About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 414
|
|
Stefanutti Stocks (Pty) Ltd v KPMM Roads and Earthworks (Pty) Limited (2019/33240) [2021] ZAGPPHC 414 (7 June 2021)
REPUBLIC
OF SOUTH AFRICA
I
N
THE HIGH COURT OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2019/33240
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
STEFANUTTI
STOCKS (PTY) LIMITED
Plaintiff
(GEOTECHNICAL
DIVISION) (
Applicant
in summary judgment)
(Registration
number: 2003/022221/07)
and
KPMM
ROADS AND EARTHWORKS (PTY) LIMITED
Defendant
(Registration
number: 2004/034445/07)
(Respondent
in
summary
judgment)
JUDGMENT
MOKOSE
J
[1]
In this application for summary judgment, the plaintiff
seeks payment of the sum of R2 804
207,52 plus interest
and costs. It is opposed by the defendant on the grounds that it is
not the author of the email upon which
the plaintiff relies and as
such, resists the
summary judgment
on
the
basis
that
it
has
a
bona
fide
defence to the
plaintiff's claim.
[2] The facts are briefly
that on or about 14 May 2018 the plaintiff and an entity known as
KPMM Construction (Pty) Limited (hereinafter
known as "the
company'') concluded a written sub-contract in terms of which the
plaintiff would provide and install piling
in relation to the
doubling of the Gwaing River Bridge in George in the Western Cape. In
exchange for the performance of such work,
the plaintiff would from
time to time issue invoices for payment.
[3] In pursuance of the
agreement, it is alleged that the company and the defendant
instructed the plaintiff to issue all agreement
related invoices to
the defendant as opposed to the company . The defendant undertook to
make payment of all the invoices to the
plaintiff. The plaintiff
relies on an email by Mr Kevin Padayachee dated 25 February 2019
which read as follows:
"As per our payment
advice and your statement, we hereby confirm that the amount due to
yourselves is R2 804 270,52 including
VAT and excluding retention for
the work done on the Gwaing River 'bridge contract. As discussed with
yourself, our current cash
flow situation and our plans to remedy
this situation, we note that payment will be made as stated
below..........."
[4]
The plaintiff contends that the defendant , duly represented by its
operations director, acknowledged unconditionally and in
writing its
indebtedness to the plaintiff in the sum of R2 804 207,52 in exchange
for the services rendered by the plaintiff to
the company in terms of
the agreement. The director undertook to make payment as
follows:
(i)
a down-payment of R1 000 000,00 on 29 March 2019;
(ii)
a second down-payment of R 1 000 000,00 on 26 April2019; and
(iii)
a final down-payment of R804 207,52 on 31May 2019.
[5]
The plaintiff avers that on instructions of both the company and the
defendant it punctually and in compliance with the agreement
issued
invoices in terms of the agreement. However, the defendant and/or the
company failed or refused or omitted to make payment
to the plaintiff
commensurate to the invoices issued and as such, became indebted to
the plaintiff in the sum of R2 804 207,52.
[6]
The defendant failed to make such payment to the plaintiff in respect
of the debt or undertaking as stated above. The plaintiff
launched an
action against the defendant seeking the following relief:
(i)
Payment in the sum of R2 804 207,52;
(ii)
Interest at a rate of 10.25% a tempore morae on the following
amounts:
(a)
R2 426 346,91from 25 June 2018 to date of payment; and
(b)
R377 923,61from 25 July 2018 until date of payment;
(c)
Costs of suit.
[7]
The defendant filed an exception causing the particulars to be
amended. The defendant's plea was served after a notice of bar
had
been served.
[8]
The plaintiff, having considered the defendant's plea, formed the
view that it neither disclosed a
bona fide
defence to
the action nor raised a triable issue and elected to pursue the
summary judgment .
[9]
Rule 32 of
the Uniform Rules
of
Court
was amended on 1 July 20
1
9.
It permits
a summary judgment application
to be
brought
1
5
days after the defendant has filed its plea.
The Full
Bench in
the matter of
Raumix
Aggregate (Pty) ltd
v
Richter
Sand CC, and Similar Matters
[1]
held
that the
purpose of
the
amended
Rule
32
is
to:
"
.
.
