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[2014] ZAFSHC 57
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Engen Petroleum Limited v AAc Agri Foods CC and Another (4057/2013) [2014] ZAFSHC 57 (24 April 2014)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 4057/2013
In
the matter between:
ENGEN
PETROLEUM
LIMITED
Plaintiff/Applicant
(Registration
No. 1989/003754/06)
and
AAC
AGRI FOODS
CC
First
Defendant/Respondent
(Registration No.
2005/052381/23)
ADAM
JOHANNES SWANEPOEL
Second
Defendant/Respondent
(Identity
No. ……………………….)
HEARD
ON:
13 FEBRUARY 2014
JUDGMENT
BY:
MOTLOUNG,
AJ
DELIVERED
ON:
24 APRIL 2014
[1]
The plaintiff, Engen Petroleum Ltd, a company duly registered in
South Africa, doing business as a wholesaler in petroleum and
related
products with principal address at Thibault Square, Cape Town,
instituted action against the two defendants jointly and
severally,
claiming payment of the sum of R8 077 714,98 in respect of
sales delivered for the period October 2010 to
January 2011.
[2]
The defendant AAC Agri Foods CC was the co-principal debtor and Adam
J. Swanepoel was sued in his capacity as surety.
Notice of
intention to defend was given by the defendants and the plaintiff
thereupon applied for summary judgment. The application
for
summary judgment is opposed by the defendants.
[3]
Rule 32 of the Uniform Rules regulate summary judgment. The
respondents rely on non-compliance with Rule 32(2), which
provides
that:
“
The
plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, deliver notice of application for
summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the cause of
action and the amount, if any, claimed and stating that in his
opinion there is no
bona fide
defence to the action and that notice of intention to defend has been
delivered solely for the purpose of delay.”
[4]
The respondents have taken point that the affidavit in support of the
application for summary judgment does not comply with
the sub-rule in
that the deponent is not employed by the person they contracted with
and can therefore not swear positively to
the facts verifying the
cause of action. The court will have to be satisfied that each
of the requirements set out in the
sub-rule have been fulfilled
before it can hold that there has been proper compliance with Rule
32.
See:
Fischereigesellschaft F Busse
& Co Kommanditgesellschaft v African Frozen Products (Pty) Ltd
1967 (4) SA 105
(C);
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A)
[5]
It is trite law that a person can swear positively to the facts only
if they are within his personal knowledge. There
must be enough
on the papers to satisfy the court that the deponent does indeed
possess the requisite knowledge.
[6]
The cause of action was set out in the summons as follows:-
(i)
“
4.
During the period October 2010 to January 2011:-
4.1
The First Defendant, duly represented by the Second Defendant, placed
orders with Engen
Lesotho (Pty) Limited, a Company registered and
incorporated in terms of the laws of the Kingdom of Lesotho [‘Engen
Lesotho’]
(Engen Lesotho was at all material times duly
represented by authorised officials) for the delivery of illuminating
paraffin and
fuel products;
4.2
As such, Engen Lesotho sold and delivered the product as ordered by
the First Defendant
to First Defendant’s premises:
4.3
Engen Lesotho debited the price in respect of each order against the
amount owed by the
First Defendant calculated at the prevailing list
price of the product at the time of each delivery.
4.4
Payment in respect of each delivery became due, owing and payable
upon the Plaintiff invoicing
the First Defendant.
5.
Full particulars in respect of the illuminating paraffin purchases
appear in
the schedules hereto being ‘
POC1.1’
to ‘
POC1.3’
.
6.
Further, and during the period October 2010 to January 2011 the First
Defendant
ordered and purchased product from Engen Lesotho including,
inter alia
,
dieseline, unleaded petroleum (ULP), lead replacement petroleum (LRP)
and other products (jointly ‘product’) from
the
Plaintiff.
7.
These products occurred on the dates, in the quantities and in the
total amounts
as reflected on the schedules hereto being ‘
POC1.4’
to ‘
POC1.9’
.
8.
