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[2017] ZAGPPHC 25
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Sekgala v Steve's Auto Clinic (Pty) Ltd and Others (56238/2016) [2017] ZAGPPHC 25 (3 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 56238/2016
3/2/2017
Reportable:
Yes
Of
interest to other judges: No
Revised.
In
the matter between:
RAMMUTLANA
BOELIE
SEKGALA Plaintiff
and
STEVE'S
AUTO CLINIC (PTY)
LTD 1
st
Defendant
STEVE'S
AUTO CLINIC KYALAMI (PTY)
LTD 2
nd
Defendant
MARINUS
DU PREEZ
KUYL 3
rd
Defendant
ANDRE
VISSER 4
th
Defendant
ROELOFF
FREDERICK
BOTHA 5
th
Defendant
STEPHEN
PAUL
BOTHA 6
th
Defendant
JUDGMENT
Carrim
AJ
Introduction
[1]
This is an application for leave to be granted against my refusal to
grant summary judgment in favour of the plaintiff.
[2]
The plaintiff, Mr Sekgala is unrepresented. He argued the application
for summary judgment as well as this application for leave
to appeal
himself. Due to the fact that the plaintiff is a lay litigant I
deemed it appropriate to set out the background to this
matter in
some detail.
Background
[3]
The core facts of this case are that the plaintiff bought a second
hand Jeep ("the vehicle") and took it to Steve's
Auto
Clinic Kyalami (Pty) Ltd (the second defendant) for repairs during
February 2013. I will refer to the second defendant as
Steve's for
ease of convenience. There is some doubt as to whether the first
defendant in fact exists, a matter which is elaborated
on later in my
judgment.
[4]
Steve's provided the plaintiff with a quotation to rebuild the
vehicle's engine for R55 000.00 the price being subject to revision
after the engine was stripped. Further work was done on the vehicle,
including the replacement of the prop shaft, the battery,
servicing of the alternator, replacement of the water-pump and clutch
kit, an inspection service and the installation of a boot
lock.
[5]
On 10 April 2013, the plaintiff paid the cost of repairs to date
being R 82 500.00 and on 26 April 2013 he paid a further R3
420.00.
He took possession of the vehicle but returned it on 3 May 2013 on
the basis, as appears only from email correspondence
that the "CHECK
ENGINE" light was back on the dashboard and that he was not
confidant doing any long distance driving
until the problem had been
resolved.
[6]
Sometime in July 2013 Steve's advised the plaintiff that it was not
able to fix the problem and that it might be best that he
contact a
company called American SUV in Centurion for assistance as they
specialise in these types of vehicles. Plaintiff being
upset about
this demanded a refund of the total amount of R85 920.00. He advised
Steve's that he would approach the National Consumer
Commission or
the courts to enforce his rights in the event that he did not receive
the refund.
[7]
The plaintiff then issued summons against first to sixth defendants
on 16 July 2016 claiming the amount of R85 920.00, together
with
interest thereon.
[8]
The defendants filed a notice of intention to defend on 26 July 2016.
[9]
The plaintiff launched an application for summary judgment in terms
of Rule 32 (1) on 16 August 2016 and relied on his particulars
of
claim in his affidavit in support of the summary judgment
application. The matter was set down for hearing on 19 September
2016. The defendants filed an opposing affidavit on 15 September 2016
via email at 2.13 pm, some two hours later than provided for
in Rule
32 (3).
[10]
At the hearing of the summary judgment application, the defendants'
representative sought condonation of the late filing of
the opposing
affidavit after the plaintiff raised a complaint about it. Plaintiff
was insistent that an application for condonation
ought to be brought
formally and that the defendant should seek a postponement of the
matter to do this. After hearing the parties,
I granted condonation
in light of the fact that the opposing affidavit was filed a mere two
hours late, the plaintiff being aware
prior to the hearing that the
matter would be opposed and to avoid any inconvenience and costs
occasioned by a postponement.
[1]
[11]
After hearing both parties I dismissed the application, effectively
granting the defendants leave to defend the main action
but made no
order as to costs.
[12]
In his application papers for leave to appeal, the plaintiff
complained that reasons were not furnished for my order. None
were
requested by him. Nevertheless the reasons for my refusal to grant
summary judgment become abundantly clear further on when
Iassess the
merits of this application.
Application
for leave to appeal
[13]
The plaintiff's main grounds for seeking leave to appeal were that
the application for summary judgment was in compliance with
all the
requirements of Rule 32 (1) and that condonation ought not to have
been granted to the defendant. He was entitled to an
order granting
him summary judgment on this basis alone. Further grounds advanced by
him, seemingly, were that he was not afforded
a fair hearing as the
defendant ought to have brought a formal condonation application or
an application to postpone the summary
judgment application.
