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[2021] ZAGPJHC 782
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Expolanka Freight (Pty) Ltd v CZ Electronics Manufacturing (Pty) Ltd (20/35336) [2021] ZAGPJHC 782 (7 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
Case number: 20/35336
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
7 AUGUST 2021
In the matter between:
EXPOLANKA
FREIGHT (PTY) LTD
Plaintiff
and
CZ
ELECTRONICS MANUFACTURING (PTY)
LTD
Defendant
JUDGMENT
SLON AJ
1.
The plaintiff applies for summary judgment
against the defendant in the sum of R1 820 714.52, with ancillary
relief.
2.
The plaintiff’s claim arises out of a
‘Payment Agreement’, which to all intents and purposes is
an acknowledgement
of debt, signed by the parties on 30 July 2020
(‘the AoD’). In terms thereof,
inter
alia
:
2.1.
the defendant undertook to pay the
plaintiff the sum of R3 168 086.97 (in four instalments with interest
at 3% per month) which
‘comprised the balance due … by
operation of an acceleration clause in respect of a prior agreement
between [them]
concluded in March 2020’;
2.2.
any prior agreement ‘in relation to’
the payment of the debt thus acknowledged was novated (‘substituted’)
by the terms of the AoD;
2.3.
should the defendant breach its payment
obligations under the AoD, payment of the full balance of the debt
would be accelerated
with interest then calculated at 5% per month;
2.4.
the defendant was ‘not entitled for
any reason whatever to withhold or defer any payment stipulated in
[the AoD]’;
2.5.
the defendant renounced the benefit of
error calculi
.
3.
The summons and particulars of claim are
dated 28 October 2020, and the summons was issued on 30 October 2020.
The amount claimed
therein was R2 166 069.10. A plea, together with a
counterclaim, was delivered by the defendant on or about 25 January
2021. The
application for summary judgment is dated 11 February 2021,
as is the affidavit in support of summary judgment, in which the
deponent
for the plaintiff:
3.1.
verifies the plaintiff’s cause of
action and the amount claimed as required by the provisions of rule
32(2)(a);
3.2.
deals with aspects of the defendant’s
plea and counterclaim, presumably as envisaged by the provisions of
rule 32(2)(b);
3.3.
states that the amount of R500 000 was paid
by the defendant after issue of summons; that appears to have
occurred on or about 29
October 2020, but it was at any rate after
the summons and particulars of claim had been drafted;
3.4.
applied such payment to the amount claimed
in the summons to the credit thereof, and adjusted its claim on
summary judgment to R1
820 714.52, which also took into account a
calculation of the interest claimed under the AoD.
4.
In response to the application for summary
judgment the defendant raised a counterclaim, alleging facts which,
it contends, precludes
the granting of summary judgment:
4.1.
The counterclaim is one based on an alleged
damages claim against the plaintiff, pleaded in contract and in the
alternative in delict,
which arises, on the defendant’s
version, out of an alleged breach by the plaintiff of the very same
prior agreement referred
to in the AoD, as quoted in paragraph 2.1
above.
4.2.
The crux of the counterclaim is that the
plaintiff, in performing the prior agreement, failed in a proper and
workmanlike manner
to complete certain documentation which it was
required to submit to SARS and failed to apply the correct freight
tariffs, and
accordingly caused the defendant a loss.
4.3.
The defendant does not dispute that the
counterclaim is not a liquidated claim, or that it does not exceed
the plaintiff’s
claim. What it does, effectively, is calculate
the quantum of its alleged damages claim, set off the amount which it
calculates
is correctly owing by it the plaintiff under the AoD, and
tenders to pay the balance outstanding to the plaintiff in the sum of
R291 000.
4.4.
The defendant furthermore relies on certain
statements issued by the plaintiff from which it emerges that the
plaintiff itself credited
the defendant with amounts equal to certain
SARS refunds which the plaintiff received after the issue of summons
and which the
plaintiff should have applied so as to reduce the debt
owing by the defendant under the AoD as claimed in the application,
but
did not.
4.5.
It points out that one of these credits, in
the sum of R430 888.60, had already been received by the plaintiff
and credited to the
account of the defendant on 2 February 2021,
which was
prior
to the signature of the affidavit in support of summary judgment.
4.6.
For that reason, maintains the defendant,
the oath of the plaintiff’s deponent, verifying the amount
claimed in the summons,
is not be to trusted.
5.
As
I understand the authorities binding on me, the assertion of an
illiquid counterclaim, and one which, moreover, does not exceed
the
plaintiff’s claim, would not ordinarily assist a defendant in
resisting summary judgment if the claim founding the latter
cannot be
otherwise disputed, although the mere fact alone that the
counterclaim is illiquid is not determinative in every case.
[1]
6.
What troubled me materially in relation to
the defendant’s alleged counterclaim, however, was that the AoD
itself is a binding
instrument which the defendant signed expressly:
6.1.
on the basis that the prior agreement was
novated;
6.2.
for the very purpose of codifying its
liability in terms of that agreement;
6.3.
renouncing any rights it may have had to
withhold or defer payment thereunder for any reason whatsoever,
which, in my view, would
include set-off.
7.
Added to that concern is the significant
fact which I raised during argument with Messrs Iles and Williams,
the parties’ respective
counsel, that in the counterclaim
itself the defendant pleads at paragraph 3.6 thereof (at pages 030-12
& 13 of the papers
uploaded onto Caselines) that –
‘
3.6
in concluding [the AoD] the plaintiff and the defendant were aware
that:
3.6.1.1. [
sic
] the
plaintiff had breached the [prior] services agreement in that [it]
failed to complete the documentation in a proper and workmanlike
manner and failed to apply the correct tariff;
3.6.1.2.
the defendant, as a consequence of the plaintiff’s breach,
suffered
damages in the sum of R3 615 536.60 representing the amount
overpaid to SARS for duties …’
8.
