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[2021] ZAKZPHC 90
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Arum Transport CC v Mkhwenkwe Construction CC and Another (2812/2021P) [2021] ZAKZPHC 90; 2022 (2) SA 503 (KZP) (12 November 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 2812/2021P
In the matter between:
ARUM
TRANSPORT
CC
APPLICANT
and
MKHWENKWE
CONSTRUCTION CC
FIRST
RESPONDENT
ZIKHALI ALFRED
DLAMINI SECOND
RESPONDENT
ORDER
The
following order is made:
1.
The
application for summary judgment is refused
2.
The
costs are reserved for determination by the trial court.
JUDGMENT
Bezuidenhout
AJ
[1] The
plaintiff, Arum Transport CC, applied for summary judgment against
the defendants, Mkhwenkwe Construction
CC and Mr Zikhali Alfred
Dlamini, in the sum of R800 000.
[2] The
combined summons was issued on 30 April 2021 and served on the
defendants on 25 May 2021. The defendants
entered an appearance to
defend on 3 June 2021 and on the same day filed their plea.
[3] On
7 June 2021 the plaintiff filed its replication to the defendants’
plea.
[4] The
plaintiff thereafter filed its application for summary judgment on 23
June 2021, which falls within the
15 day period after the date of the
delivery of the plea, as required by Uniform rule 32(2)
(a)
.
[5] The
defendants opposed the application and filed an opposing affidavit,
attested to by the second defendant,
setting out the facts upon which
defendants relied to show that they had a bona fide defence.
[6] At
the commencement of the hearing of the opposed motion, counsel for
the plaintiff, Ms E Van Jaarsveld, submitted
that she deemed it
proper to raise an issue not addressed by any of the parties in the
papers or in the heads of argument filed
by counsel, namely the fact
that the plaintiff had taken a further procedural step by filing its
replication. She is to be commended
for advancing an argument
detrimental to her own case which is proper and becoming of an
officer of the court .
[7] The
significance of this further procedural step is that the plaintiff
would be precluded from proceeding to
apply for summary judgment.
This is in line with various authorities, many of which however
predate the amendments to Uniform rule
32.
[8] Ms
Van Jaarsveld referred me to
Quattro
Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops
[1]
where Gibson AJ was also faced with a situation where the plaintiff
had filed a replication. The learned acting judge dealt with
the
amendments to Uniform rule 32 and referred extensively to the
commentary in
Erasmus:
Superior Courts Practice
[2]
and in particular to the recommendations of the Superior Courts Task
Team of the Rules Board for Courts of Law. After quoting from
Erasmus
,
[3]
where it is submitted that ‘if the plaintiff takes a further
procedural step after the delivery of the plea, i e an exception
or a
replication to the plea, he thereby waives his right to apply for
summary judgment’, the following was held:
[4]
‘
[8] There
is a seductive simplicity and elegance in a litigant being compelled
to make a choice between bringing
an application for summary judgment
or filing a replication: in picking a course of action and having to
bring an application for
condonation if the chosen course of action
were to be a failed application for summary judgment. If the
application for summary
judgment were to be successful, there would
be no need to file the replication. This approach could also
potentially relieve the
court of the pressure of opportunistic
applications for summary judgment.
[9] In
my opinion, however, the Task Team's silence on the issue leaves the
door open to the plaintiff
to file a replication without waiving its
rights to apply for summary judgment, as long as it files both the
replication and the
application timeously and in accordance with the
rules of court. Both of these processes must be filed within 15 days
of delivery
of the plea. Accordingly, the filing of a replication
will in no way compromise "the speediness of the remedy"
afforded
by rule 32, which was the issue of consideration for the
Task Team when deliberating the timing of bringing the application.
In
my opinion, Mr Steyn is correct in arguing that, if the Task Team
had intended for the applicant to be compelled to pick a course
of
action, a provision would have been incorporated dealing with the
issue.
