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[2015] ZAGPPHC 175
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Layher (Pty) Ltd v Siyakhona Scaffolding (Pty) Ltd (6642/2015) [2015] ZAGPPHC 175 (13 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
PROVINCIAL DIVISION, PRETORIA)
CASE NO:
6642/2015
NOT
REPORTABLE
DATE: 13 APRIL
2015
In the matter
between:
LAYHER
(PTY)
LTD
...............................................................................................
Plaintiff
and
SIYAKHONA
SCAFFOLDING (PTY) LTD
(Registration
no:
2004/025972/07)
.......................................................................
Defendant
JUDGMENT
MAKGOKA. J:
[1] This is an
opposed application for summary judgment. The plaintiff claims from
the defendant, an amount of R837 842.99 plus
interest, and costs. The
plaintiff claims that it entered into a lease agreement with the
defendant on 23 April 2013, in terms
of which the plaintiff let to
the defendant certain goods, more fully set out in annexure ‘LAY
2’ to the particulars
of claim.
[2] It is common
cause that the plaintiff delivered the goods to the defendant. The
plaintiff alleges that after the rental period
had reached its
conclusion, the defendant failed to return all of the goods delivered
to it, and/or alternatively returned goods
which were damaged beyond
economical repair at the conclusion of the rental agreement.
The plaintiff claims
the value of the non-returned and/or alternatively damaged goods.
This value, the plaintiff alleges, is based
on its standard sale
price for such goods prevailing at the time, namely July 2014.
[3]
In order to stave off summary judgment, the defendant has to disclose
a
bona fide
defence.
This means a defence set up
bona
fide
or
honestly, which if proved at the trial, would constitute a defence to
the plaintiffs claim (
Bentley
Maudesley & Co. Ltd v “Carburol”( Pty) Ltd and
Another
1949
(4) SA 873
(C);
Lombard
v Van der Westhuizen
1953
(4) SA 84
(C) at 88).
[4] In its affidavit
opposing summary judgment, the defendant raises several points. Two
preliminary points are taken. First, that
this court lacks
jurisdiction as the agreement, properly construed, was concluded in
Mossel Bay. Second, that the plaintiffs claim
is for an unliquidated
amount, which removes the plaintiffs claim from the purview of
summary judgment proceedings.
[5] Substantively,
the defendant denies that it failed to return the goods. To buttress
its denial, the defendant has attached a
delivery note signed off on
28 January 2014. On that delivery note, it is stated that the goods
were delivered to, and accepted
on behalf of, the plaintiff on 5
March 2014. The defendant explains the length of time between the
date of dispatch and the alleged
date of delivery as follows. The
goods were initially delivered to the plaintiff on 28 January 2014.
The plaintiff refused to accept
the goods as they were dirty. The
defendant took the goods to some other premises for cleaning. The
defendant further alleges that
a Mr George Benes of the plaintiff
inspected the goods at such premises. Thereafter, so the defendant
states, the goods were eventually
delivered to the plaintiffs
premises on 5 March 2014. There is a signature of acceptance,
purportedly on behalf of the plaintiff.
Counsel for the
plaintiff submitted that the delivery note was fabricated, and
pointed out that there was a discrepancy between
the delivery note
and a dispatch note. That discrepancy, so argued counsel, relates to
the registration numbers of the truck that
supposedly loaded and
delivered the goods. In the delivery note, FFR 339GP is stated as
‘vehicle particulars’, whereas
in the dispatch note the
‘vehicle number’ of the loading truck is FXX 086/165 MP.
[7]
The jurisprudential framework within which an application for summary
judgment should be considered, which is trite and established.
The
defendant must satisfy the court that he has a
bona
fide
defence
to the plaintiffs claim and the full nature and grounds thereof. In
Oos-Raandse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk
1
it was stated that not a great deal is required of a defendant but
that he must lay enough before the court to persuade it that
he has a
genuine desire and intention of adducing at the trial, evidence of
facts which, if true, would constitute a valid defence.
All that the
court enquires into is whether the defendant has ‘fully’
disclosed the nature and grounds of his defence
and the material
facts upon which it is founded and whether, on the facts disclosed so
disclosed the defendant appears to have
a defence which is
bona
fide
and
good in law. See
Maharaj
v Barclays National Bank
.
2
[8]
The remedy of summary judgment is an extraordinary and drastic one,
which has the hallmark of a final judgment in that it closes
the
doors of the court to the defendant and permits a judgment to be
given without a trial. In
Dowson
and Dobson Industrial Ltd v Van der Werf
3
it was noted that an ever increasing reluctance to grant summary
judgment in the face of opposition, was evident from the South
African courts. See also
District
Bank Ltd v Hoosain
4
,
and
Standard
Krediet Korporasie v Botes
5
.
Therefore
the court must always be reluctant to deprive the defendant of his
normal right to defend, except in a clear case. See
Standard
Bank ofSA Ltd v Naude
6
.
[9]
In the present matter, the defendant has not contended itself with
mere bald denials, as is normally the case in these matters.
It says
that the goods were returned, and attaches documents to that effect,
which
prima facie
considered,
support that contention. The alleged discrepancies pointed out by the
plaintiffs counsel cannot be determined at this
stage of summary
judgment, but at the trial. If one has a look at the numbers referred
to by counsel as the different registration
numbers of the delivery
truck, there are possible various explanations. It must be borne in
mind that indeed two different trucks
could have loaded the goods on
the two different dates - 28 January and 5 March 2014. These issues
can only be clarified and ventilated
at the trial. I do not have to
be satisfied at this stage of the veracity of the defendant’s
allegations. All I have to be
satisfied of, is whether the defendant
has disclosed a defence, good at law, which, if proven at the trial,
would constitute a
complete defence to the plaintiffs claim.
[10]
Considering the conspectus of all the relevant factors - the facts
and the proper approach to applications for summary judgments,
I am
satisfied that the defendant has disclosed a
bona
fide
defence
to the plaintiff’s claim. There is nothing inherently
implausible about the defendant’s version. As stated earlier,
if established at the trial, it will be a complete answer to the
plaintiffs claim. The defendant is therefore entitled to be granted
leave to defend. Given the view I take of the matter, it is not
necessary for me to consider the preliminary points raised by the
defendant.
[11] In the result
the following order is made:
1. The defendant is
granted leave to defend.
2. Costs are in the
main action.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
DATE OF HEARING :
7 APRIL 2015
JUDGMENT
DELIVERED : 13 APRIL 2015
FOR THE PLAINTIFF
: ADV. J.C. VAN EEDEN
INSTRUCTED BY: D.
PALEOLOGU ATTORNEYS, PRETORIA
FOR THE DEFENDANT
: ADV. R. RAUBENHEIMER
INSTRUCTED
BY : HAYCOCK ATTORNEYS , JOHANNESBURG
1
1978
(1) SA 164
(W) at 171
2
1976
(1)418 (A) at 426
3
1981
(4) SA 417
(C) AT 419
4
1984
(4) SA 544
(C) AT 550
5
1986
(4) SA 946
(SWA)
6
2009 (4) SA 669
(E) at 672C-676D