s summons is
premature in that the parties have agreed that repayment of the loan
was dependent upon payment of
certain monies, to the defendant by
Anglo American, which was expected approximately 7 working days after
delivery of certain goods.
The defendant pleads that it has informed
the plaintiff that Anglo American has to date not paid the funds. On
paragraph 2 of the
plea, the defendant admits that the parties did
enter into a loan agreement. The defendant however denies that the it
is indebted
to the plaintiff in the further amount of R100 000
interest per month.
[4]
In terms of rule 32 (2)(b), the plaintiff in an application for a
summary judgment is required to verify the cause of action
and the
amount, if any, claimed, and to identify any point of law relied upon
and the facts upon which the plaintiff’s claim
is based. The
cause of action with regard to the initial short term loan is a
matter of common cause. The defendant admitted in
its plea that it
entered into a short loan agreement with the plaintiff and that it
is, as a result, indebted to the plaintiff
in the amount of
R1 080 733.00 plus R54 134 811 which is 5%
interest on the amount owed. The indebtedness is
further not denied
in the defendant’s affidavit filed in opposition to the
granting of summary judgment. In respect of the
agreement of R100 000
interest, plaintiff avers that on the 26 November 2019, a Mr Anthony
Munetsi of the defendant sent him
an email in which he stated that
“
as long as we haven’t paid
the 1 Mil back to you, we will be paying a monthly interest 100k to
you and when have the 1Mil
then we will pay the 1Mil plus that
month’s interest. Share your view on this am open to any
suggestion
.” Plaintiff stated
that its representative replied to the letter in an email dated the
29 November 2019 wherein it accepted
the offer of R100 000
monthly interest.
[5]
In order to successfully resist summary judgment, the opposing
affidavit must disclose fully, the nature and grounds of the
defence
and the material facts relied upon therefore. The defendant must also
demonstrate that he has a
bona
fide
defence
to the action. “
The
assessment of whether a defence is bona fide is made with regard to
the manner in which it has been substantiated in the opposing
affidavit; viz, upon a consideration of the extent to which nature
and grounds of the defence and the material facts relied upon
therefor, have been canvassed by the deponent.”
[1]
[6]
The defendant raised a special plea that the amount owed in the short
term agreement is not yet due and payable. This defence
stems from
the plaintiff’s email in which it is stated that “
I
will provide the loan of R1 080 773 at a rate of 5%,
meaning the repayment (inclusive of the rate) will be R1 134 811.
The repayment will be made shortly after the release of your funds
from Anglo, which I understand you expect to be made approx.
7
working days after delivery of goods which should likely be by this
Thursday.”
The defendant stated
that it is common cause that Anglo has not paid and as a result the
suspensive condition has not been realized.
With regard to the
interest of R100 000, the defendant raised a defence that
Anthony Munetsi was not authorized to make such
an offer, nor is such
offer legal in that it exceeds the legal parameters for interest, and
the interest would exceed the capital
by the time the condition
precedent for repayment of the loan is met.
[7]
The defendant avers that the verifying affidavit fails to conform
with Rule 32 in that the plaintiff has stated different rates
of
interest in the summons and affidavit filed in support of the summary
judgment. The plaintiff contended that interest is a legal
corollary
to the principle of indebtedness forming a separate and distinct
indebtedness of its own
[2]
and
that summary judgment cannot be denied on the basis of the
defendant’s argument.
[8] It appears from the
particulars of claim and the verifying affidavit that the agreement
concerning the additional interest is
distinct from the initial
agreement where the parties agreed to 5% interest. This is so in that
the initial agreement was entered
into with the defendant who was
represented by Godknows Munetsi. The plaintiff alleges that the offer
of R100 000.00 interest
per month was made by one Anthony
Munetsi, who is the financial director of the defendant. The
defendant raises a defence that
the defendant did not give Anthony
Munetsi authority to offer the said interest at that rate. Plaintiff
contended that the defendant
is estopped form relying on this
defence.
