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[2014] ZAFSHC 154
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AG Formwork and Scaffolding v Afriworld 144 CC and Another (1294/2014) [2014] ZAFSHC 154 (11 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 1294/2014
In
the matter between:
AG
FORMWORK AND SCAFFOLDING
…...........................................................
Plaintiff/Applicant
and
AFRIWORLD
144 CC
…...........................................................................
First
Defendant / Respondent
MILLET
COX
…...................................................................................
Second
Defendant / Respondent
HEARD
ON:
31 JULY 2014
JUDGMENT
BY:
E.K. TSATSI, AJ
DELIVERED
ON:
11 SEPTEMBER 2014
INTRODUCTION
[1]
This is an opposed summary judgment against the defendants for:
(a)
the immediate return of the scaffolding of
the plaintiff;
(b)
payment of the amount of R270 245.91
for rental of the scaffolding up to including February 2014 or until
the date of the return
of the scaffolding to the plaintiff
(c)
interest on the amount of R270 245.91
at 15,5% per annum until date of final payment;
(d)
interest on the amount of rent that will
become due to the plaintiff and which may accrue from February 2014
to date of return of
the scaffolding to the plaintiff at 15,5% per
annum
a tempore morae
to date of final payment thereof.
(e)
costs of this action; and
(f)
further and/or alternative relief.
FACTS
[2]
The plaintiff’s claim arises from a contract entered into
between the applicant and the first defendant on or around 18
March
2013 in terms of which the applicant leased a scaffolding to the
first defendant. The second defendant signed as surety for
and on
behalf of the first defendant. The relief sought against the second
defendant is based on the surety agreement entered into
between the
parties on 22 February 2013. A copy of the plaintiff’s
standard condition of hire was attached to the summons
as annexure
“B”.
[3]
In the particulars of claim, the plaintiff alleged,
inter
alia
, that:
“
9.3
The monthly rental due to the plaintiff by the first Defendant for
the scaffolding of the Plaintiff in the possession of the
First
Defendant in terms of the agreement reached between the parties,
amounts to R25 407.05 alternatively R24 587.47
per month
depending on the number of days in each applicable month. The First
Defendant was provided with invoices on a monthly
basis. The last
invoice provided to the First Defendant for the month of February
2014 is attached hereto as Annexure “F”.
9.4
As at 28 February 2014 the First Defendant was indebted to the
Plaintiff in the amount of R270 245.91, which amount is
due and
payable but which amount the First Defendant is refusing and/or
neglecting to pay…..”
[4]
As at 28 February 2014 the first defendant was indebted to the
plaintiff in the amount of R270 245.91 (two hundred seventy
thousand – two hundred forty five and ninety one cents), the
invoice of which was attached to the summons as annexure “G”.
[5]
The defendants in opposing the summary judgment denied that they are
indebted to the plaintiff in the amount claimed.
They alleged
that the first defendant is indebted to the applicant in a “maximum
amount of R119 442.77”, which
amount was tendered by the
first defendant.
ISSUES
[6]
The main issue in this application is whether or not the defendants
have disclosed fully the nature and grounds of their defence
and
whether or not such is a
bona fide
defence.
SUBMISSIONS
[7]
Counsel for the plaintiff submitted that prayers 1, 3 and 5 be
postponed
sine die
.
Further submission was that the applicant did not know that the
scaffolding was stolen at the time when the particulars
of claim was
drafted. Counsel for the applicant argued that the reason why
the monthly rental was not fixed was because the
number of days
differed every month. He submitted that the court should grant
summary judgment in terms of prayers 2, 4 and
6.
7.1
According to counsel for the plaintiff the defendants failed to pay
any money to the applicant as agreed. Clause 8 of annexure
“B”
attached to the court papers provides that:
“
In
the event of the equipment being lost or damaged or should Hirer fail
to return the equipment to AG on termination of this contract
of hire
for whatever reason the Hirer shall pay to AG, AG’s then
current full catalogue price for such lost or damaged equipment
as
liquidated damages, as well as all other loss or damages sustained of
whatever nature including depreciation and or the
costs of repairs
required to be made to the equipment and all the expenses incurred by
AG in obtaining possession of equipment.”
It
was argued on behalf of the plaintiff that the replacement amount of
the scaffolding is a liquidated amount.
[8]
Counsel for the defendants submitted the defendants are opposed to
postponing prayers 1, 3 and 5. It was argued on behalf of
the
defendants that their defence is that the scaffolding was stolen on 3
August 2013. It was argued on behalf of the defendants
that the
applicant is obliged to mitigate his loss which he failed to do.
The defendants should not pay anything to the plaintiff
from 3 August
2013 to 28 February 2014 due to the fact that the defendants did not
make use of the scaffolding because it was stolen.
THE
LAW
[9]
In
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) it was held that the rule requires the defendant
to set out in his affidavit sufficient facts, which if proved at
trial, will
constitute answer to the plaintiff’s claim.
