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[2016] ZAGPPHC 766
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Extra Dimensions 14464 CC v Suid-Afrikaanse Postkantoor Limited (5529/16) [2016] ZAGPPHC 766 (18 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No. 5529/16
DATE: 18 AUGUST
2016
In the matter between:
EXTRA DIMENSIONS 1464
CC
............................................................................................
Applicant
And
SUID-AFRIKAANSE POSKANTOOR
LIMITED
............................................................
Respondent
JUDGEMENT
[1]
In a summary judgement application which
served before me on 30 May 2016 I granted summary judgement in favour
of the Plaintiff
against the Defendant in the amount of R1 064 415.39
with interest a tempore morae at the rate of 9% until date of final
payment
from 18 November 2016. I further ordered the Respondent to
pay the costs of the application for summary judgement. The summary
judgement application served before me in the unopposed Motion Court.
Respondent applied for reasons for the aforesaid order, and
this
judgement is therefore in response to the Respondent’s request
for reasons for the order dated 30 May 2016 referred
to supra.
[2]
In the Plaintiffs particulars of claim
the Plaintiffs cause of action is based on a partly written and
partly verbal contract, and
Plaintiff pleads that the material
express alternatively tacit terms of the agreement were as follows:
4.1 The Plaintiff would render
services to the Defendant for me collection
,
transporting and delivery of Goods for
Courier and Freight Group and Speed Services and all other things
ancillary thereto;
4.2
The Defendant would remunerate the
Plaintiff for its services, which remuneration was set out in a
letter of acceptance of the Plaintiff's
tender proposal. A copy of
the letter of acceptance is attached hereto marked *POC1”, the
terms of which are specifically
incorporated herein and read as such;
4.3
Remuneration would take place within 30
(thirty) days of receipt of an invoice by the Defendant."
[3]
The Plaintiff further pleads that the
written portion of the agreement is contained in a draft agreement
delivered to the Plaintiff
by the Defendant which agreement was duly
signed by the Plaintiff and returned to the Defendant, and further
pleads that Plaintiff
is not certain whether the agreement was signed
by the Defendant as no return copy was received by Plaintiff from the
Defendant.
Plaintiff annexed a copy of the written draft agreement to
the particulars of claim as Annexure
M
POC2
u
.
Plaintiff then pleads that Plaintiff duly performed in terms of the
aforesaid agreement by rendering services to the Defendant
on an
ongoing basis from on or during January 2011 to November 2015 and
that the Plaintiff has supplied the Defendant with invoices
in
respect of the services duly rendered.
[4]
Plaintiff pleads that the Defendant has
defaulted in that it has failed to make payment since March 2015
despite services being
rendered up and until November 2015. Plaintiff
annexed a copy of an updated statement reflecting the total amount
outstanding for
services rendered in terms of which It transpires
that the Defendant, according to the Plaintiff, is indebted to the
Plaintiff
in the amount of R1 064 415.39 from the 31** of March 2015
until 2 November 2015. Plaintiff further annexed a copy of a letter
of demand dated 16 November 2015 addressed on behalf of the Plaintiff
by the
Plaintiffs’
attorneys of
record in this application to the Defendant for the attention of a
certain Mr Kenneth Ramphele which letter was sent
per email. From the
contents of the aforesaid letter it appears that a statement
confirming the amount owing by the Defendant to
the Plaintiff was
attached to the aforesaid letter. The Plaintiff avers in paragraph 9
of the Plaintiffs particulars of claim that
the Defendant has failed,
neglected or refused to make payment of the full amount due and owing
to the Plaintiff despite the aforesaid
demand.
[5]
On 15 February 2016 a Notice of
Intention to defend was delivered on behalf of the Defendant as a
result of which the Plaintiff
applied for summary judgement and an
affidavit in support of the application for summary judgement deposed
to by a certain Brian
Peerimal who, ex facie such affidavit, is the
Financial Manager of the Plaintiff contained the averment that the
cause of action
and the amount as claimed In the summons is verified
by such deponent and that he verily believed that the Defendant has
no bona
fide defence against the claim and that appearance to defend
has been entered solely for purposes of delay as is required in terms
of the provisions of Rule 32(2) of the Uniform Rules of Court.
