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[2017] ZALMPPHC 14
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Circle Seven Trading 546 CC v Diatla Investment Holdings Company and Another (3372/2016) [2017] ZALMPPHC 14 (29 June 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3372/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
CIRCLE
SEVEN TRADING 546 CC
PLAINTIFF/APPLICANT
And
DIATLA
INVESTMENT HOLDINGS COMPANY
1
ST
DEFENDANT / RESPONDENT
WAYNE
DERKSEN
2
ND
DEFENDANT/RESPONDENT
JUDGMENT
MANGENA
AJ
1.
The
applicant, Circle Seven Trading 546 CC instituted Legal proceedings
against Diatla Investment Holdings Company (Pty) Ltd, the
principal
debtor and Mr Wayne Derksen, the Surety.
2.
The
claim arises out of a written contract on the sale of land described
as Portion 4
(A
portion of portion 2)
of the Farm Touwfontein 528, Registration Division LQ, Limpopo
Province held by Deed of Transfer T149096/04.
3.
The
applicant alleges in the particulars of claim that the agreement
provided for the payment of the purchase price as follows;
3.1
R
2000 000.00 on the date of signature of the agreement.
3.2
An
amount of R 1 800 000.00 will be paid to the plaintiff in
twelve consecutive monthly payments of R 150 000.00.
3.3
An
amount of R 2 200 000.00 in respect of the balance will be
paid on the 1
st
day of the 13
th
Month from the date of signature of the agreement.
4.
It
was an express term of the agreement that the applicant will be
entitled to claim immediate payment of the total balance outstanding
in the event of default by the first Respondent to make payment as
per the agreed terms.
5.
It
was further alleged that the contract provided for the payment of
occupational rental in the amount of R 60 000.00 per month
in
the event of the First Respondent failing to make any payment
timeously.
6.
The
First Respondent, so the Applicant alleges, failed to make payment of
the initial payment of R 2000 000.00 and thereafter failed
to effect
any other payment timeously. As a consequence of the failure, to make
timeous payment, the Applicant is entitled to claim
occupational
rental from the First Respondent effective from 01 May 2013. The
Applicant fails to state in respect of which months
did the first
Respondent fail to effect payments. However a careful perusal of
annexure “POC2” to the particulars of
claim shows that
the applicant has been receiving payment. It is unclear whether the
payments made were towards the capital of
the purchase price or
occupational rental.
7.
Upon
receipt of the summons, the Respondents filed notices of intention to
defend. The Applicant brought an application in terms
of Rule 32 of
the Uniform Rules of the Court in which it applied for summary
judgment against the Respondents jointly and severally,
the one
paying, the other to be absolved for the payment of the following
amounts.
CLAIM
A
1.
Payment
in the amount of R 1 860 000.00 being the balance of the
purchase price.
2.
Interest
on the aforementioned amount at the rate of 10.50% per annum a
temporae morae.
3.
Costs
of suit.
4.
Further
and/or alternative relief.
CLAIM
B
1.
Payment
in the amount of R 1 860 000.00 in respect of occupational
rent.
2.
Interest
on the afore-mentioned amount at the rate of 10.50% per annum a
tempore morae.
3.
Costs
of suit.
4.
Further
and/or alternative relief.
8.
The
Respondents filed notices to oppose. The matter came before me as an
unopposed application on 06 June 2017. The Applicant’s
counsel
submitted that the application should be treated as unopposed in view
of the fact that the Respondents did not file their
opposing
affidavits as required by Rule 32(3)(b).
9.
Counsel
for the Respondents, Mr Seepamore and Advocate Marais submitted that
the matter is not ripe for hearing as the particulars
of claim are
excipiable. They could not however point out to me in what respects
are they excipiable. I also enquired from them
why did their clients
fail to file affidavits in which they raise exception as a defence to
the summary judgment. They could not
give an answer save to state
that the applicant was informed by Justice Muller on 30 January 2017
that summary judgment cannot
be granted due to the excipiability of
the summons and the particulars of claim.
10.
Counsel
for the Applicant, Mr Marx argued with some force that the submission
by counsel from the bar regarding the existence of
a defence to the
claim is of no significance and value when considered against the
requirements of Rule 32(3)(b) which states as
follows; -
(3)
Upon the hearing of an application for summary judgment, the
defendant may.
(a)
……………………
(b)
satisfy
the court by affidavit (which shall be delivered before noon on the
court day but one preceding the day on which the application
is to be
heard) or with the leave of the court by oral evidence of himself or
of any other 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.
11.
The
rule does not in my view allow any other form of satisfaction
regarding the existence of a
bona
fide
defence other than by way of affidavit or with the leave of the court
by oral evidence of the defendant himself or any other person
who can
swear positively to the fact that the defendant has a
bona
fide
defence. The position is stated by authors of Erasmus Superior Court
Practice, volume 2.
