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[2013] ZAGPPHC 161
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Legal and Law CC and Another v B&B Neefs Konstruksie BK and Others (68600/12) [2013] ZAGPPHC 161 (7 June 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
Number: 68600/12
DATE:07/06/2013
In
the matter between
LEGAL
AND LAW
CC
.....................................................................................................
First
Plaintiff
GEORGE
GIDEON PETRUS VAN
ZY.L
...................................................................
Second
Plaintiff
and
B&B
NEEFS KONSTRUKSIE
BK
.............................................................................
First
Defendant
BAREND
JACOBUS
BESTER
............................................................................
Second
Defendant
BAREND
VAN DER
WALT
…....................................................................................
Third
Defendant
JUDGMENT
BAM
AJ
1.
An application for Summary Judgment in terms of the provisions of
Rule 32, was lodged by the plaintiffs. The Defendants opposed
the
application.
2.
(i)
The plaintiffs issued summons against the plaintiffs on 28 November
2012.
(ii)
The summons was served on the defendants' attorney of record on 6
December 2012.
(iii)
On 11 December 2012, within 3 court days after filing of the Notice
to Defend, the plaintiffs, in terms of Rule 32, served
their
application for summary judgment on the defendants, notifying the
defendants that the application would be enrolled on 5
February 2013.
(iv)
On 10 January 2013 the defendants served their Notice of Removal of
Complaint in terms of Rule 23(1);
(v)
On 30 January 2013 the defendants filed and served the following
process:
(a)
A Notice of Withdrawal of the Notice of 10 January 2013;
(b)
A new Notice of Removal of Complaint in terms of Rule 23(1) in
respect of alleged vague and embarrassing averments. No formal
notice
of exception subsequent to that notice has as yet been filed;
(c)
A formal Notice of Exception directed against the particulars of
claim stating that it did not disclose a cause of action.
(d)
The defendant's opposing affidavit to the plaintiffs' application for
summary judgment, incorporating all the grounds and points
of
exception contained in the two notices referred to in (b) and (c)
above.
3.
This Court was not called upon to adjudicate on the exception
referred to in 2(v)(c), perse, but to consider the grounds thereof
as
contained in the opposing affidavit as the grounds upon which the
defendants based their contention of a bona fide defence envisaged
by
Rule 32.
4.
The applicants were represented by Ms vd Walt and the defendants by
Mr Vermeuien with Mr Bouwer. Extensive and comprehensive
heads of
argument were filed on behalf of both parties. It was common cause
that the proposed bona fide defence of the defendants
was based on
technical grounds and not on the merits.
5.
For practical purposes I deemed it expedient to request Mr Vermeuien
to address the court on the issue of the contended bona
fide defence
of the defendants. Ms vd Walt replied.
6.
Mr Vermeuien raised several points of criticism against the
plaintiff's affidavit in support of the summary judgment. The alleged
defects can be summarized as follows:
(i)
That the verification affidavit did not comply with the provisions of
Rule 32 in that instead of only verifying the facts, it
contained
evidence as well.
(ii)
The second point was that the affidavit was not properly
commissioned.
(iii)
The third point entailed that all the claims were not verified.
7.
I will deal with the issues mentioned in par 6(i), (ii) and (iii)
forthwith.
Ad
6(i): The affidavit adequately verified the cause of action. The fact
that that plaintiff repeated the particulars of claim does
not affect
the validity of the affidavit. Where the plaintiff added anything
more than what is contained in the particulars of
claim, it will be
ignored.
Ad
6(ii): ‘A mere perusal of the last page of the founding
affidavit reveals that the affidavit was indeed properly
commissioned.
Ad
6(iii): The averment that all the claims were not verified, is evenly
without substance. When the wording of the affidavit is
read in
context, it appears that the verification complied with the
requisites of the Rule.
In
view of the order I intend to make I deem it unnecessary to elaborate
any further on the issues.
8.
