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[2014] ZAFSHC 143
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Kgotlagomang v Joubert (A203/2013) [2014] ZAFSHC 143 (4 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. : A203/2013
In
the matter between:-
PATRICK
THABANG KGOTLAGOMANG
…....................................................................
Appellant
and
PETRUS
JOHANNES JOUBERT
…....................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
MOTLOUNG, AJ
HEARD
ON:
14 AUGUST 2014
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
4 SEPTEMBER 2014
[1]
The matter came to this court by way of an appeal. The
appellant was aggrieved by the judgment of the district court,
which
was delivered by his worship Mr L.B.J. Moeng in Bloemfontein on 31
May 2013. On that day the court
a
quo
granted summary judgment in favour
of the respondent against the appellant in the amount of R55 264.23
plus ancillary relief.
The respondent opposed the appeal.
[2]
The respondent, as the plaintiff, caused the summons to be issued on
7 February 2013 against the appellant, as the defendant.
In his
particulars of claim he alleged that he and the appellant concluded
an agreement in Bloemfontein on 1 August 2006:
that
the appellant leased from him a residential unit known as 3 Altro
Court, c/o Link Street and Breë Street, Navalsig,
Bloemfontein;
that
the appellant was obliged to pay R1 500.00 per month as rental
from 1 September 2006;
that
in addition to the rental the appellant also undertook to pay for
the municipal supply of water as well as the municipal
supply of
electricity to the leased property; and
that
the applicable general terms and conditions of the lease were
attached to the lease agreement – see clause 7 anx “a”.
[3]
As regards the supply of water the respondent alleged that the
appellant owed the respondent the sum of R48 622.74 –
anx
“b” particulars of claim. This first component of
the respondent’s claim was contained in a computer
generated
document apparently issued by the Mangaung Local Municipality in
response to a request for clearance information.
[4]
As regards the supply of electricity the respondent alleged that the
appellant owed the respondent the sum of R6 641.49.
This
second component of the respondent’s claim was contained in a
computer generated document apparently issued by Centlec
(Pty) Ltd in
response to a request for a clearance certificate – anx “c”
particulars of claim.
[5]
It was the respondent’s case that each of those amounts had
become due and payable. Notwithstanding lawful demand –
anx “d”
– the appellant wrongfully neglected to pay the respondent’s
claim in the total sum of R55 264.23.
[6]
The sheriff duly served the respondent’s summons upon the
appellant at the Bloemfontein District Court on 25 February
2013.
The appellant entered an appearance to defend on 8 March 2013.
On 15 March 2013 the respondent applied for summary
judgment against
the appellant. In his supporting affidavit he verified:
that
the appellant was indebted to him in the sum of R55 264.23 on
the ground as set out in the summons;
that
the appellant had no
bona fide
defence to his claim; and
that
the appellant had entered appearance to defend for the sole purpose
of delaying the finalisation of the action.
[7]
On 26 March 2013 the appellant filed a notice of his intention to
oppose the respondent’s application for summary judgment.
in his opposing affidavit he stated:
that
he was not contractually indebted to the respondent as alleged or at
all;
that
after receipt of the letter of demand – anx “d” –
he visited the respondent’s attorney and
informed him that he
did not sign the lease agreement as anx “a” purported he
did;
that
he had no knowledge of the alleged agreement and that after receipt
of the respondent’s summons, he once again visited
the
respondent’s attorney and again informed him that the
signature appended to the lease agreement by the alleged
tenant was not his.
He
asserted, therefore, that he had a
bona
fide
defence to the respondent’s claim.
[8]
The respondent’s application for summary judgment was presented
on 16 May 2013. The application was argued by the
legal
representatives and adjudicated by the district magistrate, who then
reserved judgment. Two weeks later the district
magistrate
granted summary judgment in favour of the respondent against the
appellant.
[9]
The appellant was aggrieved - hence this appeal. On 26 June
2013 the appellant filed his notice of appeal. He relied
on a
few grounds of appeal. Among others, he contended that the
court
a quo
erred in finding that he had no
bona
fide
defence to the respondent’s
claim.
[10]
In granting summary judgment, the magistrate described the
appellant’s version as a classical example of a bare denial.
He then came to the conclusion that such a denial did not constitute
a
bona fide
defence as contemplated in the applicable rule.
