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[2017] ZAFSHC 170
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Senekal Motor Ingenieurs Bk v Setsoto Local Municipality (1083/2017) [2017] ZAFSHC 170 (12 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1083/2017
In
the matter between:
SENEKAL
MOTOR INGENIEURS BK
(REGISTRATION
NUMBER: 2003\060631\23)
Plaintiff
and
SETSOTO
LOCAL MUNICIPALITY
Defendant
HEARD
ON:
02
AUGUST 2017
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
12
OCTOBER 2017
[1]
In this opposed summary judgment application, the parties agreed that
summary judgment be removed from the roll and the defendant
be
granted leave to defend the action. The only remaining issue for
determination is the question of costs of the application.
[2]
Mr. Els on behalf of the plaintiff contended that the costs be
reserved for determination at trial. On the other hand, Mr. Lechwano
contended that the plaintiff should be ordered to pay the costs of
this application on attorney and client scale because the plaintiff
knew of the Defendant’s defence prior to filing this
application.
[3]
Mr. Lechwano based his contention on the provisions of Rule 32(9).
He submitted that the defendant was put to unnecessary
trouble and
expense at the hands of the plaintiff when it had to oppose this
application.
[4]
Mr. Els submitted that there is no indication that the plaintiff knew
that the defendant relied on a contention which would
entitle it to
leave to defend. He further contended that there was no
correspondence from the defendant apprising plaintiff of
the defence
the defendant intended to raise. He argued that the current matter
does not find support from the provisions of Rule
32(9).
[5]
It is important to deal with the underlying dispute in this matter in
determining the costs issue. The plaintiff claims payment
of an
amount of R302 232-70 from the defendant for services rendered and
material supplied by it to the defendants at the latter’s
special instance and request. The plaintiff provides motor repair
services to the defendant on an ad hoc basis.
[6]
Plaintiff issues monthly invoices to the Defendant. On 03 March 2017
plaintiff issued summons against the defendant. Plaintiff
dispatched
two invoices on 28 February 2017 and 30 April 2017 respectively.
[7]
The invoice of 28 February shows total amount owing for the said
period as R31 733.15. It further shows R11 684-33 as the amount
owing
for period of 30 days and more. The invoice of 30 April 2017 confirms
the amount reflected on the invoice of 28 February
2017 as the total
amount owing is reflected as R25 737.89 after a payment of R5 995.26
was made on 22 March 2017.
[8]
The defendant, in its opposing affidavit for the summary judgment
application, pointed out that based on the plaintiff’s
invoices
the defendant does not owe the Plaintiff the amount as claimed in the
summons. It is the defendant’s opposing affidavit
that prompted
the plaintiff to abandon its application for summary judgment.
[9]
Rule 32 (9)
(a)
provides
as follows:
“
The
court may at the hearing of such application make such order as to
costs as to it may seem just: provided that if-
(a)
the
plaintiff makes an application under this rule, where the case is not
within the terms of subrule (1) or where the plaintiff,
in the
opinion of the court, knew that the defendant relied on a contention
which would entitle him to leave to defend, the court
may order that
the action be stayed until the plaintiff has paid the defendant’s
costs; and may further order that such costs
be taxed as between
attorney and client.”
[10]
Rule 32(9)
(a)
creates
a basis upon which a Court may make an award of attorney
and client costs, quite independent of the considerations
which
usually warrant such an order, ie objectionable conduct on the part
of a litigant. The provision is, founded on the premise
that summary
judgment is an unusual procedure which may only be invoked where the
conditions set forth in subrules (1) and (2)
of Rule 32 are met,
including an averment under oath that the defendant does not
have a
bona
fide
defence.
(See
ABSA
BANK LTD (VOLKSKAS BANK DIVISION) v S J DU TOIT & SONS
EARTHMOVERS (PTY) LTD
1995 (3) SA 265
(C)) at 267
[11]
In
Floridar
Construction Co (SWA) (Pty) Ltd v Kriess
1975
(1) SA 875 (SWA)
at
878A
stated,
quoting from
Nathan,
Barnett and Brink
Uniform
Rules of Court
at
156:
'The
purpose of the subrule is, on the one hand, to discourage unnecessary
or unjustified applications for summary judgment, and,
on the
other hand, to discourage defendants from setting up unreasonable
defences. In regard to the first of these it
is to be borne in mind
that in many instances the object of bringing an application for
summary judgment is to force the defendant
to put his defence on
affidavit. A plaintiff is not entitled to do this unless it is clear
that there are good grounds for making
the application”.
[12]
It is clear that summary judgment proceedings can only be brought
when the plaintiff is convinced that the defendant has no
bona
fide
defence. It is a tool used to curtail lengthy litigation proceedings
and cannot be used as a means to frustrate the opponent. In
MAHOMED
ADAM (PTY) LTD v BARRETT
1958 (4) SA 507
(T) at 509
the
court said the following:
“
A
plaintiff should therefore not resort to summary judgment proceedings
where the case is not within the Rule, or where he knows
that the
defendant relies on a contention which would entitle him to
unconditional leave to defend. Such a proceeding would be
abortive
and the costs wasted. As a safeguard against such a step, the
Court is given a discretion to order that an action
be stayed until
the plaintiff has paid the defendant's costs; sub-rule (9)
(a)
.
This sub-rule seems to pre-suppose that a Court would in such a case
order the plaintiff to pay the defendant's costs.”
[13]
In the current matter Jurrie Henrie, the sole member of the plaintiff
deposed to an affidavit, in support of the application
for summary
judgment, and stated that he represented plaintiff in all its
dealings with the defendant. In paragraph 1.5 of
the affidavit
he states the following:
“
1.5
Ek is die persoon wat te alle tye met die
Verweerder se verteenwoordigers ten opsigte van die onderhawige
aangeleentheid namens Eiser kontrakteur het. Ek het ook alle
onderhandelinge in die verband namens Eiser met Verweerder gevoer.
Ek
dra gevolglik persoonlik kennis van die aangeleentheid en is in staat
om daaromtrent te getuig.”
[14]
It is clear from the above that the deponent had personal knowledge
of defendant’s payment history and status of its
account. He
knew of the invoices issued to the defendant and should have acquired
personal knowledge of the outstanding amount
payable by the
defendant. The plaintiff, at all material times, had direct knowledge
of the invoices that would form the basis
of the defendant’s
defence. Notwithstanding this knowledge defendant was put through the
trouble and expense of drafting
opposing affidavit which resulted in
the plaintiff withdrawing the summary judgment application. I am
persuaded that this is a
type of matter that justifies a cost order
as contemplated in rule 32 (9)(a).
[15]
In view of the above the following is made:
Order:
1.
Application
for summary judgment is struck off the roll.
2.
Plaintiff
is ordered to pay defendant’s costs of opposing the summary
judgment application on the attorney and client scale,
such costs to
be taxable and payable forthwith.
________________
NM
MBHELE, J
On
behalf of plaintiff:
Adv Els
Instructed
by:
Symington & De Kok
Bloemfontein
On
behalf of defendant: Adv
Lechwano
Instructed
by:
Fixane Attorneys
Bloemfontein