About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 561
|
|
Zaneza Holdings (Pty) Ltd v Pan South African Languages Board (927/2015) [2015] ZAGPPHC 561 (9 July 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 927/2015
DATE: 09 JULY 2015
In the matter between:
ZANEZA HOLDINGS (PTY)
LTD
............................................................................................
Plaintiff
And
PAN SOUTH AFRICAN LANGUAGES
BOARD
................................................................
Defendant
REASONS FOR THE ORDER
MAKGOKA. J
[1] On 9 July 2015, and after hearing
argument and reserving judgment on 30 June 2015, I granted summary
judgment in favour of the
plaintiff against the defendant for R1 075
000 plus interest on the said amount at 9% per annum from 20 October
2014 to date of
final payment. I undertook to furnish the reasons for
the order at a later stage. These are the reasons.
[2] The plaintiff instituted action
against the defendant for R1 075 000, interest and costs on attorney
and client scale. The claim
arises from a service level agreement
concluded between the parties on 30 April 2013 in terms of which the
defendant appointed
the plaintiff as its service provider for
fund-raising activities, on certain terms and conditions. The
plaintiff alleges that
pursuant to the service level agreement, and
on 27 March 2014, it raised for and on behalf of the defendant,
funding in the amount
of R20 million. In terms of the service level
agreement, it was entitled to 12,5% of the amount raised, which is R2
500 000. Of
this amount, the
defendant paid R1 425 000 in April
2014, thus rendering the balance owing by the defendant in the sum of
R1 075 000.
[3] The plaintiff issued summons
against the defendant for payment of the above sum. The defendant
delivered a notice of intention
to defend, hence the application for
summary judgment. The defendant delivered its affidavit opposing
summary judgment on 25 February
2015. On 23 April 2015 the defendant
filed an application for leave to file a further ‘supplementary’
opposing affidavit.
[4] At the hearing of the main
application, the defendant moved the application referred to above,
which was opposed by the plaintiff.
After hearing argument on the
issue, I dismissed the application and refused the defendant leave to
file the further affidavit.
I undertook to furnish reasons for that
order as part of this judgment. Here are the reasons. Both the
original and ‘supplementary’
opposing affidavits were
deposed to by Mr Zixolisile Feni, the acting chief executive officer
of the defendant. The affidavit in
support of the application to file
a ‘supplementary’ opposing affidavit is brief. In
paragraph 4 he provides the following
as a reason to file it:
‘I have deposed to an affidavit
on 12 February 2015 resisting summary judgment. Although the
defendant’s defence has
been fully set out then I wish to
further elaborate and present the available evidence in so far as the
affidavit resisting summary
judgment lacks detail and in so far as it
does not sufficiently disclose the nature and grounds of the facts on
which the defence
is based.’
[5] This is simply not sufficient a
reason. One would expect that an explanation would be proffered as to
the reason why the original
affidavit was drafted and deposed to in
the manner it is. The deponent seems to have taken a supine attitude
to the matter. The
fact is, the defendant seeks an indulgence - an
unusual one for that matter. It is trite that an indulgence is not
there for the
asking, and that an applicant must make out a case for
the granting thereof. The defendant has failed in that regard. For
this
reason the application for the filing of a ‘supplementary’
opposing affidavit was dismissed.
[6] Now to the main application. In
order to stave off summary judgment, the defendant has to disclose a
bona fide defence, which
means a defence set up bona fide or
honestly, which if proved at the trial, would constitute a complete
defence to
the plaintiff’s 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).
The defendant’s opposing
affidavit
[7] In its affidavit opposing summary
judgment, five defences are raised. First, it is contended that the
agreement was ‘void
ab initio and/or voidable and further
alternatively was contra bones more' (sic) because Mr Mxolisi Zwane,
who was the defendant’s
care-taker chief executive officer, and
who concluded the agreement on behalf of the defendant, was illegally
appointed. Second,
it is stated that the service level agreement, and
in particular, the payment of a fee or commission, was prohibited by
the Grant
Agreement concluded between the National Lotteries Board,
acting as principal for the National Lottery Distribution Fund Trust,
and the defendant. Third, it is argued that the defendant has waived
its entitlement to commission. Fourth, that the plaintiff
used the
material of the defendant in fulfilling its contractual obligations.