Mr Vermeuien submitted that the existence of a so calied "technical
defence", established by a defendant, will be sufficient
to
constitute a bona fide defence. This submission was contested by Ms
van der Walt. 1 agree with Mr Vermeuien. Even a so called
"
technical defence", if upheld by the trial court, may result in
the claims of any plaintiff be dismissed. Accordingly
this issue need
not be discussed any further.
9.
In considering whether the points taken by the defendants regarding
the alleged excipiable parts of the plaintiffs' particulars
of claim,
I find it unnecessary to deal with each and every point. It suffices
to say that if it is found that the particulars
of claim are indeed
excipiable as contended by the defendants, leave to defend should be
granted. 1 will refer to only a few grounds.
10.
One of the grounds relied upon by the defendants against the two
claims set out in the plaintiffs' particulars of claim' was
that the
two claims are actually a duplication based on the same cause of
action. It was submitted that the two claims should have
been stated
in the altenative. Ms vd Walt attempted to rectify this problem by
handing up a draft order, which I marked "
XX", now
reflecting that an order, pertaining to the initial two claims, is
sought in the alternative. Ms vd Walt could not
explain why the
plaintiffs did not amend their particulars of claim after having
received the defendants' Opposing Affidavit, containing,
amongst
others, the complaint, and the notice of exception , against the
mentioned duplication of claims as being vague and embarrassing.
There was also no explanation why the defendants were not informed of
the intention of the plaintiffs to, apparently, amend their
particulars of claim in that regard. This ground per se, in my view,
constitutes a technical bona fide defence.
11.
A further ground reiied upon by the defendants is that the
particulars of claim rely on contract as well as delict as basis
for
the claims. In this regard Ms vd Walt submitted that this Court, in
considering that issue, should disregard any reference
to delict. Ms
vd Waifs submission was without substance. There is no basis upon
which any court can just ignore averments contained
in particulars of
claim where the said averments are objected against by a defendant in
matters of this nature. It is clear that
the plaintiffs' particulars
of claim in that regard were fatally flawed exceptiable. The said
ground is therefore well founded
and constitutes a bona fide
technical defence.
12.
The defendants further relied on the defence that the plaintiffs'
averments in respect of the terms of the contract were not
substantiated by the terms of the contract. In this regard is not
necessary to consider the issue in its fullest detail. In my
view
this ground is arguably a bona fide defence.
13.
Ms vd Walt's submitted that the defendants deliberately mislead the
court pertaining to the question whether the National Credit
Act is
applicable and that their claim that they have a bona fide defence,
should be dismissed in toto, on that ground alone. Even
if the
defendants did mislead the Court in that respect, without deciding
the issue,! will not be inclined to, on that point, to
dismiss the
defendants' bona fide technical defences alluded to above. That could
never be justified.
14.
It follows that the defendants should be granted leave to defend.
15.
Regarding the issue of costs, Mr Vermeuien argued that the matter
justified costs of two counsel, including the costs of a senior
junior. It was further submitted by Mr Vermeuien that costs should be
awarded on a penalty scaie. In this regard Mr Vermeuien submitted
that the plaintiffs were properly forewarned about the excipiable
parts of their particulars of claim, but that plaintiffs,
nevertheless,
persisted with their application for summary judgment.
Ms vd Walt submitted that the matter did not merit the attention of
two
counsel and that costs should be costs in the cause. Ms vd Walt
argued that the plaintiff's conduct in applying for summary
judgement,
was bona fide and should therefore not attrack penalty
costs.
16.
In my view the plaintiffs should have been aware that their
particulars of claim were excipiable and that the defendants did
have
a bona fide technical defence to the claims. This is borne out by,
amongst others the amendment of the order prayed for in
the draft
order marked "XX". Accordingly the defendants should be
entitled to a costs order in their favour. I am however
not inclined
to sward penalty costs in the circumstances. It cannot be said that
the plaintiffs were mala fide. The matter was
of a sufficiently
complex nature to warrant the services of two counsel.
17.The
following order is made:
1.
The summary judgment application is dismissed.
2.
The defendants are granted leave to defend.
3.
The plaintiffs are ordered to pay the costs, consequent upon the
employment of two counsel, including the costs of senior junior
counsel.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT.
7
JUNE 2013