[6]
The Defendant filed an Answering
Affidavit to resist the application for summary judgement deposed to
by a certain Cynthia Mofokeng
who, ex facie such affidavit is the
Manager, Legal Services, of the Defendant. At the outset I must
remark that this affidavit
is somewhat confusing and vague, and
clearly an attempt to introduce each and every possible conceivable
"defence
m
to avoid summary judgement, and the different “defences? raised
by this affidavit shall be dealt with infra more fully. In
support of
the impression that is gained from the aforesaid affidavit, the
following must be noted:
[6.1]
Paragraph 2 of the affidavit contains a
heading which reads: “POINTS tN LIMINE OR PRELIMINARY POINTS”
and thereunder
a following sub-heading which reads: "2.1 NO
VALID SERVICE AGREEMENT. The deponent then proceeds to aver that the
alleged
draft agreement entered into by the Plaintiff and the
Defendant (i.e. Annexure “POC2” to the summons) is not
signed
on behalf of the Defendant and without dealing with the
Plaintiff’s averments as set out in par [3] supra, concludes
that
“therefore there is clearly no written agreement by the
Appficant and the Respondent* Deponent further proceeds to aver that
the agreement was dependant on the fulfilment of certain conditions
precedent, which, according to the deponent was not complied
with,
and then further avers that the Defendant is a State owned company
and that air services are contracted In compliance with
Inter alia
the
Preferential Procurement Policy Framework Act no. 5 of 2000
and
that the procurement process is not based on oral agreements,
particularly in the form and substance alleged by the Applicant.
These defences are clearly neither points in limine nor “preliminary
points? but, insofar as it may be found that these are
in fact
defences, they go to the root of the Plaintiff’s cause of
action and are therefore defences based on the merits of
the action.
It is dear that the deponent is confused on the true meaning of
"point in ttmine
w
\
[6.2]
Paragraph 2.2 of the affidavit contains
the heading: “LACK OF VALID OR LIQUIDATED CLAIM” and the
deponent then in essence
avers that the Defendant does not have the
invoices reflected on the Plaintiffs statement, that the Defendant is
therefore unable
to determine whether or not the amounts are indeed
due and payable to the Plaintiff, avers that the Plaintiff did not
include as
part of its Summons invoices or detailed accounts on which
the claim is based, and then concludes that the Plaintiffs claim is
therefore not based on a liquid document, that the Plaintiffs claim
is 'invalid* and In the alternative that the claim is not liquidated.
Again, this is indicative of a complete lack of understanding of the
legal term liquidated clainf for purposes of summary judgement.
[7]
in terms of Rule 32(3) of the Uniform
Rules of Court the Defendant should satisfy the Court by affidavit or
with leave of the Court
by oral evidence of himself or any other
person who can swear positively to the fact that he has a bona fide
defence to the action,
and such affidavit or evidence shall disclose
fully the nature and grounds of the defence and the material facts
relied upon therefore.
This specific sub-rule has been the subject of
various judgements, and it has been held that “fully means that
while the
Defendant need not deal exhaustively with the facts and the
evidence relied upon to substantiate them, the Defendant must at
least
disclose its defence and the material facts on which it is
based with sufficient particularity and completeness to enable the
Court
to decide whether the affidavit discloses a bona fide defence.
Vide: Maharajj v Barclays
National Bank Ltd
1976 (1) SA 419
(A)
at426C-D
It
was further held that the affidavit should contained material facts
which are set out in adequate detail, and that such facts
should not
be bold, vague or sketchy.
Vide: Standard Bank of S A
Limited v Freedman
1999 (2) SA 456(C)
p. 462
It was held that a bona fide
defence is disclosed if the Defendant swears to a defence, valid in
law, in a manner that is not inherently
or seriously unconvincing.
WcTe;
Breytenbach
v Fiat SA (Edms.) Beperk
1976 (2) SA 226
(T) at 228
B
- C
[8]
The affidavit deposed to on behalf of
the Defendant essentially does not contain a defence to the
Plaintiffs cause of action, but
is clearly an attempt to proverbially
create a “smoke screeif of vague generalised averments and
clearly does not comply
with the requirements as set out in the
authorities quoted supra, for the following reasons:
[8.1]
The Defendants affidavit resisting
summary judgement must be considered with due regard to the averments
as pleaded by the Plaintiff
in the Plaintiffs particulars of claim.
The PlaintifTs cause of action is clearly based on the averments that
a tender of the Plaintiff
was accepted (paragraph 4.2 of the
Plaintiffs particulars of claim; copy of letter of acceptance,
Annexure “POC1” to
the Plaintiffs particulars of claim),
that an agreement was thereafter delivered to the Plaintiff by the
Defendant, signed by the
Plaintiff, and returned to the Defendant, (a
copy of the agreement attached to the Plaintiffs particulars of claim
as Annexure
“POC2”), that the Plaintiff thereafter duly
performed in terms of the agreement by rendering services to the
Defendant
on an ongoing basis from January 2011 to November 2015, and
that the Defendant failed to effect payment for the period March 2015
until November 2015 with the clear implication that both parties duly
performed in terms of the agreement from January 2011 until
February
2015;
[8.2]
The Defendant's affidavit resisting
summary judgement does not deny the averments relating to the
acceptance of the tender, the
fact that the Defendant forwarded to
the Plaintiff an agreement which the Plaintiff signed and returned to
the Defendant, nor the
fact that payments were effected by the
Defendant to the Plaintiff for the period January 2011 to February
2015. instead, the deponent
to the affidavit (ex facie her affidavit
the Manager, Legal Services of the Defendant and who avers that it is
part of her duties
and responsibilities to advise and act in
“protection of furtherance of the interest of the Respondent in
Court or legal
mattersf) simply avers that because the agreement
between the Plaintiff and the Defendant annexed to the particulars of
claim is
not signed on behalf of the Defendant therefore there is
clearly no written agreement between the Applicant and the
Respondenf.
