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[2021] ZAGPPHC 437
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Ntanga Nkuhlu Incorporated v Independent Development Trust and Another (40806/2018) [2021] ZAGPPHC 437 (30 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO: 40806/2018
30/06/2021
ELECTRONICALLY
DELIVERED CIRCULATED BY EMAIL
In
the matter between:
NTANGA
NKUHLU INCORPORATED
Plaintiff/Applicant
And
INDEPENDENT
DEVELOPMENT TRUST 1ST
Defendant/1st
Respondent
TRUSTEES
FOR THE TIME BEING INDEPENDENT
DEVELOPMENT
TRUST NO IT NO:669/91 2nd
Defendant/2nd Respondent
DATE
OF HEARING: This matter was enrolled for hearing on 23 JUNE 2021, and
dealt with or determined on the basis of the papers or
record and
written argument filed on behalf of the parties, without appearance
and oral argument.
DATE
OF JUDGMENT: This judgment was handed down electronically by
circulation to the parties’ representatives by email. The
date
and time of hand-down is deemed to be 30 JUNE 2021.
JUDGMENT
[1] This
matter came before me in the Unopposed Motion Court on 23 June 2021
for the adjudication of a Default
Judgment Application set down by
the Plaintiff on the ground that the Defendants were
ipso facto
barred from filing a Plea. The Application was cited (seemingly
incorrectly) to be in terms of Rule 31 (5) of the Uniform Rules of
Court. The Plaintiff served a Summons issued in this court on the 1
st
Defendant, the Independent Development Trust on 17 June 2018 and
subsequently on the Trustees of the Trust, the 2
nd
Defendant on 4 November 2019, following a court order for their
joinder on 5 September 2019.
[2] The
Plaintiff’s cause of action as set out in its particulars of
claim is founded on a cession that the
Plaintiff, a firm of attorneys
is alleged to have concluded with its client, namely M J Mboya
Project Managers who ceded to the
Plaintiff its entire entitlement
and legal right to claim against the Defendants for services Mboya
rendered to the Defendants
in the amount of R1 544 982.20. Further
that the Plaintiff afterwards demanded payment of the amount from the
Defendants and they
failed to pay.
[3] On
12 December 2019 the Plaintiff served on the Defendants a Notice of
Bar calling upon them to file their
Plea within five (5) days from
date of service. The Defendants missed the deadline of 17 January
2020 and filed their Plea only
on 28 January 2020, without filing an
Application for Upliftment of the Bar (the Defendant had alleged that
the
dies
expired
on 22 January 2020). Consequently, the Applicant proceeded on 20
February 2020 to issue a Default Judgment Application which
was
formally served on the Defendant more than a year later on 14 May
2021 and set it down for hearing on 23 June 2021.
[4] No
further documents were served between the parties since the ‘out
of time’ Plea on 28 January
2020 until on the eve of the
hearing of the Default Judgment Application on 22 June 2021, when the
Defendants’ Application
for Upliftment of the Bar was uploaded
on caseline and served on the Plaintiff. However, no opposing papers
to the Default Judgment
or for an Application for a postponement were
filed.
[5] At
the time when the virtual hearing of the Default Judgment Application
was supposed to commence, the Defendants’
Counsel experienced
problems with the connection. The parties were then given an
opportunity to make written representations. The
matter was decided
on the submissions made and the relevant documents filed of record in
the Default Judgment Application. It was
upon the Defendants’
Counsel to indicate the Defendant’s right to be heard as the
Plaintiff was adamant that the Default
Judgment Application hearing
was to proceed unopposed, regard being had to the fact that there
were no papers filed to oppose or
delay the Default Judgment
Application.
[6] The
Defendants in its heads of argument delivered on 25 June 2021,
accepted that the Defendants are
ipso
facto
barred
and stated, as a matter of fact that the Defendants had instituted an
Application for upliftment of the bar. All the same,
the Default
Judgment Application was the only matter before court. The
Application for the Upliftment of Bar was still to be properly
delivered and set down. The issue therefore to be decided is whether
or not the Plaintiff has made a case in its papers for Judgment
to be
granted. Whether there is sufficient evidence to prove its cause of
action. The Plaintiff in its heads of argument confirms
that the
Application is brought under Rule 31 (2) (a).
