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[2016] ZAFSHC 110
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Mziya General Services CC v Free State Development Corporation (824/2016) [2016] ZAFSHC 110 (12 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 824/2016
In
the matter between:
MZIYA
GENERAL SERVICES
CC
PLAINTIFF
and
THE
FREE STATE DEVELOPMENT
CORPORATION
DEFENDANT
HEARD
ON:
5 MAY 2016
DELIVERED
ON:
12 MAY
2016
MOCUMIE,
J
[1]
The plaintiff and the defendant were involved in a dispute which is
not relevant for purposes of this application. Suffice to
state that
the plaintiff alleges that it suffered damages as a result of a
breach of the contract between it and the defendant.
When the dispute
could not be resolved, the matter was referred for adjudication. On 2
December 2015, whilst the adjudication was
still pending, the
defendant tendered an offer to settle the matter
in the amount of R3
200 000 (Three million
two hundred thousand rand) plus a costs contribution of R100 000 (One
hundred thousand rand).The plaintiff
alleges that it accepted the
offer tendered. The defendant failed to pay as it undertook despite
several reminders sent to it.
The defendant delivered a notice of
intention to defend the action. The plaintiff, as provided for by
Rule 32 of the Uniform Rules
of the Court, applied for summary
judgment. Thus this application which is opposed by the defendant.
[2]
The
procedure
for
summary
judgment is
designed
to
enable
the
plaintiff
whose
claim
falls within certain defined
categories
to obtain
judgment
without the
necessity of
going
to trial,
in spite
of the fact
that
the
defendant
has
intimated,by
delivering
notice of
intention to defend, that
he intends
raising a
defence.
[1]
[3]
The plaintiff is entitled to seek summary judgment if only his or her
claim is
(a)
based on a liquid document;
(b)
for a liquidated amount in money;
(c)
for delivery of a specified movable property
(d)
for
ejectment
[2]
[4]
In an
application
of this
nature
he
plaintiff
is
required
to
deliver
a
notice
of
the
application,
accompanied
by
an
affidavit.
[3]
.The
affidavit
must
be
made
by
himself
or
herself
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 or
her
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.
[4]
ordinarily
only
one
affidavit
is filed
in
support
of
a
claim
except
with
permission
of
the
court but under
very rare
circumstances. The plaintiff may not
annex
any
evidence
to
his or
her
affidavit,
nor may
(s)he file
supplementary
affidavits
or
a
replying
affidavit.
However
if
the
claim
is founded
on
a
liquid
document, a
copy of
the
document
must
be
annexed to
the
plaintiff's
affidavit.
[5]
The
affidavit
filed
by the
defendant
must
set
out
his
or
her
defence
fully.
This means
while
the
defendant
need
not
deal
exhaustively
with
the
facts
and
the
evidence
relied
upon
to
substantiate
them,
(s)he
must
at
least
disclose
his
or
her 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.
[5]
[6]
The defendant opposes the application on the following grounds set
out in the opposing affidavit:
6.1.
The application for summary judgment falls entirely short of what
Rule 32
(1)
requires; particularly with regards to the allegations set out in the
particulars of claim read
with the unnumbered annexures thereto. Thus
,no proper case appears to have been made in the plaintiff's
particulars claim to be
regarded as one of a liquidated amount.
6.2
The particulars of claim, read with the unnumbered annexures thereto
properly construed and if the a/legations set
out are accepted as
true, for purposes of these submissions:
(i)
do not comply with Rule 18(4) - which provides that every pleading
must contain a clear and concise statement of the material
facts
which the pleader relies on for his claim for summary judgment;
particularly to enable the opposite party to reply thereto.
(ii)
the unnumbered annexures were not properly presented to enable
defendant to ascertain what case it has to meet.
(iii)
the unnumbered annexures on their own do not
contain sufficient information to sustain
a cause of action.
[7]
Mr Sibeko, SC, on behalf of the defendant submitted that the deponent
to the affidavit of the plaintiff stated that he verifies
the amount
owed and the cause of action. Yet the plaintiff failed to append the
liquid document on which its cause of action is
based. Thus no cause
of action has been pleaded. He submitted further that, in any event,
the purported offer on which the plaintiff
seeks to rely was
conditional upon the acceptance of such offer on a particular day and
time as per annexure B to the papers. There
is no objective averment
supported by any documentation that the purported offer was accepted
before it lapsed. In the absence
of any such averment, it can safely
be accepted that, on the plaintiff's own version; regard been had to
the email dated 12 January
2016 that purported to form the letter of
acceptance, no settlement agreement came into existence on 4 December
2015 as alleged
by the plaintiff.
[8]
Mr
Sibeko
submitted
on
reliance
of
amongst
others
Mosehla
v
SANCOR
CC
[6]
that
in
an
application
of
this
nature
the
defendant's
affidavit
is
not
subject
to
strict
compliance
as opposed
to the plaintiff's affidavit. In
other words
the
defendant's
affidavit
is not
assessed
as
strictly
as the
allegations
in the
affidavit
of the
plaintiff.
As
long as
such affidavit discloses
a triable
issue,
it is
sufficient.
No
consideration
is given
to
the
probabilities
of that
defence
being
successful.
He
submitted
further
that
the
purported
offer
of 4
December
2015
did
not
pass the
muster
of
what
an
offer
and
acceptance
is
in
our
law.
