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[2016] ZAGPPHC 1035
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UV Power (Pty) Ltd v Kruger (A464/2016) [2016] ZAGPPHC 1035 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
15/12/2016
CASE
NO: A464/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between
UV
POWER (PTY)
LTD APPELLANT
(First
Defendant a quo)
and
STEPHANUS
JOHANNES PAULUS
KRUGER RESPONDENT
(Plaintiff
a quo)
JUDGMENT
VILAKAZI.
AJ:
[1].
This is an appeal against an order by the Potchefstroom Magistrate
Court ("the court a quo") granting summary judgment
on 26
January 2016 in favour of the Respondent.
[2].
Appeal before us is with leave of the court a quo. The respondent
opposes the appeal.
[3].
On 10 September 2015, the respondent issued summons against the
appellant seeking the following relief;
1.
Confirmation of the cancellation of the agreement
between the parties;
[4]
Payment in the amount of R 150 000 plus interest thereon calculated
at 93 per annum a
temporae morae
and costs of suit.
[5].
The respondent avers that on 15 April 2015, the parties entered into
a verbal contract in terms of which the appellant was
to supply and
install 1OKWatt solar energy system; solar water geyser pre- feeder
and battery box in the total amount of R 190
380. The quotation
issued on 13 April 2015, which was annexed to the application of
summary judgment indicates the following; an
80 3 upfront deposit on
acceptance hereof, installation would take place within 7 days from
receiving the deposit and this price
was valid for 10 days only.
[6].
On 15 April 2015, the respondent paid a deposit of R 150 000 and the
appellant proceeded with the installation of the system
at the
respondent's residential premises.
[7].
When the appellant entered an appearance to defend the action, the
respondent applied for summary judgment for the amount claimed
plus
interest and costs. In support of this application, annexed were, the
quotation, proof of payment of a deposit and the email
from Mr Jan
Grobler dated 22 June 2015 addressed to the respondent. The
respondent avers that this email is proof that the agreement
between
the parties was cancelled by mutual consent and it is an
acknowledgment of debt and further confirms a refund of R 150
000 to
him due and payable by the appellant.
[8].
The appellant opposed the application for summary judgment and the
magistrate held that the appellant failed to disclose a
bona fide
defence and granted summary judgment in favour for to the respondent
for the amount claimed with costs on party and party
scale.
[9].
On 22 June 2015, Mr Jan Grabler, a representative of the appellant
addressed an email to the respondent. In the email, the
said Grobler
undertook to remove the system and refund the money paid. The email
further stated that the system would be packaged
in the respondent's
garage until the refund is made. I quote this email verbatim"Jy
sal aanhou om foute te soek maar dit is
nie meer nodig nie. Ek wag
vir n betaling dan sale k met jou gesels hoe die stelsel kan hom
uithaal en hoe ek geld in jou rekening
terugbetaal. In teen deel sale
ek graag die stelsel wou kom uithaal en verpakking plaas in jou
garage totdat ek die geld
kan betaal. Jy het in elkgeval geen
nut van die stelsel huidiglik nie.Kan ons dit so reel asb Paul".
[10].
In the particulars of claim, the respondent's claim is based on a
breach of the agreement. It further alleges that the appellant
is in
breach of the agreement in that: Firstly, he alleges that the manner
in which the solar system was installed did not meet
the material
terms and conditions of the agreement between the parties. Secondly,
the appellant's failure to rectify the faults
thereof amount to
breach. Thirdly, there was mutual cancellation and he has accepted
repudiation. In support of cancellation
of the agreement he
relies on the email dated 22 June 2016, written by Mr Jan Grobler,
the director of the appellant addressed
to him. Relying on mutual
cancellation he claims confirmation of cancellation of
the agreement, restitution,
that is he tenders the system and
claims refund in the amount of R 150 000, being the deposit paid.
[11].
The appellant in his opposing affidavit denies that he is in breach.
It was averred by Mr Jan Grobler, in his representative
capacity as
the director, that due to the failure of the respondent to pay the
balance of the 803 deposit in the amount of R 2
304 .00 and the
balance in the amount of R37 696, it did not provide the respondent
with a switch over installation switch, battery
box and a geyser pre-
feeder system. As a result of the respondent' breach in that he
failed and neglected to pay the aforesaid
amount, a 1SKW back up
system and a switch over system were not installed.
[12].
The appellant furthers makes a counter claim in the amount of R2 304
and tenders completion of the installation against payment
of this
amount.
[13].
After the application was heard, the magistrate concluded that the
email dated 22 June 2015 by Mr Jan Grobler addressed to
the
respondent constitute a liquid document for purposes of summary
judgment proceedings. He held the view that it is an acknowledgment
of indebtedness, and the amount payable and owing to the respondent
is R 150 000. It concluded that the appellant had no bona fide
defence to the respondent's claim and granted summary judgment.
[14].
The appellant in its heads of argument contended that the email by Mr
Jan Grobler dated 22 June 2015 addressed to the respondent
is not an
acknowledgment of debt in that it does not specify the amount
that will be paid to the respondent, the time frame
and the terms of
payment. It was contended that on reading this email alone, it
is apparent that the parties were in negotiations
regarding this
subject matter before us. It was submitted on behalf of the
appellant that the magistrate erred in allowing
this email as a
supporting document to the summary judgment application.