[9]
The defendant is required to fully disclose the nature and the ground
of its defence and the Court must determine whether on
the facts so
disclosed, the defendant appears to have, as to the whole or part of
the claim, a defence which is
bona
fide
and
good in law
[3]
. I am of the view
that the ground of defence that Anthony Munetsi had no authority to
represent the defendant in the agreement
that seemed to vary the
interest agreed upon is in my view
bona
fide
and
good in law. The defendant should be allowed to pursue it in a trial.
The defendant further relies on the wording of the agreement
as
contained in an email dated the 26 August 2019. It is stated therein
that the defendant will repay the plaintiff after it shall
have
received payment from Anglo American. The defendant regards this as a
suspensive condition and that repayment of the loan
is dependent upon
its fulfilment. The defendant alleges that the summons is premature
as it is willing to pay the plaintiff upon
the realization of the
condition. It is trite that it is not necessary for the defendant to
persuade the Court of the correctness
of the facts upon which the
defence rests. In
Shepstone
v Shepstone
[4]
it
was held that:
“
The
Court will not be disposed to grant summary judgment where, giving
due consideration to the information before it, it is not
persuaded
that the plaintiff has an unanswerable case.
”
What
this Court is required to do at this stage is to consider whether the
facts alleged by the defendant constitute a good defence
in law and
whether the defence appears to be
bona
fide
. I have no doubtswith regard to
the
bona fides
of
the defences raised by the defendant. It is not correct, as submitted
by the plaintiff, that the defendant’s plea consists
of bare
denial of the allegations in the particulars of claim. The defendant
has clearly stated the facts upon which the denial
is based. I
conclude that the defendant should be given an opportunity to defend
the summons. I cannot grant summary judgment as
prayed for.
[10]
The summary judgment application served before Naudé AJ on the
18 March 2021. The application was struck off the roll
due to
defective affidavit. The defendant asked for the dismissal of the
main action and the summary judgment on the basis that
the verifying
affidavit is still defective. The commissioner of oath failed to
write his/her full names on the commissioning. The
plaintiff
submitted that the Court has a discretion to condone technical
mistake. It is however worth mentioning that the plaintiff
is alive
to the principle laid down in
Shackleton
Credit Management (Pty) Ltd v Microzone
Trading
88 CC
[5]
wherein
a submission of this nature was rejected. I have no reason to differ
with this dictum.
[11]
This Court has a discretion on the issue of costs. The general rule
in matters of costs is that the successful party should
be given
costs
[6]
. The defendant prayed
for the dismissal of the summary judgment as well as the main action.
I have no reason to deny the plaintiff
an opportunity to prove its
case against the defendant in a trial, more so in that the short term
loan is not disputed. I however
do not find any reason why I should
deny the successfully party, being the defendant its costs.
[12] In the result, I
make the following order:
i.
Summary judgment is refused;
ii.
The defendant is granted leave to defend the action; and
iii.
The defendant is awarded costs of the application.
M
V SEMENYA
DEPUTY
JUDGE PRESIDENT
LIMPOPO
DIVISION
APPEARANCES:
ATTORNEYS
FOR THE PLAINTIFF
P
I UREISI ATT
COUNSEL
FOR THE APPLICANTS
ADV.
J P MORTON
ATTORNEYS
FOR THE RESPONDENT
THRON
I PATHER INC.
COUNSEL
FOR THE RESPONDENT
ADV.
P A MABILO
JUDGMENT
RESERVED ON
17
JUNE 2021
JUDGMENT
DELIVERED ON
04
AUGUST 2021
[1]
Tumileng Trading CC v E & D Security and fire (Pty) Ltd
(unreported case No. 3670/2019 (W); 30 April 2020
[2]
All Purpose Space Heating Co of SA (Pty) ltd v Schweltzer 1970 (3)
560 (D) at 562-3.
[3]
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426
[4]
1974(2) SA 462 (N)
[5]
2010 (5) SA 112
(KZP)at 122F-I
[6]
Treatment Action Campaign v Minister of Health
2005 (6) SA 363
(C)