Fifth, that the plaintiff had ‘alluded’
to withholding
money that it would only pay over to the defendant on payment by the
defendant to the plaintiff. I deal with these
contentions in
sequence.
Voidness of agreement due to illegal
appointment of the acting CEO
[8] The defendant has contended itself
with a bald assertion of the illegality of the appointment of the
care-taker CEO. No facts
are stated, nor is any basis set out, why
his appointment is illegal. Nothing more needs to be said about this
argument.
Payment of commission prohibited by
agreement with the National Lotteries Board
[9] What the defendant has failed to do
in this regard is to set out facts concerning the nature of its
relationship with the National
Lotteries Board, and how it impacts on
the contractual relationship it has with the plaintiff. What is the
role of the National
Lotteries Board in the affairs of the defendant?
Does the alleged prohibition render the agreement between the
plaintiff and the
defendant illegal, or does it only mean that the
National Lotteries Board would not make a grant to the defendant for
a commission
it contracted for with the plaintiff? These are
pertinent questions which the defendant is required to unequivocally
set out. It
has failed to do so. What is clear, though, is that the
plaintiff is not party to the agreement between the defendant and the
National
Lotteries Board, and is certainly not bound by it. I fail to
see how
any contractual provision between two
parties can invalidate an agreement between one of them and a third
party.
The plaintiff has waived commission
[10] Similarly, the defendant simply
makes a bald allegation of an agreement. No details such as the date,
or the terms of such
agreement are set out. Only a bald averment is
made. It is quite instructive in this regard that the letter which it
places reliance
on in this regard, dated 16 September 2014 is its
own, to the Auditor- General. There, too, the allegation is made with
the same
baldness, without any detail. One would have expected that
the letter was written with sufficient facts at the writer’s
elbow
to enable her to set out with sufficient particularity, the
terms of the alleged waiver.
[11] What is also significant is that
the plaintiff would have waived commission provided that the
plaintiff benefitted from co-coordinating
the implementation of
certain projects. There is no allegation that the condition was met,
and that the plaintiff indeed benefitted
from such coordination, thus
triggering the supposed waiver. It should also be borne in mind that
the defendant has made part-payment
of the plaintiff’s initial
claim. This very fact militates against the defendant’s
contention in this regard, for,
if indeed there was a waiver, the
defendant would not have made any payment at all.
[12] There is also another upshot of
the letter referred to above. The letter was written from the office
of the acting chief executive
officer, presumably the deponent to the
opposing affidavit, Mr Feni. In paragraph 2 of the letter the service
level agreement between
the defendant and the plaintiff is mentioned
in affirmative terms, including the commission payable. There is no
mention of the
agreement being void, or the payment of commission
being prohibited, contrary to what is argued in this application.
This is an
indication that these arguments are an after-thought
geared at frustrating payment of the amount claimed by the plaintiff.
The plaintiff used the defendant’s
material
[13] The defendant complains that the
material used by the plaintiff to raise the lotto grant was generated
by the employees of
the respondent which ‘mysteriously’
found its way into the hands of the plaintiff which the plaintiff
passed it off
as its own material. Once more, the defendant does not
state any basis, contractual or otherwise, which would disqualify the
plaintiff
from receiving its commission, even if its allegation is
true.
Money retained by the plaintiff
[14] In this regard, the defendant
states that in a letter to it on behalf of the plaintiff, the
plaintiff ‘alluded to monies
which she (sic) was still
withholding and would pay it over once payment was effected to her
(sic) company...’ For this contention,
the defendant relies on
a letter dated 19 September 2014 written by the plaintiff’s
managing director, which is annexure
‘PAN02’ to the
opposing affidavit. In the two relevant paragraphs, the plaintiff
records, firstly, the accomplishment
of its contractual obligations,
and secondly, it laments the non-payment of its invoice for work
done. The paragraph which the
defendant apparently relies on as a
defence reads:
‘We also request an account to
which we can immediately transfer the funds remaining for the
implementation of the cancelled
publishing workshops.’