That being so on the defendant’s own
version, and quite apart from the legal questions mentioned in
paragraph 5 hereof, in
my view the AoD clearly precludes the
defendant from raising the counterclaim in these proceedings to the
extent that the amount
undertaken to be paid under the AoD might
otherwise be reduced by the SARS credits. Put differently, in
concluding the AoD in those
terms, at the time and in the amount
stated, the defendant bound itself to accept that any amounts
claimable by it by reason of
any SARS credits would nevertheless not
affect the quantum of its liability under the AoD, the risk of such a
predicament resting
upon its shoulders alone. The SARS credits are
accordingly irrelevant in this forum, and no fault could be found
with the plaintiff’s
deponent’s verification under oath
of the amount now to be paid on the basis of a calculation excluding
entirely the matter
of the SARS credits.
9.
Had the matter ended there, I would have
had but little hesitation in granting summary judgment. But that is
not the end of the
story. If I were to grant summary judgment on the
strength of my conclusion above, in what amount would I do so?
10.
This question arises since, on both
parties’ versions, two amounts were paid by the defendant
toward the liquidation of the
amount of the AoD. I have already
mentioned the amount of R500 000, which was taken into account in the
affidavit in support of
summary judgment. In addition thereto, I was
told that a further R384 354.37 was paid by the defendant in March
2021. It is not
simply a matter of deducting these amounts since the
manner in which the plaintiff has always quantified its claim
includes interest
calculated on the basis of the AoD from different
dates and running for different periods.
11.
Without making a finding either way as to
the matter before me, but in the attempt to solve the question of the
quantum in a manner
which would in no way prejudice the defendant, I
requested Mr Iles for the plaintiff to procure a draft calculation
and breakdown
of the amount which the plaintiff now contended was
owing by the defendant, and stood the matter down for two days to
enable his
attorney to prepare it and to furnish it to the
defendant’s representatives for their consideration.
12.
I then received a draft order from Mr Iles,
setting out a breakdown of the claim from as early as 30 July 2020,
and terminating
on 25 March 2020 when the payment of the amount of
R384 354.37, referred to above, was made. The breakdown also included
two SARS
credits of R77 074.80 on 30 November 2020 and the amount of
R430 888.60 (received on 2 February 2021) referred to above,
respectively.
The ubiquitous interest calculations similarly made an
appearance. The total amount came to R1 395 526.13 (including the
applicable
interest owing until that date,
viz
25 March 2021).
13.
When the hearing resumed, Mr Williams for
the defendant pointed out what he claimed were certain inaccuracies
or irregularities
in the calculation contained in the draft order,
into which I need not now venture. Mr Iles wisely refrained from
defending these
objections.
14.
In summary, then, it became clear that the
amount now alleged to be owing by the defendant, howsoever calculated
by the plaintiff
on the strength of the draft order, was not safe;
and the reason why rule 32(2)(b) requires a plaintiff to verify under
oath the
amount claimed became plainer than ever.
15.
The moral of the story is this. There can
be no logical or reasonable basis, in my view, to preclude a
plaintiff from:
15.1.
stating in its affidavit in support of
summary judgment, or
15.2.
advising the Court from the bar,
that
certain amounts were paid by the defendant after the service of
summons (in the first case), or (in the second case) after
delivery
of the application for summary judgment (or even after the delivery
of the affidavit resisting summary judgment) in liquidation
of debt
claimed, and requesting the Court to take account thereof.
[2]
I would go so far as to say that the plaintiff is in fact possessed
of a positive duty to do so and the Court a duty to enquire
into such
a matter if raised. It would be difficult to imagine that counsel for
the plaintiff in these circumstances could stand
up honestly before a
Judge and fail to bring these matters to his or her attention.
16.
Nevertheless, this case is an example where
the amounts to be credited to the defendant in reduction of the
amount claimed cannot,
in these peculiar circumstances, with
certainty lead to the calculation of a clearly established balance.
That attempt, in this
case, has proven to be too sanguine a hope to
be accommodated within the strictures of the provisions of rule 32.
17.
It follows that summary judgment must be
refused.
18.
I make the following order:
18.1.
Leave to defend the action is granted to
the defendant.
18.2.
The costs of the application for summary
judgment will be costs in the cause.
_______________________________
B M SLON
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
This
judgment was prepared and authored by Acting Judge Slon. It is handed
down electronically by circulation to the parties or
their legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
HEARD
ON:
2 August 2021
DECIDED
ON:
7 August
2021
HANDED
DOWN ON: 10 August
2021
For
the Plaintiff:
Mr K
Iles
Instructed
by:
Peter le Mottee Attorneys
For
the Defendant:
Mr D L Williams
Instructed
by:
Malherbe Rigg & Ranwell
[1]
See
generally in this regard
Muller
& Others v Botswana Development Corporation Ltd
2003 (1) SA 651
(SCA) at para [8]
[2]
I
do
not read
Rossouw
v Firstrand Bank Ltd
2010
(6) SA 439
(SCA) at 453I-J such as to preclude this, concerned as
the Court was in that case with entirely different facts and,
moreover,
prior to the amendment in 2019 of rule 32, although rule
32(4) was admittedly left intact by such amendment. The prohibition
against the plaintiff’s adducing further evidence in the
affidavit supporting summary judgment must surely mean further
evidence
in
support of the plaintiff’s own cause of action,
not facts which inure to the benefit of the defendant regarding such
a matter as the quantum of the plaintiff’s claim,
in the
absence of the mention of which there is a risk that summary
judgment may be granted in an amount both excessive and erroneous.