[14]
The defendants, represented by Mr Geach SC, raised a point
in
limine
in
opposition to the application for leave to appeal. Mr Geach argued
that the refusal to grant summary judgment is not appealable
due to
the fact that it is interlocutory in nature. In support of this he
relied upon the seminal case of
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) where the Court held that
"generally
speaking a non-appealable decision (ruling) is a decision which is
not final (because the court of first instance
is entitled to alter
it) nor definitive of the rights of parties nor has the effect of
disposing of at least a substantial portion
of the relief claimed in
the main proceedings".
[2]
[15]
This, he stated, was confirmed in
Polliack
& Co
Ltd v
Pennick
1936
TPD
167.
In the recent case of
Kgatle v
Metcash Trading Ltd
2004 (6) SA 410
(T) an appeal against the
refusal to grant summary judgment was allowed but only because it
concerned an order of security for
costs. Even in that case, the full
bench (at para 416) observed that
"If the Court a quo had
simply refused summary judgment that would, of course, not have been
appealable".
[16]
His view was that on this basis alone the application ought to be
dismissed, with costs.
[17]
The plaintiff conceded that the refusal to grant summary judgment is
interlocutory in nature but argued that the common law
as stated in
Zweni
had
developed to such an extent that interlocutory orders were appealable
in exceptional circumstances or in the interests of justice.
In
support of this contention, he relied on the constitutional cases of
National
Treasury
&
Others v
Opposition to Urban Tolling Alliance
&
Others
[3]
and in
South
African Informal Traders
&
Others v
City of Johannesburg
&
Others.
[4]
[18]
Mr Geach in reply submitted, without more, that there were no
exceptional circumstances present in this case that warranted
granting leave to appeal.
Assessment
[19]
A refusal to grant summary judgment, unlike a decision to grant
summary judgment, is indeed a decision (whether it is referred
to as
a ruling or an order) that is not final. It is neither definitive of
the rights of the parties nor does it have the effect
of disposing of
at least a substantial portion of the relief claimed in the main
proceedings. If this was viewed through the lens
of
Zweni
as
argued by the defendants then a refusal to grant summary judgment
would not be appealable.
[20]
However the common law since
Zweni
has developed in accordance
with constitutional principles.
[21]
In
South
African Informal Traders
&
Others
v
City of
Johannesburg
&
Others
Moseneke
ACJ (as he was then) in considering whether the Constitutional Court
ought to hear an appeal against an interim order of
the South Gauteng
High Court,
[5]
relied upon the
provisions of section 167 (6) of the Constitution and concluded that
the Constitutional Court has a wide appellate
jurisdiction on
constitutional matters.
[6]
Provided a dispute related to a constitutional matter there was no
general rule that prevented that Court from hearing an appeal
against
an interlocutory decision such as the refusal of an interim
interdict. Thus the first criteria for consideration would
be whether
or not the dispute raised a constitutional matter. However even if
the dispute raised a constitutional matter an interlocutory
decision
would be appealable only if the interests of justice so demand.
[7]
Thus the Court would not hear an appeal against an interlocutory
order without more, especially because such decision is open to
reconsideration by the court that had granted it and
"[d]oing
so would be an exception".
[8]
[22]
In summary, the Constitutional Court while acknowledging that it has
a wide appellate jurisdiction, has stated that it would
only exercise
it in relation to interlocutory orders (in disputes where a
constitutional matter is raised) in exceptional circumstances
and
only when the interests of justice so demand. In making the
assessment whether the interests of justice demand that the Court
should hear an appeal against an interim order, the Court would have
regard to and weigh carefully all the relevant circumstances
of a
case and these would vary from case to case.
[9]
[23]
In paragraph 20 of that judgement the Court listed a collection of
factors that it has developed as a guideline to assist in
assessing
whether the interests of justice demand that it exercise its
appellate jurisdiction in relation to interlocutory orders
some of
which include-
23.1. The kind and
importance of the constitutional issue raised;
23.2. whether irreparable
harm would result if leave to appeal was not granted;
23.3. whether the interim
order has a final effect or disposes of a substantial portion of
relief sought in a pending review;
23.4. whether there are
prospects of success in the pending review; and
23.5. whether allowing
the appeal would lead to piecemeal adjudication and prolong the
litigation or lead to the wasteful use of
judicial resources or legal
costs.