[15] Clearly, all what is stated is
that the plaintiff was having unutilized funds which it had to refund
to the defendant. There
is certainly no suggestion of the plaintiff
withholding any monies from the defendant as leverage for payment by
the defendant
of its invoice. The contrary is true. In any event, I
do not see how this is supposed to even remotely, serve as a defence.
Drastic nature of summary judgment
[16] I am quite aware of the ‘drastic’
nature of the remedy of summary judgment as it allows judgment to be
entered
against a defendant without evidence. On the other hand, the
court would be remiss in its duties if unmeritorious defences,
clearly
devoid of any bona tides, stand in the way of a plaintiff who
is clearly entitled to relief. The ever-increasing perception that
any defence, whatever its merits, is sufficient to stave off summary
judgment, is misplaced and not supported by the trite general
principles developed over many decades. See for example the
well-known decision of Maharaj y Barclays National Bank Ltd (supra).
See also generally, Herb Dyers (Pty) Ltd v Mohamed and Another 1965
(1) 31 (T) at 31H-32A-B; Caltex Oil (S/AJ Ltd v Webb and Another
1965
(2) SA 914
(N) AT 916D-H; Arend and Another v Astra Furnishers (Pty)
Ltd 1974 (1) SA (C) at 303F-H; Shepstone v Shepstone 1974
(2) 462 (N) at 467A-H and Breytenbach v
Fiat SA (Edms) Bpk 1976 (2) 226 (T).
[17] Recently the Supreme Court of
Appeal (the SCA) restated the purpose of summary judgment procedure
in Joob Joob Investments
(Pty) Ltd v Stocks Mavundla Zek Joint
Venture
2009 (5) SA 1
(SCA). At paras 31 and 33 the following is
stated:
‘[31] [l]t was intended to
prevent sham defences from defeating the rights of parties by delay,
and at the same time causing
great loss to plaintiffs who were
endeavouring to enforce their rights.
[33] Having regard to its purpose and
its proper application, summary judgment proceedings do not hold
terrors and are ‘drastic’
for a defendant who has no
defence. Perhaps the time has come to discard these labels and to
concentrate rather on the proper application
of the rule, as set out
with customary clarity and elegance by Corbett JA in the Maharaj case
at 425G-426E.’
[18] In the present case, the defendant
has been content with bald assertions, none of which is worthy of
reference to trial. It
is also instructive that while claiming that
the service level agreement is void, the defendant has does not offer
restitution
of the money it received as a result of the fund-raising
by the plaintiff. In the result I conclude that the defendant
discloses
no bona fide defence to the plaintiff’s claim. The
plaintiff is entitled to judgment. Costs should follow the event.
However,
due to inadvertence on my part, I did not invite the parties
to address me on the costs occasioned on 2 March 2015. On that
occasion,
the matter was postponed sine die, and costs were reserved.
As a result, I deem it prudent to invite the parties to either agree
on the aspect, alternatively to proffer argument on the reserved
costs. Upon that, I would make a globular costs order, inclusive
of
the costs of the application for summary judgment, which, as already
stated, the defendant is liable to pay.
[19] For the above reasons, I made the
following order:
1. Summary judgment is granted in
favour of the plaintiff against the defendant as follows:
1.1 Payment of the amount of R1 075
000;
1.2 Interest on the above amount at the
rate of 9% per annum from 20 October 2014 to date of final payment.
T.M MAKGOKA
Judge of the High Court
Date of hearing: 30 June 2015
Order made: 9 July 2015
Reasons furnished: 27 July 2015
Appearances:
For the plaintiff: Adv. H.P. van
Nieuwenhuizen
Instructed by: Tshabalala Attorneys,
Johannesburg
Helen Karsas Attorney, Pretoria For
the defendant: Adv. CH Badenhorst
Instructed by: Makhafola Attorneys,
Pretoria