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[2013] ZAKZPHC 25
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Ingwe Mabala Construction CC and Another v Landanani Plant Hire CC (AR550/12) [2013] ZAKZPHC 25 (20 May 2013)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR550/12
In the matter between:
INGWE
MABALA CONSTRUCTION CC
.........................
1
ST
APPELLANT
SIBONGILE ENID ZUNGU
..............................................
2
ND
APPELLANT
and
LANDANANI PLANT HIRE
CC
...........................................
RESPONDENT
JUDGMENT
Delivered
20 May 2013
STRETCH A J
[1] Summary judgment
procedure is one which enables a plaintiff with a clear case to
obtain swift enforcement of his/her claim against
a defendant who has
no real defence to that claim. The courts have stressed the fact that
this remedy is an extraordinary and stringent
one because it makes
inroads into a defendant’s rights to have his/her case heard.
The granting of a summary judgment effectively
closes the court’s
doors on the defendant.
[2] It is therefore only
accorded to a plaintiff who has a case which
is not answerable because
the defendant has no defence to it. The
procedure is not designed
to give any procedural advantage to a
plaintiff nor is it
intended to enable a plaintiff to have a preview of the defendant’s
case.
[3] This is an
application for rescission of summary judgment granted in the Vryheid
Magistrates’ Court for payment of the
sum of R711 444,70
on the first claim and R53 629,72 on the second one. The
respondents original claim in the court below
was for payment of
R825 910,70 under claim one and for payment of R38 563,25
and R15 066,47 under the second claim,
based on claims for
equipment rental and a deed of suretyship.
[4] For ease of reference
I shall hereinafter refer to the appellants (being the respondents in
the court below) as Ingwe and Zungu,
and to the respondent (having
been the applicant in the court below) as Landanani.
[5] Ingwe (being a close
corporation in the business of construction) and Zungu (being a
member of Ingwe) raised a number of grounds
of opposition to the
application for summary judgment in the court below. They include the
following:
[5.1]
They denied
having hired a grader for R48 314,38.
[5.2]
They averred
that at least two payments
(which had been made some two years
previously)
had not been accounted for
(R14 466 and
R100 000). This was conceded by Landanani in the court below,
the effect of this being that the claim was
already then drastically
reduced from R825 910,70 to R711 444,70. The correctness of
this challenge alone in my view,
ought to have tipped the scales
somewhat in favour of Ingwe and Zungu with respect to the
bona
fides
and the legality of at least some of their other claims,
particularly when this challenge revealed that Landanani had not
approached
the court below with an accurately liquidated claim, which
is a pre-requisite for an application for summary judgment (see
Meddent Medical Scheme v Avalon Brokers (Pty) Ltd.
1995 (4) SA
862
D at 865 F – G
).
[5.3]
They disputed
that they always hired equipment for full hours at a time, and aver
that Landanani’s previous bills reflected
pro rata charges as
opposed to the full hour charges which were not being reflected.
In
this regard (and in order to motivate a counter-claim for debatement
and to respond to a letter of demand), they had, on 11 April
2012,
requested Landanani’s time books (shortly after summons had
been issued), only to receive a curt reply six days later,
pointing
out that summons had already been issued, and accordingly declining
the request.
[5.4] T
hey averred
that Landanani’s hourly rate had not been agreed upon.
[5.5]
They further
averred that Zungu (
having been the second
respondent in the court
below)
had not signed in her capacity as surety.
[5.6]
They contended
that there had been no oral agreement that
Landanani would hire
equipment and purchase items on behalf of
Ingwe, and then charge
Ingwe for their services.
[5.7] I
t was further
contended that Ingwe had in fact paid for diesel on behalf of
Landanani and that they were in the process of calculating
this debt
as part of their counter-claim.
[
6] I do not
intend traversing all the grounds of defence which were raised in the
Court
a quo
and which have again been raised before this Court
in an attempt to persuade it that the magistrate below had
misdirected herself.
[7] What is significant
is that one of these grounds had already been conceded in the course
of the application for summary judgment
in the court below, (viz the
ground that Landanani had not done its maths properly and that a
substantial portion of the debt which
it was claiming had already
been paid).
[8] However, before this
ground was conceded, and when Ingwe in good faith attempted to
reconcile its records with those of Landanani
(and significantly
before summary judgment was applied for), Landanani refused to make
these documents available to Ingwe,
dismissing its request on
the rather stand-offish ground that action had already been
instituted.
[9] As I have said, I do
not deem it necessary to traverse the merits
of each and every ground
of opposition raised by the appellants when their case featured in
the court below.
[10] From what has
transpired in that court, taken together with Landanani’s
refusal to assist Ingwe to perform its own calculations,
I am not
persuaded that:
[10.1] Landanani has the
requisite clear case which it was expected to have to enable it to
obtain swift enforcement of its claim
against Ingwe and Zungu;
[10.2] Ingwe and Zungu’s
affidavits show that they have no real defence to Landanani’s
claim, particularly when this
Court simply does not know what a
debatement (with the assistance of the documents which Landanani
refused to part with) would
have revealed, and more particularly
because it appears that Ingwe does not dispute the fact of the claim,
but its quantum only.
[11] In the premises I am
of the view that the magistrate in the court below misdirected
herself by granting summary judgment, in
the absence of a clear case
against Ingwe and Zungu who, by contrast, had raised what I perceive
to be real defences (which are
both
bona
fide a
nd good in
law), when an application of this nature is to be considered.
[12] In the premises I
propose the following order:
ORDER
The appeal is upheld.
The respondent is
directed to pay the costs of the appeal.
The order made by the
Court
a quo
is set aside and it is substituted with the
following order:
Summary judgment is
refused.
The respondents are
granted leave to defend.
Costs are reserved.
It is directed that the
dies induciae
within which the respondents are entitled to
defend in terms of the Magistrates’ Court Rules, will commence
running from
the date of this judgment.
____________
STRETCH
A J
I
agree and it is so ordered
___________
SEEGOBIN
J
Appearances /:
Appearances:
For the Applicants
:
Mr C. Hattingh
Instructed
by
: Cox & Partners
C/o
Botha & Olivier Inc.
Pietermaritzburg
F
or the
Respondent
: Mr. C. Pretorious
Instructed by
: G.
J. Vonkemann Attorneys C/o Tatham Wilks Inc.
Pietermaritzburg
Date of Hearing
:
11 February 2013
Date of Filing of
Judgment
: 20 May 2013