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[2017] ZAGPPHC 824
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Parisan Express Trading 101 Inc v Monte Villas Body Corporate (A214/16, A213/16) [2017] ZAGPPHC 824 (5 May 2017)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: A214/16
&
A213/16
In
the mat.ter between:
PARISAN
EXPRESS
TRADING 101
INC
Appellant
Lesedi
Trading 102
and
MONTE
VILLAS BODY
CORPORATE
Respondent
JUDGMENT
MAKHUBELE
AJ
Introduction
[1]
This is an appeal against the judgment of Magistrate Von Reiche
in the Magistrate's Court Pretoria on 23 February 2016
in terms of
which summary judgment was granted in favour of the respondent
for payment of an amount of R96 214.46 with
interest at the rate of
15% per annum and costs on a scale of attorney and
client.
[2]
The issue arising from this appeal is whether the Magistrate was
correct in his findings that the affidavit that was
filed
by the appellant to resist summary judgment application did not
disclose a
bona fide
defence.
[2.1]
This appeal was heard together with the appeal in
case number
A213/2016
in the matter between Lesedi
Trading 102 CC and
Monte Vlllas's Body Corporate.
The respondent (Plaintiff in the
main action in both appeals) is one and the same entity. Except
for the identity of the appellants
(Defendants in the main action),
and the Unit number in the Sectional Title Scheme, the cause of
action and the amount of the debt
is the same. The opposing affidavit
and defences raised in both matters is actually a
duplicate of the one filed
in the other matter. The
matter came before the same Magistrate and the
judgments are the same,
word by word.
The
same attorneys in both this appeal and at the Magistrate's Court
hearing represented the appellants.
Both
counsel conceded during argument that these matters should have long
been consolidated. They also agreed that the judgment
in one matter
would hold for the other matter.
[3]
The appeal was not prosecuted timeously and in terms of the
Rules of Court. An application for condonation in this regard
was
subsequently filed and heard together with the merits of the
appeal. The application for condonation was apparently
filed as
result of an application by the respondent to declare
the appeal as having lapsed. The latter
application
was not placed before us, and was only mentioned during argument
for a cost order.
[4]
It is common cause that the respondent is body corporate as
contemplated in the
Sectional Titles Act, No.95 of 1986
, as amended
(“the Act”). It is responsible for management of the
affairs of the Sectional Title Scheme known as Monte
Villas, situated
at 2 Rooihuiskraal Street, Amberfield, Rooihuiskraal Ext. 17,
Pretoria, Gauteng Province.
The
appellant is the registered owner of Unit Number 2 in that Sectional
Title Scheme.
[5]
It is also common cause that the registered owners of the Units are
bound by the Conduct Rules that have been duly adopted
in
terms of Section 35 of the Act. As a registered owner, the appellant
is obliged to pay all levies raised by the respondent on
a monthly
basis together with charges relating to electricity.
In
terms of Conduct Rule 30, levies are payable on the first day of each
and every month and failure to pay the amount due timeously
or at all
may result in the matter being handed over to an attorney
for collection.
In
terms of Conduct Rule 31(2), the respondent is entitled to raise and
collect levies from the registered owners and on failure
to pay the
levies, to cause letters of demand to be sent to defaulters. If
the amount is not paid, the matter is referred
to attorneys for
collection.
[6]
The amount payable by each registered owner is determined on an
annual basis and recorded in the approved budget schedule and
levy
schedule. These documents are provided to registered owners as and
when the schedules are revised. The budget and levy schedules
are
approved or ratified by owners at the annual general meetings.
[7]
The amount of the levy payable by each unit owner is determined by
taking into account the extent of the unit, the replacement
value as
well as the percentage participation quota.
The
schedules for the years 2012/2013, 2014/2015 and 2015/2016 were
attached to the summons as annexures "D3", "D6"
and "D9" respectively.
In
terms of these schedules, the monthly levy that was determined for
Unit 2 is as follows;
(a)
R1 823.21 in 2012,
(b)
R2042.35 in 2013, (c) R2214.34 in 2014,
(d)
R2 214.34 in 2015 and;
(e)
R2 2543.77 in 2016.
[7]
The levies raised and imposed against the appellant between September
2012 and September 2015 totaled R96 214.46. This amount
was debited
to the appellant's account as set out and
computed on the reconciliation of account that
was attached to
the summons as Annexure "F".
