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2012
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[2012] ZAECMHC 2
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Afropulse 497 (Pty) Ltd v Lamn (Pty) Ltd (2223/11) [2012] ZAECMHC 2 (26 January 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 2223/11
Heard on: 01/12/11
Delivered on: 26/01/12
In the matter between:
AFROPULSE 497 (PTY) LTD
….............................................................
Applicant
and
LAMAN (PTY) LTD
….........................................................................
Respondent
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] This judgment concerns an application for summary
judgment in terms of Rule 32 of the rules of this Court.
[2] The applicant brought an action against the
respondent for the payment of R783 624,00 together with interest
thereon calculated
at the legal rate of interest a
tempore morae
to date of payment. This claim arises from a breach of the sale
agreement by the respondent, which was duly accepted by the
applicant,
who failed to deliver certain cement blocks in terms as
agreed between the parties on 07 February 2011. A notice to defend
the
action which was delivered by the respondent on 27 October 2011
provoked the application for summary judgment.
[3] The following allegations were made by the applicant
in the particulars of claim. The applicant is described as Afropulse
497
(Pty) Ltd (Registration No. 2010) 000683/07), a company with
limited liability and duly registered as such according to the laws
of the Republic of South Africa, with its registered office at 80
Bonza Bay, Beacon Bay, East London and which trades under the
name
and style of Profit Partners. The respondent is also described as a
limited liability company, Registration No. 2001/011648/07,
with
registered address at Gotyibeni Location, Tsolo.
[4] It is common cause that the respondent is the maker
and distributor of cement blocks and other related materials.
[5] It is alleged by the applicant that on 07 February
2011 the parties concluded a written agreement of purchase and sale
of,
inter alia,
sizes M4 and M6 building blocks at a price of
R4,70 and R5,50 per block respectively. The applicant would spend a
total sum of
R2 000 000,00 for M4 blocks and R2 500 000,00
for M6 blocks. The applicant would pay a 40% deposit sum of
R1 526 323,66
including VAT. The blocks would be delivered
by the respondent from Tuesday 08 February 2011 at 2 x crane trucks
per day up until
Wednesday 09 February 2011, 4 loads crane trucks on
Thursday 10 February 2011 and then from Friday 11 February 2011 the
respondent
would deliver 6 x crane trucks per night until final
delivery. The remainder of the money would be payable on completion
of the
full delivery.
[6] Accordingly, the applicant paid a deposit of
R1 526 323,66 and the delivery of blocks was then commenced
with as agreed.
However, the respondent failed to deliver six trucks
per day and repudiated the agreement on 28 March 2011 by adjusting
the price
of the blocks. The repudiation was accepted by the
applicant. At the time 71 400 of 184 100 M6 blocks and
62 700
of 69 432 M4 blocks had not been delivered. The
total cost of those blocks is calculated at R783 624,60, which
the applicant
seeks to be refunded by the respondent out of the
deposit sum of R1 526 323,66 that had been paid to it. In
essence,
the cause of action arises from the failure by the
respondent to refund R783 624,60 being the value of cement
blocks which
it did not deliver to the applicant.
[7] The documents issued by the applicant to support its
claim are a Memorandum drawn by the respondent setting out the
salient
terms of the agreement (annexure “A” to the
particulars of claim) and the application for credit facilities
(annexure
“B”). Annexure “C” is the schedule
drawn by the applicant in which there is set out the detailed
particulars
of the number and cost of deliveries including the
shortfall giving rise to the amount claimed by the applicant.
[8] In terms of Rule 32 (3) respondent has a choice to
make between either giving security to the applicant for any judgment
including
costs which may be given if it is not successful in the
trial or satisfying the Court by affidavit or such evidence stating
that
it has a
bona fide
defence to the action. The affidavit
filed and evidence adduced shall disclose fully the nature and
grounds of the defence and
the material facts relied upon. The
respondent has elected to file an affidavit.
[9] The obligations of a party who seeks to oppose the
grant of summary judgment by means of an affidavit have been stated
by Corbett
JA in the case of
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A-D as follows:
“Accordingly, one of the ways in which a defendant may
successfully oppose a claim for summary judgment is by satisfying
the
Court by 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 summons,
or 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: (a) whether the defendant has “fully” disclosed
the nature and grounds of his defence and the material
facts upon
which it is founded, and (b) whether on the facts so disclosed the
defendant appears to have, as to either the whole
or part of the
claim, a defence which is both
bona fide
and good in law. If
satisfied on these matters the Court must refuse summary judgment,
either wholly or in part, as the case may
be. The word “fully”,
as used in the context of the Rule (and its predecessors), has been
the cause of some judicial
controversy in the past. It connotes, in
my view, that, 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.”
[10] I proceed to examine the contents of the opposing
affidavit to see if it complies with the provisions of Rule 32
(3)(b).
