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[2017] ZAFSHC 25
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Fidelity Security Services (Pty) Ltd v Motheo Tvet College (5109/2016) [2017] ZAFSHC 25 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
No.: 51092016
In the
matter between:
FIDELITY
SECURITY
SERVICES
(PTY)
LTD
Plaintiff
and
MOTHEO
TVET
COLLEGE
Defendant
JUDGMENT
BY:
MENE, AJ
HEARD
ON:
2 FEBRUARY 2017
DELIVERED
ON:
9 FEBRUARY 2017
[1]
This is an application for summary judgment in which the plaintiff
claims payment of the amount of R6 343 595, 18 for security
services
that were rendered in terms of the agreement that was entered into
between the plaintiff and the defendant. There is also
a prayer for
interest on the amount claimed at the prescribed rate of interest
from 29 August 2016 until date of payment.
[2]
This application is opposed by the defendant on the basis that a
proper case has not been made out in the supporting affidavit
of the
plaintiff; that the defendant has a counterclaim that it intends to
bring against the plaintiff and that the application
infringes its
right to access to court as enshrined in Section 32 of the
Constitution. The Defendant has also raised a point
in
limine
that
the application was fatally defective because the affidavit in
support of the application was deposed to by a person who cannot
swear positively to the facts. I will start with the point
in
limine
as
raised by the defendant.
Verifying
affidavit
[3]
The deponent to the supporting affidavit is Mr. Wahl Justice
Bartmann who is the Managing Director of the plaintiff. He states
as
follows in the supporting affidavit:
"1.
I am an adult male businessman and the Managing Director
of the Plaintiff herein;
2.
I
am
duly
authorised
to
make
this
application and depose to
this
affidavit
on behalf of the
plaintiff;
3.
In
my
capacity
as plaintiff's Managing
Director, I
have
under
my
control
all the
books,
records,
documents
and accounts
of
the plaintiff,
relevant
to
the
plaintiff's
claim forming the subject
matter of this action;
4.
I have
personal knowledge
of
the
allegations
and
facts alleged
in
the plaintiff
s summons,
particulars
of claim
and
annexures
thereto.
5.
I can
and
do
swear
positively
to
the
facts
set
out
in
the
plaintiff's summons
and
particulars
of
claim.
6.
I also
hereby verify
the
plaintiff's
cause
of action
and
the
amount claimed
in
the plaintiff's
summons
and
particulars
of claim and confirm that
the defendant
is
indebted to the
plaintiff
on the
grounds
stated
in
the
plaintiff's summons and
particulars of
claim,
in
the
following
amount:
3.1
Payment of the amount of
R6 343
595.18.
3.2
Interest
on
the
aforesaid amount
at
the
prescribe rate
of
interest
from
29
August 2016 until
date
of payment.
3.3
Costs of suit.
3.4
Further and
alternative
relief.
7.
I respectfully
submit
that the
defendant
has
no
bona fide defence
to
the
action
and
notice
of
intention
to
defend has been delivered
solely for the
purpose
of delay."
[4]
In response the defendant filed an affidavit deposed to by Ms.
Marianna Dipiloane Monyadiwa Phutsisi (Principal of
the
College) resisting summary judgment. It stated as follows:
"20.
It is clear from the affidavit in support of summary judgment that
Mr. Baartmann, derives his knowledge of the case solely from
all the
books, records, documents and accounts of the
Applicant, and the relevant claims forming
the
subject matter.
21.
I
am advised and accept
that it has been held that where
a
deponent
acquires
his
knowledge
solely
from
documents
to
which
he
has
access,
he
cannot
swear
positively
to
the
facts.
22.
Mr. Baartmann also did
not
sign
any certificate
of
indebtedness
upon
which the Applicant
bases
its claims.
23.
Having
regard
to
the
case
law on this
issue,
I am advised
and submit that the
Applicant
has
failed
to
comply
with the
requirements
of
Rule
32(2)
of the
Uniform
Rules
of
Court
as
the deponent to the
affidavit
in
support of the
application
for
summary judgment
does
not have
personal knowledge
of the facts
of the
matter
and
cannot verify
the causes
of action and the amounts
claimed.
24.
I am further
advised
that
Mr.
Bartmann
is
unable to
affirm that the
Respondent
has no bona fide
defence
to the action.
25.
