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[2011] ZAFSHC 77
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LC Fourie t/a LC Fourie Boerdery v JC Kotze NO and Another (174/2011) [2011] ZAFSHC 77 (19 May 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 174/2011
In
the matter between:
L
C FOURIE t/a LC FOURIE BOERDERY
…...............................
Plaintiff
and
JOHANNES CHRISTIAAN
KOTZé N.O.
….....................
First
Defendant
GRAHAM CHRISTIAAN
KOTZé N.O.
…....................
Second
Defendant
HEARD
ON:
5 MAY 2011
_____________________________________________________
DELIVERED ON:
19
MAY 2011
KUBUSHI, AJ
[1] This is an
application for summary judgment. The application is premised on the
plaintiff’s claim against the defendants
for the payment of the
amount of R159 000-00 (One Hundred and Fifty Nine Thousand Rand)
being the amount allegedly due to the plaintiff
as per a share-crop
agreement entered into between the plaintiff and the Skerming Trust
(the Trust).
[2] The facts of the case
are that on the 22 April 2008 the plaintiff acting in his personal
capacity and the Trust, represented
by the 1
st
defendant
in his capacity as an authorised Trustee thereof entered into a
written share-crop agreement (the agreement). The agreement
was for a
period of three years, that is, until 30 May 2011. In terms of the
agreement the plaintiff had, at the end of the agreement,
an option
to lease the land for a further period of three years.
[3] In terms of the
agreement the Trust was to provide 58 hectares of arable land for
usage against payment to be made as follows:
The plaintiff was to pay
the Trust an amount of R4 000-00 plus VAT per hectare, which amount
was payable in advance before planting
on the 1 June and 1 December
of each year, being for monitoring and Escom tariffs.
An amount of R159 000-00
less VAT, plus 15% interest from 1 June 2008 until date of payment,
was deductible from the last amount
paid by the plaintiff to the
Trust being on the1 December 2011.
The plaintiff was to pay
an amount of R1 200-00 per month to the Trust being for the use of
one farm worker and also to provide
20 litres of unleaded petrol to
the Trust for use of a four wheel motorbike.
In case the Trust’s
yearly use of the electricity would increase by 10%, the plaintiff
was to be liable for such increase.
[4] According to the
plaintiff, which fact is also confirmed by the defendant, the
agreement was cancelled by mutual agreement in
September 2010 and the
plaintiff was replaced by Efcor Boerdery (Edms) Bpk (Efcor). The
Trust and Efcor entered into a similar
share-crop agreement that
plaintiff and the Trust had entered into. It is noted that the
share-crop agreement between the Trust
and Efcor, which the plaintiff
relied on in his summons, was dated 7 October 2008.
[5] In paragraph 5 of the
summons the plaintiff alleged that the Trust performed as per the
said agreement by providing the land.
The plaintiff alleged further
that he also complied with all the requirements of the agreement and
made the payments as required
and in particular he paid (as per
clause 5.2 of the agreement) an amount of R159 000-00 less VAT plus
15% interest to the defendants’
appointed agent, namely their
attorney, Mr Cobus le Roux. According to the summons the said amount
was paid in four monthly instalments
in May and June of 2008. The
amount was paid less R9 000-00 which the defendants owed to the
plaintiff.
[6] The plaintiff
attached two agreements to the summons as Annexure “A”
and Annexure “B”. Annexure “A”
was a
share-crop agreement signed on the 7 October 2008 entered into
between the Trust and Efcor. Annexure “B” was
a
share-crop agreement signed on the 22 April 2008 entered into between
the plaintiff and the Trust. In the summons the plaintiff
referred to
Annexure “A” as the agreement entered into between the
plaintiff and the Trust and to Annexure “B”
as the
agreement by the Trust and Efcor. I must at the outset say that this
was a genuine mistake on the part of the plaintiff.
[7] The plaintiff’s
summons was served on the defendants who entered an appearance to
defend. On the basis of the appearance
to defend by the defendants,
the plaintiff filed a notice of application for summary judgment
which the defendants opposed. The
defendants’ opposing
affidavit was deposed to by Johannes Christiaan Kotze, 1
st
defendant in this matter, who swore positively that the defendants
had a bona fide defence to the claim. In the opposing affidavit
the
deponent confirmed the existence of the agreement between the Trust
and Efcor and alleged that the plaintiff and the defendants
had
orally agreed that the amount as claimed by the plaintiff would be
paid by Efcor to the plaintiff. The deponent further alleged
that the
trust had not received the amount as paid by the plaintiff from the
attorneys Kobus Le Roux Prokureurs.