[11]
On behalf of the appellant, Mr Khang, attorney for the applicant,
argued that the appellant’s defence had to be adjudicated
in
accordance with the manner in which the respondent’s cause of
action had been formulated and the appellant’s ability
to deal
with the facts as set out by the respondent. Applying such an
approach to the instant matter revealed, according
to Mr Khang, that
not only did the appellant disclose the nature of his defence and the
grounds of such defence, but also the material
facts on which he
relied for his defence. Therefore, the appellant’s
attorney submitted that the court
a quo
misdirected itself. Accordingly Mr Khang urged us to uphold the
appeal, set aside the summary judgment granted by the court
a
quo
and grant the appellant leave to
defend the action.
[12]
On behalf of the respondent Mr Visser, attorney for the respondent,
argued that the appellant had failed to fully disclose
the nature and
the grounds of his defence, as well as the material facts upon which
his defence was founded. He contended
that the appellant’s
affidavit was very vague and that the respondent could not have been
fairly expected to content himself
with such vague generalities and
conclusory allegations that were not substantiated by solid facts.
He submitted that the
appellant’s affidavit did not contain
adequate disclosure bearing in mind the circumstances of this
particular matter.
The appellant’s simple denial of the
signature was very inadequate, he argued. Therefore, Mr Visser
submitted that
the court
a quo
committed no misdirection in concluding that the appellant’s
bare denial disclosed no
bona fide
defence to the respondent’s
claim. Accordingly, attorney for the respondent urged us to
dismiss the appeal with costs
and to confirm the summary judgment
order granted by the court
a quo
in favour of the respondent against the appellant.
[13]
The remedy of summary judgment is governed by Rule 14(3)(b) of the
Magistrate Court Act 32 of 1944, as amended. To successfully
resist the grant of a summary judgment, the respondent confronted
with such an application must, in his opposing affidavit, fully
disclose, firstly, the nature of his defence, secondly the grounds of
such a defence and thirdly, the material facts upon which
such
defence is founded.
[14]
The opposing affidavit, therefore, has to contain a sufficient
exposition of the facts which, if they were later to be proven
and
accepted by the trial court as true, would constitute a good defence
in law –
Breytenbach v Fiat SA
(Edms) Bpk
1976 (2) SA 226
(T) at
227.
[15]
The leading case in this regard is
Maharaj
v Barclays National Bank
1976 (1)
SA 418
(A) at 426C where Corbett JA had this to say about the ambit
of the rule of disclosure as it applies to the remedy of summary
judgment:
“
The
word “fully”, as used in the context of the Rule (and its
predecessors), has been the cause of some judicial controversy
in the
past. It connotes, in my view, that, while the defendant need not
deal exhaustively with the facts and the evidence relied
upon to
substantiate them, he must at least disclose his defence and the
material facts upon which it is based with sufficient
particularity
and completeness to enable the Court to decide whether the affidavit
discloses a
bona fide
defence.”
The
principle generally requires that details of the defence, the grounds
thereof and the underlying material facts must be disclosed
with
sufficient particularity and completeness in the defendant’s
opposing affidavit.
[16]
Although the general principle strongly militates against bare denial
in affidavits used to resist summary judgment, in certain
circumstances, however, a simple denial may be perfectly adequate.
That will be the case in circumstances where, on a proper
consideration of all the information before the court, it appears
that there is substantive merits in a specific denial, though
bare it
may be –
Webb v Shell Zimbabwe
(Pty) Ltd
1982 (2) SA 263
(ZHC) at
768A;
District Bank Ltd v Hoosain and
Others
1984 (4) SA 544
(C);
Maharaj
,
supra
, at
425G – 426E.
[17]
This court has held over the years, as did many other courts
elsewhere in our land, that a simple denial in an opposing affidavit
is insufficient to avoid summary judgment –
Van
Zyl v Wheeler
1964 (3) SA 758
(O)
at 760A. In the case of
Nichas
and Son (Pty) Ltd v Papenfus
1969
(2) SA 494
(O) at 496D Erasmus J said:
“
Die
blote ontkenning onder die eerste grond is niksseggend met die oog op
die vereistes van die Reël, want hy sê nie
waarop die
ontkenning berus nie.
