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[2013] ZAGPPHC 426
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Riverwalk Trading 453 cc T/A Minuteman Press Berea v Company and Intellectual Property Commission (35476/2013) [2013] ZAGPPHC 426 (18 September 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 35476/2013
DATE:
18 SEPTEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter between:
RIVERWALK TRADING 453 CC
T/A MINUTEMAN PRESS
BEREA
..........................................
PLAINTIFF/APPLICANT
and
COMPANY AND INTELLECTUAL
PROPERTY
COMMISSION
..............................................
DEFENDANT/RESPONDENT
JUDGMENT
KUBUSHI, J
[1] This is an application for summary
judgment. What is at issue is whether the plaintiff’s claim
falls within the category
of claims set out in uniform rule 32 (1).
[2] The plaintiff’s claim against
the defendant is for services rendered. The parties entered into an
agreement whereby the
plaintiff would render services and goods to
the defendant. The said services were to include the creation and
design of branding
and signage for the defendant. The defendant
repudiated the agreement. The plaintiff’s contention is that at
the time of
repudiation it had already rendered certain services in
respect of the quality of the design. The plaintiff is thus claiming
the
cancellation of the agreement and payment in respect of the
rendered services. The claim is based on the damages suffered by the
plaintiff in the amount claimed being the reasonable market related
value for the creation, design and production of the quality
of goods
as specified.
[3] The defendant is opposing the
application on the basis that the plaintiff’s claim falls
outside the parameters of uniform
rule 32 (1). According to the
defendant’s counsel a claim based on damages can never be a
liquidated amount as required in
terms of uniform rule 32. Once the
plaintiff alleged that the amount claimed is a reasonable market
related claim, expert evidence
has to be led to prove that market
related value. Such a claim is thus not easily determinable.
[4] As a point of departure, the
plaintiff’s counsel submits that the defence raised by the
defendant is technical in nature
and cannot be raised in a summary
judgment application. I am of the view that a defendant is entitled
to raise such a defence.
As is trite a plaintiff is entitled to
summary judgment on a claim only if the claim falls within one of the
categories listed
in the sub-rule. If a claim is not one listed in
uniform rule 32 (1), the procedure in that sub-rule does not apply.
See Harms:
Civil Procedure in the Superior Courts at B -
[5] What requires determination is
whether the plaintiff’s claim falls within the category of
claims listed in uniform rule
32 (1).
[6] The defendant’s contention is
that the plaintiff’s claim does not fall within the categories
listed in the rule
because it is not for a liquidated amount in
money. The defendant’s counsel argued that a claim based on
damages and which
is also for a reasonable market related value
cannot be a liquidated amount in money. Such a claim according to
counsel requires
to be proved by expert evidence to determine the
damages suffered and the quantum and what a reasonable market related
value in
the circumstances of this claim is.
[7] A liquidated amount means an
amount, either ascertained or capable of speedy and prompt
ascertainment. See Fatti’s Engineering
Co (Pty) Ltd v Vendick
Spares (Pty) Ltd
1962 (1) SA 736
(T).
[8] I am in agreement with the
defendant’s counsel that the claim in this instance does not
fall within the category of claims
listed in uniform rule 32 (1).
This is so because the claim is not for a liquidated amount in money.
The claim in this instance
requires the damages to be proved by means
of expert evidence. The submission by the applicant’s counsel
that the amount
claimed by the plaintiff is easily ascertainable
because it is the amount normally charged by the plaintiff to its
customers when
it provides a service of the nature rendered to the
defendant, is flawed. This is not what the plaintiff based its action
in its
particulars of claim.
[9] As regards the costs I am of the
view that this is not a case where there are special circumstances
which require a punitive
scale as requested by the defendant’s
counsel. It is my view that the plaintiff was entitled to form an
opinion in regard
to its case and was also entitled to argue that
opinion in
[10] In the premises I make the
following order:
a. the summary
judgment application is dismissed with costs.
b. The defendant
is granted leave to defend the action
E. M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearances:
HEARD ON
THE
..........................................................................
:
10 SEPTEMBER 2013
DATE OF
JUDGMENT
................................................................
:
18 SEPTEMBER 2013
PLAINTIFF/APPLICANTS'
COUNSEL
...................................
:
ADV OSCHMAN
PLAINTIFF/APPLICANTS'
ATTORNEY
..............................
.
:OPPERMAN ATTORNEYS
DEFENDANT/RESPONDENT'S
COUNSEL
.......................... .
:
ADVKRUGER
DEFENDANT/RESPONDENT'S
ATTORNEY
.........................
:
CHRISTO BOTHA ATTORNEYS