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[2012] ZAFSHC 78
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Pioneer Hi-Bred RSA (Pty) Ltd v du Toit (399/2012) [2012] ZAFSHC 78 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 399/2012
In the matter between:-
PIONEER HI-BRED RSA
(PTY) LTD
….......................................
Plaintiff
and
JOHANNES PETRUS
CORNELIUS DU TOIT
…....................
Defendant
_____________________________________________________
HEARD
ON:
22 MARCH 2012
_____________________________________________________
JUDGMENT
BY:
EBRAHIM, J
_____________________________________________________
DELIVERED
ON:
26 APRIL 2012
_____________________________________________________
[1] This is an
application for summary judgment based on a simple summons for
payment of R415 200,00 in respect of goods (maize
seed) sold and
delivered during November 2001 by plaintiff to the defendant as per
its delivery note and agreement, annexure “D”
to the
summons.
[2] The defendant has
opposed the application on the ground that procedurally the simple
summons is defective. Firstly, documents
which have been annexed to
the simple summons, do not support the claim and secondly, the
affidavit in support of the application
for summary judgment verifies
the amount claimed as being an amount in arrears and not a principal
claim based on a sale agreement.
[3]
The defendant has argued that where documents are annexed to a simple
summons, it must be clear from the summons itself what
the purpose of
these documents are by giving a description of each in general terms.
To merely annex the document to the simple
summons as the plaintiff
has done in this case, is to render the summons vague and
embarrassing. This the defendant contends is
a
bona
fide
defence to the application for
summary judgment, which should on that account alone be refused.
[4] A
simple summons has to be couched as near as may be in accordance with
form 9 in the First Schedule to the Uniform Rules of
the High Courts.
All that the form requires is that the summons be couched in concise
terms setting out the cause of action. A
general indication of the
claim amounting merely to a label is all that is required. See
ICEBREAKERS NO 83 (PTY) LTD v MEDICROSS HEALTH CARE
GROUP (PTY) LTD
2011 (5) SA 130
(KZD)
. A
simple summons may contain a claim which was utterly vague and even
defective, but may still be pronounced upon. (
TRANS-AFRICAN
INSURANCE CO LTD v MALULEKA
1956 (2) SA 273
(A))
In
MALULEKA’S
case
Schreiner JA held that technical objections to less than perfect
procedural steps should not be permitted, in the absence of
prejudice, to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits.
[5] In my view the
plaintiff’s summons adequately sets out the basis of the cause
of action and the case which the defendant
is called upon to meet.
The fact that documents, “analogous” to the transaction
upon which the claim is based, have
been annexed to the simple
summons, does not detract from the validity of the summons and its
compliance with form 9 of the First
Schedule to the Rules. The law
reports are replete with decisions in which judgment has been granted
on a simple summons, for a
debt or liquidated demand where the
summons has been couched in less concise terms. Provided the “label”
is clear,
the summons stands. In the present case the label is
abundantly clear – an amount is claimed in respect of a sale
agreement
entered into for the sale of mealies between the plaintiff
and the defendant during November 2010. I can hardly follow what can
be clearer than this. The fact that the plaintiff refers to the
amount as “arrears” in his affidavit in support of
this
application, is to me a matter of semantics for the money is owing,
whether it is a principal claim or a balance outstanding.
[6] On
the merits the defendant does not argue that the amount claimed is
not owed or that the goods were not delivered. This is
common cause.
What he says is he did not purchase the goods in terms of the actual
order placed with the plaintiff. As a basis
for his defence, he
refers to an agreement which he entered into with a co-operative
entity called Farmsecure, in terms of which
he alleges he was an
independent contractor for Farmsecure. He would conduct farming
activities on his farm for and on behalf of
Farmsecure and be
remunerated in return. In terms of this agreement he would procure
seed and any other farming commodity needed
for the purposes of
planting maize and sunflower. Farmsecure would be liable for the
costs associated with any such purchase. His
affidavit opposing
summary judgment makes it clear that in his
personal
capacity
he at no time at all concluded
any kind of sale agreement with the plaintiff in the 2009 and 2010
harvest season, although he admits
that Farmsecure did purchase seed
from the plaintiff during this time and that the seed was delivered
to his farm.
[7] The plaintiff’s
case is that it has delivered seed to the defendant in terms of an
agreement with defendant concluded
in 2010. It is not and was not a
party to defendant’s agreement with Farmsecure, who is a third
party. The plaintiff relies
on clause 8.3 of the contract between the
defendant and Farmsecure which provides as follows:
“
Die
kontrakteur sal op sy eie koste verantwoordelik wees vir die
verskaffing en voorsiening van alle arbeid, trekkers, implemente,
masjinerie en toerusting, brandstof, kunsmis en ander grondstowwe,
saad en plaagbeheermiddels om die gewas te plant, te onderhou,
te oes
en te lewer en ook vir die berging van die grondstowwe, die onderhoud
en beskerming van die toerusting wat gebruik word
in die boerdery
aktiwiteite, vir welke koste die kontrakteur die ooreengekome
vergoeding ontvang.”
[8] This effectively
sounds the death knell to the defendant’s case for it is
directly in conflict with his version. He has
disclosed no
bona
fide
defence to the plaintiff’s claim and summary judgment
is accordingly entered for the plaintiff for the sum of R415 200,00
together with interest thereon calculated at the rate of 15,5% per
annum
a tempore morae
from 26 October 2011 (being the date of
demand) to date of payment and costs.
_____________
S. EBRAHIM, J
On behalf of plaintiff:
Adv. S.J. Reinders Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of defendant:
Adv. S. Grobler
Instructed by:
Wessels & Smith
BLOEMFONTEIN
/sp