[15].
It was further contended on behalf of the appellant that the
respondent's claim is based on a breach of a contract and
consequently
summary judgment cannot be granted.
[16].
This then brings me to the next question, that is, whether the
appellant disclosed a bona fide defence. Rule 14 of the Magistrate
's
Court Rules enables the plaintiff to apply for summary judgment
where the claim is:
On
a liquid document;
1.
For a liquidated amount in money;
2.
For delivery of a specified movable property;
3.
For ejectment.
4.
Together with any claim for interest and costs.
The defendant, on the other hand, must set out a defence that is bona
fide and good
in law and also disclose fully the nature and grounds
of his or her defence.
[17].
The legal principles governing summary judgment proceedings are well
established. In
Maharaj v Barclays National Bank Ltd
1976(1) SA 418 (A)
Corbett JA outlined the principles and
what is required from a defendant in order to successfully oppose a
claim for summary judgment
as follows:
'
...[One] of the ways in which a defendant may successfully oppose a
claim for summary judgment is by satisfying the col}rt by
affidavit
that he has a bona fide defence to the claim. Where the defence is
based upon the facts, in the sense that material facts
alleged by the
plaintiff in his summons, or combined summons, are disputed or new
facts are alleged constituting a defence, the
court does not attempt
to decide these issues or to determine whether or not there is a
balance of probabilities in favour of the
one party or the other. All
that the court enquires into is: (a) whether the defendant had
"fully" disclosed the nature
and grounds of his defence and
the material facts upon which it is founded, and (b) whether on the
facts so disclosed the defendant
appears to have, as to either the
whole or part of the claim, a defence which is both bona fide and
good in law. If satisfied on
these matters the court must refuse
summary judgment either wholly or partly as the case may be."
[18].
Turning to the respondents ' claim, which in essence is a breach of
the terms and conditions of the agreement and his reliance
of the
content of the email by Mr Grobler as proof of mutual cancellation,
he is entitled to a refund of the R 150 000 deposit
paid to the
appellant on 15 April 2015. In my view the respondent has conflated
his remedies. In a restitution claim, the respondent
does not have to
plead any breach. When the parties agree to mutual cancellation of
the contract the status quo must prevail.
[19].
It is my view that my reading and interpretation of the email by Mr
Grobler does not provide the explanation of what led to
him writing
this note to the respondent. I am not persuaded that this email
confirms cancellation standing on its own. It is my
conclusion that
this email is equivocal and creates uncertainty. The magistrate
proceeded on a wrong premise that there was mutual
cancellation. I am
of the view that the magistrate misdirected himself in concluding
that Mr GrobIer email constituted a liquid
document.
[20].
I now turn to deal with the defence of the appellant. It alleges that
the respondent has breached the agreement in that it
has failed to
pay an amount of R 2 304, being a short payment toward the deposit
and further neglected to pay the outstanding balance
of R37 696,
which amount the appellant is entitled to. The appellant averred that
it has completed 993 of the Installation. It
makes a counterclaim in
the amount of R2 304 against the respondent's claim.
[21].
In
Joob Joob Investments (Pty) Ltd v
Stocks
Mavundal
Zek
Joint Venture [2009]
zasca
23(27 March 2009)
Navsa JA
stated that summary judgment procedure was not intended to shut a
defendant out from defending, unless it was very clear indeed that
he
had no case in the action. The procedure is not intended to deprive a
defendant with a triable issue or a sustainable defence
of his day in
court.
[22].
In this matter before us, I am satisfied that there is a discernable
sustainable defence raised the appellant. There is a
dispute between
the parties regarding the terms of the contract. There is a possible
counterclaim by the appellant. The quotation
issued by the appellant
on the 13 April 2015 in respect of the 10KWatt solar system requires
803 deposit on acceptance of the quotation.
The parties did not
indicate when is the balance of the 203 payable and neither are we
told when does ownership of the system vest
on the respondent. The
court a quo in its judgment alluded to this fact and stated that it
is in issue whether the respondent failed
to discharge his
contractual obligation as raised by the appellant and in dispute
whether the appellant was excused from fulfilling
its contractual
obligation.
[23].
In the circumstances, the following order is made:
1.
The appeal succeeds;
2.
The judgment of the court a quo is set aside and
replaced with the following:
a.
"Summary Judgment is refused;
b.
Leave to defend is granted with costs to be cost
in the cause."
_____________________
VILAKAZI
AJ
ACTING
JUDGE OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
I
agree it is so ordered.
______________________
N.
P MALI J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
APPEARANCES
DATED
AND SIGNED AT PRETORIA ON 9 DECEMBER 2016
For
The Appellant
:
Advocate J.M Bezuldenhout
Instructed
by
: Chris
Liebenberg Attorneys
For
The Respondent
:
A. Van
Eck
Instructed
by
: Van Eck
Windell - Attorneys
Date
Heard
: 9
December 2016
Date
Delivered
:
15
December 2016