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[2015] ZAGPPHC 152
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Officescape Interior Contractors v Waymark Infotech (Pty) Ltd (1344/2015) [2015] ZAGPPHC 152 (2 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
1344/2015
DATE: 2 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN THE MATTER
BETWEEN:
OFFICESCAPE
INTERIOR
CONTRACTORS
..............................................................
PLAINTIFF
AND
WAYMARK
INFOTECH (PTY)
LTD
.........................................................................
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] In this summary
judgment application, the plaintiff seeks judgment against the
defendant for payment of an amount of R218 809,
24 being for monies
due and payable. The claim is based on a final payment certificate
issued by the defendant in terms of a JBCC
building agreement.
[2] The defendant
had appointed the plaintiff to attend to its tenant installation.
Pursuant to such appointment the plaintiff and
the defendant signed a
JBCC agreement to regulate the appointment. Even though the written
JBCC agreement was never signed by the
parties but the work was
executed in terms thereof.
[3] In terms of the
JBCC agreement the plaintiff, as contractor, would perform the work
as specified by the defendant and/or its
agents; the defendant’s
principal agent would certify the plaintiffs progress with the work
and issue a payment certificate
in line with the progress made; the
plaintiff would then issue a tax invoice to the defendant
corresponding with the payment certificate
which the defendant would
be liable to pay within 14 days from the date of the payment
certificate.
[4] It is common
cause that on 4 October 2013 the defendant's principal agent issued
and signed a final payment certificate in terms
of which he certified
that an amount of R368 809, 24 was payable. Based on the final
payment certificate, the defendant made a
payment in the amount of
R150 000, which left a balance of R218 809, 24 - the amount claimed
by the plaintiff.
[5] The defendant is
resisting the summary judgment, and alleges that: the workmanship of
the plaintiff was defective; and that,
the principal agent was not
supposed to have issued a final payment certificate prior to the
issue of a certificate of final completion,
as this somehow renders
the final payment certificate “a moot point”. A further
assertion by the defendant's counsel
is that the plaintiff should
allege and prove full performance. There is as such no proper cause
of action as full performance
was not alleged in the plaintiffs
particulars of claim, so it is submitted.
[6] According to the
plaintiff the points raised by the defendant in resisting the summary
judgment do not offer the defendant any
defence valid in law. The
submission by the plaintiffs counsel is that once a principal agent
has issued the final payment certificate
to the contractor, the
principal agent cannot purport to amend it by issuing a subsequent
certificate, nor cancel it by issuing
a document that purports to
render it null and void; the only ground upon which an employer could
challenge a finality that is
conferred by a final certificate would
be to allege that the principal agent had no authority to issue it or
that it has been issued
fraudulently - and neither is alleged. In the
circumstances, no defence is offered to the plaintiffs claim and the
summary judgment
as prayed for should be granted, so he argued.
[6]
In terms of uniform rule 32 (3) upon the hearing of an application
for summary judgment the defendant may satisfy the court
by affidavit
that he or she has a
bona fide
defence
to the action; such affidavit shall disclose fully the nature and
grounds of the defence and the material facts relied upon.
[7]
In a summary judgment application, what is required is for the
defendant to raise a
bona
fide
defence.
Where the question of whether a defendant has a
bona
fide
defence,
arises, the court does not attempt to decide the issues or to
determine whether or not there is a balance of probabilities
in
favour of the one party or the other. The defendant is also not
required to persuade the court of the correctness of the facts
stated
by him or her or where the facts are disputed that there is a
preponderance of probabilities in his or her favour.
1
[8]
All that a court requires, in deciding whether the defendant has set
out a
bona
fide
defence,
is whether the defendant has disclosed the nature and grounds of his
or her defence, and whether on the facts so disclosed
the defendant
appears to have, a defence which is
bona
fide
and
good in law.
2
It is sufficient if the defendant swears to a defence, valid in law,
which if advanced may succeed on trial.
[9]
I am of the view that the defendant has advanced its contention in
resistance to the plaintiffs claim with a sufficient degree
of
clarity to enable me to ascertain that it has deposed to a good
defence. The defence is
bona fide,
good
in law and my view is that if raised at trial it may constitute a
defence to the plaintiffs claim.
[10] As regards the
issue of costs my view is that an appropriate cost order should be
costs in the cause.
[11] In the premises
I make the following order:
(a) The application
for summary judgment is dismissed.
(b) The defendant is
granted leave to defend the matter.
(c) Costs are costs
in the cause.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD
ON THE :
20
MARCH 2015
DATE
OF JUDGMENT:
02
APRIL
2015
PLAINTIFF'S
COUNSEL:
ADV.
AG SOUTH
PLAINTIFF’S
ATTORNEY:
MACROBERT
INCORPORATED
DEFENDTANT’S
COUNSEL :
J
DE BEER
DEFENDANT’S
ATTORNEY:
PHILIP
COETZER INCORPORATED
1
See
Nair v Chandler
2007 (1) SA 44
(T) at 47B-C and Maharaj v Barclays
National Bank Ltd
(1976 (1) SA 418
(A) at 426A-E.
2
See
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426b and
Marsh v Standard Bank of SA Ltd
2000 (4) SA 947
(W) at 949E-F.