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[2018] ZAFSHC 106
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Van Heerden v Scoin Trading (Pty) Ltd (5964/2017) [2018] ZAFSHC 106 (21 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
no
.
5964/2017
In
the matter between:
CARL
JACOBUS VAN HEERDEN
and
SCOIN
TRADING (PTY) LTD
Plaintiff
Defendant
CORAM
:
I VAN RHYN AJ
JUDGMENT
BY
:
I VAN
RHYN AJ
DELIVERED:
21 JUNE 2018
[1]
This is an application for summary judgment. On 17 November
2017 the Plaintiff issued summons against the Defendant for
payment
of the sum of R713,560.00 with interest and costs on an attorney and
client scale.
[2]
The Plaintiff and the Defendant entered into an oral agreement in
terms whereof the Defendant sold to the Plaintiff certain
collectable
coins as set out and described in a so-called “
final
portfolio
” appended to the Plaintiff’s particulars of
claim as annexure “CVH3”. The Plaintiff has
made
eight separate payments from 17 June 2016 to 12 May 2017 in the total
amount of R713,560.00.
[3]
During August 2016, the date of which is uncertain, the Plaintiff
received one 1 Ounce Kruger Queen coin with the value of R61,500.00
together with a tax invoice reflecting the abovementioned coin and
the purchase price thereof. Plaintiff avers that he has
not
received delivery of any of the other coins so purchased from the
Defendant and that he therefore cancels the agreement and
tenders the
return of the one 1 Ounce Kruger Queen coin and demands payment
of the amount of R713,560.00.
[4]
On 22 Nov
ember
2017 the Defendant entered an appearance to defend the action.
On 2 February 2018, more than tw
o
(2) months later, the Plaintiff gave notice of his intention to apply
for summary judgment to be heard on 22 February 2018.
In the
usual supporting affidavit the Plaintiff stated:
“
I
hereby confirm the facts on which the cause of action and the amount
claimed are based as set out in the Summons, which I respectfully
request be read together herewith as if incorporated in this
affidavit. I further confirm that an amount of R713 560,00
together
with interest at 15.5% “a tempore morae” is due
and owing to plaintiff on the grounds set out in the said Summons”
And further:
“
I
respectfully submit that the Defendant has no bona fide defence
against this action and that the notice of appearance to defend
was
given solely with the intention to delay these proceedings.
”
[5]
On 21 February 2018, being the day prior to the date of hearing of
the application for summary judgment, the Defendant filed
an
affirmation, opposing the application for summary judgment. On
22 February 2018 it was ordered by Gcabashe AJ that the
summary
judgment application is postponed until the 10
th
May 2018, the Respondent to file an application for condonation for
the late filing of its opposing affidavit on or before the
22
nd
March 2018 and the Defendant to pay the cost of the postponement on a
party and party scale.
[6]
The application for condonation supported by an affirmation by Mr
Gary Segal, the attorney practising in Johannesburg and acting
on
behalf of the Defendant, was filed on 19 March 2018. It is
stated that the reason for the late delivery and filing of
the
opposing affidavit was due to the incorrect information received from
Bloemfontein correspondents that same needs to reach
the Bloemfontein
firm of attorneys prior to 10 o’clock on the 21
st
February 2018. It is contended by the Applicant in its
application for condonation that it was not wilfully in default and
has a defence as set out in the opposing affidavit.
[7]
The application for condonation is opposed and voluminous opposing
papers amounting to 38 pages including several annexures
were filed.
For convenience the Applicant in the condonation application is
hereinafter referred to as the Defendant and the Respondent
in the
condonation application as the Plaintiff. The Plaintiff denies the
validity of Mr Segal’s affirmation and secondly
states that the
opposing affidavit contains mostly hearsay. During the hearing
of the application, Mr Heymans on behalf of
the Plaintiff abandoned
the first point regarding the validity of the affirmation and rather
relied on the hearsay argument.
[8]
In the replying affidavit it was stated that Plaintiff’s
election to contest the merits of the application for summary
judgment in the condonation application is not appropriate as the
Defendant has set out a
bona fide
defence in its opposing
affidavit.
[9]
There are two main considerations in an application for condonation.
A reasonable explanation for the default and the
disclosure of a
bona
fide
defence.
[1]
The
test for a
bona
fide
defence
in the condonation application is identical to that in a summary
judgment application, that is, the Defendant must allege
facts which,
if proved at the trial, will constitute a defence. If the
Defendant has an adequate explanation for the lateness,
be it a few
days, due to a mistake of his legal representative he should be given
an opportunity to be in the position to oppose
the application for
summary judgment.