[24]
While in that matter the Constitutional Court was concerned about its
appellate jurisdiction in a dispute that raised serious
constitutional questions, the guidance provided by the SCA in
Nova
Property Group Holdings v Cobbett,
[10]
enjoins
us to consider the interests of justice when considering whether an
appeal against an interlocutory order ought to be granted.
In that
case the SCA stated that the test in
Zweni
should
be looked through a constitutional lens and that the interests of
justice ought to be a paramount consideration when deciding
whether
an interlocutory order is appealable. When considering the interests
of justice however, each case must be decided on its
own facts.
[11]
[25]
In
Nova,
the
court relying on s17 (1) of the Superior Courts Act decided to grant
the appeal in relation to the discovery of documents, on
the basis
that there were four conflicting judgments on the proper
interpretation of s26 (2) of the Companies Act, the matter raised
a
constitutional issue and that the appeal would lead to a just and
prompt resolution of the real issues between the parties.
[12]
[26]
Section 17 (1) of the Superior Courts Act provides-
(1) Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that
-
(i)
the appeal would
have a reasonable prospect of success; or
(ii)
there is
some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
[27]
The provisions of both s17 (1) (i) and (ii) are factors that would
certainly fall within the rubric of the interests of justice
approach
as outlined by the Constitutional Court and the SCA in
Nova
in
relation to interlocutory orders.
[28]
Turning to the facts of this case and having regard to the guidance
provided by the Constitutional Court and the SCA, it is
patently
clear from the papers that this dispute raises no constitutional
issue and the plaintiff has not argued that it does.
There are no
conflicting judgments in relation to a matter of satutory
interpretation. Furthermore, no irreparable harm has been
caused to
the plaintiff by the order refusing him summary judgment simply
because he is not precluded from persisting with his
claim in the
main proceedings.
[29]
In my view the only two relevant factors when assessing the interests
of justice test, on the facts of this case, would be
first to
consider whether the plaintiff has reasonable prospects of success on
appeal, and second whether allowing the appeal would
lead to
piecemeal adjudication and prolong the litigation or lead to wasteful
use of judicial resources or legal costs.
[30]
I turn to consider these below.
[31]
It bears emphasis that this matter concerns a dispute between two
private parties in relation to repairs done on a second hand
motor
vehicle, namely a Jeep SUV.
[32]
To provide context; I summarise the plaintiff's particulars here.
Plaintiff's claim is articulated as three causes of action:
32.1. The first is
described as a repudiation by the defendant of the contract between
it and the plaintiff in terms of which it
was agreed that Steve's
would fix the plaintiff's vehicle in respect of excessive smoking and
grinding noises, that upon successful
completion of the repairs to
the vehicle the defence would demand from plaintiff payment of an
amount of R55 000.00 and that upon
demand for payment of R55 000.00
plaintiff will be obliged to pay the defendant. On plaintiff's
version the car was not fixed,
Steve's had repudiated the contract
and plaintiff has suffered damages in the amount of R85 920,00
32.2. The second cause of
action, offered as an alternative claim to the first but against the
second to sixth defendants, appears
to relate to fraudulent
misrepresentation. Plaintiff claims that the first defendant was not
a validly registered company with
CIPC and that its use of the name
Steve's Auto Clinic (Pty) Ltd was unlawful. Moreover as it was not a
juristic person the warranty
that it offered at the bottom of its
invoice was invalid. It is further alleged that the first and second
defendant's names are
confusingly similar and that the third to sixth
defendants, being the directors of the second defendant, are
prima
facie
responsible for the confusion. This confusion was done with
the intention of misleading the unsuspecting public one of which was
the plaintiff.
32.3. The third ground,
offered as a "second case" is articulated as a case
concerning VAT fraud. Here it is alleged that
the first defendant is
using Steve's VAT number fraudulently. The third to sixth defendants
have therefore conducted the affairs
of the first and second
defendant recklessly and/or fraudulently in contravention of the
Companies Act 71 of 2008
and therefore personally jointly and
severally liable for the plaintiff's claim.
[33]
Rule 32(
1
) states:
(1) Where the
defendant has delivered notice of intention to defend, the plaintiff
may apply to court for summary judgment on each
of such claims in the
summons as is only-
(a)
on a liquid
document;
(b)
for a
liquidated amount in money;
(c)
for delivery
of specified movable property; or
(d)
for
ejectment; together with any claim for interest and costs.
[34]
The plaintiff claims that the amount of R85 9200.00 is a liquidated
amount for purposes of this Rule. He relies on three documents
in
support of this claim. The quotation of R55 000,00 (dated 7 February
2013) related to an "engine rebuild". The subsequent
invoice dated 8 February 2013 for R82 500.00 details the supply and
fit of a reconditioned engine and then a number of other items
such
as a front prop-shaft, a diesel pump, a recon injector, a battery, an
alternator, a water-pump and a clutch kit. A further
invoice dated 25
April 2013 for R3 420.00 relates to a first inspection service and
the installation of a boot lock.