[7] The
Defendants on the other hand argue against the court granting the
Application for Default Judgment alleging
in the heads of argument
that:
1.1 The
Plaintiff has failed in its Affidavit in support of the default
judgment to quantify its claim, arguing
that the claim is not for a
debt or a liquidated claim therefore required in terms of Rule 32, to
be quantified.
1.2 The
grounds proffered in the Defendants’ Application for Upliftment
of Bar should be considered in deciding
whether or not to grant
Default Judgment.
[8] The
Plea and the Application for the Upliftment of the Bar are not before
me and therefore will not be considered
for the purposes of whether
or not to grant the Plaintiff Default Judgment to its claim. There is
also no Application for the postponement
of the Default Judgment. As
a result, the only issue to be decided is whether or not the
Plaintiff is, on its papers, entitled
to a Default Judgment.
[9] In
Default Judgment Applications, the court has got to be satisfied that
the Plaintiff has pleaded a cause
of action and put evidence before
court that entitles it to the Judgment it is seeking. As the
Plaintiff’s Application is
in terms of s 31 (2) (a), for it to
be considered, it should comply with the requirements as set out in
the rule’s provision
which reads:
“
Whenever
in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and
a Defendant is
in default of delivery of notice of intention to defend or of a Plea,
the Plaintiff may set the action down as provided
in subrule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the Defendant or make such
order as it deems fit.
(my emphasis)
[10] It
is therefore clear that when the claim is not for a debt or a
liquidated demand, the court would grant
judgment based on the
evidence submitted to establish or prove the amount claimed or the
cause of action pleaded. The evidence
can be either
viva
voce
or
by Affidavit.
[11] Notwithstanding
having stated that this is a Rule 31 (2) (a) Application, the
Plaintiff’s Counsel argued
in her heads of argument that the
Plaintiff’s claim is for a liquidated amount culminating from
an agreement of cession of
a claim against the Defendants for the
payment of the amount of R 1 544 982.20 for services rendered, as it
appears in the combined
summons.
[12] Plaintiff’s
Counsel, furthermore, based on her argument that the claim is for a
liquidated amount, implores
the court to grant the Default Judgment
under Rule 31 (5) (a). In conclusion she then again submits that the
plaintiff has complied
with requirements for default judgment in
terms of Rule 31(2)(a) of the uniform rules of court. No thought is
put to the meaning
of the concept of a liquidated amount or demand
and both used incomprehensibly.
[13] In
the Plaintiff’s particulars of claim, it is only stated that
the Plaintiff entered into an agreement
of cession with Mboya in
terms of which Mboya ceded his entire entitlement and legal right to
claim against the Defendants to Plaintiff
for services Mboya rendered
in the amount of R 1 544 982.20, which cession was accepted by the
Plaintiff. The Defendants have failed
or refused to pay
notwithstanding Plaintiff making a demand for payment, wherefore
prays for an order in its favour.
[14] In
the Affidavit supporting the Default Judgment Application, the
Plaintiff sets out all the steps in the
proceedings that led to the
Application. Nothing further is mentioned in relation to the cause of
action or about the alleged amount
claimed or demand.
[15]
According
to Erasmus’ Superior Court Practice, at D1-371 a liquidated
demand can be
equated
with a claim for fixed, certain or ascertained amount or thing and
includes a
liquidated
claim as known in common law. A liquidated demand under the Default
Judgment
requirement
is said to cover much more than the liquidated amount in money as in
relation to Summary Judgments. In
Fatti’s
Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
1962
(1)
SA 736
(T) the full court
held that in spite of the special meaning given to the words
‘liquidated demand’ in the former Transvaal
Rules of
Court, the expression ‘debt or liquidated demand’
includes a liquidated claim as known in our common law.
