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[2017] ZAFSHC 37
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Bartsch Consult (Pty) Ltd v Maphalala N.O. and Others (5526/2016) [2017] ZAFSHC 37 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5526/2016
In
the matter between:
BARTSCH
CONSULT (PTY) LTD
Applicant
and
ERIC
THULANI MAPHALALA
N.O.
1
st
Respondent
WANDILE
GXABUZA N.O.
2nd Respondent
BAFANA
STEPHEN TSHABALALA N.O.
3rd Respondent
MMAMPHENI
MARTHA MGIJIMA N.O.
4th Respondent
CORAM:
NICHOLSON, AJ
HEARD
ON:
16 MARCH 2017
JUDGMENT
BY:
NICHOLSON, AJ
DELIVERED
ON:
16 MARCH 2017
[1]
This is an opposed application for summary judgment in terms of Rule
32 of the Uniform Rules of Court for the sum of R 2 290 854.68
pursuant to a summons issued in case number 5526/ 2016. The
Respondents’ application for condonation of late filing
of
the opposing affidavit is not opposed and thus condonation is
granted. Likewise, condonation for the late filing of the
application for condonation and the supporting affidavit is also
granted.
[2]
The Applicant in this matter avers that it rendered professional
architectural services to the Respondents and that the amount
claimed
is the sum owed to it in respect of services rendered by it to the
Respondents pursuant to an agreement between the parties
entered into
on or about 13 February 2014, (the agreement) which agreement was
subsequently terminated by the Respondents on 1
October 2015.
[3]
In terms of the agreement, Respondents were to remunerate the
Applicant in accordance with the recommended tariff of fees published
annually. (See clause 4 of the agreement). On termination of the
agreement, Applicant prepared and submitted to the Respondents,
an
invoice for services rendered to date of termination and demanded
payment of same. The Respondents refused to pay the
amount
claimed and Applicant instituted action in this court to recover the
sum they allege the Respondents owe it. It is
Applicant’s
contention that the Respondents have no
bona
fide
defence to the action and that they have entered an appearance to
defend solely for the purpose of delay.
[4]
The Applicant takes issue with the irregular nature of the opposing
affidavit, however, the court is at liberty to permit the
Respondents
to give oral evidence in defence of the application or to afford the
Respondents an opportunity to re-attest the affidavit
.
(
Radue
Weir Holdings Ltd. v Galleus Investments CC
1998 (3) SA 677
(EC) 682H-J). It should also be noted that the
Respondents are not confined to the issues they have raised in their
affidavit
in resisting the application. (Rule 32(3)
Erasmus
Superior Court Practice
B 1-221)
[5]
Furthermore, the Applicant asserts that the Respondents have not set
out facts in their opposing affidavit that can establish
for the
court, that they have a good and
bona
fide
defence
to the application. They rely on
Maharaj
v Barclays National Bank Ltd
(1976 (1) SA 418
(A) at 426) for this contention. Applicant
further asserts that the manner in which the Respondents have sworn
to their defence
is so unconvincing that it should be rejected.
(
Shepstone
v Shepstone
1974
(2) SA 462
(n) at 467)
[6]
Respondents do not contest that they had a contractual relationship
with the Applicant but assert that the Applicant’s
services
were terminated at the conceptual stages of the project (par 2 of 1
st
Respondent’s affidavit (R’s affidavit)) as a consequence
of their dissatisfaction with the work done by the Applicant.
They assert (par 3 R’s affidavit) that the Applicant’s
work was defective (“wrong drawings of the wrong sizes”
(par 3) and “incomplete” (par 4) and thus could not be
used. Respondents thus challenge the amount claimed by
the
Applicant in respect of the work that was done pursuant to the
contract. They contend that the amount to be paid was
considerably less than that claimed by Applicant and that the amount
claimed is vastly inflated. (R’s affidavit pars
5-7)
[7]
The Respondents also raised in their argument, the following
technical issues:
(a)
The
Applicant’s supporting affidavit in this motion is defective as
the deponent refers to himself as the Applicant’s
employer
rather than employee.
(b)
The
Applicants fail to identify themselves as professional architects in
the particulars of claim, an averment that they allege
is essential
to the Applicant’s claim.
(c)
The
application for summary judgment was filed out of time.
