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[2012] ZAFSHC 24
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Suidwes Landbou (Edms) Bpk h/a Suidwesfin v Loomar Boerdery (Edms) Bpk and Another (5129/2011) [2012] ZAFSHC 24 (1 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 5129/2011
In the matter between:
SUIDWES LANDBOU
(EDMS) BPK
h/a SUIDWESFIN
….........................................................................
Plaintiff
and
LOOMAR BOERDERY
(EDMS) BPK
…................................
1
st
Defendant
MARTHINUS ABRAHAM
PRINSLOO
…..............................
2
nd
Defendant
JUDGMENT:
CHESIWE, AJ
HEARD ON:
9
FEBRUARY 2012
_______________________________________________________
DELIVERED ON:
1 MARCH 2012
_______________________________________________________
[1] The plaintiff, first
and second defendant entered into an agreement in which the first
defendant will make purchases and make
monthly payments on receipt of
statements from the plaintiff. The second defendant bound himself as
a co-principal debtor in
solidum
in terms of a written
contract that was signed by the parties on 11Jun 2009.
The second defendant also
signed as surety for the first defendant.
[2] The plaintiff issued
a combined summons against the first defendant and second defendant.
The plaintiff claimed payment of R272
117, 83 and interests of 18,5%
per annum calculated from 1 November 2011 to date of payment.
The plaintiff further
claimed a payment of R10 030 861,19 and interest of 13,5% per annum
calculated from 1 November 2011 to date
of payment, and plaintiff
further claimed that a court order be issued whereby the farm
Theronshoop 411, district Hoopstad, Free
State Province registered at
the Deeds Office under T1561/2004 be made executable immediately.
[3] The second defendant
gave a notice of intention to defend the action and claimed in the
Heads of Argument that the plaintiff’s
summons and particulars
of claim do not comply with Rule 18(1) in that the particulars of
claim are not originated by an advocate
or an attorney who has right
of appearance in the High Court.
[4] Mr De Wet, on behalf
of the plaintiff, in his oral arguments submitted that the combined
summons and particulars of claim comply
with Rule 18(1) which
provides that:-
A combine summons, and
every other pleading except a summons, shall be signed by both an
advocate and an attorney, or in the case
of an attorney who under
section 4(2) of the Right of Appearance in Court Act, 1995, has the
right of appearance in the High Court.
[5] Mr De Wet argued that
there was compliance with the rules as the case of
FORTUNE v
FORTUNE
1996 (2) SA 550
(1) is an old case. He argued that
the plaintiff’s attorney is a known practising attorney in the
Free State and do have
the right of appearance in the High Court. He
submitted that the rule was amended and has been effective from July
1996.
[6] Mr De Wet submitted
that the first and second defendants do not have a
bona fide
defence and only gave notice of intention to defend for purpose of
delaying the process. He submitted that the combined summons
and
particulars of claim are compliant with Rule 18(1) of the Uniform
Rules of Court.
[7] Mr De Wet argued that
summary judgement proceeding terrified those who had no defence and
said the time has come to discard
labels such as extraordinary and
drastic and rather concentrate on the proper application of the rule.
In this regard, he referred
to the case of
JOOB JOOB
INVESTMENTS (PTY) LTD v STOCKS MAVUNDLA ZEK JOINT VENTURE
2009 (5) SA 1
(SCA).
[8] Mr De Wet submitted
that the defendants do not have a defence and that the court would
consider the SCA decision in
JOOB JOOB
supra
and
gives an order in terms of the prayers in the particulars of claim.
[9] Mr Reinders, on
behalf of the first and second defendants, argued in the Heads of
Argument and oral submission that the plaintiff
did not comply with
the agreement between the parties. He submitted that the plaintiff
had agreed that, he will send monthly statement
to the defendant and
that the defendant will within six months note any objection, if any,
to the statements. The plaintiff will
then issue a certificate signed
by an accountant in the employment of the plaintiff.
[10] Mr Reinders
submitted that, said the defendant has a
bona fide
defence and
will not enter into the merits of the case as this can be argued at
trial. He submitted that the court has the discretion
not to shut the
door on the defendant.
[11] With regard to
paragraph 9 of the particulars of claim, which deals with section 26
of the Constitution.
Mr Reinders submitted
that he has not received any instruction if the farm Theronshoop is
the primary residence of the second defendant.
Mr De Wet also confirmed
that the plaintiff highlighted the issue of adequate housing in terms
of the Constitution. He indicated
that the plaintiff is unaware
whether Theronshoop is the primary residence of second defendant, nor
did he receive any instruction
in this regard.
[12] The summary
judgement procedure is to enable a plaintiff whose claim falls within
a certain judgment without going on trial
unnecessary.
By means of this
procedure as defence lacking in substance can be dispersed of without
putting the plaintiff to the expense of a
trial. The courts have
previously in different decisions emphasised the fact that the remedy
provided by this rule is an extra-ordinary
one which is very
stringent in that it closes the door to the defendant, and which will
thus be accorded only to the plaintiff
who has, in effect, an
answerable case.
[13] In
JOOB JOOB
INVESTMENTS
supra
the court was of the view that the
time has come to discard labels such as extraordinary and drastic and
rather concentrate on
the proper application of the rules.
However, the amounts
involved in this matter a quiet substantial, and the plaintiff also
prays that the farm that the second defendant
bonded as security be
made executable immediately although during oral argument both
counsel could not confirm if the farm Theronshoop,
district Hoopstad
is the primary residence of the second defendant.
[14] One of the ways in
which a defendant may successfully oppose a claim for summary
judgement is by satisfying the court by a
affidavit that he has a
bona fide
defence to the claim.
Where the defence is
based upon facts, in the sense that material facts alleged by the
plaintiff in his combined summons are disputed
or new facts are
alleged constituting a defence.
The court does not
attempt to decide these issues or to determine whether or not there
is a balance of probabilities in favour of
the one party or the
other.
All that the court
enquires into is:
whether the defendant
has fully disclosed the nature and grounds of his defence and the
material facts upon which it is founded.
Whether on the facts so
disclosed the defendant appears to have a defence which is
bona
fide
and good in law.
[15] While the defendant
need not deal exhaustively with the facts and the evidence relied
upon to substantiate them-, he must at
least disclose his defence and
the material facts, upon which it is based with sufficient
particularity and completeness to enable
the court to decide whether
the affidavit discloses a
bona fide
defence. At the same time
the defendant is not expected to formulate his opposition to the
claim with the prescription that would
be required of a plea.
The defendant in his
affidavit claimed that the plaintiff did not comply with their
agreement that monthly statements will be issued
upon which the
defendant will have six months to note an objection. The defendant
also claimed that on receipt of all the statements
he made payments.
[16] In my view, the
defendant has a
bona fide
defence and the court should not
shut the door on the defendant on his intention to have his claim
tested according to the dictates
of law.
[17] Under these
circumstances, the court will therefore order that:
- The defendants are
granted leave to defend the plaintiff’s action.
- The costs of the
application for summary judgment are costs in the cause of the
action.
_______________
S. CHESIWE, AJ
On behalf of the
applicant: Adv. P J T de Wet
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of the
respondents: Adv. S J Reinders
Instructed by:
EAL Muller Prokureurs
BLOEMFONTEIN
/eb