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[2018] ZAGPJHC 652
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Develex 679 CC v Airports Company of South Africa Limited (11984/2018) [2018] ZAGPJHC 652 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 11984/2018
In
the matter between:
DELEVEX
679 CC
Applicant
and
AIRPORTS
COMPANY OF SOUTH AFRICA
LIMITED Respondent
J U D G M E N T
BADENHORST
AJ:
[1]
The applicant applies for summary judgment
against respondent for payment of the sum of R 3 696 263.48
and ancillary relief
arising from the alleged non payment by the
respondent of certain CPI – related escalations due under a
written contract
originally concluded on 1 April 2010.
[2]
Numerous defences have been raised by the
respondent, including a challenge to the authority of applicant’s
attorney, a technical
defence based on an alleged failure to provide
the required notice in terms of
Institution
of Legal Proceedings against certain Organs of State Act, 2002 and
many more.
[3]
The principle which applies in proceedings
of the present kind is expressed as follows in First National Bank of
SA Ltd v Myburgh
2002 (4) SA 176
(C):
“
[9]
Because of the drastic nature of the relief sought, the Court has, in
terms of Rule 32(5), a discretion to grant the defendant
leave to
defend the action even where he has failed to comply with Rule
32(3)(b).
The Court will grant
summary judgment where plaintiff has an unanswerable case. If
the Court has the slightest doubt, the
Court will not grant summary
judgment
. (Fourlamel (Pty) Ltd v
Maddison
1977 (1) SA 333
(A) at 347H; Gilinski v Superb
Launderers And Dry Cleaners (Pty) Ltd
1978 (3) SA 807
(C) at
811E - H.)”
[emphasis added]
[4]
There is one defence which, in my view,
creates sufficient doubt in my mind at this early stage of the
proceedings that precludes
me from shutting the door of the Court on
the respondent – and that is the defence of prescription raised
in the opposing
affidavit.
[5]
Applicant attached its letter of demand to
respondent dated 4 December 2015 to the particulars of claim.
Paragraph 2 thereof reads
as follows:
“
You have
been in breach since 1 April 2011 and for the years 2012, 2013 and
2014 up to March 2015, where CPI related increases should
have been
paid as per clause 4, “Professional fees”, of the
agreement between Delevex 679 and ACSA.”
[6]
A further attachment relied on by applicant
is “D” to the claim in which the claim is computed –
it appears from
that document that the amounts claimed arose during
the financial years 2011 – 2015.
[7]
The summons was issued on 23 March 2018. It
follows that unless there was an interruption of the running of
prescription or an acknowledgement
of liability, all debts which
became due before 23 March 2015 may well have become extinguished by
prescription.
[8]
In response to the defence of prescription,
applicant relies on the events at a meeting held between
representatives of the parties
on 22 July 2015 (see paragraph 9 of
the claim). Based on the meeting, counsel for the applicant contends
that “
there was an acknowledgment
… where (respondent) admitted that the money was not paid due
to a technical oversight
”. The
pleading (paragraph 9.2) adds that respondents’ representatives
said that the oversight “
would be
‘looked into’
.” The
two emails referenced in that paragraph do not take the issue any
further.
[9]
Section 14
of the
Prescription Act 68 of 1969
provides as follows:
“
14 Interruption of
prescription by acknowledgement of liability
(1)
The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.
(2)….”
[10]
The statements attributed to respondents’
representatives who attended the meeting do not, in my view, amount
to “an
… acknowledgement of liability” by
respondent.
[11]
It follows that summary judgment cannot be
granted.
[12]
I accordingly make the following order:
(a)
The application for summary judgment is
refused and the respondent (second defendant) is granted leave to
defend the main action.
(b)
The costs of the summary judgment
proceedings will be costs in the cause.
_______________________
CHJ
BADENHORST AJ
Acting
Judge of the High Court of South Africa,
Gauteng
Local Division
APPEARENCES
For
the applicant: Mr B Beilings
Instructed
by: MATT LARKINS ATTORNEYS
For
the respondent: A E Ayayee
Instructed
by: NKADIMENG ATTORNEYS
Date
of hearing: 13 December 2018
Date
of judgment: 13 December 2018