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[2021] ZAGPPHC 17
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SS Profiling (Pty) Ltd vTerblanche (65745/2019) [2021] ZAGPPHC 17 (25 January 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
25-01- 2021
Case Number
:
65745/2019
In
the matter between:
SS
PROFILING (PTY)
LTD
Plaintiff/Applicant
(REG.
NO.: 1997/11096/07)
and
J
P TERBLANCHE
Defendant/Respondent
(ID
NO.: [….])
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
This is an opposed application for summary judgment which emanates
from an action
instituted against the defendant/respondent (J P
Terblanche) for the alleged breach of a written loan agreement
entered into between
the plaintiff/applicant (SS Profiling Pty Ltd)
and Gateway Auto Body CC, in respect of which the respondent has
purportedly bound
himself as surety thereto.
[2]
Having filed a notice to defend and subsequently filed a plea, the
applicant has applied
to court for summary judgment on the basis that
the respondent’s plea does not disclose a cause of action.
[3]
The respondent is opposing the summary judgment application on the
ground that his
plea raises a
bona fide
defence.
[4]
In accordance with uniform rule 32 (3), upon hearing of an
application for summary
judgment the defendant may satisfy the court
by affidavit that she/he has a
bona fide
defence to the
action; such affidavit shall disclose fully, the nature and grounds
of the defence and the material facts relied
upon.
[5]
In this instance, the nature and grounds of the respondent's
bona
fide
defence to the applicant's claim are summarised as follows
in the respondent’s heads of argument:
5.1.
The respondent has
raised two special pleas, one being the lack of
locus
standi
, the
other being the lack of jurisdiction.
5.2.
The applicant's
particulars of claim are
ex
facie
exceptiable, as they lack averments necessary to sustain a cause of
action and are vague and embarrassing as is envisaged in uniform
rule
23.
[6]
In regard to the special pleas raised the question is whether the
said pleas are a
bona
fide
defence entitling the
respondent to be granted leave to defend the matter.
[7]
Uniform rule 32 (3) requires that the court be satisfied that the
respondent’s
defence as stated in his plea constitutes a
bona
fide
defence to the applicant's claim.
[8]
In deciding whether the defendant has set out a
bona
fide
defence, all the court enquires, is whether on the facts so
disclosed, the defendant has disclosed the nature and grounds of
her/his
defence; and 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
bona
fide
and good in law.
[1]
[9]
The defences raised by the respondent in this regard are, in my view,
bona fide
. The defences are valid and good in law and it is
clear that there is a possibility that the special pleas advanced may
succeed
on trial.
[10]
As far as the respondent's contention that the applicant's
particulars of claim are
ex facie
exceptiable is concerned,
the applicant's claim is founded on the alleged breach of a written
lease agreement. Such a lease agreement
is required in terms of
uniform rule 18 (6) to be attached to the applicant’s
particulars of claim. It is common cause that
the applicant has
failed to attach the written agreement relied upon to its particulars
of claim.
[11]
The applicant contends that the lease agreement has been subsequently
provided to the respondent.
It is, however, worthy to note that the
fact that the said lease agreement was sent to the respondent’s
attorneys by email
and that it was included in the pleadings bundle
and bundle for summary judgment, does not formally form part of the
pleadings
and remains not incorporated therein as is required in
terms of uniform rule 18 (6). The pleadings are, thus exceptiable.
[12]
On the basis of the aforesaid, the summary judgment application
cannot succeed.
[13]
On the issue of the costs of the application, I am in agreement with
the respondent that a cost
order should be awarded against the
applicant. In the old dispensation, when summary judgment was applied
for after the filing
of a notice to defend, it was understandable
that the dismissal of the application would be without costs because
the applicant
would not be aware of the defence that the respondent
would bring against her/his claim. However, in the new dispensation,
where
the plea is filed before the application can be launched, the
applicant is placed in a better position and is well informed of the
respondent’s defence when taking the decision to apply for
summary judgment. As such, it is my view that, where the application
is instituted whilst well aware that it would not succeed, the
applicant must be mulcted with costs.
[14]
This is one such application, where the applicant should be mulcted
with costs. At the time of
launching the application, the applicant
was well aware that the special pleas raised are valid defences which
might succeed at
trial. The applicant had already been made aware
that its particulars of claim were exceptiable and should have known
better that
the respondent was going to oppose the summary judgment
application on these grounds.
[15]
In the circumstances I make the following order:-
1.
The application for
summary judgment is dismissed with costs.
2.
The respondent is
granted leave to defend the matter.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Counsel
: Adv.
L. Swart
Applicant’s
Attorneys
:
Taute
Bouwer & Cilliers Incorporated
Respondent’s
Counsel
: Adv. J. Stroebel
Respondent’s
Attorneys
:
Raath Attorneys.
Date
of hearing
: 04 November 2020
Date
of judgment
: 25 January 2021
[1]
Erasmus: Superior Court Practice 2ed Volume 2 pD1-411.