[35]
A claim contemplated in
Rule 32(1)
(b) is liquidated if it is
contained in a liquid document, if it is admitted or if the monetary
value thereof has been ascertained
or is susceptible of prompt
ascertainment.
[13]
None of the
documents relied upon by the plaintiff are liquid documents in the
nature of negotiable instruments, bills of exchange,
cheques or
promissory notes. More importantly they do not serve to support the
claim that the
defendants
are liable to the plaintiff for the payment of the amount of R85
920.00. Instead they support only the inference that the
plaintiff
is liable for the amounts listed in those invoices. Based on these
documents the amount claimed by the plaintiff is not liquidated.
[36]
Is the liquidated amount capable of being promptly ascertained? The
only allegation made by the plaintiff is that the vehicle
was not
repaired as was agreed between him and Steve's. The document he
attaches in support of this is a copy of an email dated
2 May 2013
sent by the plaintiff to the branch manager of the second defendant,
in which he complains that the "CHECK ENGINE"
light was
back on and that he was concerned about this. Nothing more is alleged
or attached by the plaintiff to assist the Court
to ascertain which
of the the many items listed in the three invoices put up by him
relate to this problem. Nor does he explain
which of the parts
provided by Steve's (such as the battery, the diesel pump, the
water-pump, the prop-shaft, the boot lock) are
in themselves
defective so as to justify his claim of R85 920.00.
[37]
The plaintiff has not attached any confirmatory documentation, either
in the form of an assessment by American SUV who specialise
in this
type of vehicle (and to whom he was referred to by Steve's) or a
quote by another reputable motor repair firm, to elucidate
in which
respects the vehicle was not fixed and in support of the inference
that the defendants were liable for this failure.
[38]
The amount therefore cannot be promptly ascertained without the
adducing of further evidence.
[39]
Furthermore the terms of the alleged contract between him and Steve's
were not
ex facie
the documents absolutely clear. Evidence
would have to be adduced as to whether the contract between him and
Steve's was limited
to rebuild the engine (as contemplated in the
quotation dated 7 February 2013) or whether it extended to rebuilding
of the entire
car as suggested by the invoices dated 8 February 2013
and 25 April 2013.
[40]
In summary the plaintiff's own papers in support of the application
for summary judgment did not comply with the requirements
of
Rule 32
(1). His application was not based on a liquid document, nor was it
for a liquidated amount. Furthermore the amount claimed was
not
capable of prompt ascertainment. Accordingly the summary judgment
application was not brought validly and was likely to have
failed,
irrespective of whether defendants had a
bona fide
defence or
not.
[41]
The facts above serve to support the conclusion that the plaintiff
would not have reasonable prospects of success on appeal.
This
conclusion is further supported by the fact that the defendants in
their opposing affidavit did indeed demonstrate that they
have a
bona
fide
defence.
Once there is a showing of a
bona
fide
defence
by a defendant the plaintiff is not entitled to summary
judgement.
[14]
[42]
In their opposing affidavit the defendants put up facts which suggest
that the resolution of the dispute between the parties
would require
further evidence to be adduced. In paragraphs 15 - 17 of the opposing
affidavit, the defendants explain the items
listed on the invoice
dated 8 February 2013 for R82 500.00. The first item for R53 240.00
was the supply and fit of a reconditioned
engine in accordance with
the quotation given to the plaintiff on 7 February 2013. The
remaining items (items 3-10) on this invoice
related to the
additional work that was done for the plaintiff and do not form part
of the supply and fit of the reconditioned
engine at all. The last
invoice was for a service done on the car and the installation of a
boot lock at the request of the plaintiff.
In relation
to
the
"CHECK ENGINE" problem, the plaintiff was advised to
approach American SUV Centurion directly because Steve's would
have
in any event sent the vehicle to them.
[43]
The defendants also raised a number of points
in limine.
The
first is that the plaintiff has no
locus standi,
the second
that the plaintiff's particulars of claims are excipiable, the third
that the plaintiff is in the wrong forum (the matter
should be
transferred to the Magistrate's Court due to the fact that the amount
claimed is within the jurisdiction of that court)
and fourth that
there is an inherent fatal contradiction in the different claims
(cases/grounds) alleged by the plaintiff.