The
Applicant
has
carefully purported
to
confirm
the
inaccurate
content
of
the
summons
that
are
open
to exception
and
irregular
in
law,
which also
does not
comply
with
Rule
32(2),
in the
sense that the
rule requires
that
deponent should have
requisite
direct
knowledge
of
the
facts.
26.
The
affidavit
of
the
Applicant in
support
of
summary
judgment,
does
not state where
it was
signed
by the deponent,
it only
states the date at which
it was
signed."
[5]
Rule 32(2) provides that the plaintiff's notice of application
for
summary judgment shall be accompanied by -
"An
affidavit made by himself or by any other person who can swear
positively to the facts verifying the cause of action and
the amount,
if any, claimed and stating that in his opinion there is no bona fide
defence to the action and that notice of intention
to defend has been
delivered solely for the purpose of delay."
The
applicable law
[6]
The Supreme Court of Appeal dealt with the issue of the verifying
affidavit in
Rees and
Another
v
Investec
Bank Ltd
2014 4 SA 220
(SCA). The SCA referred to
the case of
Maharaj v
Barclays
National
Bank
Ltd
1976 (1) SA 418
(A)
where Corbett JA, in considering the requirement that the affidavit
should be made by the plaintiff himself 'or by any other
person who
can swear positively to the facts', stated as follows:
"Concentrating
more
particularly
on
requirement
(a)
above,
I
would
point
out
that
it
contemplates
the
affidavit
being
made
by
the
plaintiff
himself
or
some
other
person
who can
swear
positively
to
the
facts. In the
latter
event,
such
other
person's ability
to swear positively
to
the
facts is
essential
to
the
effectiveness
of
the
affidavit
as
a
basis
for
summary
judgment; and
the
Court
entertaining
the
application
therefor
must
be satisfied,
prima
facie,
that
the
deponent
is
such
a
person. Generally
speaking, before
a
person can swear
positively to
facts
in
legal
proceedings
they
must
be within
his
personal
knowledge.
For this
reason the
practice
has
been
adopted,
both in
regard
to
the
present
Rule
32
and
in
regard
to
some
of
its provincial
predecessors (and
the
similar
rule
in
the
magistrates'
courts),
of requiring that a deponent to an affidavit in support of summary
judgment, other than the plaintiff himself, should state,
at least,
that the facts are within his personal knowledge (or make some
averment to that effect), unless such direct
knowledge appears
from other facts stated . . . . The mere assertion by a deponent that
he can swear positively to the facts (an
assertion which merely
reproduces the wording of the Rule) is not regarded as being
sufficient, unless there are good grounds for
believing that the
deponent fully appreciated the meaning of these words . . . . In my
view, this is a salutary practice. While
undue formalism in
procedural matters is always to be eschewed, it is important in
summary judgment applications under Rule 32
that, in substance, the
plaintiff should do what is required of him by the Rule. The
extraordinary and drastic nature of the remedy
of summary judgment in
its present form has often been judicially emphasised . . . . The
grant of the remedy is based upon the
supposition that the plaintiff
s claim is unimpeachable and that the defendant's defence is bogus
or bad in law. One
of the aids to ensuring that this is the
position is the affidavit filed in support of the application; and to
achieve this end
it is important that the affidavit should be deposed
to either by the plaintiff himself or by someone who has personal
knowledge
of the facts.
Where
the
affidavit
fails
to
measure up
to
these
requirements, the
defect may, nevertheless,
be
cured by reference
to
other documents
relating to the
proceedings
which
are
properly
before the
Court
. . . . The
principle
is that,
in deciding whether
or
not to
grant
summary
judgment,
the
Court
looks
at
the
matter
at
the end of the day
on all the documents
that
are
properly
before
it . .
"
[1]
[7]
The SCA further referred to the case of
Barclays
N
ational
Bank
Ltd
v
Love
1975 (2) SA 514 (D) at 516H-517A
(quoted with approval in
Maharaj
at 424B - D)
where the following was said:
'We
are concerned here with an affidavit made by the manager of the very
branch of the bank at which overdraft facilities were enjoyed
by the
defendant. The nature of the deponent's office in itself suggests
very strongly that he would in the ordinary course of
his duties
acquire personal knowledge of the defendant's financial standing with
the bank. This is not to suggest that he would
have personal
knowledge of every withdrawal of money made by the defendant or that
he personally would have made every entry in
the bank's ledgers or
statements of account; indeed, if that were the degree of personal
knowledge required it is difficult to
conceive of circumstances in
which a bank could ever obtain summary judgment.'