’
[9] The
learned judge proceeded to find that the defendant had suffered no
prejudice as the replication had been
filed timeously and
subsequently granted summary judgment.
[10] I
respectfully disagree with Gibson AJ’s findings and especially
the reliance placed on the Task Team’s
silence on the issue.
[11] Uniform
rule 32 has never contained a provision regarding the issue of
whether a plaintiff could apply for
summary judgment after taking a
further procedural step. Even before the rule was amended to provide
for an application for summary
judgment to be brought only after a
plea has been filed, courts recognised that a plaintiff could still
apply for summary judgment
even if a defendant had filed a plea, as
long as the plaintiff had not taken a further step.
[5]
[12] In
Esso
Standard South Africa (Pty) Ltd v Virginia Oils and Chemical Co (Pty)
Ltd
[6]
Klopper
J said:
‘
I
agree, though, that once appearance to defend has been entered and a
plaintiff thereafter files a declaration or takes a further
procedural step, he thereby waives his right to ask for summary
judgment, but not in a case like the present, where the declaration
was attached to the summons for the sake of convenience only and
before appearance to defend was entered
.’
[13] Subsequently
in
Jacobs
v F P J Finans (Edms) Bpk
[7]
Klopper
AJP held that he was still of the same view as expressed in
Esso
,
and said:
‘…
dan
is dit ongerymd dat gemelde eiser prosesregtelikestappe neem wat op
die verdediging van sodanige eis gemik is
.’
He further found that the
plaintiff had forfeited its right to apply for summary judgment. In
casu, the plaintiff had supplied further
particulars requested by the
defendant, which the court held gave the defendant the impression
that it had a right to defend the
principal case.
[14] The
findings by Klopper AJP were subsequently criticised in
Hire-Purchase
Discount Co (Pty) Ltd v Ryan Scholz & Co (Pty) Ltd and another
[8]
where Solomon AJ found that ‘[t]he
furnishing
of the particulars by the plaintiff did not in any way constitute a
waiver or abandonment of its rights under Rule 32’
.
[9]
[15] In
Steeledale,
Froneman
J held that:
[10]
‘
It
appears to me, with respect, that the past underlying justification
for allowing amplification of the summons (either in the
verifying
affidavit, or by delivering a declaration, or by delivering further
particulars for the purposes of pleading), namely
that it allows for
a more comprehensive exposition of the case the defendant has to
meet, and thus leads to a better assessment
of whether a defendant
has disclosed a bona fide defence, is countenanced neither by the
wording of rule 32(2) and (4), nor by
present binding authority.
Summary judgment has repeatedly been described as an extraordinary
and stringent remedy (see
Maharaj
,
above, at 425H;
Tesven CC and
Another v South African Bank of Athens
2000
(1) SA 268
(SCA) ([1999]
4 All SA 396)
at 277H - J;
Soil
Fumigation Services Lowveld CC v Chemfit Technical Products (Pty)
Ltd
2004 (6) SA 29
(SCA) ([2004]
2
All SA 366)
at 35C - D), and there seems to me to be little remaining
reason for extending its scope by allowing “amplification”,
in whatever form, of the cause of action as set out in either form of
the summons.’
The application for
summary judgment consequently failed.
[16] More
recently in
The
Standard Bank of South Africa Limited v Trumpie
,
[11]
Skosana AJ, in dealing with an application for summary judgment where
the plaintiff contended that it would be seeking rectification
of a
written agreement being relied upon, said the following:
‘
The
plaintiff has not yet pled rectification. In the present case, it can
only do so by way of replication to the plea. The plaintiff
could not
file a replication as it could not take any further step after the
plea
.’ (Footnote omitted.)
Skosana AJ placed
reliance on
Hire-Purchase
.
[17] D
Harms SC in
Civil
Procedure in the Superior Courts
,
[12]
in the commentary on Uniform rule 32(2) in its amended form, stated
that if a plaintiff takes a further procedural step after delivery
of
a notice of intention to defend ‘he may thereby waive his right
to apply for summary judgment’. Reliance was placed
on
Esso.