[44]
In relation to the first point
in
limine
the
defendants point to the fact that the plaintiff had lodged a
complaint with the National Consumer Commission (NCC) who has already
approached them. The relevant documents sent by the investigation
division of the NCC are attached to the opposing affidavit. That
process is still underway. The defendants allege that because the
plaintiff has elected to approach the NCC, he is not entitled
to
approach this court unless he has exhausted all other remedies
available to him in national legislation as provided for in section
69 of the Consumer Protection Act.
[15]
No explanation was provided by the plaintiff as to whether he has
exhausted his other remedies through the NCC or the relevant
industry
ombudsman. Notably, as appears from the NCC papers attached to the
opposing affidavit, Steve's has repeatedly requested
that the
plaintiff identify in which respects the vehicle has not been
repaired so as to enable them to seek to rectify any defect
that may
fall within the warranty offered by them. On the defendants version
that information to date has not been provided.
[45]
Thus the plaintiffs claims as alleged in his particulars of claim
stand to be challenged by the defendants and they do indeed
have a
bona fide
defence.
[46]
In relation to plaintiff s second and third grounds, these can hardly
be said to fall within the ambit of Rule 32 (1).
[16]
In any event the documents put up by the plaintiff, namely the three
invoices, upon which he relies for his damages claim in respect
of
these further grounds do not support a claim for a liquidated amount
for purposes of Rule 32 (1).
[47]
As far as the status of the first defendant is concerned, Mr Stefan
Botha on behalf of the defendants explains that the entity
cited as
the second defendant Steve's Auto Clinic Kyalami (Pty) Ltd often uses
the shortened name Steve's Auto Clinic or Steve's
Auto Clinic (Pty)
Ltd (cited as the first defendant) on its documents. As such Steve's
Auto Clinic (Pty) Ltd does not exist.
[17]
Conclusion
[48]
In conclusion, the plaintiff's application in terms of Rule 32 (1)
was defective and the defendants were able to show that
that they had
a
bona fide
defence. In light of this, the plaintiffs
prospects of success on appeal would be weak if not entirely absent.
It would therefore
not be in the interests of justice to grant the
plaintiff leave to appeal. Allowing the appeal would only lead to
piecemeal adjudication
and would result in a wasteful use of judicial
resources and unnecessary legal costs.
[49]
The plaintiff is not precluded from litigating the matter further and
enjoying access to the Courts to pursue his claims.
Costs
[50]
Having concluded that the application ought to be dismissed, I turn
now to consider the issue of costs. The general principle
is that
costs follow the suit. Mr Geach argued that costs should be awarded
on the High Court scale.
[51]
A successful litigant ought not to be deprived of any of its
costs.
[18]
At the same time
the issue of costs are at the discretion of the Court.
[19]
[52]
Although the plaintiff has less costly remedies available to him and
he might have served himself better by pursuing these,
I take into
account that the plaintiff is unrepresented and that the magnitude of
this case hardly warranted the appearance of
senior counsel.
Order
[53]
The application for leave to appeal is accordingly dismissed with
costs, such costs to be on the Magistrate's Court scale.
DATED
AT 3 FEBRUARY 2017
_____________________________
Y
CARRIM
Acting
Judge of the High Court
Gauteng
North, Pretoria
Date
of Hearing: 7 December 2016.
Judgment
delivered on: 3 February 2017.
APPEARANCES:
For
the plaintiff: Appeared in person.
For
the defendant: Adv B P Geach SC instructed by Rina Rheeden Attorneys.
[1]
See also 13.23 Practice Manual of the North Gauteng High Court.
[2]
531H-533F.
[3]
[2012] ZACC 18.
[4]
[2014] ZACC 8.
[5]
The court had to also consider whether it would hear a direct appeal
on an urgent basis but this is not relevant for purposes
of this
decision.
[6]
Para 17.
[7]
Para 17.
[8]
Ibid.
[9]
Para 20.
[10]
[2016] ZASCA 63.
[11]
Para 8.
[12]
Para 10.
[13]
Van Niekerk et al Summary Judgement: A Practical Guide 1998
Butterworths 3-5.
[14]
Mirage v Barclays National Bank 1976 (1) 418 AD and Breitenbach v
Fiat SA
1976 (2) SA 226
(T) at 228 A-B.
[15]
Act 68 of 2008
[16]
See in general Van Niekerk et al Summary Judgement: A Practical
Guide 1998 Butterworths.
[17]
Results of a CIPC search conducted by the defendants were attached
in support of the fact that there is only one registered entity
namely Steve's Auto Clinic Kyalami (Pty) Ltd.
[18]
Feinstein & another v Taylor
1962 (2) SA 54
(W) at 568-C.
[19]