Since
Maharaj the requirements of rule 32(2) have from time to time
occupied the attention of our courts. In
Shackleton
Credit
Management
v
Microzone Trading
it was held in para 13 that:
'(F)irst-hand
knowledge
of
every
fact
which
goes
to
make
up
the applicant's cause
of
action
is
not
required,
and
.
.
.
where
the
applicant
is
a
corporate
entity,
the
deponent
may
well
legitimately
rely
on
records
in
the
company's
possession
for
their
personal
knowledge
of
at
least
certain
of
the
relevant
facts
and
the
ability
to
swear
positively
to such facts."'
[2]
[8]
Now coming to the affidavit of Mr. Bartmann, firstly his
position as the Managing Director strongly suggests that he would
acquire knowledge of the affairs of the company. He would be
aware of the commercial
contracts
that are entered into between the company and other
parties such as the defendant in this case.
[9]
Secondly and applying the above principles enunciated by the SCA, in
addition to averring that the facts are within his personal
knowledge, Mr. Bartmann positively swears to the facts and confirms
the cause of action. He further relies on the contract and
invoices
attached to the particulars of claim. This clearly shows that Mr.
Bartmann accessed and perused such documents. I pause
to mention that
one should be alive to the fact that
"first-hand
knowledge of
every
fact
which
goes
to
make
the
applicant's
cause
of
action
is
not required,
and
where
the
applicant
is
a
corporate
entity,
the
deponent may
legitimately
rely
on records in company's possession
for
their personal
knowledge of
at
least
certain
of
the
relevant
facts
and
the ability
to swear
positively to such
facts"
(see para [7]
Shackleton
Credit
Management
supra).
In
this respect I find that the affidavit of Mr. Bartmann meets the
requirements of Rule
32(2).
[10]
In respect of the issue raised by the defendant regarding the
certificate of indebtedness which was not signed by Mr.
Bartmann, it
is apposite to refer to what the SCA stated in Rees case
supra
at paragraph 15:
"The
fact that
Ms
Ackermann did
not
sign the
certificates
of
indebtedness
nor was
present when
the
suretyship
agreements
were
concluded
is
of
no
moment.
Nor
should
these
be
elevated
to
essential
requirements,
the
absence
of
which
is fatal to the
respondent's
case. As
stated
in Maharaj,
'undue formalism
in procedural
matters is always
to
be
eschewed'
and
must give way
to
commercial
p
ragmatism.
At the
end
of the
day,
whether
or
not to grant summary
judgment is
a
fact-based
enquiry.
Many summary
judgment applications
are brought
by
financial
institutions
and
large
corporations. First-hand
knowledge of
every
fact
cannot
and
should not be
required of the
official who
deposes
to the
affidavit
on
behalf of such
financial
institutions
or
large corporations.
To
insist
on first-hand
knowledge
is
not
consistent
with
the
principles
espoused
in
Maharaj".
[My emphasis] I find what has been stated above to be equally
applicable in this case.
[11]
I now turn to the grounds advanced by the defendant for opposing
summary judgment. Firstly the defendant argues in paragraph
12 of its
heads of argument that the claim of the plaintiff is based on a
liquid document, but that the plaintiff omitted to attach
it. The
application for summary judgment is therefore defective. Even though
this ground is not stated in the opposing affidavit,
I will deal with
it in this judgment. The claim of the plaintiff is based on the
services rendered in terms of the contract that
was entered between
the parties. In terms of clause 3 of the contract the service
provider (plaintiff) shall submit a monthly invoice
for duties
rendered to the college (defendant) for payment on the 25th of the
month service is rendered. The plaintiff submitted
such invoices as
is evident from the attachments to the particulars of claim for
services that were rendered. In this application
the plaintiff also
referred to the particulars of claim and annexures thereto in
paragraphs 1.4 and 3 of the supporting affidavit.
In the attached
invoices the exact amounts claimed are stated. These amounts are
liquidated and they are not merely unliquidated
estimates. It is
therefore not correct that a liquid document was not attached.
I must further state
that this
argument, and correctly so, was not pursued during oral
argument.
[12]
Secondly, the defendant relies on a counterclaim it intends to bring
against the plaintiff. On behalf of the plaintiff Mr.