[18]
Erasmus
expressed
a more definitive view, namely that ‘. . .
if
the plaintiff takes a further procedural step after the delivery of
the plea, ie an exception or a replication to the plea, he
thereby
waives his right to apply for summary judgment’
.
[13]
It appears to me that whereas the concern in
Quattro
Citrus
was more directed at a replication compromising the speediness of the
remedy afforded by Uniform rule 32 and lack of prejudice
to the
defendant, this was clearly not the concern as expressed by the
authorities referred to by me and certainly not the reason
why
applications for summary judgement failed.
[19] In
the present matter, the plaintiff pleaded in its particulars of claim
that, during 2017, it entered into
an oral agreement with the first
defendant to render certain services as its subcontractor. Payment
for the services would be made
within a reasonable time but by no
later than the date upon which the first defendant received payment
from the Department of Transport.
It is further averred that the
first defendant, in breach of the agreement, failed to pay the
plaintiff ‘notwithstanding
it having received full payment for
such services from the Department of Transport during 2017
alternatively 2018’. It is
further pleaded that as at November
2017, the first defendant was indebted to the plaintiff in the sum of
R800 000.
[20] The
plaintiff pleads further that the second defendant signed an
acknowledgment of debt on 6 November 2017
in favour of the plaintiff
in terms of which he acknowledged his indebtedness in the sum of R800
000 to the plaintiff in his personal
capacity and, importantly
perhaps, that he undertook to pay when paid by the Department of
Transport.
[21] In
their plea, the defendants deny the terms of the agreement, deny that
they had received payment from the
Department of Transport and aver
that the second defendant was forced or threatened to sign the
acknowledgment of debt relied upon
by the plaintiff. The defendants
also pleaded that the claim against them prescribed on 5 November
2020.
[22] The
replication filed by the plaintiff, clearly a further procedural
step, proceeds to address various issues
raised by the defendants in
their plea, and even goes as far as attaching an answering affidavit,
attested to by the second defendant
in an application for the
liquidation of the first defendant, to the replication.
[23] The
replication was filed on 7 June 2021. In terms of Uniform rule
29(1)
(b)
,
the pleadings closed on 22 June 2021. The application for summary
judgment was only filed on the next day, 23 June 2021, albeit
still
within the period of 15 days as prescribed in Uniform rule 32(2)
(a)
.
[24] I
have no doubt that the plaintiff’s replication constitutes a
further procedural step and that in filing
the pleading, the
plaintiff has clearly waived its right to apply for summary judgment.
I agree fully with the sentiments expressed
by Froneman J in
Steeledale.
I
am also of the view that the amendments to Uniform rule 32 should not
have any effect on this issue.
[25] In
the event that I am wrong in this regard, I would in any event have
found that the defendants have shown
that there are triable issues
justifying a refusal to grant summary judgement.
[26] Summary
judgment has been described as an extraordinary and stringent remedy,
and should only be granted where
the plaintiff can establish its
claim clearly and the defendant fails to set up a bona fide
defence.
[14]
[27] The
defendants are required to satisfy me by affidavit that they have a
bona fide defence to the action. The
affidavit should disclose fully
the nature and grounds of the defence as well as the material facts
relied upon.
[28] The
second defendant’s opposing affidavit was relatively short but
concentrated mainly on the issue
of prescription, which in respect of
the claim against the second defendant is certainly a triable issue.
[29] Mr
Ranjit, appearing on behalf of the defendants, also raised the issue
of the debt not yet being due in his
heads of argument. If this is
found to be indeed the case, the issue of prescription would fall
away. It is clear from the defendants’
plea that they deny that
the Department of Transport had made payment to them. Although this
issue is only addressed in a roundabout
manner in the opposing
affidavit, it is clearly a triable issue. It has be held that
‘
[a]ffidavits
in summary judgment proceedings are customarily treated with a
certain degree of indulgence, and even a tersely stated
defence may
be a sufficient indication of a bona fide defence for the purpose of
the rule’
.