[8]
In the summons, the respondent claimed payment of this amount that it
alleged was due and payable and that despite demand, the
appellant
has refused to pay.
[9]
The appellant filed a notice of intention to defend the action;
whereafter the respondent filed an application for summary judgment.
The appellant filed an affidavit to oppose the summary judgment
application and raised certain defences that I will revert to later
in this judgment.
[10]
Rule 14(3) (b) of the Magistrate's Court Rules reads as follows;
“
(3)
Upon the hearing
of on
application
for
summary judgment the
defendant may-
(a)
give
security
to the plaintiff to the
satisfaction
of
the registrar or clerk of the
court
for any
judgment
including
costs
that may be given; or
D
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
herself
or of any other
person
who
can swear
positively to the
fact
that defendant
has a bona
fide
defence
to
the
action, and such
affidavit or evidence shall
disclose
fully the nature
and grounds
of the
defence and
the
material
facts
relied
upon
therefor.
D"
[11]
This Rule is a mirror of the High Court 's Rule 32(3) of the Uniform
Rules of Court.
The
opposing affidavit filed and defences raised by
the appellant to resist summary judgment.
[12]
The affidavit filed by the appellant to resist summary
judgment and the defences raised therein should be
considered in accordance with the general principles on
summary judgment that I will discuss later on in
this
judgment.
[13]
In the opposing affidavit, the appellant denied that it was indebted
to the respondent in the amount claimed, or any amount
at all was. It
also denied that it had no bona fide defence to the claim.
In
paragraph 4 thereof, reference was made to what is alleged to be
various court applications and actions that were instituted
by the
respondent against the appellant between 2009 and 2013.
These actions/ applications were alleged to be
"pendent lite"
They
are;
[13.1]
Summons were issued in 2009 for payment
of a sum of money. Default judgment that was obtained
was later
rescinded because the appellant did not receive the
summons. The action has not been withdrawn.
No
further details were provided about this matter despite an
undertaking in the affidavit that the court papers would be
discovered
for purposes of trial.
[13.2]
The respondent brought an application to liquidate the
appellant in the High Court Pretoria under case number
24725/2012 on
the grounds of its inability to pay its debts in the normal
course of business. The application is being opposed
and the
respondent has taken no further steps, nor has the application been
withdrawn.
[13.3]
Another liquidation application was launched under case number
6175/2013 on the same grounds as the previous one. It is also
being
opposed and the respondent has not taken further steps, nor has the
application been withdrawn.
[13.4]
There is an ongoing dispute between the
parties with regard to the amount charged by the respondent
and other
management issues. The respondent has refused to
entertain the complaints raised by the appellant but has
opted to
intimidate and harass the appellant. Furthermore, the respondent has
abused the due process of law , thereby causing the
appellant to
incur unnecessary legal costs.
[13.5]
In paragraph 6 of the Opposing affidavit, theappellant;
(a)
disputes the amount that is allegedly owed.
(b)
alleges that it has been paying rates and taxes to the
municipality and the respondent is
making the same charges.
(c)
alleges that the respondent has refused to provide annual financial
statements for the period
2008 to 2009 and does not inform it of its
annual general meetings.
(d)
alleges that the respondent does· not provide certain services
like cutting of grass, fixing
the roof, dustbin, repairing of
broken pillars.
(e)
alleges that it is unable to determine its liability to the
respondent because the latter is refusing
to resolve the dispute
between the parties.
The
findings of the Magistrate
[14]
The Magistrate gave reasons in response to a request for
written reasons in terms of Rule 51(1) and
stated the
following;
[14.1]
No relevance could be found on the previous matters
between the parties that were listed
in
paragr11-ph 4 of the affidavit
opposing summary judgment.
[14.2]
The amount claimed by the respondent for
arre11-r levies is not specifically disputed
but
generally denied on the basis that
certain services have not been
properly rendered to the appellant and that the
appellant has paid rates and taxes
directly
to the municipality.
[14.3]
The appellant has failed to satisfy
the court that it has a bona fide
defence .
Reference was made to the case of Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) . The relevance of this case is that a
defence raised must not be needlessly
bald,
vague or sketchy.
[14.5]
No e of the grounds raised in the opposing affidavit
constitute a bona fide defence.
The
Magistrate interrogated some of the issues raised in the affidavit
in this regard. For example,
lack
of proof that the alleged disputes were
raised with the
Body Corporate
and payments made to the municipality as alleged .
