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[2020] ZAGPPHC 36
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Compensation Solutions (Pty) Ltd v Compensation Commissioner and Another (37050/2019; 37051/2019; 40808/2019; 37304/2019) [2020] ZAGPPHC 36 (4 February 2020)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBERS: 37050/2019
37051/2019
40808/2019
37304/2019
4/2/2020
In
the matter between:
COMPENSATION
SOLUTIONS (PTY) LTD
Plaintiff
and
THE
COMPENSATION
COMMISSIONER
First Defendant
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
LABOUR OF THE NATIONAL GOVERNMENT
OF
THE REPUBLIC OF SOUTH
AFRICA
Second Defendant
JUDGMENT
AVVAKOUMIDES,
AJ
1.
The
four actions under the above case numbers against the first and
second defendants are based on the same cause of action. The
plaintiff claims payment of moneys by way of summary judgment,
pursuant to a written cession of all rights, title and interest
in
and to the accounts of the relevant medical service provider, which
accounts have been factored to the plaintiff.
2.
The
particulars of claim include annexure "POC1" which
comprises a court order, by agreement between the parties, issued
by
a previous court. Court orders bind all to whom they apply, including
organs of state. See: section 165 (5) of the Constitution
of the
Republic of South Africa, 1996.
3.
The
defendants have defended the actions and the plaintiff seeks summary
judgment in all four applications. All four summary judgment
applications have to be decided with reference to rule 32, in its
amended form. The defendants filed a plea in each case which
is
essentially one of denial and do not contain material facts upon
which the defendants rely for a defence. Rule 32 (3) (b) of
the
uniform rules of court provides that the opposing affidavit must
disclose fully the nature and grounds of the defence and the
material
facts relied upon therefor with reference to the defence as set out
in the plea. The pleas do not raise any issue for
trial.
4.
The
purpose of a summary judgment application is to allow the court to
summarily dispense with actions that should not proceed to
trial
because the defendant has not raised a genuine triable issue. Once an
application for summary judgment is brought, the applicant
obtains a
substantive right for that application to be heard, and bearing in
mind the purpose of summary judgment, that hearing
should be as soon
as possible. That right is protected under section 34 of the
Constitution. See Raumix Aggregates (Pty) Ltd v
Richter Sand CC GJ
Case Number 8153/2019, a full court decision dated 4 October 2019.
5.
It
is thus appropriate to set out the chronology in all the cases to
show,
inter alia,
the
conduct of the defendants in the litigation, as follows:
5.1
29 May 2019 the summons was served;
5.2
3 July 2019 the defendants filed a
notice of intention to defend;
5.3
1 August 2019 the plaintiff filed a
notice of bar;
5.4
8 August 2019 the defendants filed their
plea;
5.5
29 August 2019 the plaintiff filed the
application for summary judgment;
5.6
25 September 2019 the defendants filed
notice of intention to amend the plea;
5.7
30
September 2019 the defendants filed a notice of their intention to
oppose the summary judgment application;
5.8
30 September 2019 the plaintiff filed
objection to the proposed amendment of the plea;
5.9
9 October 2019 was the last day to file
the opposing affidavit;
5.10
11 October 2019 the plaintiff filed a
supplementary affidavit detailing therein all payments made by the
defendants after the summons
was served;
5.11
14 October 2019 the defendants filed an
application for leave to amend the plea;
5.12
16 October 2019 the defendants opposing
affidavit was delivered out of time;
5.13
6 November 2019 plaintiff filed its
opposing affidavit to the defendants' application for leave to amend.
6.
The
plaintiffs counsel submitted that the court must consider whether the
defendants' opposing affidavit complies with rule 32 (3)
(b) and, in
the light of the proposed amendment to the plea, whether the
defendants have, with reference to the proposed amendment
of the
plea, disclosed a
bona fide
defence,
and, lastly, whether the opposing affidavit discloses fully the
nature and grounds of the intended defence and material
facts relied
upon therefor.
7.
I
have had regard to the proposed amendment to the plea. The issues
raised therein are issues that have been adjudicated upon in
previous
cases in this division. These, together with the contents of the
opposing affidavit, do not set out a defence, as is required,
to
avoid summary judgment.
8.
The
defendants' counsel submitted that the application ought to be
postponed so that the proposed amendment may be argued first
and
thereafter the summary judgment application may be enrolled for
hearing. In the ordinary course of events I would be inclined
to
agree and postpone the application accordingly, however the defences
sought to be raised in the proposed amendment have been
dealt with by
previous courts. See Compensation Solutions (Pty) Ltd v The
Compensation Commissioner and Director General of the
Department of
Labour of the Republic of South Africa, under case numbers
69562/2018; 90457/2018 and 80277/2018, all heard in the
Gauteng
Division, Pretoria.
