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[2014] ZAGPPHC 220
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Kgafela Construction CC v TBH Scaffolding Supplies CC (24413/2013) [2014] ZAGPPHC 220 (11 April 2014)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO. 24413/2013
DATE:
11 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
KGAFELA
CONSTRUCTION
CC
....................................................................................
Applicant
and
TBH
SCAFFOLDING SUPPLIES
CC
.............................................................................
Respondent
CORAM:
EBERSOHN AJ
HEARD
ON: 27
th
MARCH 2014
JUDGMENT
HANDED DOWN ON 11 APRIL 2014
JUDGMENT
EBERSOHN
AJ.
[1]
The applicant applied for leave to appeal. The parties will in this
judgment be referred to as plaintiff and defendant respectively.
[2]
The plaintiff sued the defendant for
payment of the sum of R749 089, 50 in respect of scaffolding
materials supplied and services
rendered by the plaintiff to the
defendant. The defendant defended the matter and the plaintiff
applied for summary judgment which
was granted by this court the
court having found that the defendant did not make out a bona fide
defence.
[3]
Instead of stating the proposed grounds
of appeal, the application for leave to appeal was couched in the
form of an overview of
the requirements of rule 32 apparently relying
on the dismissal by this court of the defendant’s second point
in limine raised
in the opposing affidavit apparently, and wisely,
abandoning the first point in limine namely that the deponent to the
affidavit
in support of the application for summary judgment has not
clearly stated the basis upon which he has the requisite knowledge of
the facts to verify the cause of action. Upon what was stated in the
verifying affidavit the court was able to make a factual finding
that
that the deponent was a person who could swear positively to the
facts alleged in the summons and be able to form the opinion
that
there was no bona fide defence available to the defendant and that
the notice of intention to defend was given solely purpose
of delay.
(See my judgment in Firstrand Bank Ltd. v Beyer
2011 (1) SA 169
(GNP).)
[4]
The ground of appeal based on the second
point in limine is that not enough particulars were divulged in the
simple summons to enable
the defendant’s deponent to the
opposing affidavit, one Sono, to identify the plaintiff and to
respond to the claim for scaffolding
and services rendered in
connection therewith. In paragraph 3 of his affidavit he stated that
the defendant has "a bona fide
defence to the plaintiff’s
claim.” However, nowhere in the rambling, repetitive affidavit,
is it denied that the defendant
entered into the agreement as alleged
by the plaintiff during the period June 2012 to September 2012 and
that scaffolding materials
were supplied and services were rendered
by the plaintiff to the defendant at the defendant’s special
insistence and request
and that the amount claimed namely R749 089,50
was calculated in accordance with agreed prices.. Strangely though,
the second point
in limine is to the effect that the summons was
vague and embarrassing and/or alternatively lacked the averments
which are necessary
to sustain a cause of action and also excipiable
(the deponent to the affidavit and the person who drafted the
affidavit apparently
not being aware thereof that a simple summons is
not a pleading and therefore not excipiable.) There is no merit in
this point
at all. (See Icebreakers No. 83 (Pty) Ltd v Medicross
Health Care Group (Pty) Ltd
2011 (5) SA 130
(KZN) at 1311-132A;
Trans-African Insurance Co. Ltd. V Maluleka
1956 (2) SA 273
(A).
[5]
It is also strange on what grounds and
in an absurd manner the deponent and the person who drafted the
affidavit could speculate
about it possibly being a delictual claim.
[6]
The court must also deal with paragraphs
3.18 and 5.10 of the heads of argument filed by counsel for the
defendant. They read as
follows:
“
3.18
Paragraph (j) of the application for leave to appeal states that the
Defendant
is a large construction company who enters into contracts with
suppliers and subcontractors on a daily basis. As such,
the Defendant
would need to be placed in possession of more information in order to
be in a position to respond thereto. The plaintiff’s
claim was
vaguely and baldly set forth in the summons.”
“
5.10
The same can be said for the plaintiff and defendant in the present
matter where the defendant is an entity more specifically
a large
construction company who enters into contracts with suppliers and
subcontractors on a daily basis and has numerous representatives
who
act on its behalf and as such the entity itself or its director
cannot possibly be required to knoiw what the correct price
of all
goods purchased or the agreed prices in respect of all goods sold are
unless, more information is provided by the plaintiff
in the manner
in which it sets forth its claim."
[7]
What was stated in paragraph 1.1 (j) of
the application for leave to appeal and in the two quoted paragraphs
supra was grasped from
the air and was not based on the answering
affidavit and should be ignored. If what is stated therein is true it
would have been
the easiest thing in the world for Sono, by merely
punching the defendant’s computer to obtain a printout of the
details
regarding the plaintiff and their agreement and agreed
prices, within a few seconds. The fact that Sono was silent in his
affidavit
about the aspect of his firm’s bookkeeping data
indicates that he was not candid with the court. If Sono nevertheless
didn’t
know anything about the plaintiff and the alleged
contract he was not a competent deponent to depose to the answering
affidavit
and the defendant should have caused a person with
knowledge about the plaintiff and the contract to depose to the
answering affidavit.
In that sense paragraph 1.3 of the answering
affidavit is not true.
[8]
The plaintiff and defendant are both
from around Pretoria. If Sono was so lacking in knowledge about the
plaintiff’s claim
he easily could get details about if from the
plaintiff. The mere fact that he did not take the court into his
confidence in this
regard shows that he apparently did not do so, and
it also reflects negatively against him. Instead of getting the
details he elected
to come to court with a rambling defence of
vagueness and excipiability etc.
regarding
the plaintiff’s claim.
[9] There are no
reasonable prospects that another court may come to the conclusion
that this court erred in exercising its discretion
incorrectly by
granting summary judgment.
[10]
The following order is accordingly made:
1.
The application for leave to appeal is dismissed with costs.
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
The
applicant’s counsel: Adv M.C. ERASMUS SC
ADV. S. MARITZ
The applicant’s
attorney: Diemont Inc.
Ref. Diemont/DD2061
Tel 012 348 613
The
respondent’s counsel: Adv. S. STRYDOM
The
respondent’s attorneys: Anton Lombard Att.
TEL.
012 452 8900
REF.
Rosemary Farelo/IL00 2066