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[2012] ZAFSHC 101
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Farmwise Gains (Pty) Ltd v Hageman (1020/2012) [2012] ZAFSHC 101 (24 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1020/2012
In the matter between:-
FARMWISE GAINS
(PTY) LTD
….........................................................
Plaintiff
and
REINHARDT
HAGEMAN
…..............................................................
Defendant
____________________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
____________________________________________________________
HEARD ON:
3
MAY 2012
____________________________________________________________
DELIVERED ON:
24 MAY 2012
____________________________________________________________
[1] This is an opposed
application for summary judgment in terms of Rule 32 of the Uniform
rules of the Court. For the purpose of
this judgment, the parties
shall be referred to as Plaintiff and Defendant.
There are, in my mind,
three aspects in dispute in this matter, viz:
Whether the claim is a
liquidated amount of money.
Whether the Defendant
raised a proper defence in terms of sub rule 3(b).
The concern whether the
verification of the cause of action is proper.
[2] The relevant parts of
the Plaintiff’s summons are that two agreements were entered
into between the parties during May
and July 2011 in terms of which
the Defendant would deliver 200 metric tons of yellow maize
(commodity), at a purchase price of
R1 640.00 (one thousand six
hundred and forty rand) per metric ton in respect of the 1
st
agreement; and 100 metric tons of yellow maize at 1661.20 per ton in
respect of the second agreement. Further terms and conditions
were
set out in the South African Contract for Grain, Pulses and Oilseeds
and Products Derived Therefrom: “Sagos” Version
8.
[3] Paragraph 5.6 of the
summons reads as follows:
“
In the event of
the Defendant failing to complete deliveries or make the commodities
available for dispatch/collection by the Plaintiff
(whichever is his
duty under the contract) by the last day of the contract period, the
quantity not delivered against the contract
quantity shall be deemed
in default. The Plaintiff may, after giving prior written notice:
5.6.1. Purchase against
such default, the Defendant to make good the loss, if any, on such
purchase, or
5.6.2. Claim damages to
be agreed mutually or settled by arbitration, such damages not to
exceed the difference between the contract
price and the market price
on the date of default.”
[4] Counsel for the
Plaintiff confirmed that the damages claimed are contractual, flowing
from the two contracts for delivery of
maize by the Defendant to the
Plaintiff. He argued strongly that the claim should be regarded as a
liquidated amount in money as
the ascertainment of the amount was
prompt and a mere matter of calculation.
[5] Damages occasioned by
the breach amount to R153 278.20, calculated as follows:
“
Difference between
Agreements’ price and price Plaintiff had to repurchase on
SAFEX as at 19 December 2011:
As to the First Agreement
(47.1 tons x R867.00 per metric ton)
R40 835.70
As to the Second
Agreement (100 tons xR867.00 per metric ton) R86 700.00
Safex Basis Premium Loss
R25742.50
Total
R153278.20”
[6] The Plaintiff however
tenders the amount of R44 584.40, which it holds as retention and
security upon payment by the Defendant
of the amounts of R153 278.20
to the Plaintiff.
[7] During argument,
Counsel conceded that he was unable to explain what exactly the
“Safex basis premium loss is”;
how and why it featured in
the calculation of the damages.
[8] Despite his argument
based on the contract between the parties, he relied, in
substantiation of the claim, on clause 15 (1)
(a) and not on 15(1)
(b) of the contract. Clause 15(1) reads as follows:
“
15.1. In the event
of the Defendant failing to complete deliveries or make the
commodities available for dispatch/collection by
the BUYER (whichever
is his duty under the contract) by the last day of the contract
period, the quantity not delivered against
the contract quantity
shall be deemed in default. The BUYER may, after giving
prior
written notice
:
a) Purchase against such
default, the SELLER to make good the loss, if any, on such purchase,
or
b)
Claim damages to be
agreed mutually or settled by arbitration
, such damages not to
exceed the difference between the contract price and the market price
on the date of default.”
[9]
Prior written
notice
is attached to the summons as annexure “POC5”.
It appears to be an
e-mail dated 27 October 2011 addressed to ‘Agrifin’; CC
“hagemannr@telkomsa.net; from Tinus
Jacobs re: Geelmielies. I
am not convinced that this alleged written notice was admonishing the
Defendant to make good by delivering
the remaining metric tons of
yellow maize.
POC 6 is a letter
addressed to the Defendant’s attorneys by the Applicant’s
attorneys dated 8 February 2012. In paragraph
2, Agrifin is confirmed
as Plaintiff’s representative who contracted with Defendant on
its behalf.
