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[2012] ZAGPPHC 80
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RTT Group (Pty) Ltd v Surgical Warehouse (Pty) Ltd (51877/11) [2012] ZAGPPHC 80 (24 April 2012)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 51877/11
DATE:24/04/2012
In
the matter between:
RTT
GROUP (PTY)
LTD
..........................................................................................
APPLICANT
V
THE
SURGICAL WAREHOUSE (PTY)
LTD
.......................................................
RESPONDENT
JUDGMENT
WEBSTER
J
1.This
is an opposed application. The applicant seeks an order that the
respondent pay R497 664.76, interest thereon at 15.5% per
annum as
from 8 April 2011 to date of payment plus the costs of the
application. After the parties had filed their affidavits the
applicant sought leave to file a supplementary answering affidavit
justifiably so as the applicant had introduced new facts that
ought
to have been set out in its founding affidavit. The applicant (in the
main application) was fair enough not to pursue its
original
intention to oppose the filing of such affidavit as opposing it could
conceivably have resulted in dilatoriness in resolving
the issues.
2.
The applicant's claim is based on a simple written acknowledgement of
debt in which the business relationship between the parties
was
terminated, the amount allegedly owing by the respondent was
acknowledged and admitted and the payment by the respondent in
monthly instalments set out. The applicant avers that the respondent
failed to comply with the terms and conditions set out in
the
acknowledgement of debt and seeks payment of what is allegedly owing
by the respondent.
3.
The respondent has resisted the application. The first impression
formed from a "hasty" perusal of the papers is that
the
applicant is entitled to the order it seeks. Given the decision I
have reached in this matter and hopefully in order to avert
any
misconception, the court will be most frugal with its views on the
interpretation of the issues and particularly its views
on what is
set out in the almost illegible fine print in some of the documents
filed by the applicant.
4.
It is trite that where disputes of fact have arisen in motion
proceedings a final order may only be granted if those facts averred
to by the applicant's affidavit that have been admitted by the
respondent, together with the facts alleged by the respondent justify
such an order. It is only where the dispute of fact is such that the
court cannot with any accuracy conclude that the probabilities
in the
founding affidavit of the applicant's case should be accorded any
more weight than an assertion under oath to the contrary,
then it is
incumbent upon the applicant to ask for the hearing of evidence so as
to enable him to establish that the evidence and
the resultant
probabilities should be acted upon (Decro Paint and Hardware (PTY)
LTD v Plascon Evans Paints (PTY) LTD 1982(4) SA
213 (0) at 223 C -
F).
5.
The document relied upon by the applicant reads as follows:
"
We herewith give notice of termination of the agreement with PHD with
effect from 20 October 2010, As agreed in our meeting
yesterday
morning the foiiowing wili apply; 1. The balance of the PHD account
at the end of September of R913 265.76 will be paid
to PHD as
follows, by way of post
dated
cheques to be delivered to PHD offices on Friday, 8 October 2010:
08
Oct'10 - R37 500
15
Oct '10 - R37 500
22
Oct '10 - R37 500
29
Oct '10 - R37 500
30
Nov '10 - R150 000
31
Dec '10 - R50 000 31 Jan '11 - R50 000 28 Feb '11-R513 265
Together
with the cheques a letter from Unicore Trading (Pty) Ltd confirming
that these payments will be honoured on the basis agreed
above needs
to be supplied on Friday, 8 October 2010.
2.
AH the stock at PHD not sold and distributed as yet needs to be
collected by Wednesday, 20 October 2010, in this regard you can
make
the necessary arrangements with Arno Haigh on our side.
3.
Current services will continue until 20 October 2010 and the pro rate
service fee for October needs to be paid as a current invoice
by end
November 2010.
4.
The rental agreement regarding the offices occupied by Surgical
Warehouse will continue until 31 January 2011, with the monthly
rental invoices being settled within 7 days of date of invoice.
Amounts
recovered by PHD from future collections of Surgical Warehouse
debtors will be offset against the final cheque payment on
28
February 2011, with such an amount being paid back by PHD to Surgical
Warehouse upon clearance of the last post dated cheque."
6.
