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[2019] ZAGPPHC 124
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Freysinnet (Pty) Ltd v Super Kwik Slabs CC and Another (24719/2017) [2019] ZAGPPHC 124 (18 April 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED No
DATE:
18 April 2019
SIGNATURE:
______________________________
Case No. 24719/2017
In the matter between:
FREYSINNET (PTY) LTD
APPLICANT/PLAINTIFF
And
SUPER KWIK SLABS CC
FIRST RESPONDENT/DEFENDANT
GERHARDUS WILKEN
SECOND RESPONDENT/DEFENDANT
JUDGMENT
MILLAR, A J
1.
This
is an application in which the applicant, the plaintiff in the main
action, applied for summary judgment against the respondents,
the
first and second defendants.
2.
The
respondents were sued on an acknowledgement of debt signed by the
second respondent in his capacity as a member of the first
respondent
on 26 August 2016. The second respondent also bound himself as
surety and co-principal debtor to the applicant
for the fulfilment of
the first respondents acknowledged indebtedness.
3.
The
summons was issued on 6 April 2017 and served on 4 May 2017. Notice
of intention to defend was delivered on 15 May 2017
and thereafter on
5 June 2017 an application for summary judgment delivered.
4.
The
application was initially enrolled for hearing on 31 July 2017 but
was postponed
sine
die
.
In the summons and the application, the applicant initially
claimed R1 554 051.40. By the time that the application was
heard,
the first respondent had paid all but R796 327.78. The
applicant seeks judgement for this lesser amount.
5.
The
respondents opposed the application and to this end delivered an
affidavit on 10 April 2019, 22 months after the application
was
first enrolled for hearing, setting out what they contended was
their defence. This was based on two legs –
firstly that
the second respondent had signed both the acknowledgment of debt and
deed of suretyship in error and that the first
respondent had a
counterclaim for damages against the applicant. Both were
expressed in the following terms:
“
7.1
On/about 26 August 2016 I signed the acknowledgement of debt that the
Plaintiff/Applicant relies
upon. At the time, I was however
under the mistaken belief that the amounts therein contained were
correct and, in addition,
I was not aware of damages suffered by the
1
st
Defendant caused by the Plaintiff/Applicant on construction sites
where its services were utilized.
”
6.
Save
for the bald assertion that the acknowledgment had been signed in
error and that the respondents had been mistaken as to the
correct
amount it ought to have signed acknowledgment for, nothing further
was said in this regard.
7.
The
counterclaim was in respect of “
damages
at the Bedfordview and Clearwater construction sites
”
and this was quantified in the sum of R341 488.00 – in respect
of both. The respondents also procured an updated statement
of
account for “Clearwater” in the sum of R331 655.87 from
the Applicant and attached this in substantiation of the
contention
that the outstanding amount due to the applicant would be wholly set
off by the counterclaim.
8.
It
was not disputed that the respondents had in the period after the
institution of action and before the hearing paid R757 723.62
of the
amount claimed. It is also not disputed that there was no
defence proffered for the difference between the amount
for which
judgment was sought and the amount of the counterclaim – that
is R454 839,78.
9.
In
regard to the counterclaim, the respondents, relying on Weinkove v
Botha
[1]
argued that the counterclaim, even if unliquidated, could constitute
a
bona
fide
defence for purposes of summary judgment.
10.
Whether
or not the counterclaim does indeed constitute a
bona
fide
[2]
defence to the applicant’s claim is to be ascertained from all
the facts put forward in support of it. Regard
must be
had to the nature and grounds
[3]
as well as the magnitude
[4]
of the counterclaim.
11.
In
the present matter, the counterclaim was based on damages suffered by
the first respondent as a result of “
poor
workmanship and/or penalties directly attributable to the Plaintiff.
”
Nothing further was stated in this regard. Save for the
statement that damages had been suffered and the quantum,
nothing
further, either by way of allegation or documentary evidence
corroborating that such damages had in fact been suffered,
were
placed before the court .
12.
The
22-month period between the first enrollment of this application, the
continued payment towards the amount of the acknowledgment
and the
date of hearing is significant in that had the respondents a
bona
fide
counterclaim, it was not in consequence of their having insufficient
time to properly consider and formulate such counterclaim,
that they
were unable to do so.
13.
The
affidavit opposing summary judgment was bereft of any particulars
from which it could be said that there was indeed any mistake
as to
the amount in respect of which the acknowledgement had been signed
[5]
or indeed whether there was a counterclaim, or that it was bona fide.
Simply put, the affidavit does not comply with
the
provisions of Rule 32(3)(b) of the Uniform Rules of Court
[6]
.
14.
In
the circumstances I make the following order:
14.1
The
First and Second Respondents are ordered, jointly and severally, the
one paying the other to be absolved to:
14.1.1
Pay
to the Applicant the sum of R796 327,78;
14.1.2
Pay
interest on the sum of R796 327,78 at the rate of 10,5% per annum
from 4 May 2017 to date of payment;
14.1.3
Pay
the Applicant’s cost of suit.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
16 APRIL
2019
JUDGMENT
DELIVERED ON:
18 APRIL
2019
COUNSEL
FOR THE APPLICANT:
ADV. JH LERM
INSTRUCTED
BY:
BARNARDS
INC ATTORNEYS
REFERENCE:
MR W DE
WET
COUNSEL
FOR THE FIRST RESPONDENT:
ADV.
INSTRUCTED
BY:
JOHAN
NYSSCHENS ATTORNEYS
REFERENCE:
MR J NYSSCHENS
[1]
1952
(3) SA 178
(C) at 184
[2]
Breytenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 227G-228B
[3]
Crede
v Standard Bank of South Africa Ltd
1988 (4) SA 786
(C) at 789B-D
[4]
NBS
Boland Bank Ltd v One Berg River Drive CC and Others
1999 (4) SA 928
(SCA) at 938G
[5]
Border
Concrete Engineering Co (Pty) Ltd v Knickelbein
1982 (2) SA 648
(E)
at 651
[6]
The
rule reads in part that the affidavit must be by a “
person
who can swear positively to the fact that he has a bona fide defence
to the action; such affidavit or evidence shall disclose
fully the
nature and grounds of the defence and the material facts relied upon
therefor.”