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[2019] ZAKZPHC 2
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BWK Project Management and Civils CC v Africawide Consulting (Pty) Ltd (AR700/2017) [2019] ZAKZPHC 2 (8 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:
AR700/2017
In the matter between:
BWK
PROJECT MANAGEMENT AND CIVILS CC
Appellant
and
AFRICAWIDE
CONSULTING (PTY)
LTD
Respondent
ORDER
The
appeal is dismissed with costs on the attorney and client scale,
including the costs of the application for leave to appeal.
JUDGMENT
Delivered
on:
8
February 2019
PLOOS VAN AMSTEL J
(JAPPIE JP and NKOSI J concurring)
[1]
This is an appeal against an order for summary judgment. The appeal
is with the leave
of the court below. For the sake of clarity I refer
to the appellant as the defendant and to the respondent as the
plaintiff.
[2]
The plaintiff’s claim related to project management services
pursuant to a contract
between it and the defendant. The claim was
based on four separate invoices, with a total value of R
7 242 831.47. Vahed
J granted summary judgment in respect
of the first three invoices, totalling the sum of R 5 755 358.30.
The plaintiff
did not pursue the application for summary judgment in
respect of the fourth invoice, and the defendant was granted leave to
defend
that claim.
[3]
The grounds for the appeal, in summary, are that the learned judge
should have exercised
his discretion to refuse summary judgment, on
the basis that the particulars of claim were vague and embarrassing
and not technically
correct; that the amount claimed was not
liquidated; that there were multiple allegations of breach of
performance on the part
of the plaintiff; and that there existed a
counterclaim. Not all these grounds were pursued in argument, as I
will explain after
a brief reference to the pleadings.
[4]
It was averred in the particulars of claim that in terms of the
contract the plaintiff
would provide the defendant with invoices and
supporting documents; the defendant would in turn invoice the client
(which was Eskom);
and the defendant would pay the plaintiff within
24 hours of receipt of payment from the client.
[5]
The four invoices referred to in the particulars of claim were
invoice 2013060007,
dated 21 September 2015, for a sum of
R1 849 374.27; invoice 2013060008, dated 13 October 2015,
for a sum of R2 155 084.73;
invoice 2013060009, dated 9
November 2015, for a sum of R1 750 899.30; and invoice
2013060010, for a sum of R1 487 473.17.
The total of the
four invoices is the sum of R7 242 831.47, which was the
amount for which judgment was claimed in the
prayer.
[6]
The complaint that the particulars of claim were excipiable was not
pursued in argument,
nor was the point that the amount of the claim
had not been properly verified.
[7]
Counsel for the defendant submitted that the particulars of claim
were nevertheless
confusing. He pointed out that in paragraph 14 the
plaintiff averred that it had furnished the defendant with invoices
amounting
to a total sum of R9 248 704.82, but then
proceeded to list only the four invoices to which I have referred,
which total
a sum of R7 242 831.47. He also pointed out
that the letter of demand which was annexed to the particulars of
claim referred
to a sum of R5 755 358.75, which was a
lesser amount than that claimed in the prayer. Counsel submitted that
this was
confusing and formed part of the overall argument that as a
matter of discretion summary judgment should have been refused.
[8]
Vahed J rejected the contention that the particulars of claim were
vague and embarrassing.
I agree with his conclusion. On a fair
reading of the particulars of claim the amount for which judgment was
sought was the total
of the four specified invoices, namely the sum
of R7 242 831.47. The amount of R9 248 704.82 referred
to in paragraph
14 was plainly an error as it was not the total of
the four amounts set out in the sub-paragraphs that follow. The
lesser amount
referred to in the letter of demand plainly referred to
the first three invoices (except that the cents were wrong).
[9]
The particulars of claim, read as a whole, in my view made it
perfectly clear what
the plaintiff’s cause of action was. It
pleaded that the defendant had received payment from the client in
respect of the
plaintiff’s invoices and that in terms of the
contract it was obliged to make payment of those invoices to the
plaintiff.
This was only disputed by the defendant in respect of the
fourth invoice, on which summary judgement was not granted. The fact
that a lesser amount was referred to in the letter of demand seems to
me to be immaterial.
[10]
The submission in the heads of argument that in the light of the said
discrepancies the amount
claimed is not a liquidated amount has no
merit and nothing further needs to be said about it.
[11]
In the affidavit opposing summary judgment the defendant referred to
alleged breaches of the
agreement by the plaintiff, relating to the
amount charged per kilometre, a change in personnel without proper
notification, a
possibility that the plaintiff may have charged
expert rates for personnel who were not considered to be experts, and
that it failed
to provide certain reports.
[12]
A document annexed to the opposing affidavit records an exchange
between the plaintiff and Eskom
in which reference was made to an
incorrect rate, and an apparent agreement that this would be
rectified in the next invoice. The
only reference to a change in
personnel was an enquiry whether Eskom had been notified, and an
assurance that it had.
[13]
The deponent also refers to a possibility that the plaintiff may have
charged expert rates for
personnel who were not considered to be
experts. No evidence of this is provided, nor any detail of the
potential problem. There
were also bald allegations of defamation
(which was not pursued in argument), unfair competition, and an
assertion that Eskom did
not pay an amount of some R3 million to the
defendant as a result of the plaintiff not having produced certain
reports. Logic suggests
that if the plaintiff had failed to provide
the reports it would not have been paid for them. No factual details
are provided and
it is by no means clear that there is a valid claim
for damages against the plaintiff.
[14]
A defendant, in order to establish a bona fide defence, must set out
facts which, if proved,
would establish a valid defence or
counterclaim. Bald, sketchy and vague allegations are not enough.
[15]
I agree with Vahed J that the averments made in the opposing
affidavit were insufficient to establish
a bona fide defence or a
claim in reconvention on the basis of which summary judgment should
have been refused. There is no need
to say anything further about
this appeal. The only puzzling aspect of it is why leave to appeal
was granted.
[16]
Counsel were agreed that the provision in the contract regarding
costs on the attorney and client
scale also applies to the appeal.
[17]
The appeal is dismissed with costs on the attorney and client scale,
including the costs of the
application for leave to appeal.
Ploos
van Amstel J
Appearances:
For
the Appellant
: P. Wallis
Instructed
by
:
Morris Fuller Williams Inc.
:
C/o J Leslie Smith & Company Inc.
Pietermaritzburg
For
the Respondent
: N. Lombard
Instructed
by
:
Bregman Moodley Attorneys
:
C/o Shepstone & Wylie Attorneys
Pietermaritzburg
Date
Judgment Reserved
:
30 January 2019
Date
of Judgment
: 8 February
2019