(d)
The
document on which summary judgment is being sought is not a liquid
document for a liquid amount as it is not an agreed amount
or an
amount capable of speedy ascertainment. The amount will require
evidence to prove.
[8]
It is clear to the Court that aside from the technical issues in this
case, there are issues of both quantum and proper performance
of
contractual obligations that arise.
[9]
Whilst it is now accepted that this is not a “drastic and
extraordinary remedy” (
Joob Joob Investments (Pty) Ltd v
Stocks Mavundla Zek Joint Venture
[2009] All SA 407
(SCA) par 34;
2009 (5) SA 1
(SCA) at 12 A-D), summary judgment may only be granted
where the applicant sues on a liquid document or a liquid amount
either
agreed by the parties or capable of speedy ascertainment, for
delivery of a specific movable property or for ejectment.
[10]
The applicant has a period of 15 court days after delivery of the
notice of intention to defend within which to file the application.
The application was out of time as the intention to defend was
delivered on 15 December 2016. The application was thus indeed
served out of time on 12 January 2017.
[11]
Furthermore, the Respondents have disclosed an arguable defence.
It is not required that the defence be proven but, it
is sufficient
to establish a defence which, if proven at trial would constitute a
defence to the action. The defence put
forward is not so bald,
sketchy or vague as to compel the court to dismiss it. The court
accepts that the Respondents have the
bona
fide
intention to rely on the defence so disclosed.
[12]
The Respondents have sufficiently set out the nature and grounds of
their defence and disclosed sufficient material facts in
support
thereof. It is not necessary for them to have set out their
entire defence. (Erasmus
Superior
Court Practice
B1-226;
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426 at pars C-D “… the
Respondent need not deal exhaustively with the facts and the evidence
relied upon
to substantiate them, he must at least disclose his
defence 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”.
[13]
That is not to say the court can act “capriciously” and
deny summary judgement where appropriate. The court
must, in
exercising its discretion, satisfy itself that the grounds for the
defence are sound in law, that the defence is
bona
fide
and, that sufficient material facts have been offered. If the
court is unconvinced on one or both of these, the court has
a
discretion to find in the defendant’s favour if it feels that
the defence may be good. This is the position in which
this
court finds itself as a consequence of the unorthodox nature of the
defendant’s affidavit. As the 1
st
Respondent is a layperson who was acting without proper legal
assistance it is hardly surprising that the affidavit does not comply
with the strict formalities required in summary judgment proceedings.
To prejudice the Respondents for their late realization that
they
required legal assistance in this matter would be to perpetrate an
injustice on the Respondents. There exists a reasonable
apprehension that an injustice may be done in the present case should
summary judgment be granted.
Based
on the material before the court, it is reasonably possible that the
Respondents have a good defence and the Court must, therefor,
find in
Respondents’ favour.
[14]
Despite Applicant’s reliance on
Shepstone
(
Shepstone
v Shepstone
1974 (2) SA 462
(N)) as authority, this same case states that (at
467) where a court is not certain that sufficient material facts have
been disclosed
to it, it is not obliged to condemn the respondent
summarily without the benefit of a trial of the action but has a
discretion
whether or not to grant summary judgment.
[15]
As there is both an irregularity as regards plaintiff’s
application in that it was served out of time and the Respondent
has
offered a possible defence that appears to the court to be both
bona
fide
and good in law, the Court is not persuaded that the Plaintiff has an
unanswerable case.
[16]
In light of the above and having considered the papers before it and
the argument presented, the court orders that:
1.
The
Respondents’ application for condonation of late filing of the
opposing affidavit and for the late filing of the application
for
condonation and supporting affidavit is granted.
2.
Application
for Summary Judgment is rejected.
3.
The
Defendants are granted leave to defend the Plaintiff’s action.
4.
The costs
of the application, including the costs of the postponement to be
costs in the cause of action.
_________________
C. NICHOLSON, AJ
On
behalf of the Applicant:
Adv S Reinders
Instructed
by:
Rossouws
119 President Reitz Ave.
Westdene
Bloemfontein
On
behalf of Respondents:
Adv JMC Johnson
Instructed
by:
Phatshoane Henney Inc
PHI Building
35 Markgraaff St.
Westdene
Bloemfontein