“
The
defence must be put before the court on affidavit and not merely
orally from the bar. Where all conditions have been fulfilled
by the
plaintiff entitling him to a summary judgment, a mere statement from
the bar that the defendant has a defence on the merits
without
stating what the defence is, is insufficient to stay judgment.”
12.
Mr
Seepamore conceded on behalf of the First Respondent that the First
Respondent admits liability to the Applicant in respect of
the
balance of the purchase price. He argued that the dispute between the
parties regarding claim A relates to the amount outstanding
and same
can be reconciled by the parties upon presentation of proofs of
payment. He submitted that there is a defence with regard
to the
amount in Claim B relating to the occupational rent.
13.
The
Applicant relies on a spreadsheet titled occupational rent attached
to the particulars of claim and marked annexure “POC3.”
The document is unidentifiable and does not explain of itself
sufficiently to constitute a liquid document, though it is accepted
that a claim for occupational rent is a claim for a liquidated amount
in money.
14.
Applicant’s
claim for occupational rent arises from paragraph 5.4 of the contract
which states;
“
Indien
die koper in gebreke sou bly enige betalingsverpligting te maak soos
uiteengesit in hierdie ooreenkoms sal die koper vanaf
datum van die
versuim aanspreeklik wees vir betaling van okkupasierhuur aan die
verkoper in die bedrag van R60 000.00 (sestig
duisend rand) per
maand, maandeliks vooruit betaalbaar voor of op die 1
ste
dag van elke opeenvolgende maand.”
15.
On
the basis of the above paragraph, Mr Marx argues the Respondents are
liable for payment of occupational rent from May 2013 in
that they
failed individually and collectively to pay the initial sum of R
2 000 000.00.
16.
I
do not understand clause 5.4 to mean that in addition to the monthly
payment of R 150 000.00 or the initial deposit of R
2000 000.00,
the First Respondent will be required to pay R 60 000.00 as
occupational rental once he defaults on either of
the two payments.
Counsels for the Respondents have taken point on this issue and
submitted that there is an error in calculation
and further that they
do not agree with the figures/calculations on “
POC2”
and “
POC3.”
They made issue on the fact that the figures are on the letterhead of
Hannetjie Loots, a Psychologist.
17.
I
have considered the documents in their totality and my view, nothing
really turns on it. It is clear from the contract itself
that Ms
Hannetjie Loots is a member of the Applicant CC and this fact is
confirmed under Oath in the affidavit deposed in support
of the
summary judgment application.
18.
It
is an accepted principle of our law that summary judgment proceedings
are not and never have been intended as a forum for the
resolution of
factual disputes. A trial is the proper forum for that process,
either because the nature of the relief presupposes
a trial or
because affidavits are not suitable for that purpose.
(Grove
v Nedbank (A3050/14) [2014] ZAGPJHC 330.
[1]
19.
In
this regard I align myself with the views expressed in
Shepstone
v Shepstone, 1974 (2) SA 462 (N)
[2]
where the court held that:
“
The
Court will not be disposed to grant Summary Judgment where giving due
consideration to the information before it, it is not
persuaded that
the plaintiff has an unanswerable case.”
The
same views were stated by Navsa JA in
Joob
Joob Investments v Stocks Mavundla Zek, 2009 (5) SA
[3]
1 at paragraph 31 when he said:-
“
The
Summary Judgement procedure was not intended to shut a defendant out
from defending, unless it was very clear indeed that he
had no case
in the action. It was intended to prevent sham defences from
defeating the rights of the parties by delay and at the
same time
causing great loss to plaintiff’s who are endeavouring to
enforce their rights.”
20.
In
the circumstances and after a careful consideration of the facts
placed before me, I am not persuaded that the Respondents have
a
valid defence in respect of claim A.
21.
Summary
Judgment is granted against the First and Second Respondents jointly
and severally, the one paying the other to be absolved
as follows;-
1.
Payment
of
R
1 860 000.00
in respect of the balance of the purchase price.
2.
Interest
on the Capital amount at the rate of
10.50%
per annum a
tempore
morae
.
3.
Costs
of the summary judgment application.
4.
Defendants
are granted leave to defend the claim in respect of the occupational
rent.
_____________________________
MANGENA AJ
ACTING JUDGE OF
THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATIONS:
1.
On
behalf of the Plaintiff/Applicant
: Mr Franco Marx
Instructed
by
: Ettiene Rossouw Attorneys
C/o
Franco Marx Attorneys
2.
On
behalf of the 1
st
Defendant/Respondent : Mr SG Seepamore
Instructed
by
: Kekana Attorneys
C/o
SD Phoshoko Attorneys
3.
On
behalf of 2
nd
Defendant/Respondent : Adv C
Marais
Instructed
by
: Du Toit Wolhurter Attorneys
C/o
Badenhorst Attorneys
4.
Date
of hearing
: 06 June 2017
5.
Date
handed down
: 29 June 2017
[1]
A3050/14)
[2014] ZAGPJHC 330
[2]
1974 (2) SA 462
CN
[3]
2009 (5) SA 1
at paragraph 21