Engen Lesotho was duly represented by an authorised official and the
First Defendant
represented by the Second Defendant and/or a duly
authorised official, in concluding each of the aforementioned
agreements of sale.
9.
The product so purchased was duly delivered by Engen Lesotho, as
reflected by
proof of delivery numbers (POD NOs) recorded on the
schedules hereto.
10.
The purchase price in respect of all the product thus sold and
delivered was the prevailing
list price of the product at the time of
each delivery, Engen Lesotho having passed the necessary credits in
terms of its usual
rebates for any product supplied in bulk.
11.
As at 2 March 2011 the First Defendant was indebted to Engen Lesotho
in the amount of R8 077 714,98
then due and payable in
respect of the product delivered for the period October 2010 to
January 2011.
12.
In breach of the agreement, the First Defendant has failed and/or
refused to make payment
to Engen Lesotho in respect of the amount of
R8 977 714,98 which amount remains unpaid.
13.
On or about 10 October 2013 Engen Lesotho sold its aforestated claim
against the First Defendant
to the Plaintiff, delivery of such claim
taking place by way of a Cession of Rights of Action by Engen Lesotho
in favour of the
Plaintiff, a copy of the Sale Agreement and Cession
of Rights of Action are annexed hereto as Annexes ‘
POC2.1’
and ‘
POC2.2’
.
14.
As at date of Summons the First Defendant was therefore indebted to
the Plaintiff in the
amount of R8 077 714,98, together with
interest on the aforesaid amount at the rate of 15.5% from 3 March
2011 to date
of final payment, both days inclusive, together with
legal fees and disbursements.”
(ii)
“
15.
On or about 12 October 2005 and at Wepener, the Second Defendant
executed a suretyship agreement in
favour of the Plaintiff in respect
of the indebtedness of the First Defendant. A copy of the
written deed of suretyship is
annexed hereto marked ‘
POC3’
.
16.
The express written terms of the suretyship were
inter
alia
:-
16.1
The Second Defendant bound himself jointly and severally with the
First Defendant (or its successors in title
and assigns) as surety
for and co-principal debtor in
solidium
for the due and punctual payment and performance by the First
Defendant of all debts and obligations of whatsoever nature and
howsoever arising which the First Defendant may then or in the future
owe to the Plaintiff. As part of the Second Defendant’s
obligations he bound himself to pay the amounts of any costs,
charges, disbursement and expense of whatsoever nature including,
without derogating from the generality of the aforesaid, legal costs,
collection commissions as between attorney and client incurred
by the
Plaintiff in securing or endeavouring to secure fulfilment of the
obligations of the First Defendant as well as any of the
Second
Defendant’s obligations as surety). (clause 1)
16.2
The rights of the Plaintiff under the suretyship would not be
affected or diminished if the Plaintiff at
any time obtained any
additional suretyships, guarantees, securities or indemnities in
connection with the obligation of the First
Defendant. The
suretyship would be and remain in full force and effect
notwithstanding any fluctuation in and extension of
any period
whatsoever of the obligation… The Second Defendant would
be bound by any admission or acknowledgement of
any indebtedness made
or given at any time by the First Defendant to the Plaintiff.
(clause 2)
16.3
Should the First Defendant fail to discharge any of its obligations
on due date, the Plaintiff would be entitled
notwithstanding any
contrary arrangement with the First Defendant to demand from the
surety immediate performance of all obligations
then owing by the
First Defendant to the Plaintiff, whether the due date for the
performance of all the obligations shall have
arrived or not.
(clause 8)
16.4
The Second Defendant renounced the legal exceptions of ‘
non
causa debiti
’, ‘
errore
calculi
’, ‘excussion’,
division ‘
de duobus vel pluribus
reis debendi
’, no value received,
cession of action and revision of account, with the meaning and
effect of all of which the Second defendant
declared himself to be
fully acquainted. (clause 9)”
(iii)
“
19.
In the premise of the aforegoing, the First and Second Defendants are
jointly and severally liable to
the Plaintiff in the amount claimed.
WHEREFORE
the Plaintiff prays for judgment as follows:-
a.
