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[2015] ZAGPPHC 693
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Murugan and Another v Watson (13757/2015) [2015] ZAGPPHC 693 (21 August 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:21/8/15
CASE NO: 13757/2015
In the matter between:
ARUMUGAM
MURUGAN
1
ST
APPLICANT
VALENCIA
MUR UGAN
2
ND
APPLICANT
And
ANGELA JOY
WATSON
RESPONDENT
JUDGMENT
MAKUME,
J
[1]
This is an application for summary judgment. The applicants claim
against the respondent is for payment of the sum of R207 450.00
plus
interest and costs.
[2]
On 26th day June 2013 at Kempton Park the respondent acknowledge
herself in writing to be indebted to the applicants
in
an amount of R2 l 7 450.00 being the balance of a
purchase price due to the applicants.
[3]
This amount is the balance of the purchase price in respect of
certain property described as Portion [.......] I Township,
Registration Division IR Province of Gauteng.
[4]
That balance is payable to the applicants by the respondent at the
rate of R5 000.00 (five thousand rand) per month the first
payment
payable one month after registration of the property sold in the name
of the respondent.
[5] As security for the
debt it was agreed that a private bond he registered in favour of the
applicants over the property sold.
[6] In terms of clause 5
of the acknowledgement of debt the respondent agreed that in the
event of her failing to make payment of
any amount due on due date
then the full amount of the capital and interest outstanding shall
become due and payable.
[7] In paragraph 9 of the
particulars of claim the applicants allege that the respondent
breached the agreement in that she made
only one payment of R10
000.00 (Ten Thousand Rand) on 27 November 2013 and has not made any
further payments despite demand accordingly
the balance of R207
410.00 is due and payable.
[8] The applicants issued
summons against the respondent during February 2015 claiming payment
of the sum of R207 450.00 plus costs
as well as interest at the rate
of 15.5% per annum from 26 June 2013 to date of final payment. On
receipt of the summons the respondent
entered appearance to defend
the applicants served and filed this application for summary judgment
on 1 April 2015 set down the
hearing on 19 May 2015. The
respondent served and filed her affidavit resisting summary
judgment
on 15
th
May 2015.
[9] In her affidavit
resisting summary judgment the respondent raises three points
in
limine
and on the merits she does not deal with the case pleaded
by the applicants instead the respondent refers to a separate
agreement
of sale that she and the applicants concluded on 24 March
2013 in respect of the same property.
[10] The respondent
points out that in terms of that agreement she bought the property
from the applicants for an amount of R l
350 000.00. She does not say
how that amount was payable. She then proceeds to put up what she
says would be her counterclaim as
a result of various breaches and
damages that she suffered arising out of that sale agreement. The
respondent concludes by saying
that the
application for summary judgment should be
dismissed alternatively that it be stayed pending
determination of
her claim.
[11] The courts have in a
number of cases stressed the fact that summary judgment proceedings
are extraordinary and drastic in nature
in that it closes the door to
defendants hence it is imperative that this procedure should only be
resorted to where the plaintiff
s case is unimpeachable and that the
defence is not
bonafide
and is bad in law.
[12] In terms of rule
32(3)(b) of the Uniform Rules of Court one of the ways in which a
defendant could successfully oppose summary
judgment is by satisfying
the court on affidavit that he has a
bona fide
defence to the
claim. Where the defence is based on facts in the sense that material
facts alleged by the plaintiff in his summons
are disputed or new
facts constituting a defence are alleged the court will not attempt
to decide the issue or to determine whether
or not there was a
balance of probabilities in favour of the one party or the other. All
that a court enquires into is the following:
(a)
Whether the defendant has "fully"
disclosed the nature and
grounds of his defence and the material facts upon which it is
founded.
(b)
Whether on the facts so disclosed the defendant
appeared to have as
to either the whole or part of the claim a defence which was
bon
a
fide
and good in law.
[13] The respondent has
failed to set out what her defence is and instead raises a possible
counterclaim based on a breach of an
earlier agreement. Her
counterclaim if valid which is denied is unliquidated hence the
requests in her alternative prayer that
the Applicant's claim be
stayed pending determination of her claim.
[14] A defendant may
raise as a defence to the plaintiff s claim a counterclaim against
plaintiff whether liquidated or unliquidated
however such affidavit
must comply with the requirements of rule 32(3)(b). In the matter of
Soil Fumigation
Services v Chemfit Technical
Products
2004 (6) SA 29
Bravo JA dealing with a similar
matter said the following at page 39 paragraph [24] and [25]:
"[24]
In
the
light of the aforegoing,
I
find
myself in
agreement with the
alternative
argument raised by the
plaintiff
in this
Court, namely that the defendant
failed
to
'disclose fully
the nature
and the
grounds of [its counterclaim] and the material
facts
relied
upon therefor'
as required
by rule 32(3)(b).
See
the classic
exposition
Colman
J
on
behalf
of
the Full
Court
in
Breitenbach
v Fiat
SA
Edms
(Bpk)
1976
2 SA
226
(T)
at 228B-H.
[25] What
remains to
be
considered is
whether in
these circumstances
the
Court
a
quo
should
have
exercised
its overriding
discretion
to
refuse
summary judgment
in
the
defendant's
favour. I
think
not.