9.
Moreover,
rule 32 does not provide a procedure envisaged by the defendants,
i.e. to oppose a summary judgment application based
on proposed
amendments of the pleas, which may or may not be admitted or rejected
by a court hearing such application to amend.
The defendants filed an
affidavit in support of the application to amend the pleas. If, after
noting the defendants' proposed amendments,
I were to have regard to
the contents of such affidavit, the plaintiff would be prejudiced in
that such affidavit does not form
part of the summary judgment
proceedings before me. The critical issues are that the defendants
seek to introduce amendments which
have already been pronounced upon
by this division and the absence of any explanation as to why the
defendants continue to make
payments to the plaintiff after issuing
of the summonses.
10.
The opposing affidavits do simply not
comply with the provisions of rule 32 (3) (b). The Supreme Court of
Appeal, in NPGS Protection
and Security Services CC v FirstRand Bank
Ltd, unreported, case number 314/2018, dated 6 June 2019, observed
the following:
"[14]
Indeed, the court would be remiss it its duties if such defences,
clearly devoid of any bona fides,
stand in the way of plaintiffs who
are entitled to relief. The ever-increasing perception that bald
averments and sketchy propositions
are sufficient to stave off
summary judgment is misplaced and not supported by the trite general
principles developed over many
decades by our courts. See for
example, the well-known judgment of this court in Maharaj v Barclays
Bank Ltd
1976 (1) SA 418
(A) where the proper approach to
applications for summary judgments is stated."
11.
It
would thus be contrary to a judicial approach to exercise discretion
against a plaintiff and in favour of a defendant where there
is an
absence of the necessary allegations upon which a defence can be
founded. See He & She v Brand
2019 (5) SA 492
(WCC) and Pansera
Builders Suppliers (Pty) Ltd v Van der Merwe (t/a Van der Merwe's
Transport)
1986 (3) SA 654
(C).
12.
Consequently,
I am satisfied that the plaintiff has, in each case, made out a
proper case for summary judgment. Both parties employed
senior and
junior counsel. In my view the applications warranted the employment
of senior counsel and the taxing master is guided
accordingly. I thus
make the following orders:
12.1
Under case number 40808/2019 summary
judgment is granted in favour of the plaintiff and against the
defendants, jointly and severally,
the one paying the other to be
absolved, for:
12.1.1
Payment in the sum of R6 842 714.10;
12.1.2
Payment of interest on the amounts
contained in each of the medical accounts listed in annexure "POC3"
to the particulars
of claim, at the prescribed rate of interest,
calculated from the 76
th
day, to date of payment;
12.1.3
Costs of suit including the costs of two
counsel which costs shall include all previous reserved costs, where
applicable.
12.2
Under case number 37304/2019 summary
judgment is granted in favour of the plaintiff and against the
defendants, jointly and severally,
the one paying the other to be
absolved, for:
12.2.1
Payment in the sum of RS 555 233.72;
12.2.2
Payment of interest on the amounts
contained in each of the medical accounts listed in annexure "POC3"
to the particulars
of claim, at the prescribed rate of interest,
calculated from the 76th day, to date of payment;
12.2.3
Costs of suit including the costs of two
counsel which costs shall include all previous reserved costs, where
applicable.
12.3
Under case number 37050/2019 summary
judgment is granted in favour of the plaintiff and against the
defendants, jointly and severally,
the one paying the other to be
absolved, for:
12.3.1
Payment
in the sum of R5 950 655.31;
12.3.2
Payment
of interest on the amounts contained in each of the medical accounts
listed in annexure "POC3" to the particulars
of claim, at
the prescribed rate of interest, calculated from the 76th day, to
date of payment;
12.3.3
Costs
of suit including the costs of two counsel which costs shall include
all previous reserved costs, where applicable.
12.4
Under case number 37051/2019 summary
judgment is granted in favour of the plaintiff and against the
defendants, jointly and severally,
the one paying the other to be
absolved, for:
12.4.1
Payment in the sum of R3 770 207.31;
12.4.2
Payment
of interest on the amounts contained in each of the medical accounts
listed in annexure "POC3" to the particulars
of claim, at
the prescribed rate of interest, calculated from the 76th day, to
date of payment;
12.4.3
Costs
of suit including the costs of two counsel which costs shall include
all previous reserved costs, where applicable.
G.T.
AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Representation
for Applicant:
D. E. Van Loggerenberg
SC
C. Welgemoed
Instructed
by:
Quiryn Spruyt Attorneys
Representation
for Respondent:
M.M. Rip SC
M. Makhubele
B. Kubeka-Manyelo
Instructed
by:
State Attorney