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[2014] ZAGPPHC 138
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Nedbank Limited v D & K Coffin Manufacturers CC (39472/2013) [2014] ZAGPPHC 138 (28 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 39472/2013
DATE: 28 FEBRUARY 2014
In the matter between:
NEDBANk)
LIMITED
.............................................................
Plaintiff
And
D&K COFFIN MANUFACTURERS
CC
............................
Defendant
JUDGMENT
MAKGOKA, J:
[1]
This is an opposed application for
summary judgment. The plaintiff instituted 17 claims against the
defendant for payment of monies
allegedly due and owing, pursuant to
various written agreements of sale concluded between William Tell
Industries (Pty) Ltd (William
Tell) and the defendant during the
period 11 July 2012 - 24 August 2012, in terms of which the defendant
purchased certain goods
from William Tell. It is alleged that the
goods were delivered to the plaintiff, and the plaintiff did riot pay
the purchase price.
[2]
The plaintiff alleges that on 8 October
2010 it and William Tell entered into a written invoice discounting
agreement in terms of
which the plaintiff purchased the existing arid
new debts of William Tell, and William Tell ceded all its rights,
title and interest
in and to the existing debts to the plaintiff.
Consequently, the plaintiff alleges that the defendant is indebted to
it in the
amount of R797 775.43, being the amount alleged to be
previously owed to William Tell.
[3]
Befors I consider the contentions on
behalf of the parties, I deem it pertinent to set out 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 plaintiff’s claim and the full nature and grounds thereof.
[4]
In Oos-Raandse Bantoesake
Administrasieraad v Santam Versekeringsmaatskappy Bp/c
[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 M&haraj i/ Barclays National Bank
[2]
.
[5]
In the present matter, the defendant has
raised three points in its affidavit resisting summary judgment. The
first concerns the
authority of the deponent to the affidavit
supporting summary judgment. The affidavit in support of summary
judgment
Dn
behalf
of the plaintiff was deposed to by Mr Christopher Seripe, who
describes himself as a recoveries manager of the plaintiff.
The
defendant denies that Mr Seripe has personal knowledge of the facts
giving rise to the cause of action, more specifically the
dealings
between representatives of William Tell and the defendant, as he was
not an employee of William Tell during the conclusion
of the
agreements between William Tell and the defendant.
[6]
For this contention, the defendant
placed reliance on the following passage in Erasmus, Superior Court
Practice, at B1 -216:
‘Where the cessionary of a debt sued the
debtor on the debt and applied for summary judgment on the strength
of an affidavit
signed by a director of the cessionary company, and
there was nothing in the affidavit to indicate that he had any
connection with
the cedent of the claim, ... summary judgment was
refused. See also Trekker Investments (Pty) Ltd v Wimpy Bar
1977 (3)
SA 447
[7]
The second point raised by the defendant
is whether there has been a valid cession of the alleged debts. It
should be borne in mind
that invoice discounting agreement between
the plaintiff and William Tell was concluded on 8 October 2010,
before the agreements
the agreements between William Tell and the
defendant were concluded. In terms of clause 3.2 of the invoice
discounting agreement,
the delivery of new debts would constitute
cession thereof to the plaintiff, suggesting that cession would only
take place upon
delivery of the debts. The defendant contends that in
the absence of an allegation that the alleged debts have been
delivered to
the plaintiff or have in fact been ceded to the
plaintiff.
[8]
Thirdly, the defendant alleges that it
has a counter-claim which it intends to institute against William
Tell in the amount of R3,5
m, being alleged damages suffered sis a
result of loss of sales for the months of September, October and
November 2012 due to a
delay by William Tell to supply the defendant
with certain material. This fact is confirmed in a confirmatory
affidavit deposed
to by Mr Warren Zevenster, the sales
representatives of William Tell
[9]
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 L.td
v Van der Werfi 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
[3]
,
and Standard Krediet Korporasie v Botes
[4]
.
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
[5]
.
[10]
From what is stated in para [6] above,
it appears that the defendant’s first point with regard to the
competence and authority
of Mr Seripe to swear positively to the
facts giving rise to the cause of action, was well-taken. Mr Seripe
does not appear to
be a person who can swear positively to the facts
verifying the cause of action and the amount claimed. Similarly good
to stave
off summary judgment, is the second point relating to the
cession. That point, in my view, should prudently be left for
determination
by the trial court. The defendant’s intended
counter claim is an additional consideration why leave to defend
should be granted.
[11]
To sum up, I am more than satisfied that
the defendant has disclosed a bona fide defence. Any of the two
defences raised, individually
or cumulatively, is enough to stave off
summary judgment. If proved at the trial, they will constitute a
complete defence to the
plaintiffs claim. What is more, the intended
counter claim is not so far-fetchecl or inherently implausible as to
be rejected off
hand. I therefore take a view that the defendant’s
defences have merit, and not raised solely for the purpose of delay.
They
therefore constitute a bona fide defence worthy of ventilation
in a trial. The defendant is therefore entitled to be granted leave
to defend.
[12]
In the result the order I make is the
following:
1.
The defendant is granted leave to defend
the action;
2.
The costs of this application shall be
costs in the cause.
TWHflAKGOKA JUDGE OF THE HIGH COURT
date of
Rearing
: 8 November 2013
JUDGMENT DELIVERED
: 28 FEBRUARY 2014
FOR THE PLAINTIFF
: ADV AJ SCHOEMAN
INSTRUCTED BY
: SNYMAN DE JAGER INC., PRETORIA
FOR THE DEFENDANT
: ADVJHJOOSTE
INSTRUCTED BY
: AMOD’S ATTORNEYS, DURBAN
JAFFER ATTORNEYS, PRETORIA
3
1981
(4) SA 417(C)
AT 419
[1]
1978 (1) SA 164
(W) at 171
[2]
1976 (1) 418
(A)
at 426
[3]
1984 (4) SA 544
(C) AT 550
[4]
1986 (4) SA 946
(SWA)
5
2009 (4) SA 669
(E) at 672C-676D