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[2015] ZAGPPHC 177
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Layher (Pty) Ltd v Siyakhona Scaffolding (Pty) Ltd (6642/2015) [2015] ZAGPPHC 177 (13 April 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
PROVINCIAL DIVISION, PRETORIA)
CASE
NO: 6642/2015
DATE:
13 APRIL 2015
NOT
REPORTABLE
In
the matter between:
LAYHER
(PTY)
LTD
..................................................................................................................
Plaintiff
A
nd
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.GP
is stated as ‘vehicle particulars’, whereas
in the dispatch note the ‘vehicle number’ of the loading
truck
is F.......... 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 of SA 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
6
2009 (4) SA 669
(E) at 672C-676D
[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]
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
339