For the
reasons
I
have
stated (in paragraph
[11]
above
a
Court
should be
less inclined to exercise its discretion in favour
of
a defendant
in
a
matter
such
as
this
where
the
answer
to
the
plaintiff
's claim is raised in
the
form
of a counterclaim as opposed to a defence
to
the
plaintiff
's
claim
in the
form of a
plea. Moreover,
and
in any
event,
a
Court
can
only
exercise
its discretion
in
the
defendant 's favour on the
bases of the material placed before
it
and not on the basis of
mere conjecture or speculation. On the material before
the Court
there
is
in my
view
no
reason
to think
that
the defendant 's counterclaim has any merit.
For
these reasons I believe that the summary judgment was
rightly
granted
for
the
whole
amount of the
plaintiff's
claim.
"
[15] The respondents
counterclaim is bad in law and falls to be dismissed. Firstly the
agreement of sale on which the counterclaim
is based has a voetstoots
clause which reads as follows:
"11.5 The property
is sold as is or voetstoots and the seller do not afford any
guarantees or warranties in respect of the
building or improvements
on the property including building materials."
[16] Secondly, Clause 8
of that agreement dealing with breach required the Respondent to have
called upon the Applicants to remedy
any breach including warranties
within seven days. There is no evidence that since March 2013 the
Respondent ever called upon the
Applicants to remedy any breach or to
comply with any warrant. This is brought out now two years
later. In the premises it
is my view that the respondent's
counterclaim for damages as a result of
inter
alia
the alleged breach of warranties cannot succeed and accordingly
does not constitute a
bon
a
fide
defence
for purposes of resisting this application.
The
Respondents
Points
in limine
[17] The first point
in
limine
raised by the respondent is that the
applicant failed to sent to her the notice required in terms of
section 129 (1) (a) of the
National Credit Act prior to instituting
the action. The applicants deny that the National Credit Act applies
in this matter and
in any case such a letter was subsequently
dispatched to the respondent on 27 May 2015 and still Respondent
omitted to take any
action to which she is entitled to in terms of
the Act. The respondent did not ask for debt review or attempt to
resolve the dispute
under the agreement nor did she attempt to
develop a plan to bring the payments under the agreement up to date.
Accordingly, this
point
in limine
is technical and falls to be
dismissed.
[18]
The second point
in limine
raised is that the action is based
on a mortgage agreement which in terms of section 9(4) of the
National Credit Act is a large
agreement and therefore requires that
the applicants should have registered as credit provider in terms of
the National Credit
Act.
[19]
Once again, this argument is flawed and bad in law because nowhere
does the applicants base their cause of action on the mortgage
bond.
The claim is based on an acknowledgment of debt and that transaction
does not fall within the ambit of the National Credit
Act.
[20]
In the matter of
Hatting
v Hatting
2014 (3) SA
162
two brothers Johannes and Fanti respectively plaintiff and
defendant had for many years conducted business together. In the year
2009 they decided to terminate their commercial relationship. In the
termination agreement the defendant Fanti agreed to pay his
brother
Johannes an amount of R6.6 million by means of annual instalments.
The defendant fell in arrears whereupon his brother
Johannes
instituted action for payment of the balance. In resisting the
application for summary judgment the defendant argued that
the
termination agreement amounted to an acknowledgment of debt and that
the Plaintiff should have served a notice in terms of
section 129 (1)
(a) of the National Credit Act before issuing summons. The plaintiff
argues that the agreement was not governed
by the National Credit
Act.
[21] Finding in favour of
the plaintiff Van Zyl R said the following at page 174 paragraphs 25:
"[25]
Na
my mening
blyk die aard
en
substansie
van die kontrak gesluit tussen
die
partye
te
wees
'n
ooreenkoms wat
die verhouding tussen die
partye reguleer voortspruitend uit die besluit
van
die partye
om die besigheid
en sake
hoat
hulle vir die afgelope paar
dekades
in samewerking
met mekaar gedoen
het,
te beeindig op die basis soos
uiteengesit
in
die kontrak.
Hier is nie
sprake van
kredietverskaffer verbruiker verhouding
soosbwaarmee
die
Nasionale
Kredietwet duidelik
mee handel nie.
"
[22] On a proper
construction and analysis of the National Credit Act as to its
purposes and application as set out in section 2
thereof I am
satisfied that in the present matter the relationship that was
created in terms of the acknowledgment of debt cannot
be regarded to
fall within the ambit and scope of the National Credit Act.
[23] The third and last
point
in limine
need not detain me further. It concerns the
omission to indicate the words "true and correct" in the
affidavit of the
Applicants. This was a typing error which has been
rectified in a supplementary affidavit. There is no prejudice to the
respondent
and the point
in
limine
is
accordingly dismissed.
[24] In conclusion the
respondent has failed to show any
bond
fide
defence to the applicants claim and I accordingly grant summary
judgment in favour of the applicants as follows:
1.
Payment in the sum of R207 450.00;
2.
Interest at the rate of 15.5% per annum
from 26 June 2013 to date of
payment.
3.
Cost of the action.
Dated at Pretoria on 21st
day of August 2015.
_______________________
MAKUME M. A.
JUDGE
OF THE HIGH COURT
Heard
on:
07 August 2015
For the Applicants_
:
Instructed by:
Adv A Granova
Joubert Scholtz Inc
43 Charles Street
Muckleneuk
For the Respondent
:
Adv
Instructed by: Steve
Merchak Attorney
c/o Helen Karsas
Attorneys
Date of
Judgment:
21 August 2015