Zietsman argued
that it is not clear or stated in the opposing affidavit what the
defendant's cause of action would be as it is
not disclosed and that
the counterclaim is not quantified. It is therefore difficult to say
whether the counterclaim would be valid
or not and whether the
damages to be claimed will exceed or be less than the amount claimed
by the plaintiff. As the defendant
has failed to fully disclose all
the facts before the court, it should be inferred that the defendant
does not have a bona fide
defence and reference was made
to the case of
Traut
v
Du
Toit
1966
1 SA 69
(0) at
71A.
[13]
Mr. Motebane on behalf of the defendant was at pains to explain what
the counterclaim would be based on except to say that
there is
contractual dispute between the parties relating to the computers and
two vehicles that were stolen. The defendant wanted
to lodge a claim
against the plaintiff for damages relating to the stolen computers
and vehicles. He could not say what the amount
is that would be
claimed. The opposing affidavit also did not assist in stating what
the amount will be that will be claimed.
[14]
The submission that the mere fact that there was a contractual
dispute and
that
a counterclaim was
contemplated (which claim would be formulated
at a later stage) was
sufficient to raise the existence of a dispute between the parties
ignores the provisions of rule 32(3)(b),
which in peremptory terms
require the defendant in an affidavit resisting summary judgment not
merely to 'disclose fully the nature
and grounds of the defence' but
also to disclose 'the material facts relied upon therefor' (See in
this regard
Appliance
Hire
(Natal)
(Pty)
Ltd
v
Natal
Fruit
Juices
(Pty)
Ltd
1974 2 SA 287
(D) at 290H;
Breitenbach
v
Fiat
SA
(Edms)
Bpk
1976 2 SA 226
(T) at 227F-G). Had the defendant
placed in issue what contractual terms of the agreement
(dispute) were, the plaintiff
would have been obliged to prove
its version of the agreement at a trial, and summary judgment would
have had to have been
refused. But the defendant did not do
this. In fact the defendant stated in its opposing affidavit
that 'in other instances,
the Applicant did not submit the
invoices at the agreed time, this culminated in the late
payments and the description
of the invoices did not correspond
with the services rendered, which created audit query on the
side of the Respondent'.
This averment shows that the
plaintiff indeed rendered services and that the defendant was
liable to pay such
services. The defendant only queried
the lateness or invoices which were not
submitted
on time. On the issue of invoices which
did not correspond with the services
rendered,
the respondent could say which invoices
as attached in the particulars of claim did not correspond with
the services that were rendered.
[15]
Furthermore and as stated by the defendant that it intends to bring a
counterclaim against the plaintiff, I find that there
is nothing that
precludes the defendant from issuing summons against the plaintiff
for the claim which it believes it has
against
the plaintiff
(Soil Fumigation
Services Lowveld CC
v
Chemfit
Technical Products
(Pty)
Ltd
2004 6 SA 29
(SCA) at 350-F). The
contemplated
counterclaim is unquantified and
unliquidated. The court is in the dark as to the basis of the alleged
claim. In any event
the intended counterclaim would not have
the effect of extinguishing the plaintiff's claim with regard
to the services
that were rendered. Such
counterclaim could be heard separately from the plaintiff's claim.
[16]
Lastly the defendant relies on its right to access to court as
envisaged in the Constitution of the Republic of South Africa.
It is
worth noting that the constitutionality of Rule 32 is not challenged
by the defendant. Even if it was challenged and without
making any
finding in this respect, I doubt that the Rule would be found to be
inconsistent with the Constitution and therefore
invalid. It is this
Rule which allows litigants to approach the court for speedy recovery
of their debts if they believe that defendants
have no
bona
fide
defences but only want to delay matters. Defendants
are not precluded but are, in fact, allowed to oppose such
applications as the
case is in the instant matter. So the application
for summary judgment cannot be met with the defence that the
plaintiff is denying
the defendant the right of access to
court. The defendant therefore fails on
this therefore
fails on this ground as well.
[17]
In the result the defence put up by the defendant to the effect that
the application for summary judgment should not be granted
must fail.
There will accordingly be judgment in favour of the plaintiff for:
(1)
payment of the sum of R6 343 595.18
(2)
interest on the aforesaid amount at the prescribed rate of interest
from 29
August 2016 until date of final payment.
(3)
costs of suit.
______________________
B.
S. MENE, AJ
On
behalf of the plaintiff:
Adv.
Instructed by:
BLOEMFONTEIN
On
behalf of the defendant:
Adv.
Instructed by:
BLOEMFONTEIN
[1]
At
para
10
[2]
At
para
11.