.allow
the
court
to summari
l
y
dispense
with
actions
that
ought
not
to proceed
to
trial because they do
not raise a
genuine triable
issue, thereby conserving
scarce
judicial
resources and improving
access to justice .
"
[10]
Rule 32(2) provides that a plaintiff in a summary judgment
application must set out the following in its affidavit supporting
such an application:
(i)
it must verify the cause of action and the amount claimed;
(ii)
it must identify any point of law relied upon;
(iii)
it must identify the facts upon which the claim is based; and
(iv)
a brief explanation as to why the defence pleaded does not raise an
issue for trial must be set out.
[1
1
]
In opposing a summary judgment
appl
i
cation,
the
d
efendant
must set o
u
t
i
n
the affida
v
i
t
resisting the
summary
judgment,
facts
which,
if proved
at
the
trial,
will
constitute
an
answer
to the
p
l
aintiff's
cla
i
m
[2]
.
Accordingly,
the defendant must d
i
sclose
fully the nature and grounds of his defence and the material
facts upon
which he
relies. The defence must have a reasonable possibility
of success
at trial.
[12]
In deciding whether a defendant has set out a
bona
f
i
de
defence to the summary judgment application, a
court must consider whether the facts alleged by the defendant
constitute a good
defence in law and whether that defence appears to
be
bona fide .
The court must therefore be apprised of
all facts upon which the defendant relies with sufficient
particularity and completeness
so as to be able to hold that if these
statements of fact are found at the trial to be correct, judgment
should be granted for
the defendant. Whilst the defendant's defence
must go to the merits of the application and must be valid in law,
the defendant
is not required to disclose the whole of his defence
but must disclose the 'nature and grounds' of a
bona
fide
defence and the material facts relied upon. The disclosure of the
defendant must be such that the material facts are sufficient as
to
persuade the court that what has been alleged by the defendant, if it
is proved at the trial, will constitute a defence to the
plaintiff's
claim.
[
1
3]
The
term
'cause
of
action'
was
defined
i
n
the
matter
of
M
cKenzie
v
Farmer's
Co-Operative Meat
Industries
Llmited
[3]
as
"every
fact
which
it
would
be
necessary
for the
plaintiff
to
prove,
if
traversed,
in order
to
support
his
right
to
the judgment
of
the
Court. It
does
not
c
omprise
every
piece
of
evidence which is necessary to
prove
each
fact,
but
every fact
which
is necessary to be
proved
.
[14]
The plaintiff contends that its claim is premised on a written
acknowledgment of indebtedness ("AOD") and attendant
undertaking by the defendant to pay the amount invoiced by the
plaintiff to the company.
[15]
The defendant's plea consisted of a special plea of non-joinder and a
plea on the merits. The defendant contends that the cause
of action
is inextricably linked to the agreement and an alleged oral
instruction. It further contends that the plaintiff verifies
the
cause of action which is against the company and yet only seeks
summary judgment against the defendant.
[16]
The crux of the defendant's defence is that the plaintiff has sued
the incorrect party. It should have sued the company being
the entity
with whom it had concluded the agreement attached to the particulars
of claim. The defendant is of the view that the
plaintiff has failed
to sue the company for the reason that it has been placed under
business rescue and is avoiding to stand in
line with other creditors
in submitting a claim against the company's liquidated estate.
[17]
Furthermore, the defendant contends that the plaintiff's affidavit in
support of the application for summary judgment does
not comply with
Rule 32(2)(b) in that it fails to verify its cause of action with
clarity and exactitude.
[
1
8]
Whilst the
plaintiff alleges
i
n
i
ts
particulars of claim that the cause of action
i
s
based on an agreement between
itself
and
the
company
and
an
I
nstruct
i
on
by
the
company
to
I
ssue
all
·
agreement
related
invoices'
to the defendant
as
opposed
to the
company, the
defendant
i
s
of
the
view that
the
application for
summary
judgment
should be
refused on the
ground that
the company
should have
been
joined
as a defendant
I
n
the matter
and
i
n
support
thereof, referred the
c
ourt
to the
matter of
Cape
Bus
i
ness
Bureau
(Pty)
Lim
i
ted
v
Van
Wyk
and
Another
[4]
where
the
court
held
that
i
f
a
pla
i
nt
i
ff
fails
to
verify his
cause of
action
with
clarity and
exactitude
it
is
defect
i
ve
and
his
claim
will
fail.