[2]
[10]
Rule 27(1) of the Rules of Court provides that the Court may extend
any time prescribed by the rules on good cause shown.
It has
been accepted by the Courts that good cause will not exist if there
is no
bona
fide
defence.
Therefore the defence should at least be set out with sufficient
particularity to enable the Court to decide whether
the defence is
bona
fide
or
not.
[3]
[11]
In the Heads of Argument filed on behalf of the Defendant a point
in
limine
was raised that the affidavit of the Plaintiff did not
comply with Rule 32(2) of the Rules of Court in that it did not
contain a
statement by the deponent that in his opinion there was no
bona fide
defence to the claim.
[12]
At the hearing of the application Mr Williams, on behalf of the
Defendant indicated that he is not concerned with the exact
words to
be used as provided for in Rule 32(2) and continued with his argument
pertaining to the condonation application as well
as the merits of
the matter.
[13]
It was however held by the Full Court in
Van
den Bergh v Weiner
[4]
that Rule 32 gives a Court power to grant judgment without trial even
though notice of intention to defend the claim had been given
by the
Defendant. The power to grant summary judgment must be
exercised with great care which is achieved,
inter
alia
,
by ensuring that the Plaintiff brings his case within the scope of
the Rule.
[14]
In
Standard
Bank of SA Ltd v Carports for Africa CC and ]Others
[5]
the Respondents had raised a point
in
limine
that
the verifying affidavit in support of the application filed by the
Applicant was fatally defective as it had not followed the
wording of
Rule 32(2) of the Uniform Rules of Court. The deponent to the
affidavit had used the words “
I
verily believe
”
instead of “
in
his opinion
”
as stipulated by the Rule. With reference to
H
K Gokal (Pty) Ltd v Muthambi
[6]
,
AFCOL
Manufacturing Ltd v Pillay; AFCOL Manufacturing Ltd v Bio
[7]
,
Wonder
Flooring v North West Development Corporation Ltd
[8]
,
the Full Court held that common sense and basic principles of logic
dictates that “
in
his belief
”
should be taken as the equivalent of “
in
his opinion
”.
[15]
The Oxford English Dictionary contains the following entry of the
word “
opinion
”:
“
What
one thinks or how one thinks about something; judgment resting on
grounds insufficient for complete demonstration; belief of
something
as probable; or as seeming to one’s own mind to be true, though
not certain or established.
”
[9]
[16]
In the matter of
Visser
v De La Rey
[10]
the Plaintiff applied for summary judgment and in his affidavit he
stated as follows:
“
Ek
doen met eerbied aan die hand dat die Verweerder nie ‘n bona
fide verweer ... het nie ...
”
[17]
It
was held that, with reference to the judgment by Galgut J in
Group
Areas Development Board v Hassim and Others
[11]
it would have been the simplest to adhere to the Rule by following
the wording thereof. The difference between the words “
I
verily believe
”
or “
in
my opinion
”
is not material. They have essentially the same meaning.
However should the deponent state that he is “
under
the impression
”
that the Defendant has no
bona
fide
defence,
this statement would not pass muster.
[12]
The Plaintiff used the word “
submit
”
which means to “
put
forward for opinion, discussion, decision or to refer or present to
another for judgment or consideration
”.
[13]
[18]
What is required is that the deponent express his own opinion and not
that of another person. To ‘put forward for opinion
or decision
or to refer to another for judgment’ does not have the same
meaning as required in Rule 32(2) and therefore the
statement would
not pass muster and I find that the point taken in the Heads of
Argument is sound
[19] Rule 32(2) also
requires that:
(a)
The affidavit must be made by the Plaintiff or by any other person
who can swear positively to the facts;
(b)
The deponent to the affidavit must verify the cause of action and the
amount, if any, claimed.
The Court will have to be satisfied
that each of these requirements have been fulfilled before it can
hold that there has been
proper compliance with the provisions of
Rule 32.
[14]
[20]
In
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC
[15]
it was held that:
“
In
so far as the Learned Judge suggested that a defective application
can be cured because the Defendant or Defendants have dealt
in detail
with their defence to the claim set out in the summons that is not in
my view correct. That amounts to saying that
defects will be
overlooked if the Defendant deals with the merits of the defence.
