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[2015] ZANCHC 16
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Diamond Markerting Consultants (Pty) Ltd v Alexkor RMC JV (1690/2014) [2015] ZANCHC 16 (14 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT)
CASE
NO: 1690/2014
Case Heard / Judgment
delivered: 24/04/2015
Date
Reasons provided: 14/05/2015
In
the matter of
DIAMOND
MARKETING CONSULTANTS (PTY)
LTD APPLICANT/PLAINTIFF
and
ALEXKOR
RMC
JV RESPONDENT/DEFENDANT
REASONS
FOR JUDGMENT
ERASMUS
AJ
[1]
I shall hereinafter refer to the parties as the plaintiff and
defendant.
[2]
The plaintiff instituted action against the defendant for payment
R1,628,528.22 plus interest and costs. The defendant
gave
notice of its intention to defend the action, after which the
plaintiff applied for summary judgment. The
defendant opposed this application and the matter was heard on 24
April 2015.
[3]
On 24 April 2015 I refused the application for summary judgment and
granted the defendant leave to defend the action.
The costs in
respect of the application for summary judgment were reserved.
I indicated that I would provide reasons for
my judgment, if
requested to do so. I have now been requested by the plaintiff
to provide reasons and my reasons follow.
[4]
The
plaintiff’s claim, as set out in the particulars of claim, is
based on the defendant’s alleged breach of ‘
an
oral, alternatively partly oral partly written agreement
’
in terms of which the plaintiff was to afford the defendant valuation
and marketing services. The plaintiff attached
a document,
annexure ‘DMC1’, which was referred to as ‘
a
written copy of the partly oral partly written agreement’.
[5]
Annexure
‘DMC1’ appears to be a letter dated 23 April 2007,
addressed to the chief executive officer of the defendant,
in which
the plaintiff provides the defendant with a description of the
services which the plaintiff provided during the valuation
and tender
process in Johannesburg. In the last paragraph reference is
made to an attachment to the letter containing the
breakdown of the
plaintiff’s general fee structure, ‘
as
was discussed’
.
The alleged attachment does not form part of the papers.
Annexure ‘DMC1’ does not contain any of
the terms of the
agreement, as alleged in the particulars of claim and has not been
signed by any representative of any of the
parties.
[6]
The
plaintiff, in its particulars of claim, alleged that
the
material express, alternatively, implied terms of the said oral,
alternatively
partly
oral partly written agreement
’
were,
inter
alia
:
6.1
The
defendant would pay the plaintiff ‘
annually
alternatively monthly a fee in respect of services rendered by it
’;
6.2
The said
fee ‘
would
be subject to an escalation which would be finalised between the
parties in January of any particular year
’,
which amount was alleged to be R148,048.02 at the time of the
termination of the agreement.
6.3
The
defendant ‘
would
be entitled to terminate the agreement on reasonable notice’
;
6.4
The
plaintiff ‘
was
required
to
make itself available during the 8 periods of any one year and as a
result would lose other contracts in the process
’;
[7]
The plaintiff further alleges that during January 2014 the defendant
breached alternatively repudiated its obligations in terms
of the
said agreement by informing the plaintiff that it would no longer
require its services with effect from January 2014.
The
plaintiff further alleged that this notice did not constitute
reasonable notice and stated that a reasonable notice period
should
have been 12 months.
[8]
The
amount claimed as damages by the plaintiff was arrived at by
multiplying the monthly fee as at January 2014 by the twelve months,
based on what the plaintiff considers to be a reasonable notice
period and subtracting the payment received in January 2014.
[9]
It was
submitted on behalf of the defendant that the plaintiff’s claim
cannot be regarded as one for a liquidated amount of
money, as
contemplated in Rule 32(1)(b).
[10]
The issue
as to whether the plaintiff’s claim is for a liquidated amount
of money was not specifically dealt with in the heads
of argument on
behalf of the plaintiff. It was submitted though that the
contents of the affidavit filed in opposition to
the application for
summary judgment, contains hearsay evidence and is inadmissible and
that the defendant therefor has not complied
with the provisions of
Rule 32(3)(b).