This is a clear example of a bald, sketchy and vague
defence, considering the other averments refened to supra in the
Plaintiffs
particulars of claim which the Defendant does not deny in
the affidavit resisting summary judgement;
[8.3]
in paragraph 2.1.4 of the affidavit
resisting summary judgement deponent refers to a “CONDITION
PRECEDENT and avers that nowhere
in the Applicant’s particulars
of daim is it indicated that the condition precedent was fulfilled
and therefore any agreement
on the terms contained in the draft
agreement is void for lack of fulfilment of the condition precedent.
Deponent then states that
this can only militate against the
existence of any agreement, be it oral or written. This is clearly
speculative, and having regard
to the fact that the deponent does not
deny that services were indeed rendered by the Plaintiff as alleged
by the Plaintiff, and
further does not deny that the Defendant
effected payments to the Plaintiff up and until February 2015, this
defence clearly lacks
merit. I further find It strange that the
deponent can state under oath that no documentation regarding the
contract could be found
at the time when the affidavit was deposed to
but is in a position to swear that none of the conditions precedent
were met;
[8.4]
In paragraph 2.1.7 of the Defendant
affidavit resisting summary judgement, deponent avers that the
principles relating to the procurement
practices in tenms of the
relevant legislative framework are not maintained in a procurement
process based on an oral agreement,
"particularly of the form
and substance alleged by the Applicant and then conclude that it is
therefore denied that the Respondent
entered Into an oral agreement.
However, deponent does not deny the Plaintiffs averment that a tender
was awarded to the Plaintiff
and in fact does not even deal with the
averments pertaining to the letter of acceptance addressed by the
Defendant to the Plaintiff
annexed to the Plaintiffs particulars of
claim as Annexure “POCr, or the averment that the contract was
returned to Defendant,
duly signed on behalf of Plaintiff;
[8.5]
In paragraph 2.2 of the deponent’s
affidavit resisting summary judgement, the deponent simply states
that "the Respondent
does not have the invoices reflected on We
Applicant’s statement. Deponent then avers that the Defendant
is unable to determine
whether or not the amounts are indeed due and
payable to the Plaintiff or have not already been paid by the
Defendant to the Plaintiff,
and on the strength thereof submits in
paragraph 2.2.5 of the affidavit that the claim is “invalid,
alternatively not liquidate
of. It is notable that the deponent does
not deny that invoices were in fact rendered, and the significance of
a lack of denial
by the deponent that payments were effected by the
Defendant to the Plaintiff up and until February 2015 renders these
allegations
of the deponent vague, sketchy and not bona fkle. In
terms of generally accepted accounting practices, the Defendant
should be
in a position to pertinently deal with the averments made
in paragraphs 7 and 8 of the Plaintiffs particulars of claim. Failure
to do so
f
in my opinion, Is not bona fide;
[8.6]
Significantly, in paragraph 6 of the
affidavit resisting summary judgement the deponent makes the
following allegation:
u
Perhaps
the services may have been rendered without a valid agreement, but
should this be so, which is not admitted, the Applicant
may have a
claim not based on contract but perhaps delict. The deponent’s
averments in this regard (albeit it legally untenable)
clearly
contains an admission that the services were indeed rendered, and in
the context of this factual admission the averments
of the deponent
regarding the alleged lack of information as set out in paragraph 7
of the deponent’s affidavit resisting
summary judgement Is
simply bald, vague and sketchy. It is untenable to suggest that an
institution such as the Defendant would
allow the Plaintiff to render
services to it for a period of 4 years from January 2011 until
February 2015, without complying with
the procurement process
referred to in paragraph 2.1.6 of the deponent’s affidavit
resisting summary judgement, would continue
to effect payments to the
Plaintiff during such period without receiving proper invoices, and
would thereafter not be in a position
to determine whether or not
invoices were in fact presented for services rendered for the period
in respect of which the Plaintiff
instituted the claim against the
Defendant. In any event, the fact that the Defendant is not able to
source documentation as averred
by the deponent in paragraph 7 of the
affidavit resisting summary judgement does not constitute a valid
defence to the Plaintiffs
cause of action, but simply serves to
confirm that the deponent is not able to adduce any evidence in
support of a proper defence
to Plaintiffs cause of action. An
inability to adduce evidence contradicting a cause of action which
prime facie appears to be
sustainable, based on the pleadings and
documentation annexed thereto, is not a defence in law.
[9]
In the premises, summary judgement was
granted in terms of the order dated 30 May 2016.
PA VAN NIEKERK AJ