Legal
principles on summary Judgments
[15]
In the matter of
Joob
Joob Investments (Pty) Ltd v Stocks Mannella Zek Joint Venture
[1]
, Navsa JA
[2]
restated
the origin and principles of summary judgment and cautioned about the
labeling of summary judgment as "extraordinary"
.
"29]
A summary judgment procedure was first introduced into our practice
by the Magistrate's Court Act of 1917. It was based
upon a procedure
introduced in England by Order XW under the Judicature Acts whereby a
plaintiff was able, by means of a
summary proceeding, to obtain
a final judgment when there was no bonafide defence
to an
action,l6
[30]
In John Wallingford v The Directors
&c.
of
The
Mutual Society
(1880)
AC
685
(HL) at
699-700,
Lord Hatherley
referred to the objects of the
new
English procedure as
follows:
'I
apprehend that from the first the objects of these short methods of
procedure
has
been to prevent unreasonable delay, a delay
which was very prejudicial to the creditors, and never, I am afraid,
or rather, I am
pleased to say, can have been very beneficial to the
debtor himself. Simply allowing legal proceedings to take place,
in
order that delay may be applied to the administration of justice
as much as possible, is not an end for which we
can
conceive the Legislature to have framed tile
provisions
which now exist under the several Judicature Acts. if a man really
has no defence,
it is
better for him as well as
his creditors, and for all the parties concerned, that the matter
should be brought to an issue as speedily
as possible; am therefore
there was a power gir1en in cases in which plaintiffs might think
they were entitled to
use
the power by which, if it was a
matter of account, an account might be immediately obtained upon the
filing of a bill, or, if it
was a matter in which the debt was clear
and distinct, and in which nothing was needed to be said or done to
satisfy a Judge that
there was no real defence to the action,
recourse might be had to an immediate judgment and to
an
immediate execution.'
[31]
So too in South Africa, the summary judgment 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 parties by delay, and at the same time causing great
loss to plaintiffs who were endeavouring
to enforce their
rights.l7
[32]
The rationale for summary judgment proceedings
is
impeccable.
The procedure
is
not intended to deprive a defendant with a
triable issue or a sustainable defence of her/his day in court.
After almost a
century of successful application in our courts,
summary judgment proceedings can hardly continue to be described as
extraordinary.
Our
courts,
both of first instance and at
appellate level, have during that time rightly been trusted to ensure
that a defendant with a triable
issue is not shut out, In the
Maharaj case at 425G-426E, Corbett JA, was keen to ensure
first, an examination of whether
there has been sufficient disclosure
by a defendant of the nature and grounds of his defence and the facts
upon which it is founded.
The second consideration is
that the defence so
disclosed
must
be both bona fide
and good
in
law. A court which
is
satisfied that this threshold
has
been
crossed is
then bound to refuse summary judgment.
Corbett JA
also
warned against requiring of a defendant the
precision apposite to pleadings. However, the learned judge was
equally astute to ensure
that recalcitrant debtors pay what
is
due to a creditor.
[33]
Having regard to
its
purpose and
its
proper
application, summary judgment proceedings only hold
terrors and are 'drastic' for a
defendant
who
has
no defence. Perhaps the time has come to discard these
labels and to concentrate rather on the proper application of the
rule,
as
set out with customary clarity and
elegance by Corbett JA in the Maharaj case at 425G-
426E.
[16]
In
the matter of
Di
Savino v Nedbank Namibia Ltd
[3]
,
the appeal court, per Ngcobo AJA considered the principles of summary
judgment, in particular the issue of whether the failure
of the
affidavit to measure up to the requirements of the Rule
would result in the granting of summary
judgment.
Principles
governing summary judgment
One
of the ways in which the defendant may successfully avoid summary
judgment
is
by satisfying the court by affidavit that he or
she has
a bona fide defence to the action. The defendant
would normally do this by deposing to facts which, if true,
would establish
such a defence. Under Rule
32(3)(b) the affidavit must
"disclose
fully the nature and grounds of the defence and the material facts
relied upontherefor". Were the defence is based upon facts
and
the material facts alleged by the plaintiff are disputed or where
the defendant alleges new facts, the duty of
the court is not
to attempt to resolve these issues or to determine where the
probabilities
lie.
24.