As against the First and Second Defendants
for payment of the amount of R8 077 714.98, jointly and
severally with each
other;
b.
Interest on the aforesaid amount at the
rate of 15.5% from 3 March 2011 to date of final payment, both days
inclusive;
c.
Costs of suit;
d.
Further and/or alternative relief.”
[7]
The affidavit in support of the application for summary judgment by
Theresa Wilkinson reads as follows:-
“
2.
2.1
I am a Regional Credit Manager of the Applicant/Plaintiff, employed
as such at its offices
situate at 171 Rodger Sishi Road, Westville,
Durban and I am duly authorised to depose to this affidavit on its
behalf.
2.2
I am an Officer in the service of the Applicant/Plaintiff.
2.3
The facts referred to in paragraphs 3 and 4 below are electronically
captured and stored
in the Applicant/Plaintiff’s records.
2.4
I am accordingly authorised to and have executed a certificate
certifying the facts contained
in such records to be correct.
2.5
On the basis thereof I am able to swear positively that the
Applicant/Plaintiff will, having
regard to the provisions of Section
154(4) of the Electronic Communications and Transactions Act (Act 25
of 2002), be able to prove
the relevant facts at the trial of the
action by providing the electronic records or an extract thereof.
3.
I have personally dealt with and supervised the account of the
Respondents/Defendants
and the agreement executed relating to the
Respondents/Defendants (‘the Respondents’) as detailed in
the Applicant’s
Particulars of Claim; the books, documents and
records containing all relevant information in regard thereto are in
my possession
and under my personal supervision.
4.
I can and do swear positively to the facts as set out in the Summons
and Particulars
of Claim, and verify the cause of action and the
amount claimed.
5.
In my opinion, the Respondents do not have a
bona
fide
defence to the Applicant’s
action and Notice of Intention to Defend has been delivered solely
for the purposes of delay.
WHEREFORE
the Applicant prays for an order in terms of the Notice of Motion to
which this affidavit is annexed.”
[8]
The respondents challenge the summary judgment on two grounds, being:
·
The deponent to the affidavit lacks the
requisite personal knowledge of the facts.
·
That no monies are owing to Lesotho Engen,
if at all.
[9]
What the court has to determine at this point is whether the
affidavit of Wilkinson satisfies the requirement of Rule 32(2).
[10]
Counsel for the applicant argued that the cause of action pleaded,
was proper. He submitted that a total of 180 transactions
occurred over a period of three months, detailing fuel sales in
Lesotho with the first respondent. Proof of delivery is
attached by the applicant. He argued that the respondent does
not deny that the transactions took place. He submitted
that
the plea on which the respondent relies as proof that the amount
owing has been settled, has not been substantiated by proof.
[11]
He submitted that the Deed of Cession entered into between applicant
and Engen Lesotho was valid and therefore binding.
The
applicant is therefore entitled to step into the shoes of the
cedent. He argued further that the signature of the second
respondent as surety on behalf of the first respondent makes him
liable to the applicant.
[12]
On the formalities of his application in relation to Rule 32(2)
requirements, he argued that the deponent had personal knowledge
of
the facts as she had dealt with this account. On the strength
that this is a cession, he could not obtain invoices from
the
deponent. He argued that this case should be distinguished from
Shackleton Credit Management (Pty)
Ltd v Microzone Trading 88 CC & Another
2010 (5) SA 112
(KZP) where the court held that an attorney was two
degrees removed from the facts and was therefore taken not to have
personal
knowledge of facts. On the basis of the affidavit and
a valid cession, the applicant is entitled to summary judgment.
[13]
Advocate Pretorius, for the respondents, argued that payment set out
in the particulars of claim is demanded by the wrong party.
He
said there were no monies due and payable to the applicant. In
his contract with Engen Lesotho, the latter was represented
by its
officials. He argued that Engen Lesotho could not be
represented by an employee of Engen South Africa, as she did
not have
personal knowledge of the facts. He said authorised employees
of Engen Lesotho cannot be the same as those of Engen
South Africa.