It requires a Defendant who wishes to contend
that the application is
defective to confine themselves to raising that point, with the
concomitant risk that if the technical
point is rejected they have
not dealt with the merits. It will be a bold Defendant that
limits an opposing affidavit in summary
judgment proceedings to
technical matters when they believe that they have a good defence on
the merits. The fact that they
set out that defence does not
cure the defects in the application, and to permit an absence of
prejudice to the Defendant to provide
grounds for overlooking defects
in the application itself seems to me unsound in principle. The
proper starting point is
the application. If it is defective
then cadit quaestio. Its defects do not disappear because the
Respondent deals
with the merits of the claim set out in the
summons.
”
[21]
In the judgment by Daffue R in
Buttertum
Property Letting (Pty) Ltd v Dihlabeng Local Municipality
[16]
it was held that in the event of the deponent using the word
“
confirm
”
instead of “
verify
”
and it was the plaintiff’s only obstacle, he would have
probably condoned the mistake but due to the plaintiff’s
failure to verify (or confirm) the cause of action the application
for summary judgment was dismissed with costs.
[22]
Corbett JA explained the reliance on verification or “
verifying
”
in the
Maharaj
-judgment
from
422
B
and I
quote from
422
E – H
:
“
Moreover,
the word ‘verifying’ cannot be taken to qualify the word
‘facts’ and to be part of the definition
of the ‘any
other person’ who may make the affidavit … since this
would run counter to the meaning of the word
‘verifying’
and the grammatical construction of the sentence in which these words
occur. The relevant meanings
of ‘verify’ in the
Short Oxford English Dictionary are:
‘
to
testify or affirm formally or upon oath; … to testify to, to
assert as true or certain.’
Clearly
facts do not verify; a person verifies an alleged state of facts. And
where the verification takes the form of a sworn affidavit
it may be
said, figuratively, that the affidavit verifies the facts. In
addition, the words ‘and stating’, appearing
later in the
same sentence as ‘verifying’, qualify the same
subject-matter. Were this not so the word ‘and’
linking the two participles would be inappropriate and redundant.
It can hardly be suggested that the word ‘stating’,
and
what follows thereon as to what must be stated, can have reference to
anything but the content of the affidavit. It is,
therefore,
plain that the words ‘verifying the cause of action and the
amount, if any, claimed …’ also refer
to the content of
the affidavit.
”
[23]
The Plaintiff elected to use the word “
confirm
”
instead of “
verify
”.
The Plaintiff merely confirmed the facts on which the cause of action
and the amount claimed are based and failed
to verify the cause of
action, nor the amount claimed.
[17]
THE MERITS OF
PLAINTIFF’S CLAIM
:
[24]
The Plaintiff alleges that he and the Defendant, represented by Mr
Kruger entered into negotiations during May 2016 in terms
of which
the Plaintiff would buy certain collectable coins. The date on
which the agreement between the parties was reached
is not stated in
the particulars of claim. What is puzzling in the statement
made by the Plaintiff is that “…
between
May 2017 up to June 2017, Plaintiff informed the Defendant as to his
selection of specific coins
.”
Prior to May 2017 the Plaintiff had however already made 6 of the 8
payments to the Defendant. The first payment
was on 17 June 2016 and
the last payment on 12 May 2017. From the above it is clear
that the Plaintiff, on his version, made
payments to the Defendant
prior to his selection of coins so purchased.
[25]
It is not disputed that the Plaintiff paid an amount of R713,560.00
and that R61,500.00 was for the one 1 Ounce Kruger Queen
coin
delivered per courier during August 2016. In the particulars of
claim it is alleged that annexure “
CVH3
”,
the “
final
portfolio
”
together with photographs of certain documentation pertaining to the
coins purchased were handed to the Plaintiff on the
6
th
June 2017 at a restaurant in Welkom. However in the application
for summary judgment it was contended that the “
final
portfolio
”
indicating the selected coins were annexed to an e-mail received from
Mr Kruger on the 2
nd
June 2017.
[26]
The Defendant alleges that the initial agreement was not for the
coins listed in annexure “
CVH3
”
but for the coins listed in three invoices annexed to the Defendant’s
opposing papers. One of the invoices,
annexure “
C
”
was mistakenly appended to the opposing affidavit as it does not
concern this matter and the correct invoice was appended
to the
condonation application. According to the Defendant the
Plaintiff failed to make the agreed payment and only paid
a total
amount of R652,060.00 (excluding the coin paid for and delivered to
the Plaintiff).
[27]
The initial agreement was then cancelled and the Plaintiff selected
the coins reflected in annexures “
H
”
and “
I
”
to the total value of R652,060.00. The Defendant tendered
delivery of the coins purchased in terms of annexures “
H
”
and “
I
”.