[15]
[30] Ms
Van Jaarsveld made various submissions regarding the second
defendant’s alleged acknowledgment of
indebtedness. Bearing in
mind the sparse pleading in the particulars of claim as well as the
averments and allegations made by
the defendants in their plea and
opposing affidavit with reference to, for instance, the allegation
that payment would be made
only once the defendants have been paid by
the Department of Transport, this matter requires proper discovery
and ventilation at
trial. At this stage I am not required to judge
the probabilities or the truthfulness of the defendants’
allegations, unless
the defence is inherently unconvincing, which, in
my view, it is not.
[16]
Once the payment records of the Department of Transport becomes
available, it might even be appropriate to apply to have the matter
enrolled on the expedited trial roll.
[31] I
asked both counsels to address me on the issue of costs and both
submitted that costs should be reserved
for decision by the trial
court, which is sensible, bearing in mind the facts of the matter.
[32] I
accordingly make the following order:
1. The
application for summary judgment is refused.
2. Costs
are reserved for determination by the trial court.
BEZUIDENHOUT
AJ
APPEARANCES
Date
of hearing: 19
October 2021
Date of
judgment: 12
November 2021
For
applicant: Ms
E van Jaarsveld
Instructed
by: Strachan
Attorneys
Shop
30, First Floor
Parklane
Centre
18
Chief Albert Luthuli Street
Pietermaritzburg
Ref
V Kahn/ 749/02
Tel
033 342 3382
Email:
strachan@sai.co.za
For
respondent: Mr
S Ranjit
Instructed
by: Pranesh
Indrajith Attorneys
41Lahore
Road
Pietermaritzburg
Ref
D 168/0003
Tel
033 387 1410
Email:
mail@pi-attorneys.co.za
[1]
Quattro
Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops
[2021]
JOL 49833 (WCC).
[2]
D
E
Van
Loggerenberg and E Bertelsmann
Erasmus:
Superior Courts Practice
(RS15, 2020) at D1-384A.
[3]
Ibid
at
D1-392B.
[4]
Quattro
Citrus
paras 8-9.
[5]
Steeledale
Reinforcing (Cape) v HO Hup Corporation SA (Pty) Ltd
2010
(2) SA 580
(ECP) para 8 and
Vesta
Estate Agency v Schlom
1991 (1) SA 593
(C) at 595I-H.
[6]
Esso
Standard South Africa (Pty) Ltd v Virginia Oils and Chemical Co
(Pty) Ltd
1972
(2) SA 81
(O) at 83A.
[7]
Jacobs
v F P J Finans (Edms) Bpk
1975
(3) SA 345
(O) at 346C.
[8]
Hire-Purchase
Discount Co (Pty) Ltd v Ryan Scholz & Co (Pty) Ltd and another
1979
(2) SA 305 (SE).
[9]
Ibid
at 307F-G.
[10]
Steeledale
Reinforcing (Cape) v HO Hup Corporation SA (Pty) Ltd
2010
(2) SA 580
(ECP) para 15.
[11]
The
Standard Bank of South Africa Limited v Trumpie
2021
JDR 1126 (GP) para 4.
[12]
D
Harms SC
Civil
Procedure in the Superior Courts
(August 2020, Service Issue 71) para B32.5.
[13]
D
E
Van
Loggerenberg and E Bertelsmann
Erasmus:
Superior Courts Practice
(RS15, 2020) at D1-387-D1-388, and the authorities referred to in
the relevant footnotes.
[14]
Steeledale
Reinforcing (Cape) v HO Hup Corporation SA (Pty) Ltd
2010
(2) SA 580
(ECP), and
Erasmus
at D1-382 and the authorities referred to.
[15]
Erasmus
at
D1-410 and the authorities referred to.
[16]
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T) at 228B.