The respondent's defence is a denial that it intended that contents
of the document be an admission of liability. It denied that
it had
contracted with the applicant but had done so with an entity PHD and
further averred that it had various counterclaims against
the
applicant. For purposes of this judgment only two of those
counterclaims need be mentioned. Among these counterclaims is one
in
respect of the delivery of a consignment of female condoms to the
Gauteng Health Services at Chris Hani Baragwanath Hospital,
the
second relates to a loss of income resulting from the applicant's
failure to deliver promotional products to various pharmacies
during
October and November, 2010. These two are mentioned solely for the
purpose of determining whether the test referred to above
favours the
applicant or the respondent.
7.
It is common cause that the applicant was supposed to have delivered
condoms to the Baragwanath Hospital. On its own documentation
such
delivery was supposed to have taken place on 1 November 2010.
According to the applicant it attempted to deliver this consignment
but the recipient * ...didnot accept delivery ... because its
warehousing facilities were overflowing". It however, managed
to
deliver the said goods on 1 December, 2010. The issue regarding this
is that the respondent claims never to have been paid as
no proof of
delivery was forthcoming. The documents purporting to provide proof
of such delivery are RA1, RA2 and RA3.
8.
RA1 which is relied upon by the applicant as proof of delivery and
has what purports to be a rubber stamp of Baragwanath Hospital
bears
a number CSD88385110 and bears the date 2010-12-01. RA2 describes the
consignment as n23 pallets" weighing 5 000kg.
RA3, the "TRIP
CHECKLIST (DETAILED)' bears i.a. the following information: "Trip
date; 11/1/2010; Print date: 11/1/2010',
"Reference 88385110'.
When this information is compared with the topmost information, viz.
"01.12.2010 12:53 (8?) from
- Div Transport 2711733....."
there is no certainty with regards to the information contained in
the document.
9.
Assuming that the court were to accept that the applicant duly
attempted to deliver the consignment of condoms on 1 November,
2010,
that was clearly after 20 October, 2010, the date by which "all
the stock at PHD not sold and distributed had to be
collected'. The
applicant has not deemed it necessary to explain the terms that were
reached by the parties regarding the further
storage of the 23
pallets. Further, the applicant fails to explain what agreement was
reached with the hospital regarding storage
of the condoms from 1
November 2010 until 1 December 2010 and who would be liable for such
storage.
10.
With regard to the "distribution of various promotional products
to various pharmacies" the applicant's response is
that it
"...can find no record that any such requests were made for
services to be rendered'. The applicant further contends
that it is
highly unlikely that such "request" was made, and, in any
event, the applicant "...was fully entitled
to so refuse given
the termination of the agreement. The last statement flies in the
face of the applicant's generosity given its
decision to store the
condoms for a month without any remuneration therefore and further
whether the costs of such delivery had
already been included in the
acknowledgement of debt when such delivery had not been effected
through no fault of the respondent.
11.
From the issues raised above the question to be answered is whether
this court can find that the applicant has satisfied the
requirements
set out above. My considered view is that there are far too many
imponderables and unanswered questions in the applicant's
case to
justify a finding that the test set out in the case of Plascon Evans
Paints LTD v van Riebeeck Paints (PTY) LTD 1984(3)
SA 623 (A) has
been met.
12.
It was submitted by the respondent's counsel that the appropriate
order in the event of the application being refused would
be an order
in terms of draft order "X" annexed hereto. It is the
court's considered view that the proposed order is
appropriate in the
circumstances.
13.
An order is accordingly made in terms of draft order marked "X"
annexed hereto.
G.
WEBSTER JUDGE IN THE HIGH COURT
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
HELD
AT PRETORIA ON THIS THE 18th DAY OF APRIL 2012 AT COURT
BEFORE
THE HONOURABLE JUSTICE WEBSTER J
CASE
NO: 51877/11
In
the matter between;
RTT
GROUP (PTY)
LTD
............................................................................................
PLAINTIFF
and
THE
SURGICAL WAREHOUSE (PTY)
LTD
..........................................................
DEFENDANT
DRAFT
ORDER OF COURT
HAVING
HEARD COUNSEL for the parties, and having read the papers filed of
record, it is herewith ordered as follows:
1.
The application is referred to trial;
2.
The applicant's notice of motion shall stand as a simple summons;
3.
The respondent's notice of intention to oppose shall stand as a
notice of intention to defend;
4.
The applicants shall deliver their declaration within twenty days of
this order, after which the normal rules relating to action
shall
apply;
5.
The costs of the application shall constitute costs in the action.
BY
THE COURT REGISTRAR