[8] In their Heads of
Argument the defendants raised three points
in limine
. The
plaintiff opposed these points on the basis that it was not
permissible for a defendant in a summary judgment to raise points
in
limine
. Mr Reinder, plaintiff’s counsel referred the court
to Erasmus
Superior Court Practice
at pages B1 – 223 and
B1 – 224 and two cases quoted in the foot note, namely, and
South African Bureau of Standards v GGS/AU (Pty) Ltd
2003 (6) SA 588
(T) at 592E – H and
Standard Bank Of
South Africa Ltd v Roestof
2004 (2) SA 492
(W).
[9] It has been generally
accepted by our courts that a defendant may advance legal defences
against an application for summary
judgment
in limine
without
having to deliver an opposing affidavit on the merits and without
having to set out such points in an opposing affidavit.
See Van
Niekerk Geyer and Mundell in
Summary Judgment A Practical Guide
Issue 10 at p11 – 14(2).
[10]
In the case
Arend v Astra Furnishers (Pty) Ltd
1974 (1) SA 298
(C) Corbett, J, as he then was, held that a defendant
in summary judgment proceedings is not precluded from raising issues
relating
to the validity of the plaintiff’s application merely
because he has not referred to these issues in his opposing
affidavit.
The learned judge at 314B – C observed as follows:
“
Where the
attack is upon the ground that the plaintiff’s particulars of
claim do not substantiate a valid cause of action,
then, in my view,
this is not strictly a defence and it does not fall within the ambit
of rule 32 (3) (b) regarding the defendant’s
obligation fully
to disclose his defence. It raises rather the question as to whether
plaintiff has complied with rule 32 (1) and
(2) relating to the
requirements of an application for summary judgment.”
[11] This approach has
also been followed in other cases. See
Geyer v Geyer’s
Transport Services (Pty) Ltd
1973 (1) SA 105
(T) at 107C –
E and
Transvaal Spice Works and Butchery Requisites (Pty) Ltd v
Conpen Holdings (Pty) Ltd
1959 (2) SA 198
(W). Herbstein &
Van Winsen in
The Practice of the High Courts of South Africa
5
th
ed Volume 1 at p537 confirm that a defendant can raise
a defence that the summons issued at the instance of a plaintiff is
defective
or open to exception. A defence of this nature, according
to these authors, does not need to be canvassed in the defendant’s
affidavit resisting summary judgment.
[12] The cases which Mr
Reinders referred the court to are of no assistance in this matter.
In those two cases the courts were considering
technically incorrect
papers by a plaintiff or an obvious and manifest error which does not
cause any prejudice to the defendant
and held such error not to be
fatal to an application for summary judgment. On the basis of the
authorities cited above I am of
the view that the defendants in this
case were entitled to raise points
in limine
without first
having to raise them in the opposing affidavit.
[13] Mr Greyling,
defendants’ counsel, having contended that if any of the points
in limine
should be upheld, the plaintiff will not be entitled
to summary judgment and the defendants’ opposing affidavit
which deals
with the merits of the defence to the plaintiff’s
claim will become irrelevant. This court has now to decide whether
the
in limine
points raised by the defendants are valid or
not.
[14] The following points
were raised by the defendants’ counsel
in limine
:
the plaintiff’s
summons is vague and embarrassing and therefore exceptiable;
the general enrichment
clause which the plaintiff relies on in the alternative is not
applicable in the South African law;
any reliance by the
plaintiff on clause 6 (the breach clause) of the agreement between
plaintiff and defendant will be premature.
Vague and
embarrassing
[15] An exception in
terms of section 23 of the Uniform Rules of Court is a legal
objection to the opponent’s pleading. It
complains of a defect
inherent in the pleading. An exception that a pleading is vague and
embarrassing is not directed at a particular
paragraph within a cause
of action: it goes to the whole cause of action, which must be
demonstrated to be vague and embarrassing.
An exception that a
pleading is vague and embarrassing strikes at the formulation of the
cause of action and not its legal validity.
Erasmus
Superior Court
Practice
pB1 – 154.