The court
found that a claim capable
of
speedy and prompt ascertainment is a ‘debt or liquidated
demand’ (see page 739).
[16]
In
Tredoux
v Kellerman
2010
(1)
SA
160
(CPD) at 166E–F,
the Court held that:
“
A
liquidated amount in money is an amount which is either agreed upon
or which is capable of ‘speedy and prompt ascertainment’
or put differently, where ascertainment of the amount in issue is
mere matter of calculation.”
[17] The
test is therefore whether the claim is capable of speedy and prompt
ascertainment. Furthermore, a court
has a discretion to decide
whether a claim is capable of speedy and prompt ascertainment.
Boshoff J (as he then was) in
Fatti’s
Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
at
page 739 made the following observation:
“
The
absence of uniformity in the decided cases is attributable to the
fact that in each case a discretion was exercised according
to the
facts then before the Court. The inevitable result is that it is not
possible to formulate precise rules as to when a claim
should be
regarded as liquidated in the sense that it is capable of being
speedily and promptly ascertained.” (At 739 A–B.)
“
Similarly,
where a contract for the rendering of services is concluded and the
parties do not agree as to the remuneration to be
paid therefore, it
is an implied term of the contract that a reasonable remuneration
will be paid for such services; such remuneration
depends on what is
regarded as reasonable in that particular trade or profession. In our
organised society with businesses, trades
and professions organised
as they are it is normally a matter of no difficulty to determine the
usual and current market price
of articles sold and the reasonable
remuneration for services rendered. These are matters which as a rule
can be ascertained speedily
and promptly. Generally speaking
therefore a Court can, in exercising its discretion regard such a
claim as a debt or liquidated
demand unless of course there are
features, appearing from the claim as framed or other relevant
circumstances, which preclude
the Court from regarding such a claim
as a debt or liquidated demand in the sense discussed in this
judgment. This would not be
out of keeping with the character of the
expression 'debt or liquidated demand' as it is known in the English
Rules of Court from
which the expression is derived.” (At
739G.)
[18] It
is not known how the amount claimed as alleged by the Plaintiff is
computed or quantified, if it has been
agreed upon, had become due,
if so when and if it has also become payable for the purpose interest
as well. It is also not known
whether the amount arose from a
contractual obligation that was periodically fulfilled. There is no
evidence if the amount has
accrued to the cedent in a lump sum or
invoices issued; see
Standard
Bank of South Africa v Renico Construction (Pty) Ltd
(2011/33789)
[2012] ZAGPJHC 287;
2015 (2) SA 89
(GJ) (20 September 2012) where
Sutherland J remarked that:
“
It
bears emphasis to remark that the condition of ‘illiquidity’
is not a result if absence
of
evidence or proof of the indebtedness; rather it is the result of an
inability to compute a figure in the absence of an investigation
that
is more than a mechanical exercise. (Cf:
Lester
Investments (Pty) Ltd v Narshi
1951
(2) SA 464
(C)
at esp 470F – 472A.)”
[19] The
Plaintiff’s claim is not easily or speedily ascertainable, but
requires evidence either to prove
the amount or the cause of action.
It is therefore not for a liquidated demand. The Plaintiff’s
Affidavit in support of the
Default Judgment Application has only the
historical account of what led to the launching of the Application
without giving any
further details on the alleged claim. Both the
Summons and the Supporting Affidavit to the Default Judgment
Application lack the
averments and or evidence that is necessary to
sustain a Judgment.
Under
the circumstances the following order is made:
1. The
Default Judgment is refused with no order as to costs.
N.V.
Khumalo
Judge
of the High Court Gauteng Division
On
behalf of the Plaintiff: M
V BOTOMANE
Instructed
by : Ntanga
Nkuhlu Incorporated
email:
mongezi@ntanga.co.za
On
behalf of Defendant: B
T MOELETSI
Instructed
by : Maphosho
Mokoena Incorporated
email:
sean@maphosomokoena.co.za