The
enquiry that the court must conduct
is
foreshadowed
in Rule 32(3)(b) and it
is
this:
first, has the defendant "fully" disclosed the nature and
grounds of the defence to be raised in the action and
the material
facts upon which it
is
founded;
and, second, on the facts disclosed in the affidavit, does the
defendant appear to have, as to either
the whole or
part of the claim, a defence which is bona fide and good in law.
[4]
If
the court is satisfied on these matters, it must refuse summary
judgment, either in relation to the whole or part of the claim,
as
the case may be.
25.
While
the defendant is not required to deal
"exhaustively with the facts and the evidence relied upon
to substantiate them", the defendant must at least disclose the
defence to be raised and the material facts upon
which it
is based “with sufficient particularity and completeness to
enable the Court to decide whether the affidavit discloses
a bona
fide defence.”
[5]
Where
the statements of fact are ambiguous or fail to canvass matters
essential to the defence raised, then the affidavit
does
not comply with the
Rule.
[6]
26.
Where
the defence
is
based
on the interpretation of an agreement, the court does not
attempt to determine whether or not the interpretation contended
for
by the defendant is correct. What the court enquires into
is
whether
the defendant has put forward a triable and arguable issue in. the
sense that there
is
a
reasonable possibility that the interpretation contended for by
the defendant may succeed at trial, and, if successful,
will
establish a defence that
is
good
in law.
[7]
Similarly,
where the defendant relies upon. a point of law,
the point raised must be arguable and establish a
defence that
is
good
in law.
27.
But
the failure of the affidavit to measure up to these
requirements does not in itself result in the granting of summary
judgment. The defect may, nevertheless be cured by reference to other
documents relating to the proceedings that are properly before
the
court.
[8]
In
Sand and
Co.
Ltd
v Kolliasthe court held that the principle that
is
involved
in
deciding
whether or not to grant summary judgment
is
to
look at the matter "at the end of the day" on all the
documents that are properly
before
the
court.
[9]
Oral
submissions
The
appellant
[17]
Counsel for the appellant addressed the court firstly on the
application for condonation for non-compliance with the time periods
of this court for prosecuting of an appeal, The appellant's attorney
of record, Mr. Abdul Wahab Jaffer filed an affidavit to explain
that
the default was caused by a personal crisis that he was going through
at about the time when summary judgment was granted.
He apparently
became a target of some scam to extract money from him and his law
practice by some unknown persons. It affected
his performance at work
and resulted in him falling behind with work that he had undertaken.
The
respondent's contention is that the appeal should have been
noted 20 days from the date on which written reasons in terms
of Rule
51(1) were supplied. This period expired on 1 April 2016.
The
extent of the delay is not clear from the affidavit of Mt Jaffer. He
simply states that the “slight delay”. On the
respondent's version the appeal was noted on 07 August 2016. Security
was tendered on 18 August 2016.
Having
considered the reasons for the delay, there is no reason
why condonation should not be granted.
[18]
On the merits of the appeal, Ms. Green, appearing on behalf of
the appellant was at pains to explain that the appellant used wrong
words in the opposing affidavit to refer to the status of the
previous applications / actions between the parties. The words
"pendente lite"
were actually meant to be “
lis
pendens”.
She
argued that the appellant has discharged the onus on it to prove
the elements of
"lis
pendens",
namely;
(a)
that there is litigation that was instituted before the
current action,
(b)
The litigation is pending between the same parties
; and
(c)
It is based on the same cause of action; and
(d)
It is in respect of the same subject matter.
The
respondent
[19]
Counsel for the respondent, Mr. Halstead, argued that the defence of
lis
pendens
was not raised in the opposing affidavit and that
if a concession is made that it is what was intended, then there is
no merit in
the appellant's argument when one has regard to the dates
and nature of the previous applications / actions.
The
2009 matter was with regard to the 2009 outstanding levies. The cause
of action in this matter is 2012 levies.
Furthermore,
the cause of action in the 2009 matter is complete because on the
appellant's version, rescission of the judgment was
granted.
He
argued further that liquidation is a different form of action and it
is based on specific acts of insolvency.
If
lis pendens
was raised, the argument before
the Magistrate would
have
been to stay proceedings pending finalization of the alleged pending
litigation.
He
also submitted that the discretion of the Magistrate could only be
interfered with if the court finds that it was not exercised
properly. If
lis pendens
were raised, the discretion
would have been to either stay or proceed with the
summary judgment application.