”
In
the case of
Jacobsen Van den Berg SA
(Pty) Ltd v Triton Yachting Supplies
1974 (2) SA 584
(O) at 587D the court per Erasmus J stressed that
Uniform Rule 32(3)(b) requires the defendant’s opposing
affidavit to disclose
fully the nature of the defence, the grounds of
such a defence and the material facts relied upon so that the court
can be reasonably
satisfied that the defendant has a
bona
fide
defence, and not be merely
satisfied that he “appears” to have to a
bona
fide
defence.
See
also
Arend & Another v Astra
Furnishers (Pty) Ltd
1974 (1) SA
298
(C) at 303 – 304.
[18]
In summary judgment proceedings, it is insufficient for a defendant
to merely allege that he has no knowledge of the plaintiff’s
allegation or that he regards those allegations with suspicion –
Hendricks v Saacks and Another
1945 CPD 270
– 272.
[19]
The question in the appeal before us was whether the appellant has,
with sufficient particularity and completeness, disclosed
the
material facts on which he relied for his defence. His defence,
it will be recalled, was that he did not sign the lease
agreement on
which the respondent’s cause of action was based. Put
differently, the crux of his defence was that he
had no knowledge of
the respondent’s claim. Therefore, the matter revolved
around the question of
bona fides
to a great extent. To that aspect I shall return later.
[20]
As regards the respondent’s claim, the following important
facts were undisputed: Firstly, the respondent had in his
possession
a written contract – anx “a”. The contract
was signed in Bloemfontein on 1 August 2006.
The contract
concerned the lease of a residential property. The lessee was
described as “P.T. Kgotlagomang”.
The effective
date of the lease agreement was 1 September 2006. The lessee’s
primary contractual obligations were to
pay for the occupation of the
property, the supply of water and the supply of electricity.
The respondent’s cause of
action was restricted to only two of
those three amenities. Therefore, the respondent implicitly
acknowledged or averred
that the lessee had paid the agreed rental in
full before these action proceedings were initiated.
[21]
Secondly, the record revealed that on 27 July 2006, some four days
before the lease agreement was signed, the respondent’s
estate
agent caused a lease application form to be completed by someone who
was looking for a place. Such a person identified
himself as
Patrick Thabang Kgotlagomang. It was common cause that all the
personal particulars given in the lease application
form precisely
corresponded with the appellant’s correct personal
particulars. The respondent was in possession of
the lease
application form and attached it to the lease agreement relied upon.
The surname on the lease application and the
surname on the lease
agreement precisely tallied. The initials on those two
documents also completely tallied.
[22]
Thirdly, the respondent’s papers, particulars of claim to be
precise, also included a copy of an identity document.
Again it
was an undisputed fact that the photograph as well as all the
personal particulars of the identity document precisely
corresponded
with those of the appellant.
[23]
Fourthly, also included in the respondent’s particulars of
claim was a copy of a salary advice. Again there was
no dispute
that virtually all the details appearing on the document accurately
corresponded with those of the appellant’s
salary advice.
In fact, the document was representative of the appellant’s
true salary advice.
[24]
It was the respondent’s case that his estate agent received all
the aforesaid documents from the appellant and that the
lease
application and the lease agreement were signed by the appellant
himself and no other person.
[25]
As regards the appellant’s response to the respondent’s
detailed claim, the following simple sentence was his answer:
“
2.6
I have a
bona fide
defence to the Applicant’s claim in that the signature relied
upon is not mine;”
[26]
The appellant contended that he, on two occasions, explained to the
respondent’s attorney that the signature relied upon
was not
his genuine signature. On 25 March 2013 the appellant signed
his opposing affidavit in Bloemfontein –
vide
page 39 of the record. One does not have to be a handwriting
expert to come to the conclusion
ex
facie
the relevant documents that the
lease application signed on 27 July 2006, as well as the lease
agreement signed on 1 August 2006
on the one hand and the opposing
affidavit signed 25 March 2013 were all signed by one and the same
person. The similarities
of the three substantially compel that
conclusion. If it is accepted, and I cannot see how it can be
denied, that the signature
on the opposing affidavit was that of the
appellant, then I find it very difficult to say the signature on the
lease application
and the lease agreement were forged by some
faceless person.