[11]
It
is trite that a court has a discretion whether or not to grant
summary judgment. Rule 32(5) provides that a Court
may
enter summary judgment even if the defendant does not satisfy the
court
by
way of an affidavit by a person who can swear positively to the fact
that he has a
bona
fide
defence to the action.
[1]
If,
having regard to the nature of the cause of action and the nature of
the facts involved, it is reasonably possible that a plaintiff's
application is defective
or
that the defendant has a good defence, the issue must be decided in
favour of the defendant.
[2]
If, on the papers before me, there is a reasonable possibility that
an injustice
may
be done if summary judgment is granted, it constitutes sufficient
basis on which to exercise my discretion in favour of the
defendant.
[3]
[12]
In
exercising my discretion whether or not to grant summary judgment, I
had to be satisfied
that
the plaintiff had an unanswerable case in the sense that its claim
fell within the ambit of Rule 32(1) and in this instance,
that it is
that the claim is for a liquidated amount of money.
[13]
A
claim cannot be regarded as one for a liquidated amount in money
unless it is based on an obligation to pay an agreed sum of money
or
is so expressed that the ascertainment of the amount is a matter of
mere calculation.
[4]
[14]
In
casu
the
plaintiff relies on a partly written and partly oral agreement.
The alleged written part of the agreement, annexure ‘DMC1’
to the particulars of claim, does not support any of the averments
pertaining to the material terms of the agreement, as set out
in the
particulars of claim. In this doc0ument refence is made to an
attached breakdown of the general fee structure, which
had not been
attached to annexure ‘DMC1’. The plaintiff’s
averments in respect of the terms of the agreement
appear then to be
based solely on an oral agreement.
[15]
The
allegations contained in the particulars of claim, pertaining to the
material terms of the agreement, are framed in such a manner
that the
ascertainment of the amount payable is not a matter of mere
calculation.
[16]
The
averment that the defendant would be entitled to terminate the
agreement on reasonable notice, in itself introduces uncertainty
and/or debate in respect of the plaintiff’s claim. It was
never agreed as and/or specified what would constitute reasonable
notice. The notice period impacts on the calculation of damages
and the amount claimed by the plaintiff. The issue
as to what
would constitute reasonable notice is dependent on the facts of the
case and is, in my view, an issue that needs to
be canvassed during
the trial. A further issue that appears to be relevant in the
computation of the plaintiff’s damages,
is the reasonable
effort by the plaintiff to mitigate its damages. In my view the
plaintiff’s claim is therefor not
for a liquidated amount.
[17]
In view of the above I
was and am still of the view that a
reasonable
possibility exists that an injustice
may
be done if summary judgment were to be granted
and
therefore I exercised my discretion to refuse summary judgment and to
afford the defendant the opportunity to defend the action.
[18]
In the light of the above I do not deem it necessary to deal with the
plaintiff’s arguments in respect of the defendant’s
affidavit which had been filed in opposition of the application for
summary judgment.
_________________________
S
L ERASMUS
ACTING
JUDGE
On
behalf of Plaintiff:
Adv. W.J.
Coetzee (oio Adrian B. Horwitz & Associates)
On
behalf of Defendant
:
Adv. T.J. Golden (oio
Mathews & Partners)
[1]
Gruhn v M Pupkewitz &
Sons (Pty) Ltd 1973(3) SA 49 (A) at 58-59
[2]
Mowschenson
& Mowschenson v Mercantile Acceptance Corporation of SA Ltd
1959
(3) SA 362
(W) at 366
[3]
First
National Bank of South Africa Ltd v Myburgh
2002
(4) SA 176
(C) at 184H
[4]
Oos-Randse
Bantoesakeadministrasieraad v Santam Versekeringsmaatskappy Bpk en
Andere (2) 1978(1) SA 164 (w) at 168; See
also Standard Bank v
Renico Construction 2015(2) SA 89 para [21] to [29]