[19]
After careful consideration and a thorough reading of the particulars
of claim I am reluctant to support the plaintiffs application
for
summary judgment for the reason that the cause of action is
inextricably linked to the agreement. Whilst the particulars of
claim
give a background to the matter and refer to the agreement concluded
by the company with the plaintiff, it further informs
of the terms
and conditions of the agreement and the invoices issued to the
company. The particulars of claim describe how the
indebtedness of
the defendant occurred where the defendant undertook to pay the debt
of the company thereby identifying the breach
of the AOD. In my view,
the cause of action pleaded, being the agreement concluded, was
concluded not with the defendant but with
the company where the
action was being pursued only against the defendant. Accordingly, I
am of the view that the application for
summary judgment should fail
as the plaintiff has failed to verify its cause of action.
[20]
The
defendant pleads that it has a
bona
fide
defence
to the action as per Rule 32(3)(b).
In
considering
whether a
defendant
has set out
a
bona
fide
defence,
the court considers whether the
defendant
has
disclosed
the
nature
and
grounds of
his
defence
and
whether on
the
facts
so
disclosed,
the
defendant appears to
have
a defence
which
i
s
bon
a
fide
and
good in
law
.
[5]
[21]
The defendant's defence to the action are:
(i)
that the plaintiff failed to join the company as a party to the
action;
(ii)
that the defendant did not unconditionally acknowledge it
indebtedness to the plaintiff as it was to the author of the mail;
and
(iii)
that the defendant is not a party to the agreement and that the
plaintiff is in fact suing the defendant in terms of the agreement
and not the AOD.
[22]
The plaintiff alleges that the defendant's plea of non-joinder does
not raise a triable issue because the company is in business
rescue
and that the moratorium contemplated by
Section 133
of the
Companies
Act 71 of 2008
prevents any party from pursuing enforcement against
the company. Furthermore, the plaintiff ls of the view that on any
permissible
permutation, the company does not have any legally
recognised interest in the subject matter of this litigation.
[23]
I disagree with the plaintiff.
Section 133(1){a}
and (b) of the
Companies Act 71 of 2008
provides that no legal proceedings against
the company may be commenced or proceeded with in any forum except in
limited circumstances
which include where the business rescue
practitioner has provided written consent or with the leave of the
court.
[24]
Secondly, the defendant contends that the email was sent by the
company and not be the defendant. I agree with the defendant
that if
the court were to find that the email was sent on behalf of the
company then the defendant would be prejudiced as it would
not have
been given an opportunity to put its evidence before the court where
findings can be made against it.
[25]
A further defence is that the defendant did not acknowledge that itis
indebted to the plaintiff. The plaintiff asserts that
the email sent
by Mr Padayachee, on which the plaintiff relies on, contains an
equivocal admission of indebtedness by the company,
being the debtor.
The plaintiff asserts further that Mr Padayachee had ostensible
authority to address the email to the plaintiff
issuing the AOD on
behalf of the defendant so binding the defendant.
[26]
This is denied by the defendant who also denies that it is the debtor
and that the email is an AOD.
[27]
I am of the view that the Issue of whether Mr Padayachee had
ostensible authority and is now estopped from denying that he
was so
authorised cannot be dealt with in the summary judgment application.
There has been no replication filed. I am accordingly
satisfied that
the defendant has a
bona
fide
defence to
the action. Accordingly, the following order is granted:
(i)
the application for summary judgment is dismissed with costs; and
(ii)
the defendant is granted leave to defend the action.
MOKOSE
J
Judge
of the High Court
Gauteng
Division, Pretoria
For
the Applicant:
Adv
P Lourens instructed by
Roestoff
Attorneys
For
the Respondent:
Adv
C van der Linde instructed by
Knowles
Husain Lindsay Inc
Date
of Hearing: 13 October 2020
Date
of Judgement: 7 June 2021
Judgment
transmitted electron
i
cally
[1]
2020 (
1
)
SA 623 (GJ) at 627E-F
[2]
Breytenbach v Fiat SA (Pty} Ltd
1
976
(2)
SA
226 (T)
[3]
1
922
AD
1
6
at 23
[4]
1
981
(4) SA 433
(C) at 439
[5]
Maharaj v Barclays National Bank Ltd
1
976
(
1
)
SA 4
1
8
(A)