[10]
The court cannot decide at summary judgment stage any balance of
probabilities or determine the likelihood of the deponent’s
allegations being true or false –
Maharahj
v Barclays National Bank Ltd
1976
(1) SA 418
(A) at 426A – E.
[11]
There are two considerations when deciding an application for summary
judgment. The first is whether there has been sufficient
disclosure by the defendants of the nature and grounds of their
defence and the facts upon which it is founded. The second
consideration is whether the defence is
bona
fide
and good in law. If the
court, in exercising its discretion, is of the view that the defence
raised is not bad in law and
that the case of the plaintiff is not
unanswerable, it will decline to grant summary judgment. (See
Erasmus,
Superior Court practice
,
Rule 32(3) (b);
Joob Joob Investments
(Pty) Ltd v Stocks Mavundla ZEK Joint Venture
2009 (5) SA 1
(SCA) at 11G – 12D.)
Summary
judgment is an extraordinary and stringent remedy. The court
should always keep this in mind when exercising its discretion
–
Arend and Another v Astra Furnishers
(Pty) Ltd
1974 (1) SA 298
(C).
[12]
In
Standard Bank of SA (Pty) Ltd v
Friedman
1999 (2) SA 456
at 46E –
J the court said the following:
“
A
defendant confronted with an application for summary judgment can
elect to give security to the plaintiff to the satisfaction
of the
Registrar of any judgment including costs that may be given or
satisfy the Court by affidavit that he has a
bona
fide
defence to the action. The
affidavit or evidence must disclose fully the nature and grounds of
the defence and the material facts
relied upon for it (Rule 32(3) (a)
and (b) of the Uniform Rules of Court).”
APPLICATION
OF THE LAW
[13]
In this matter the defendants elected to oppose the summary judgment
application by filing an opposing affidavit as envisaged
in Rule
32(3) (b). The defendants alleged that the scaffolding was
stolen on 3 August 2013. Although at the summary
judgment stage
it is not for the court to decide whether or not the defendants are
telling the truth, I am of the view that the
defendants should have
at least informed the plaintiff about the theft immediately.
The defendants waited until they were
issued with summons and only
then did they allege that the scaffolding was stolen. The defendants
further argued that the plaintiff
should have mitigated his loss. I
do not see how the plaintiff could have mitigated his loss if he did
not know that his scaffolding
was stolen.
[14]
I am of the view that there has not been sufficient disclosure by the
defendants of the nature and grounds of their defence
and of the
facts upon which it is founded. No information was placed before
court of the circumstances under which the scaffolding
was stolen and
or how it was stolen. There is not an even indication of
whether or not the matter was reported to the police.
The
defendants are only making a bold statement that the scaffolding was
stolen, without offering any factual supporting factors.
[15]
It was stated in
Shepstone v
Shepstone
1974 (2) SA 462
(N) by
Muller J at p 467E – H:
“
The
court will not be disposed to grant summary judgment where, giving
due consideration to the information before it, it is not
persuaded
that the plaintiff has an unanswerable case.”
[16]
Based on the evidence placed before me, the plaintiff has an
answerable case. The defendants have not paid any money
to the
plaintiff as per the agreement between the parties. According
to clause 8 of annexure “B”, the defendants
have also
breached their obligations arising from the contract, viz;
paying
the plaintiff the current full catalogue price for the stolen
scaffolding, including all expenses incurred by the plaintiff
in
obtaining possession of the equipment.
16.1
Although the defendants are opposed to the postponement of prayers 1,
3 and 5, my view is that the plaintiff is entitled to
the
postponement of the said prayers. Had the plaintiff known at the time
when the particulars of claim were drafted, the said
prayers might
not have been included in the particulars of claim.
[17]
In light of the preceding, theft of the scaffolding is not a defence
to the contract in this matter. Theft of the scaffolding
does
not affect the defendants’ liability. Based on what has
been placed before me, I am not persuaded that the defendants
have a
bona fide
defence. I am also not persuaded that the defendants have been
open and frank with the court by disclosing the fact that
theft of
the scaffolding does not affect their liability.
[18]
In the circumstances I am disposed to exercising my discretion to
grant summary judgment in favour of the plaintiff.
[19]
In the result I make the following order:
19.1
Summary judgment is granted against the first and second defendants
in the amount of R270 245.91 for rental of the scaffolding.
The
first and second defendants are jointly and severally liable for the
payment of R270 245.91 the one paying the other to
be absolved.
19.2
Payment by the first and second defendants of the interest on the
amount of R270 245.91 at 15, 5% per annum
a
tempore morae
from date of summons
until date of final payment. The first and second defendants
are jointly and severally liable for the
payment of such interest,
the one paying the other to be absolved.
19.3
Prayers 1, 3 and 5 are postponed
sine
die
.
19.4
The defendants to pay costs of application.
______________
E.K.
TSATSI, AJ
On
behalf of applicant/plaintiff: Adv L.K. van der Merwe
Instructed
by:
Saffy
Associates
BLOEMFONTEIN
On
behalf of respondents/defendants: Adv J.L. Olivier
Instructed
by:
EG
Cooper Majiedt Inc
BLOEMFONTEIN