The
Magistrate analyzed the defences raised and concluded that there was
no bona fide defence. The appellant does not attack the
manner in
which the discretion was exercised.
Summary
judgment is no longer viewed as an archaic measure,. It is a process
that gives an applicant an entitlement to his claim
if there is no
defence to it.
The
appeal should therefore be dismissed with costs on an ordinary scale,
including the reserved costs in the application to declare
the appeal
as having lapsed.
Has
the appellant disclosed a bona fide defence?
[20]
The opposing affidavit makes bald vague allegations that are not
supported by facts. In some cases, conclusions of law that
are not
justified by the facts. I am mindful of the fact that I do not have
to adjudicate the correctness of the defences, but
to consider
whether on the facts placed before me , that would still need to be
proven at trial stage, the defendants have
a defence that is
good in law and made in good faith.
[21]
I have, as stated in the Maharaj case, taken into account all
documents properly placed before me and not just the opposing
affidavit in an attempt to have a complete view at the end
of the day.
These
documents form the basis of the respondent's claim as already
discussed above.
The
appellant alleges payment to the municipality and disputes about
his
indebtedness to the respondent. I was however, not able to find
prima facie evidence relating to the alleged payment direct
payment
to the municipality or disputes raised about the
lawfulness of the charges raised and
levied.
[22]
The respondent has attached to its summons documents relating to
approval of the Sectional Title Scheme and how levies are
determined.
These are approved or ratified in the annual general meetings.
Minutes of annual general meetings reflecting issues
discussed were
also attached.
[23]
The least that the appellant could have done would be to raise a·
defence relating to the annexures
that were
attached to the summons in terms of which the amount
claimed is justified.
Instead,
the opposing affidavit deals with irrelevant matters.
As
the Magistrate has correctly stated, the previous cases between the
parties are irrelevant. In addition, if I may add, some of
the
alleged pending cases are based on debt that
was due in 2009.
In
this case, the respondent relies on levies that were raised from
September 2012 to September 2015. Even if the request for financial
statements was a defence, it is clear from the appellant's own
version that he requested financial statements for the period 2008
and 2009. The cause of action in this matter was based on levies
raised and levied from 2012 to 2015.
The
defence of
lis pendens
is not
applicable here for reasons that I have
already discussed above.
Orders
[23]
Consequently the following orders are made:
(a)
Condonation is granted to the appellant for its non compliance
with the
Uniform Rules of Court with regard to timeous
prosecution of the appeal.
(b)
The appellant is ordered to pay the costs of the
application
for condonation on an unopposed basis.
(c)
The appeal is dismissed with costs on a party
and party
scale.
____________________
MAKHUBELA
AJ
ACTING
JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT
I
agree; and it is so ordered.
DE
VOS J
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT
APPEARANCES:
APPELLANT:
ADVOCATE SS GREEN
Instructed
by Jaffer Inc.
Pretoria
West
RESPONDENT:
ADVOCATE M HALSTEAD
Instructed
by Rooseboom Attorneys
C/O
PDR Attorneys
[1]
(161/08)
[2009]
ZASQA
23
(27
March 2009)
[2]
Harms DP, Brand, Mhlanta JJA and Bosielo AJA concurring
[3]
(SA 24/2010)
[2012] NASC 3
(21 June 2012)
[4]
Maharaj
v Barclays National Bank Ltd,
1976(1)
SA 418 (A)at 426A-C s
[5]
Maharaj
v Barclays National Bank, supra,
at
426C-D
[6]
Arend and Another u Astra Furnishers (Pty) Ltd,
1974(1) SA
298(C) at 304A-B
[7]
Shingadia
v Shingadia,
1966(3)
SA 24(R) at 26A-B;
Tesven
CC and Another v South African Bank of Athens,
2000(1)
SA 268 (SCA) at para 26;
Shepstone
v ShepeStone,
1974(2)
SA 462(N) at 467A;
Marsh
and Another v Standard Bank of SA Ltd,
2000(4)
SA 947(W) at 949 para 3
[8]
Sand
and
Co.
Ltd
v Kollias,
1962
(2) SA 162
(W)
at 165;
Maharaj
v Barclays
National
Bank Ltd, supra,
at
423H
[9]
Sand
and
Co.
Ltd
v Kollias, supra,
id.