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[2016] ZAGPPHC 446
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Macsteel Service Centres SA (Pty) Ltd v Profin Trading 35 CC and Others (96119/2015) [2016] ZAGPPHC 446 (17 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE N0:96119/2015
17/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In the matter between:
MACSTEEL
SERVICE CENTRES SA (PTY)
LTD
APPLICANT
and
PROFIN
TRADING 35 CC t/a VIKING FASTENERS AND
INDUSTRIAL
SUPPLIES FIRST
RESPONDENT
FRANCOIS
DU
PLESSIS SECOND
RESPONDENT
MALCOLM
BEST THIRD
RESPONDENT
JUDGMENT
RANCHOD
J
[1]
This is an opposed summary judgment application in action based on
goods sold and delivered to the first respondent. The second
and
third respondents are sued in their capacities as sureties for the
first respondent.
[2]
However, the present application for summary judgment before me
is only in respect of the third respondent who entered
an appearance
to defend and filed an opposing affidavit.
[3]
The third respondent in essence admits his suretyship for the debts
of the first respondent. However, he says he has not been
involved in
the business affairs of the first respondent since March 2010 in
terms of an exit contract whereby he sold his interest
in the first
respondent to the second respondent. Since then he has not been
involved in the affairs of the first respondent. Hence
he is unable
to answer at this very early stage in the litigation process to the
applicant's claim. He therefore seeks leave to
defend firstly so that
he can query the claim amount and determine whether he may have
defences to the claim such as, e.g. that
the members of the first
respondent may have been trading recklessly and negligently through
the medium of the first respondent
in which event they may be liable
personally for the former's debt. Secondly, a part or whole of the
claim may have prescribed
by the time summons was issued and thirdly
the claim amount is not set out in sufficient detail.
[4]
Before dealing with these issues I have to consider two points raised
by the plaintiff. One relates to the commissioning of
the opposing
affidavit and the other is the filing by the third respondent of a
supplementary affidavit by the commissioner of
oaths who explains how
the alleged defect in the commissioning of the opposing affidavit
came about.
[5]
The applicant takes issue with the fact that the opposing affidavit
is deposed to by a male person (the third respondent) but
the
certificate of the Commissioner of Oaths reads as if the deponent is
a female. Hence, says applicant, the opposing affidavit
is defective
and the application effectively stands unopposed. I was referred to
ABSA Bank Ltd v Botha and Others
Case
No. 39228112
a
judgment in this Division by Kathree-Setiloane J (which appears to be
as yet unreported) which dealt with this issue. There the
defendant
objected to the plaintiff's verifying affidavit in support of the
application for summary judgment in that although the
deponent
was a female, the commissioner of oaths certified that she was a
male. The defendant filed a notice in terms of Rule 30
objecting to
the filing of the affidavit as an irregular step. The learned Judge
upheld the objection. It was held at para [5]
that the verifying
affidavit represents the cornerstone of the summary judgment
procedure under Rule 32(2), which permits the grant
of a final
judgment or order in a defended action without full pleadings or a
trial. It would appear thus that a strict standard
of compliance was
applied as against the plaintiff.
[6]
The question is whether the same strict standard should be applied in
the case of the defendant as well. However, the first
point that
distinguishes the present case before me from the Absa Bank case is
that here no objection has been made by the applicant
in terms of
Rule 30 calling upon the third respondent to rectify the alleged
defect. It has been raised in argument.
[7]
It is also to be noted that in terms of Rule 32(4) the plaintiff is
confined to the affidavit in support of summary judgment.
"No
evidence may be adduced by the plaintiff otherwise than the affidavit
referred to in sub-rule 2...".
[8]
In contrast the defendant can either file an affidavit resisting
summary judgment or, with the leave of the court, lead oral
evidence
either by himself or herself or by any other person who can swear
positively to the fact that the defendant has a
bona fide
defence
to the action. (See Rule 32(3)(b)). In
Breintenbach v Fiat SA
(Edms) Bpk 1976(2) SA 226(T)
a judgment of the Full Court of this
Division it was held, at 227 E-F:
'If the requirements of
sub-rule 32(3)(b) are too stringently applied, a defendant who has a
defence to the action brought against
him may be denied, unjustly, an
opportunity of establishing that defence by the ordinary procedure of
a civil suit.'
[9]
In my view the Absa case, insofar as it dealt with a defective
affidavit by the plaintiff is concerned can be distinguished
from the
instant case where the defendant's affidavit is defective in the
manner referred to earlier. To close the doors of the
court to the
defendant in these circumstances would mean adopting a highly
technical approach to the affidavit.
(W M. Mentz
&
Seuns
(Edms) Bpk
&
Katzake 1969(3) SA 306(T) at 311).
In any
event, the third respondent says in his affidavit that he is a male
and has signed it as such. It is the commissioner of
oaths who made
the error.
[10]
The next point is the filing by the respondent of a supplementary
affidavit by the commissioner of oaths explaining his error.
It is
contended by the plaintiff that the supplementary affidavit is
inadmissible as Rule 32 does not permit it. In my view, the
submission cannot be sustained. In Erasmus, Superior Court Practice,
the authors say at 81-228 [Service 36, 2011]:
'In superior court
practise a defendant has been allowed to supplement his or her
affidavit by a further affidavit, where, for instance,
the first
affidavit was defective, even though the supplementary affidavit was
out of time.' (See
Gain v Cresent Finance Corp PIL 1961(1)
SA
222
(W)).
In
my view the filing of the supplementary affidavit should be allowed
in this instance.
[11]
I turn then to the main issue raised by the third respondent. As
I said, he says he had left the first respondent in
201O already. He
had to investigate the circumstances relating to the debt claimed by
the plaintiff, which may reveal a defence
or defences to the claim.
It was also submitted in argument that the plaintiff issued a simple
summons and has not annexed any
document substantiating the
claim amount and how it is arrived at. In
Mowchenson
&
Mowschenson v Morcantile Accepance Corp of SA Ltd 1959
(DJ
SA 362 (W))
the court held that if there is doubt as to the
evidence tendered by the plaintiff; the doubt should be resolved in
favour of the
defendant.
[12]
Here it must also be borne in mind that the third respondent is being
sued in his capacity as a surety. In
Gruhn v M Pupkewitz
&
Sons PIL
1976
(3) SA 49
(A)
it was held:
"That
a purchaser as against a seller normally knows what the case is about
must be accepted, but it is not necessarily so
that a surety, ...
knows what the case is about.'
That
seems precisely to be the case here where the third respondent has
not been involved in the business of the first respondent
since 2010.
[13]
In all the circumstances the third respondent is granted leave to
defend with costs in the cause.
____________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv G Jacobs
Instructed
by
: Kasimov & Associates
Counsel
on behalf of third Respondent
: Adv L Keijser
Instructed
by
:STBB - Smith Tabata Buchanan Boyes
Date
heard
: 7 June 2016
Date
delivered
: 17 June 2016