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[2021] ZAGPPHC 513
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Merchant West (Pty) Ltd v Suz Logistics (Pty) Ltd and 17 Others (88070/2019) [2021] ZAGPPHC 513 (21 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 88070/2019
DATE:
UNKNOWN
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
21/7/2021
In
the matter between
MERCHANT
WEST (PTY)
LTD Applicant
and
SUZ
LOGISTICS (PTY) LTD AND 17
OTHERS Respondent
EX-TEMPORE
JUDGEMENT
HAUPT
(AJ):
This
is a summary judgment application by the applicant which is Merchant
West (Pty) Limited against 18 defendants. The applicant
has indicated
that it is just proceeding against the first to the 16
th
defendant as there are certain trustees that are not before this
court.
The
judgment is sought in terms of an agreement, which is attached to the
summons and the respondents have entered into a defence
and they have
also filed a special plea and a plea over the merits.
I
do not intend to deal with each and every argument raised before me.
It does not mean that I have not considered same.
To
summarize, the main thrust of the argument on behalf of the
respondents is that firstly, the applicants have ceded their claim
to
the bank and that this is a positive statement made by the respondent
and that there is nothing to oppose this. I have had regard
to what
is stated in the answering affidavit. In the answering affidavit no
mention is made that this is the manner of practice
of the applicant.
I am also mindful of the fact that it is a requirement for a
respondent opposing summary judgment to place sufficient
facts before
this court in order for the court to ascertain whether or not there
is a
bona fide
defence that needs to go on trial. In this
regard, I was referred to Erasmus
Superior Court Practice
and
more particular page D1-409 and the reference to the well known
authority of
Breytenbach v Fiat
1976 (2) SA 226
(T).
Unfortunately,
the respondents take the matter no further. They do not refer to a
time frame. They do not refer to a particular
bank. They do not take
the court into their confidence to divulge when this has come to
their knowledge and therefore I cannot
agree with the argument on
behalf of the respondent that there is nothing to oppose. This court
cannot work on speculation. This
court must work on facts.
The
second argument on behalf of the respondents is that a copy of the
agreement is eligible and in essence there was not consensus
when it
was signed.
It
is so that the applicant did attach a legible copy of the draft
agreements that they conclude in these matters and that it was
also
the agreement that is applicable in the present matter. The question
arises why the respondents who would seem to be people
who have some
business acumen if I have regard to the affidavits filed signed a
document which they could not read.
It
is a trite principle of law that if a party signs a document, it is
assumed that that party by affixing their signature to the
document
is aware of what is stated in the document and that they are in
agreement with that. It is not the argument before this
court, that
it was not the respondents who have signed the document.
The
third argument on behalf of the respondent is that there were certain
goods that were delivered three months late, and raising
an issue of
about R5 million that this court should take into consideration and
that this is also a trialable issue. Again the
respondents are very
vague in this regard and I was referred to the relevant clauses in
the agreement that was placed before this
court addressing this
issue.
It
is also so that summary judgment and summary judgment proceedings are
no longer extra ordinary proceedings and the Rule must
be applied
properly. In this regard the judgment of
Joob Joob v Stocks
,
2009 (5) SA (1), a Supreme Court of Appeal judgment and more
particular at 12A to D is relevant.
In
my view the respondent had sufficient opportunity to make a proper
disclosure before the court to disclose their defence and
to show to
this court that it is a
bona fide
defence.
It
would seem from reading of the papers and more particular the
elaborated fashion in which the answering affidavit is drawn without
much substance, that this court is confronted with the fable of the
emperor that has no clothes.
I
agree with the argument on behalf of the applicant that the
respondents are kicking up a lot of dust but when one really sits
and
evaluates and unpack the arguments there is not much substance
thereto.
Therefore
it is the order of the court that summary judgment be granted in
favour of the applicant as set out in the draft order.
There is also
a request for cost on the attorney and client scale and I am
satisfied with the submissions made that a proper case
has been made
it out for that.
Therefore
in matter number 54 I grant an order as set out in the draft order,
in terms of prayers 1 and 2 which draft order I mark
“X”.
L
C HAUPT AJ
VIRTUAL UNOPPOSED MOTION
COURT HEARING: 25 JUNE 2020
Revised
by HAUPT AJ after viewing cellphone recording of virtual proceedings.
No
other recording available.