[27]
The other thing was this: The appellant’s opposing
affidavit is more important for what he did not say than what
he
actually said. The appellant made no attempt whatsoever to
explain how his very personal document, such as his salary
advice and
identity document, landed in the wrong hands of the respondent.
The lease application form contained very confidential
information
such as the appellant’s banking details, his brother’s
name, his brother’s residential address at
Edenville far from
Bloemfontein, his brother’s telephone number, the name of his
employer in Bloemfontein, his occupation
and his previous residential
address in Bloemfontein. How on earth would the respondent have
known about such a great variety
of details not only concerning the
appellant alone, but his brother as well?
[28]
Moreover, we were in the dark, as was the court
a
quo
, as to precisely where the
appellant, a prosecutor in Bloemfontein, was actually staying at the
time the respondent alleged he
was occupying his property. The
respondent’s cause of action was that the appellant was in
actual occupation of his
property. That allegation was the
heart of the respondent’s cause of action. According to
the respondent, during
his occupation, so the respondent alleged, the
appellant consumed water and electricity supplied to him as the
respondent’s
lessee. The respondent verified those
allegations on oath. However, the appellant did not, on oath,
pertinently deny
such averments. The omission was telling
against the appellant’s
bona
fides
. It substantially
strengthened the respondent’s version. The appellant’s
omission to deal with the incriminating
paper trail also materially
bolstered the contention that the appellant really had no triable
defence.
[29]
Mr Khang spent a great deal of time arguing that the respondent’s
attorney did not investigate the appellant’s
complaint or
contention that he did not sign the lease agreement. The
argument failed to impress me. The appellant
did not expressly
say precisely what information he gave to the respondent’s
attorney to warrant such an investigation.
By the look of
things the appellant merely and orally made a bold and
unsubstantiated allegation that the signature was not his
to the
attorney as he did in his opposing affidavit. There was nothing
worth investigating in my view. It was not his
case that he
gave the respondent’s documentary proof, such as a different
lease agreement or bond agreement or habitat certificate
or any
affidavit by the landlord or owner of the place where he was staying
at the time material to this dispute or any other credible
and
reliable information whatsoever of where he was staying at the time
material to these proceedings.
[30]
In my view, on the facts, the appellant was required to do more than
his simple denial. He dismally failed to disclose
fully the
material facts on which the nature of his implied defence of fraud
was crafted. Any suggestion that the respondent,
an attorney,
acted fraudulently, had no substance at all. In the instant
appeal an objective examination of the two versions
showed that there
has been no sufficient disclosure by the appellant of the nature and
the ground of such defence and the facts
upon which it was founded.
This is the one crucial consideration. The other equally
crucial consideration was that
the alleged defence of fraud was,
besides the finding that it was not fully disclosed, further not
bona
fide
and not good in law. The
court
a quo
found that the appellant did not succeed to cross the second
threshold as well. Such a finding is one which I, on appeal,
cannot hold to be wrong –
Joob
Joob
Investments (Pty) Ltd v Stocks Mavundla ZEK
Joint Venture
2009 (5) SA 1
(SCA).
[31]
Certainly this appeal was not one of those exceptionally rare cases
where a simple denial may be adequate to successfully repel
an attack
by way of summary judgment –
Webb’s
case,
supra
.
The hard facts of the matter justified the magistrate’s
conclusion that the appellant simply had no meritoriously
sustainable
defence. Since the appellant had no proven triable issue, the
court
a quo
correctly shut him out.
[32]
The idea underlying the rule is to grant speedy relief to a plaintiff
with a strong and unanswerable claim against a defendant
with no
sound and triable defence. Such a defendant has to be locked
out as early as possible unless (s)he can show as early
as possible
that (s)he honestly has an arguable and triable defence and not a
hopelessly unsustainable and disingenuous defence.
[33]
It is not every person who enters an appearance to defend who is,
without more, guaranteed a free passage to trial. Only
a
defendant with a triable issue, in other words, an honest and
sustainable defence, is allowed to proceed –
Joob
Joob
,
supra
.
The important check-point, where defences are closely scrutinised to
determine whether a defence is triable or not, is located
in the
summary judgment centre.
