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[2016] ZAKZPHC 14
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Moteko Construction Cost Consultants & Project Managers CC v Umtshezi Municipality (11245/2015) [2016] ZAKZPHC 14 (5 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT
REPORTABLE
Case
no: 11245/2015
DATE:
5 FEBRUARY 2016
In
the matter between:
MOTEKO
CONSTRUCTION COST
CONSULTANTS
& PROJECT MANAGERS CC
(REGISTRATION
NUMBER
2003/061502/23)
.................................................................
PLAINTIFF
And
UMTSHEZI
MUNICIPALITY
........................................................................................
DEFENDANT
Coram
: Seegobin J
Heard
: 2nd February 2016
Delivered
: 5th February 2016
ORDER
(a)
The application for summary judgment is
refused;
(b)
The defendant is granted leave to defend
the action; and
(c)
The costs of the application including the
costs of the opposed hearing are reserved for decision by the trial
court.
JUDGMENT
SEEGOBIN
J:
[1]
This is an opposed application for summary judgment.
[2]
By way of a simple summons the plaintiff claims an amount of
R2 574 629.82 from the defendant being the Umtshezi
Municipality. Plaintiff avers that the said amount represents
the balance due to it in respect of certain services rendered
by it
to the defendant during the period February to November 2014.
In substantiation of its claim the plaintiff put up Annexures
A-G
which are invoices that reflect the specific amount owing as at date
of each invoice.
[3]
In its opposing affidavit resisting summary judgment, the defendant
avers in the main that invoices A and B do not in any way
relate to
it but to the Newcastle Municipality having regard to the reference
‘NEWCPA’ which appears on each of these
invoices.
As far as invoices C-G are concerned, the defendant avers that the
amounts reflected thereon have been paid in
full. In paragraph
8 of its opposing affidavit it sets out in some detail the dates when
payment was effected in respect
of each invoice as well as the method
of payment, whether by cheque or by electronic transfer. The
defendant accordingly
avers that it is not indebted to the plaintiff
in the sum claimed or at all.
[4]
On behalf of the plaintiff it was submitted that in the first
instance the defences raised by the defendant are bald, incomplete,
laconic and sketchy and in the second instance, the affidavit
resisting summary judgment, without actual proof of the payments
made, clearly demonstrates a lack of
bona
fides
on the part of the defendant.
[5]
I do not consider it necessary to delve into the numerous legal
principles which have been established by our courts over the
years
when faced with matters of this nature. For purposes of this judgment
it suffices to state that a defendant is only required
to place
sufficient information before a court to persuade the court that it
has a genuine desire and intention of adducing evidence
at the trial,
which, if found to be true, would constitute a valid defence to the
plaintiff’s claim/s
[1]
.
A defendant is not required to deal exhaustively with the facts and
evidence relied upon to substantiate his defences, 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
[2]
.
[6]
In
Joob
v Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[3]
,
Navsa
JA provides a useful analysis of summary judgment applications and
states at paragraph [32] the following:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a
triable issue
or a sustainable defence of her/his day in court. After almost
a century of successful application in our courts,
summary judgment
proceedings can hardly continue to be described as extraordinary.
Our courts, both of first instance and
at the appellate level, have
during that time rightly been trusted to ensure that a defendant with
a triable issue is not shut
out. In the Maharaj case at
425G-426E, Corbett JA, was keen to ensure first, an examination of
whether there has been sufficient
disclosure by a defendant of the
nature and grounds of his defence and the facts upon which it is
founded. The second consideration
is that the defence so
disclosed must be both bona fide and good in law. A court which
is satisfied that this threshold has
been crossed is then bound to
refuse summary judgment. Corbett JA also warned against
requiring of a defendant the precision
apposite to pleadings.
However, the learned judge was equally astute to ensure that
recalcitrant debtors pay what is due
to a creditor.
”
[7]
In light of the above, I consider that the defendant has set out its
defence with sufficient particularity and completeness
in order to
comply with the provisions of Rule 32(3)(b) of the Uniform Rules.
While the defendant can be criticised for not
putting up the actual
proofs of payment relating to invoices
C-G, this does not mean
that it lacks
bona fides
or that it’s defence is bad in law. The position would
have been quite different if the defendant merely alleged that
it
made payment without so much as stating when and how it did so.
In such an instance, one would be justified in concluding
that the
allegations are vague and laconic. In the present instance I
consider that the defendant has gone far enough to
show that it has
evidence which, if established at the trial, will constitute a valid
defence to the plaintiff’s claim. It
stands to reason that
should the defendant fail to establish its defence fully at the
trial, it runs the risk of judgment being
granted against it.
Additionally, the deponent to the affidavit resisting summary
judgment runs the risk of committing perjury
should the allegations
in the affidavit prove to be false. In all the circumstances, I
am satisfied that the defendant has
raised triable issues and should
not be shut out at this stage.
ORDER
[8]
In the result, I make the following order:
(a)The
application for summary judgment is refused;
(b)The
defendant is granted leave to defend the action; and
(c)The
costs of the application including the costs of the opposed hearing
are reserved for decision by the trial court.
Date
of hearing : 2
nd
February 2016
Date
of Judgment : 5
th
February 2016
Counsel
for Plaintiff : K Ioulianou
Instructed
by : Ramsay Webber Inc.
c/o
Hay Scott Attorneys
Counsel
for Respondent : PC Bezhuidenhout SC
Instructed
by : Messrs Lalparsad Inc.
c/o
Carlos Miranda Attorney
[1]
Breitenbach
v Fiat SA (Edms) Bpk 1976(2) SA 226(T) at 229 D-F; Citibank NA,
South Africa Branch v Paul NO and Another 2003(4)
SA 180(T) AT 201
c-h; Nair v Chandler 2007(1) SA 44(T) at 46 G-I.
[2]
Maharaj
v Barclays National Bank 1976(1) SA 418(A) at 426 B-D.
[3]
2009(5)
SA (1) SCA.