[14] He submitted that
strict compliance with the rule should be applied. The
application was defective and bad in law.
It is hearsay about
the facts of Engen Lesotho. He argued that the defendant only
has to show a
prima facie
case to succeed against summary
judgment. There was also no reference to invoices by the
applicant and therefore there is
no proof of the amount owing.
A proper defence has been made. The application should be
dismissed with costs.
[15]
It is common cause that the applicant for summary judgment has to
comply with the three requirements set out in Rule 32(2)
viz
,
the affidavit must therefore:-
(a)
be made by the plaintiff himself or herself
or by any person who can swear positively to the facts;
(b)
contain a verification of the cause of
action and the amount, if any claimed;
(c)
contain a statement by the deponent that in
his or her opinion there is no
bona fide
defence to the claim and that appearance to defend has been entered
solely for the purpose of delay.
[16]
It is the first of the requirements above that seem to be in issue.
In
Maharaj v Barclays National Bank
Ltd
1976 (1) SA 418
(A), the court
made it clear that personal or direct or first-hand knowledge of the
salient facts is generally expected from the
deponent to the
supporting affidavit in summary judgment. In
Standard
Bank of SA Ltd v Secatsa Investments (Pty) Ltd and Others
1999 (4) SA 229
(C), the court, still following
Maharaj
case above, suggested the approach of looking at the papers as a
whole to ascertain whether there is sufficient assurance to be
derived therefrom that the deponent’s averments that she is
able to positively swear to the facts so as to be able to verify
the
cause of action and profess the belief that the defendant has no
bona
fide
defence is well-founded.
[17]
The salient facts in this case are as follows:-
·
The deponent in this matter is an employee
of Engen SA, which obtained the right to sue by cession from Engen
Lesotho.
·
The contention is therefore that she is not
an employee who dealt with this account in Lesotho and cannot swear
positively about
facts in Lesotho.
·
There is no causal link between Engen
Lesotho and Engen SA’s accounts being dealt with
interchangeably by the two entities.
The fact that she says she
dealt with that account could only infer that she perused it.
This would not be sufficient personal
knowledge.
·
The fact that no invoices could be attached
is indicative of the problem caused by the cession, as this became
peripheral to the
applicant. The computer print-outs indicate
nothing more than a recordal of the transactions made. The
certificate
of balance is made by Engen SA, whereas the money
captured in the print-outs was supposed to be in Lesotho currency and
therefor
no proper link between the two entities has been
established. There is no basis to assume that
Electronic
Communications and Transactions Act 25 of 2002
is applicable on
transactions emanating from another country.
[18]
In the result it follows on the construction of the sub-rule given in
Maharaj
that, unless it appears from consideration of the papers as a whole
that the deponent has sufficient knowledge of the salient facts
to be
able to swear positively to them, the application for summary
judgment is fatally defective and the court will not even reach
the
question whether the defendant has made out a
bona
fide
defence.
See:
Absa Bank Ltd v Le Roux & Others
2014 (1) SA 475
(WCC) at para [15].
[19]
In the circumstances the application for summary judgment is
dismissed for non-compliance with Rule 32(2) of the Uniform Rules.
[20]
I do not award costs to the respondent as the object of the remedy is
to discourage defendants who do not have a
bona
fide
defence. I order the costs
of the summary judgment application to be costs in the main action.
[21]
The following orders are made:
1.
Application for summary judgment is
dismissed.
2.
The defendants are given leave to defend
the action.
3.
The costs in the application for summary
judgment shall be costs in the main action.
__________________
S.E.
MOTLOUNG, AJ
On behalf of
applicant/plaintiff:
Adv C. van der Spuy
Instructed
by:
McIntyre & Van der Post
BLOEMFONTEIN
(Ref.
AAE056/Elene)
On
behalf of defendants/respondents: Adv B. Pretorius
Instructed
by:
Christo Dippenaar Attorneys
BLOEMFONTEIN
(RefJJ
van Zyl/jvdw/AJ0547)
/spieterse