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[2019] ZAKZDHC 27
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Uni-Span Formwork and Scaffolding (Pty) Ltd v Ethekwini Scaffolding (Pty) Ltd (1081/2018) [2019] ZAKZDHC 27 (11 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No. 1081/2018
In
the matter between:
UNI-SPAN
FORMWORK AND SCAFFOLDING (PTY) LTD
Applicant
and
ETHEKWINI
SCAFFOLDING (PTY) LTD
Respondent
JUDGMENT
BEZUIDENHOUT
J
[1]
Respondent sought condonation for the late filing of its heads of
argument which were not opposed
and such condonation was therefore
granted.
[2]
Applicant is seeking the return of various goods which it alleges it
either sold or leased to
respondent. It is common cause that
applicant and respondent had business dealings and that a credit
agreement had been entered
in between them. Various goods were either
purchased or leased by respondent and some of it was returned. It is
admitted by respondent
that it is indebted to applicant in the amount
of R55 227.04. Applicant requires the return of the goods as set out
in annexure
C to the notice of motion and the costs of the
application.
[3]
Applicant needs to proof that it is the owner of the goods, that they
are in existence and that
respondent was in possession of the goods
at the time that the application was brought which was on 1 February
2019. Goods were
either leased or sold to responded during the period
November 2016 to April 2017. It is not in dispute that the goods did
belong
to applicant. Ownership of the goods and that they are in
existence is also not in issue. The issue to be decided is whether
respondent
was in possession of the said goods at the time that the
application was brought. Respondent attached copies of a diary of its
driver one Baliram wherein he noted when certain items were returned
to applicant. Respondent attached “hire return”
documents
from applicant which cover a period of from November 2016 to the end
of April 2017. This indicates that during the said
period goods were
returned to applicant.
[4]
It is the contention of respondent that when certain goods were
returned during July 2017 the
driver returning the goods was not
given the necessary hire return documents nor was the vehicle weighed
as was the normal procedure.
Respondent avers that by April 2017 all
the goods had been returned and that the application therefore is ill
considered as there
is nothing to return. There is a confirmatory
affidavit from the said Baliram which was handed in at the hearing
and which was
not objected to by applicant.
[5]
It was submitted that a confirmatory affidavit was not sufficient and
that an affidavit from the
said Baliram should have been attached
dealing with the issues set out in the answering affidavit as they
were not merely non contentious
or formal evidence but was evidence
of a particular witness which was crucial in the circumstances as it
relates to the return
of the said goods. It was submitted by Mr van
der Westhuizen that indeed if there is a dispute of fact in this
regard that the
matter should be referred for the hearing of oral
evidence. There are various documents indicating that goods were
indeed returned
to applicant which applicant denies. On the papers it
would therefore appear that there is a dispute of fact as to whether
the
goods were returned or not. This may not have been apparent at
the time when the application was brought but it became apparent
when
the answering affidavit was filed together with the “hire
return” documents on the letterhead of applicant.
[6]
The fact that an amount of plus minus R55 000.00 may still be owing
is in my view insufficient
proof that the goods were not returned.
There are also the diary entries of Baliram relating to the times
when goods were returned
and no “hire return” forms were
provided.
[7]
It is therefore impossible on the papers as they stand to establish
whether any of the goods were
returned or not and whether respondent
was in possession of the goods at the time that the application was
instituted. If they
were not in possession, at the time then that is
fatal for applicant’s application. It would therefore appear
that the best
way to resolve the issue would be that there would have
to be evidence and further documentation to establish exactly whether
the
said goods were indeed returned or not. The matter must either be
referred for the hearing of oral evidence or be referred to trial.
[8]
In my view considering the facts it would be advisable that the
matter be referred to trial.
Order:
1.
The
matter is referred to trial.
2.
Applicant’s
notice of motion will stand as the summons.
3.
Applicant
to file a declaration within twenty days of this order.
4.
The
rules of this court will be applicable to any further pleadings and
proceedings.
5.
Costs
are reserved for determination by the trial court.
BEZUIDENHOUT
J
DATE
OF HEARING :
24 October
2019
DATE
OF JUDGMENT :
11
November 2019
FOR
THE APPLICANT :
Mr AP van der Westhuizen
Attorney for
the Applicant:
FVS Attorneys
Tel:
0872877741
Fax:
0865419211
Email:
frik@fvslaw.co.za
Ref:
FVS/ml/MAT473
c/o Sabera
Singh & Associates
c/o Zain
Fakroodeen & Associates
213 Musgrave
Road
Berea,
DURBAN, 4001
Tel: 031
7642277
Fax:
0862935637
Mobile:
0719557373
Email:
sabera@ssa-law.co.za
Ref: S
Singh/BN/07 F005 001
FOR
THE RESPONDENT:
Mr S Hoar
Attorneys for
the Respondent
Nolan Naicker
& Co
107 Lenny
Naidu Drive
Bayview,
CHATSWORTH
Tel: 031 4005983/4
Fax: 031 4004853
Email:
nolan@ion.co.za
Ref: NN/KD/E122
c/o Messenger King
801, 8
th
Floor
Esplanade
Garage
127 Margaret
Mncadi Avenue
DURBAN