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[2012] ZAKZDHC 4
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Vetpac Animal Health v Tantus Trading 274 CC (8279/11) [2012] ZAKZDHC 4 (6 February 2012)
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE
NO 8279/11
In
the matter between:
VETPAC
ANIMAL HEALTH CC
…................................................................
PLAINTIFF
and
TANTUS
TRADING 274 CC
…...................................................................
DEFENDANT
JUDGMENT
Date : 06 February 2012
PLOOS VAN AMSTEL J
[1] This is an opposed
application for summary judgment.
[2] The plaintiff’s
claim is for payment of an amount of R 172 916.81, together with
interest and costs, arising out of the
sale to the defendant of
animal health products and feed supplements.
[3] The contract pleaded
in the particulars of claim is said to have been an oral one and
provided for purchase orders by the defendant,
an invoice issued by
the plaintiff which was payable within 30 days, and either the
collection by the defendant of the product
or the delivery thereof to
it by a freight forwarding company on behalf of the plaintiff.
[4] It is stated in the
particulars of claim that as at 25 July 2011 the defendant owed the
plaintiff the sum of R 227 572.81. On
1 August 2011 it made five
payments to the plaintiff, totalling the sum of R 54 656.00, leaving
a balance owing of R 172 916.81.
[5] Annexed to the
particulars of claim is a letter dated 14 June 2011, addressed to the
plaintiff by an attorney representing the
defendant. It was recorded
in the letter that the defendant disputed that an amount of R 462
564.81 was owing to the plaintiff
and the attorney requested copies
of all invoices referred to in the plaintiff’s statement of 30
June 2011. He went on to
say that the defendant would “in the
interim” pay to the plaintiff an amount of R 236 750.41 by no
later than 1 July
2011 and would pay an amount of R 15 064.42 per
month on the balance of the account. Also annexed to the particulars
of claim is
a letter addressed by the plaintiff’s attorney to
the defendant’s attorney on 26 July 2011 in which it was
recorded
that after the payment of a lump sum and the commencement of
monthly instalments the outstanding balance owing by the defendant
was the sum of R 227 572.81. It appears from the supplementary
affidavit produced by the defendant at the hearing, without
opposition,
that the lump sum payment was in the amount of R 236
750.00.
[6] In the defendant’s
opposing affidavit the deponent denies that the defendant is indebted
to the plaintiff in the amount
of R 172 916.81 “or any other
amount on the basis as alleged in the summons or any other basis”.
The deponent refers
to the payments to which I have referred and with
regard to the balance claimed by the plaintiff says the following:
“The
defendant / respondent denies having received the product
as set out in the remainder of annexure VP3 and the plaintiff /
applicant
has not attached any documents to the particulars of claim
as proof of the alleged purchases and delivery to the defendant /
respondent
thereof “. The reference to annexure VP3 is a
reference to a statement of account which is annexed to the
particulars of
claim.
[7] The statement in the
opposing affidavit that the defendant denies having received the
product is not the same as a statement
that as a matter of fact the
defendant had not received the product. I pointed the distinction out
to counsel for the defendant
during argument and asked her whether it
was the defendant’s case that the product was in fact not
delivered to it or whether
the opposing affidavit merely meant that
the defendant does not admit that it received the product and
requires the plaintiff to
prove this. She informed me that as she
understood her instructions the defendant’s case is that it is
not able to determine
whether or not it received the goods or what
amount is owing in respect thereof.
[8] The deponent to the
opposing affidavit does not say that the defendant had not submitted
purchase orders to the plaintiff for
the goods or that it had not
been issued with invoices in respect thereof. The defendant’s
case seems to be no more than
that it does not admit that it received
the goods which make up the balance of the plaintiff’s claim,
and that it is unable
to establish whether or not it had received the
goods unless the plaintiff supplies it with documentary proof.
[9] The defendant was
required in terms of Rule 32(3)(b) to disclose fully the nature and
grounds of its defence and the material
facts relied upon therefor.
[10] The statement of
account annexed to the particulars of claim lists each invoice which
makes up the plaintiff’s claim,
the date and amount thereof,
and what appears to be the number of the purchase order. In spite of
all this detail in the particulars
of claim the defendant went no
further in the opposing affidavit than to deny that it had received
“the product as set out
in the remainder of annexure VP3”.
No information is provided with regard to purchase orders, the issue
of invoices or difficulties
experienced with regard to deliveries
.What was put up by the defendant does not go far enough. If it did,
it would be far too
easy to avoid summary judgment. It is not enough
for a defendant in summary judgment proceedings to put the plaintiff
to the proof
of its case. It has to set out facts which demonstrate
that it has a
bona fide
defence.
[11] In my view the
defendant has failed to allege a proper defence as required by Rule
32(3)(b). See in this regard Jacobsen van
den Berg SA Pty Ltd vs
Triton Yachting Supplies 1974(2) SA 584 (OPD).
[12] It was not suggested
by counsel that I should nevertheless in the exercise of my
discretion refuse to grant summary judgment,
and I see no basis for
doing so. With regard to the defendant’s claim for commission
against the plaintiff counsel for the
defendant submitted that the
quantum of the claim is in dispute and that therefore one cannot
simply deduct the commission claim
from the plaintiff’s claim.
The claim for commission is on either version less than R 30 000. The
nature of the dispute with
regard to the quantum thereof does not
appear from the papers. Set-off cannot be applied until the amount of
the claim has been
quantified.
[13] In the circumstances
I propose to grant summary judgment on the basis that the defendant’s
claim for commission must
be dealt with in the ordinary course.
Counsel were agreed that if summary judgment is granted interest
should run from 2 August
2011, which was the date of the letter of
demand at page 21 of the papers.
[14] I accordingly grant
summary judgment in favour of the plaintiff for:
(a) Payment of the sum of
R 172 916.81;
(b) Interest thereon at
the rate of 15, 5 % per annum from the 2 August 2011 to the date of
payment;
(c) Costs of suit.
_______________________
PLOOS VAN AMSTEL J
Appearances:
For
the Plaintiff :
Mr. R.M Van Rooyen
Instructed
by :
c/o Shepstone & Wylie Attorneys
Pietermaritzburg
For
the Defendant :
Mrs. K Fitzroy
Instructed
by
:
J Leslie Smith & CO
Pietermaritzburg
Date
of Hearing :
2 February 2012
Date
of Judgment :
06 February 2012