[7]
Thus
it
can
never
succeed
in
any
court.
If anything
the
particulars
of claim
were
so
poorly
drafted
they were
excipiable
on the
basis that
they did
not
disclose
a
cause of action.
[9]
Mr
Jagga,
on
behalf
of
the
plaintiff,
admitted
that
the
liquidated
document
on
which
the
cause
of
action
was based
was not
attached
to
the
particulars
of
claim and
could not
be
found
anywhere in
the
papers. It
was not
there. He
however
argued on
the
strength
of
Coetzee
[8]
that
the
deficiency
in
the
particulars
of
claim was
a
technicality
which
this
court
should
not
uphold to
the
point
that it
should
dismiss
the
application for summary
judgment.
He
contended
that
the
defendant's
affidavit
in
itself
lacked
the
details
expected
of
the
defendant.
i.e.
to
disclose
more
than
it
did,
such
as
whether
it
denied
that
an
agreement
was
concluded
on the
basis that
the
plaintiff
alleged.
[10]
Summary
judgment
proceedings
are no
longer 'extraordinary'. The rule must
just
be applied
properly.
[9]
From a simple
reading of
the particulars
of claim of
the
plaintiff and on any other
reading,
the particulars
of claim do
not disclose any
cause
of
action.
The
purported
acceptance
of the
offer
tendered
by the
defendant
on
2
December
is
nowhere
to
be
found.
It
cannot
be
generated
because
it
does
not
exist.
It is
as
Mr
Sibeko
correctly
contended
that
if
the
plaintiff's
case
is to
be
believed,
the
purported
offer
was
accepted
after
the
expiration
of
the
date
and
the
time
on
which it
was
to
be
made.
Upon
it
not
being
accepted by
end
of
business
on
4 December,
it
lapsed.
No
court
can
interpret this
otherwise
but as
contended
by the
defendant.
[11]
In
respects
of
costs, Mr
Sibeko
submitted that
when
the
plaintiff
applied
for
summary
judgment it knew very well what
the
defendant's
defence
to the
action was
and was
well
aware
that
on
the
basis
of
its
contention
it was
fully
entitled to
defend the
action.
In
Flamingo
General
Centre
v
Rossburgh
Food
Market
[10]
the court
stated:
'A
plaintiff should not apply for summary judgment in a case in which he
knows that the defendant intends to defend the action upon
grounds
that, if accepted by the trial court, would constitute a good
defence, and that the courts should not encourage a plaintiff
to
embark upon a summary judgment application in the hope that it might
give him [or her] some special tactical advantage which
he would not
otherwise have had, such as forcing the defendant to put his defence
on oath.'
[12]
The same court continued at 588 to hold that :
'If
the plaintiff makes improper use of Rule 32 then it seems that he
should be penalised in costs for his conduct, irrespective
of whether
he ultimately wins or loses the trial action; he incurs the penalty
because he has misused the Rule and if no penalty
were exacted in
such a case the Rule would be increasingly abused.'
[13]
In this case, the plaintiff proceeded with the application for
summary judgment despite knowing very well that it did not have
the
document it relied upon for its cause of action. Without which it has
no leg to stand on to prove its case, except if it led
some evidence,
if available, in attempt to do just that. There is no reason
whatsoever that obliged the plaintiff to go this far
with the
application for summary judgment. The plaintiff ought to have granted
the defendant leave to defend the action. This court
is bound
to show its displeasure with the unreasonable persistence and thus
the misuse of the Rule through an appropriate
cost order in order to
discourage similar conduct in the future.
[14]
In the result, the following order is granted.
ORDER
'(a)
The application for summary judgment is dismissed with costs on
attorney and client scale.
(b)
The defendant is granted leave to defend the main action.
(c)
The main action to be stayed in terms of Rule 32 (9) of the Uniform
Rules of court pending taxation by the defendant of
its costs and
payment thereof.'
_______________________
B.C.MOCUMIE,
J
On
behalf of Applicant:
Adv N. Jagga
Instructed
by:
Lovius Block Attorneys
31 First Avenue
BLOEMFONTEIN
On
behalf of Respondent:
Adv L. T. Sibeko SC
Instructed
by:
NW Phalatsi & Partners
2nd Floor, Metropolitan
Building
96 Henry Street
BLOEMFONTEIN
[1]
The
Civil Procedure
Of
the Supreme
Court
Of South Africa,
Van
Winsen
et
al,4th ed,434.
[2]
Rule
32
(2).
[3]
See
Engineering
Requisites
Pty
Ltd
1976
(1) SA 418
(A) at
422E-423A.
[4]
Rule 32(2).
[5]
Maharaj vs Barclays National Bank Ltd 1976(1) SA 418 (A).
[6]
Mosehla
v
SANCOR
CC
2001
(3) SA
1207
(SCA).
[7]
Christie's The law of contract in South Africa: 6th Edition, 2011.
[8]
Coetzee
and
Others
v
Nassimov
2010
(4)
SA 400
(WCC) at
402F-G.
[9]
See
Joob
Joob
Investments
Mavundla
Zek JV
[2009]
All SA 407
(SCA)
para 32;
2009(5)
SA
1 (SCA)
at
12A-D.
[10]
Flamingo General Centre v Rossburgh Food Market 1978(1) SA (D &
CLO) 586.