[28]
The Defendant furthermore alleges that the Plaintiff is further
indebted to the Defendant in the amount of R73,186.83 for interest
and has a counterclaim against the Plaintiff in the said amount. From
the invoices it is apparent that a “safe custody annual
fee”
was also collected from the Plaintiff and it is stated that the
Plaintiff was entitled to the coins purchased in terms
of annexure
“
H
”
and “
I
”
subject to him complying with the usual and reasonable security
requirements.
[29]
Plaintiff also indicated that an amount of R58,760.00 was overpaid as
the payments made on 17 June 2016 to 12 May 2017 were
more than the
amounts owed to the Defendant for the coins purchased in terms of
annexure “
CVH3
”.
No explanation is given why the amount paid to the Defendant exceeds
the purchase price of the coins selected by
the Plaintiff. The
Defendant’s version however makes more sense. The amount
paid by the Plaintiff is not disputed
but the coins purchased are in
dispute. Mr Sham, the deponent to the opposing affidavit is the
general sales manager at the
Defendant and states that although Mr
Kruger was acting on behalf of the Defendant and dealt with the
Plaintiff, he has left the
employment of the Defendant. Mr Sham
states that as a general sales manager he is aware of all the
transactions pertaining
to this case. It is stated that due to
the Plaintiff’s failure to make payment timeously he was
released from the transactions
and received coins for the amount
already paid. Three credit notes, all dated 20 June 2017 were
issued and eventually, subsequent
to an agreement on the selected
coins, two further invoices “
H
”
and “
I
”
were issued to the value of R652,060.00.
[30]
From the facts disclosed it would be inappropriate to come to a
finding that the proposed defence is false. The Defendant’s
allegation that the total payments contended by the Plaintiff were
indeed received by the Defendant, albeit for different coins,
though
some seem to be the same, is credible, and if proved would support a
defence that is good in law. Stated differently
the Defendant
need not prove his defence on a preponderance of probabilities and
avoids summary judgment when he advances a reasonable
arguable and
triable defence.
[31]
The test for a
bona
fide
defence
in the condonation application is identical to that in the summary
judgment application. In the result the reasonable
prospect of
success the Defendant is required to show relates to the summary
judgment proceedings. Furthermore, the defects in
the application for
summary judgment amounts to the non-compliance of the provisions of
Rule 32(2) and it would be an injustice
to grant judgment in favour
of the Plaintiff.
[32]
Counsel were in agreement that, if I do grant condonation, I should
also dispose of the summary judgment application.
In the result the
following order is made:
1.
The late delivery of the opposing affidavit to the summary judgment
application is condoned.
2.
Defendant is given leave to defend the said action, the cost of the
summary judgment application
being reserved for determination by the
Trial Court.
_______________________
I VAN RHYN AJ
On
behalf of the
Plaintiff:
Adv P HEYMANS
Instructed
by:
ROSENDORFF REITZ
BARRY
On
behalf of the Defendant:
Adv. A WILLIAMS
Instructed
by:
LOVIUS BLOCK ATTORNEYS
[1]
Van
Aswegen v Kruger
1974 (3) SA 204
(O) at 205 C
[2]
Klipton
Industries Ltd v Kersten and Another
1995 (1) SA 182 (WLD)
[3]
South African
Breweries Ltd v Reigerpark Props (Pty) Ltd and Others
1992 (3)
SA 829
at 832 E - G
[4]
1976 (2) SA
297 (T)
[5]
1998 (4) SA
811
[6]
1976 (3) SA
89
(T) at 90 F – G
[7]
[1996] 1 B
All SA 426 (SE)
[8]
1997 (1) SA
476 (B)
[9]
2
nd
ed (1991)
[10]
1980 (3) SA 147 (T)
[11]
1964 (2) SA 327 (T)
[12]
Jeffrey v Andries
Zietsman (Edms) Bpk
1976 (2) SA 870
(T) 871 E - G
[13]
Oxford Advanced Learners
Dictionary of current English (1981) p862
[14]
Fischereigesellschaft
F Busse & Co Kommandit Gesellschaft v African Frozen Products
(Pty) Ltd
1967 (4) SA 105
(C) at 108
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at
422 - 423
[15]
2010 (5) SA 112
(KZP) at
122 F - I
[16]
(A260/2015)
[2016] ZAFSHC
157
[2016] 4 All SA 894
(FB (22 September 2016)
[17]
Standard Bank of SA
Ltd v Secatsa Investments (Pty) Ltd
1999 (4) SA 229
(C)