[16] Mr Greyling
contended that the plaintiff’s summons is made vague and
embarrassing for the following reasons:
Firstly, the plaintiff’s
particulars of claim ad paragraph 3.2 refer to Annexure “A”
and that annexure is an agreement
between the Trust and Efcor. This
annexure refers to another Annexure “A” which is not
attached to the summons. He
argued that the summons is made vague and
embarrassing by the fact that this annexure refers to FarmSecure
which is not mentioned
in the summons. He argued further that the
attached agreements are either wrong or incomplete. In counter
argument to this submission
Mr Reinders stated that there is nothing
vague and embarrassing in the particulars of claim except that the
annexures to the summons
have been swapped. I agree with Mr Reinders.
On a proper reading of the papers one can ascertain that the
annexures were swapped.
This is a manifest error which did not
prejudice the defendant and was held not to be fatal to the summary
judgment in
Standard Bank of South Africa Ltd v Roestof
,
supra
. And in this case, in my view, also it does not render
the summons exceptiable.
[17] Secondly, Mr
Greyling contends that the summons is vague and embarrassing as it
does not indicate why plaintiff had to pay
an amount of R159 000-00
to the Trust. He argued that paragraph 5.2 of the plaintiff’s
claim is based on performance by the
plaintiff in terms of clause 5.2
of Annexure “A” – which is payment of the amount of
R159 000-00 whereas in terms
of Annexure “A” plaintiff is
obligated in terms of clause 5.1 to pay R4 000-00 per hectare. Clause
5.2 as per Annexure
“A” is not an obligation but a
deduction from the amount paid by the plaintiff to the Trust.
[18] Mr Reinders in
counter argument said that the defendants’ legal representative
did not interpret paragraph 5.2 of the
summons correctly. According
to him plaintiff avers in the summons that he paid the amount of R159
000-00 to the defendants which
averment the defendants accepted in
their opposing affidavit.
[19] I agree with the
defendants. It is not clear why the plaintiff had to pay an amount of
R159 000-00 to the defendants as alleged
in the summons. In terms of
the agreement on which the plaintiff relied an amount of R159 000-00
minus VAT plus 15% interest was
deductible from the amount paid by
the plaintiff to the Trust. The amounts payable by the plaintiff to
the Trust in terms of the
agreement are only those set out in clauses
4.8, 4.9, 5.1 and 5.2 of the agreement. To take this argument further
it is also not
apparent from the plaintiff’s particulars of
claim how the amount of R159 000-00 was calculated. According to the
agreement
an amount of R159 000-00 less VAT plus 15% interest per
annum was deductible from the payments made to the Trust by the
plaintiff,
however the plaintiff is claiming an amount of R159 000-00
plus interest at 15% per annum without deducting the VAT. From the
summons,
read together with the agreement it is not clear when this
amount of R159 000-00 would become due. In terms of the agreement and
as per the plaintiff’s particulars of claim the last date would
have been the 1 December 2011. This is odd as the duration
of the
agreement was until 30 May 2011.
[20] Plaintiff’s
contention that the defendants had knowledge of the payment of the
R159 000-00 does not come to his assistance.
The court in the case
Cilliers v Van Biljon
1925 OPD 4
at 9 said that a
plaintiff cannot, in answering to the exception, rely on the fact
that, apart from the allegations in the summons,
a defendant knows
what case he or she is required to meet. Where an exception is taken
the court must look at the pleading excepted
to as it stands.
[21] Thirdly, in terms of
paragraph 7 of the particulars of claim the agreement between the
plaintiff and the Trust was cancelled
in September 2011 and the
plaintiff was replaced by Efcor. The agreement in respect of the
substitution attached to the summons
was entered into in October
2008. This inconsistency should have been explained in the
plaintiff’s particulars of claim.
It is not understandable how
an agreement signed in October 2008 would replace another one
cancelled in September 2010.
[22] Based on the second
and third assertion by the defendants I conclude that the summons is
vague and embarrassing due to the
inconsistency amounting to a
contradiction between the summons and the agreement relied upon by
the plaintiff as a basis of his
claim. Even if the annexures “A”
and “B” were not swapped – as suggested by Mr
Reinders – the
inconsistency would remain.
[23] As per decided
cases, where pleadings are exceptiable summary judgment cannot be
granted. I do not think it is necessary to
deal with other points
raised.
[24] Accordingly the
following order is granted:
the plaintiff’s
summary judgment is dismissed;
the defendants are
granted leave to defend this matter; and
the costs are to be
decided in the main case.
________________
E.M. KUBUSHI, AJ
On behalf of plaintiff:
Adv. Reinders
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of defendants:
Adv. P. Greyling
Instructed by:
Steenkamp De Villiers &
Coetzee Inc.
BLOEMFONTEIN
EMK/sp