[11] The identity of the applicant is not disputed by
the respondent pertinently. However, in paragraphs 5 and 7 of the
opposing
affidavit, it states that it never entered into a contract
with Afropulse 497 (Pty) Ltd but did so with Profit Partners as a
separate
business entity. The respondent has given no particulars to
demonstrate that Profit Partners is a separate business entity from
the applicant. Therefore, it must follow that the denial of the
applicant as a contracting party is not a valid defence. In this
regard the case of
Breitenbach v Fiat SA
(Edms) Bpk
1976 (2) SA 226(T)
at 227G-228B is
apposite. There the court stated as follows:
“One of the things clearly required of a defendant by Rule 32
(3)(b) is that he set out in his affidavit facts, which, if
proved at
the trial, will constitute an answer to the plaintiff’s claim.
If he does not do that, he can hardly satisfy the
Court that he has a
defence.
...
There is no magic whereby the veracity of an
honest deponent can be made to shine out of his affidavit.
It must be accepted that the sub-rule was not intended to demand the
impossible. It cannot, therefore, be given its literal meaning
when
it requires the defendant to satisfy the Court of the
bona fides
of his defence.
It will suffice, it seems to me, if the defendant
swears to a defence, valid in law, in a manner in which is not
inherently and
seriously unconvincing
.”
(The underlining is mine for emphasis).
The defence raised by the respondent is not inherently
and seriously convincing in my view.
[12] The respondent raises a further defence in
paragraph 9.3 of its opposing affidavit, which reads:
“Goods like cement and other material including blocks were
supplied up until the advanced amount was exhausted. Invoices
and
proof of deliveries are with the Respondent and can be supplied at
any given time if they are so needed. They have not been
attached in
this application because they are bulky.”
No attempt was made by the respondent to discover the
bulky invoices and proof of deliveries as alluded to in the
affidavit. The
respondent ought to have known that such documents
were needed on the day of argument of the application; if such
documents have
to be taken into account by the Court. It was argued
strenuously by
Mr De La Harpe
that an allegation of the
existence of such documents cannot found a valid defence in terms of
Rule 32 (3)(b) as it is no more
than a bare denial or the equivalent
of an assertion of payment without proving any particularity. I
agree.
[13] For some strange reason, the respondent makes no
attempt to deal with the critical issue of undiscovered “invoices
and
proof of deliveries” in the heads of argument. Neither did
counsel for the respondent make submissions on the issue during
arguments. Instead, the respondent was content with raising technical
defences in the heads that Mr Booyens, the deponent to the
applicant’s affidavit, failed to swear positively to the facts
verifying the cause of action as stated in the summons and
that the
particulars of claim do not sustain a cause of action in that they
are vague and embarrassing. These submissions have
no basis. Mr
Booyens did make the necessary allegation in paragraph 4 of the
founding affidavit that he was swearing positively
to the facts which
were peculiarly known to him.
[14] The submission that the particulars of claim are
vague and embarrassing cannot hold water. Firstly, the respondent
does not
dispute the existence of a contract of sale and delivery of
goods as such. Its defence is that Profit Partners was a contracting
party, not the applicant. Secondly, the next defence was that the
deliveries were made until the sum of R1 526 323,66
deposited was exhausted. That said, the submission raised in the
heads that the main contract has not been correctly pleaded is
at
odds with the contents of the affidavit. For these reasons the
technical defence that the particulars of claim does not sustain
a
cause of action is not valid. I may add that, in any event, the
particulars of claim do sustain a claim for a refund of money
advanced in a contract for goods sold and delivered which both
parties later on cancelled. All the particulars which were relevant
to that cause of action were alleged by the applicant in an adequate
manner.
[15] It is my view that all the defences raised by the
respondent are bad in law to the extent that they do not comply with
the
provisions of Rule 32 (3)(b). The discretionary power which is
vested in the Court in terms of Rule 32 (5) to refuse summary
judgment
is not merely there for the taking. The respondent would
have had to persuade the Court on solid grounds, not just on
conjecture
and speculation, that a discretion may be exercised in its
favour. In this case, the respondent did not ask the Court to
exercise
discretion in its favour. Consequently, the application for
summary judgment must succeed with costs.
[16] I interpose here to reflect on a matter which must
be of concern to both the Court and practitioners who appear before
it.
Mr Singqumba
, the attorney of Mvuzo Notyesi Incorporated,
argued this application on behalf of the respondent despite the fact
that the attorneys
of record were V. Gwebindlala & Associates. At
the end of arguments I asked him to prepare and deliver heads of
argument. He
did not do so. Instead, the Court was favoured with
heads drawn by Advocate P.D. Quinlan. One would hope that no material
prejudice
will be caused to the respondent due to the manner in which
it has been legally represented in this case. Be that as it may I
have
to state that V. Gwebindlala & Associates still remain the
attorneys of record for the respondent because they did not withdrawn
as the attorneys legally representing the respondent in the matter.
[17] The following order shall issue:
“
Summary judgment be and is hereby granted against the
Respondent to pay a sum of R783 624,00 with interest thereon
calculated
at the legal rate plus costs of suit.”
______________________________
Z.M.
NHLANGULELA
JUDGE
OF THE HIGH COURT
Counsel for the applicant : Adv. D.H. DE LA HARPE
Instructed by : Drake Flemmer & Orsmond Inc
c/o J H Heunis & Associates MTHATHA
Attorney for the respondent : Mr Singqumba
Instructed by : V. Gwebindlala & Associates
MTHATHA