[34]
The appellant opposed the respondent’s application for summary
judgment. Because he did, he was necessarily obliged
to fully
disclose his defence. He was entitled to dispute the
respondent’s claim. However, a bold denial did
not
suffice. He was obliged to advance a
bona
fide
denial of the respondent’s
cause of action –
Herbst
,
supra
.
It was not sufficient to merely deny the signature. Such a
simple denial did not satisfy the rule. By so doing,
he failed
to honestly and factually elaborate on his simple denial.
[35]
The respondent’s case, as pleaded, demanded much more
disclosure than the appellant disclosed to make his defence
meaningful.
His mere denial meant nothing at all, because he
did not say on which ground such denial was founded –
Nichas
,
supra
.
[36]
The appellant was obliged in terms of the rule to satisfy the court
a
quo
that he had a defence, which was
bona fide
and good in law. A defendant who does not fully, honestly and
factually demonstrate the substance of his or her defence in
the
opposing affidavit breaches the rule. In order to successfully
resist summary judgment, it is incumbent upon a defendant
to frankly
demonstrate the underlying honesty of his defence. He must show
that he has a
bona fide
defence, but not merely that his defence appears to be so –
Jacobsen
,
supra
.
[37]
The appellant wanted the court
a quo
to believe that some
mischievous individual stole his very private documents, fooled the
respondent’s estate agent, and falsely
represented to such
agent:
that
such fraudster was the appellant;
that
a fraudster fraudulently signed the lease agreement;
that
a fraudster occupied the premises and paid rental in the name of the
appellant for months; and
that
a fraudster did all those things in order to get free supply of
water and electricity at the expense of the respondent.
Alternatively,
the appellant insinuated that there was a foul play on the part of
the respondent’s estate agent. What
we have here is
nothing more than subjective suspicion. The appellant merely
tried to cast some unfounded cloud of suspicion
about the
respondent’s averments. His mere unexplained suspicion
concerning the respondent’s averments was insufficient
to
justify refusing summary judgment and granting him leave to defend –
Hendricks
,
supra
.
[38]
In my view the court
a quo
was quite correct in granting summary judgment against the
appellant. If I had heard the matter as a court of first
instance,
I would not have come to a different conclusion. The
appellant has failed to make out a
prima
facie
case that he has a triable
defence. That being the case, he was not entitled to leave to
defend.
[39]
It is very easy to deny one’s signature. If such simple
denials, unexplained defences, and vague suspicions were
to be
glorified as triable issues or
bona fide
defences – then the commercial world would be absolutely
paralysed with catastrophic economic repercussions. The courts
would not cope with the resultant endless tide of commercial
litigation. We have to adjudicate disputes responsibly lest
we
open floodgates for undeserving litigants. That, in my view,
would sound the death knell for the efficacy of the sifting
procedure
designed to afford a deserving plaintiff inexpensive and speedy
relief against an undeserving defendant.
[40]
A trial court has of course a discretion to refuse summary judgment
and to afford a defendant an opportunity of having his
day in court.
However, such a discretion always has to be judiciously and not
arbitrarily exercised. Where, as in this
appeal, the defence is
not only materially deficient, but also substantially lacks
bona
fides
, no legitimate ground exists for
generously exercising the residual discretion the court has in favour
of the defendant
in casu
the appellant. On the facts I am satisfied that the
respondent’s case, as pleaded, was substantively unanswerable.
He was, accordingly entitled to have summary judgment granted in his
favour. See
Maulgue Roan v
Futurevista CC
(2013/32037) [2014]
ZAGPJ 64 (28.03.2014) at [6] per Van Oosten J. The purpose of
the rule is to accelerate the progress
of our civil justice system
and not to retard it for flimsy reasons.
[41]
In the result:
41.1
The appeal is dismissed with costs.
41.2
The order of the court
a quo
whereby
summary judgment was granted in favour of the respondent as the
plaintiff, against the appellant as the defendant, is confirmed.
_________________
M.
H. RAMPAI, AJP
I
concur.
____________________
I.M.M.
MOTLOUNG, AJ
On
behalf of appellant: Attorney M. Khang
Instructed
by:
Mphafi
Khang Inc
BLOEMFONTEIN
On
behalf of respondent: Attorney L. Visser
Instructed
by:
Kramer
Weihmann & Joubert Inc
BLOEMFONTEIN