[10] Paragraph 4.2 reads
as follows:
“
4.2. In terme van
die ooreenkoms sou, inter alia:
4.2.1. U klient aan ons
klient 300 ton geelmielies lewer gedurende die periode 1 Julie to 31
Julie 2011;
4.2.2. U klient sou die
mielies by Bloemfontein Nutri Feeds aflewer; en
4.2.3. Ons klient die
bedrag van R1640 per ton betaal aan u klient, welke bedrag gekoppel
was/is aan SAFEX;”
[11] It is the only time
and place where mention is made that the amount is/was linked to
SAFEX. The whole of the contents of paragraph
4.5 hint at a possible
protestation by the Defendant of a repudiation of the agreement by
the Applicant. The circumstances for
such repudiation are however,
not set out.
[12] Defendant filed a
notice of intention to oppose the Summary Judgment Application by
means of legal argument to be presented
by Counsel, and duly filed
Heads of Argument on 2 May 2012. This step, of not filing an
answering affidavit, did not go well with
the Plaintiff, and more so
in that no particulars were disclosed as to the legal argument to be
made.
[13] Briefly, the
Defendant’s Heads of Argument highlight the following:
Plaintiff’s claim
is based on damages and, therefore, not on a liquidated amount.
The manner of
calculation is based on clause 15(1)(b).
Consequently, in the
absence of agreement as to the quantum the claim remains illiquid.
Plaintiff has not
complied with Rule 32.
[14] A Defendant upon the
hearing of an application for Summary Judgment
may
in terms of
Rule 32:
a) …
b) Satisfy the court by
affidavit that he has a
bona fide
defence to the action; …
disclosing fully the nature and the grounds of the defence relied
upon.
[15] It is obvious that
the Defendant has not acted in accordance with the Rule, and raise a
proper defence as required. The question
is, notwithstanding the
finding, can the court grant leave to defend.
See
Jacobsen
v.d. Berg SA LTD v Triton Yachting Supplies
1974 (2)
SALR 584
(C) C-E on 589. In order to exercise the discretion under
Rule 32, the Court must examine whether the Plaintiff’s claim
complies
with Rule 32(1) or (2).
[16] Counsel for the
Plaintiff denies relying on clause 15(1)(a), a submission that is
contrary to the contents of the Particulars
of Claim as shown above
and more specifically as pleaded in paragraph 5.6. By specifically
pleading and claiming for damages, I
am of the view that plaintiff is
relying on clause 15(1)(b); consequently his claim can never be a
liquidated amount as it is dependent
on actions, of either the
parties, or third parties to have the amount liquidated. To argue
that Plaintiff is relying solely on
clause 15(1)(a) and not 15(1)(b),
would be irreconcilable with the particulars in support of his claim.
Had Plaintiff, in terms
of his counsel’s submission, relied
solely on clause 15(1)(a), his Particulars of Claim would have been
constructed and framed
accordingly.
[17] “In our
organized society with businesses, trades and professions organized
as they are it is normally a matter of no
difficulty to determine the
usual and current market price of articles sold and the reasonable
remuneration for services rendered.
These are matters, which as a
rule can be ascertained speedily and promptly. Generally speaking
therefore a Court can,
in exercising its discretion regard such a
claim as a debt or liquidated demand unless of course there are
features, appearing from
the claim as framed or other relevant
circumstances, which preclude the Court from regarding such a claim
as a debt or liquidated
demand in the sense discussed in this
judgment’:
Fatti’s Engineering Co. Ltd v
Vendick Spares Ltd
1962 (1) TPD 736
on 739 E-G”.
[18] I am therefore
satisfied that the Defendant’s Heads of Argument fill the
lacuna created by the failure to comply with
Rule 32(3).
Jacobsen
van der Berg SA (Pty) Ltd v Triton Yachting Supplies
1974 (2)
08 B p584 to 589 C-E.
[19] I therefore find it
unnecessary to decide on the point in
limine
raised by
Defendant’s Counsel in regard to the non-compliance with Rule
32:
Maharaj Barclays National Bank LTD
1976 SA 418
(A) 422
D-H.
[20] I therefore make the
following order:
Summary judgment is
refused and defendant is granted leave to defend the action.
Costs of the
Application for summary judgment are left over for decision by the
trial Court.
_________________
J. J. MHLAMBI, AJ
On behalf of Plaintiff:
Mnr. P J J Zietsman
Instructed by:
Naudes
BLOEMFONTEIN
On
behalf of
Defendant
: Adv. S. Grobler
Instructed by:
Gous Vertue &
Associates Incorporated
BLOEMFONTEIN
/eb