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[2016] ZAGPPHC 11
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Caveonet Investments (Pty) Ltd t/a Becker and Mzimela Investigations v Road Accident Fund (35851/2015) [2016] ZAGPPHC 11 (21 January 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No:
35851/2015
On 21 January 2016
Before: The Honourable Holland-Milter AJ.
In the matter between:
CAVEONET INVESTMENTS (PTY) LTD
t/a BECKER AND MZIMELA
INVESTIGATIONS Plaintiff
and
ROAD ACCIDENT
FUND Defendant
JUDGMENT
[1] This is an application for summary judgment. The
plaintiff issued a Combined summons against the defendant for the
amount of
R 15 523 248,87, the alleged outstanding balance due and
owing to the defendant for professional services rendered by the
plaintiff.
See clause 6 of the summons.
[2] The matter was argued on 17 November 2015. After
hearing arguments, due to the volume of the application and short
notice to
hear the matter, I reserved judgment.
[3] The plaintiff alleged a written agreement (annexure
'A' to the summons ) to be the basis of the claim against the
defendant
for the outstanding balance due and owing for services
rendered. See clauses 3 & 4 of the summons.
[3] The written agreement referred to above was entered
into on 17 September 2001 between the defendant and Becker and Mongwe
(Pty)
Ltd, the latter represented by one of it's directors, Mr G M
Becker. See clause 3 of particulars of claim.
[4] All rights, interests and duties of the said Becker
and Mongwe were ceded to the now plaintiff during November 2009. The
plaintiff,
Caveonet Investments ( Pty ) Ltd trading as Becker and
Mzimela Investigators, is a different party than the original party
to the
agreement. See clause 3 of the particulars of claim. No detail
of the cession is pleaded.
[5] The verifying affidavit on behalf of the plaintiff
in terms of section 32(2) in the application for summary judgment was
deposed
to by one Frederik Gerhardus Becker. This person is on face
value not the G M Becker who represented Becker and Mongwe when
entering
into the agreement on 17 September 2001, the agreement
relied upon in the application for summary judgment.
[6] The defendant, in the opposing affidavit, raised
various preliminary points. One of the points raised in par 22 to 26
of the
affidavit concerns the alleged cession of the agreement
between the plaintiff and it's predecessor to the agreement. The
objection
is that a copy of the cession is not annexed to the
particulars of claim, resulting in a non-compliance with the
provisions of
Rule 18(6) of the Uniform Rules of Court. In terms of
the Rule, a party relying upon a contract shall state whether it is
written
or oral, when, where and by whom it was concluded, and if in
writing, annex a true copy of the agreement to the pleadings. A
cession,
being a contract, is subject to the above, and failure to
annex a copy, renders the particulars objectionable and excipiable.
There
is no detail whether it was oral or in writing, when, where and
by whom it was concluded.
[7] The plaintiff argued that it does not rely on the
cession but on the service level agreement between the parties. See
par 4.2
of the written heads of argument.
[8] To rely on the service level agreement, the
plaintiff should aver why it can rely on the agreement, in view
thereof that it
was not a party to the initial agreement. The casual
link between the plaintiff and the agreement is the cession,
resulting that
the absence of any averments with regard to the
cession as required by Rule 18(6), is fatal to the application. The
argument on
behalf of the plaintiff not to rely on the cession leads
to only one result in that the plaintiff wants to rely on an
agreement
it is not a party to. Icannot but disagree with this
argument.
See Erasmus, Superior Court Practice
Bl-132
C
as to this requirement. The law does not expect the plaintiff to do
the impossible, but the averments with regard to the cession
are
necessary to link the plaintiff with the agreement. On this alone the
application cannot succeed.
[9] A plaintiff has an onus as to the cause of action
relied upon. He bears the onus of proving that his action is clear,
complete
and not excipiable. See
Gulf Steel (Pty) Ltd v Rack-Lite
Bop (Pty) Ltd
1998 (1) SA 679
0.
The lack of the necessary
averments with regard to the cession, also bearing in mind that a
plaintiff cannot reply in summary judgment
applications, results in
the plaintiff s application to be defective.
[10] The defendant also has a onus to satisfy the court
that he has a bona fide defence to the action. This however does not
mean
the defendant has to prove his defence. He only has to advance
facts which, should they eventually be proved at a trial, constitute
a defence, stated differently, to advance a reasonable triable
contention. See
Van Niekerk Summary Judgment, A Practical Guide at
11-26 to 11 -27.
[11] The plaintiff s claim is in fact based on 9 742
different invoices as compiled in the schedule
B-1 to B-256.
The
schedule indicate that on each of these invoices, certain payments,
although in part only, were made by the defendant. The last
column of
the schedule, headed as "
Difference",
totals to the
amount claimed in the particulars of claim. The plaintiff avers this
amount to be a
liquidated amount
for the purposes
of summary judgment.
[12] The crux of the defendant's argument is that this
amount in dispute, in view of the service level agreement, is in
excess of
the agreed tariffs. It is common cause that these amounts
were
"taxed off"
by the defendant on
receiving each invoice for reason being in excess to the prescribed
agreed tariffs.
[13] Stated differently, the dispute between the parties
is whether the amounts claimed in the plaintiff s invoices were
according
to the agreed tariffs in the service level agreement or
not. The plaintiff argues that the amounts are according the agreed
tariffs
whilst the defendant argues the opposite. It is not possible
for the court on the papers before court to find yes or no. Owing the
fact that the plaintiff may not reply, the defendant may avoid
summary judgment by advancing facts which has to be rebutted by
the
plaintiff to be successful. See
Van Niekerk
supra at
p
11-27,
and
Geysdorp Trading Co
v Nathym (Pty) Ltd 1954
(2 ) SA 575
T at
577 E-H
and
Venter v Cassimjee
1956
(2) SA 242
N
at
245 F-H.
[14] The defences raised by the defendant do not amount
to a mere denial of the plaintiff s claim but in my view discharges
the
defendant's onus and constitutes a bona fide defence and he
should be granted leave to defend. I cannot find that the facts
advanced
by the defendant are untrue and therefore the application
cannot succeed.
[15] The argument on behalf of the defendant as to the
absence of personal knowledge of the deponent to the verifying
affidavit
in terms if Rule 32 (2), one F G Becker, in view of the
finding above, need not be addressed any longer.
[16] I therefore make the following order:
16.1.
The
application for summary judgment is refused;
16.2.
The
defendant is granted leave to defend the action; and
16.3.
The costs
of the application will be costs in the cause.
_______________________________
HOLLAND-MÜTER AJ
_______________________________
BY ORDER OF COURT
REGISTRAR