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[2010] ZAFSHC 148
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Universal Pulse Trading 355 (Pty) Ltd v Matjhabeng Local Municipality (4117/2010) [2010] ZAFSHC 148 (25 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 4117/2010
In the matter between:-
UNIVERSAL PULSE
TRADING 355 (PTY) LTD
…..........................
Plaintiff
and
MATJHABENG LOCAL
MUNICIPALITY
….................................
Defendant
HEARD ON
:
11 NOVEMBER 2010
JUDGMENT BY
:
MATLAPENG, AJ
DELIVERED ON
:
25 NOVEMBER 2010
[1] This is a claim by
the plaintiff against the defendant for payment of the amount R 614
412-70 being the balance of the original
amount of R1 114 412-70. The
claim is based on two written agreements named “Service Level
Agreement” which were entered
into by the parties. As required
by rule 18(6) of the Uniform Rules of Court the said agreements as
well as an invoice were attached
to the plaintiff’s summons.
[2] After receipt of a
summons the defendant entered appearance to defend and the plaintiff
as it was entitled to, launched an application
for summary judgment
claiming that the defendant has no
bona fide
defence and
appearance has been entered solely for the purpose of delay.
[3] The defendant is
resisting this application. It has filed an affidavit in support of
its claim that it has a
bona fide
defence. In this respect the
defendant states that the agreements relied upon by the plaintiff
which are annexed to the summons
are illegible and for that reason
the contents thereof are denied. Furthermore, in its particulars of
claim, the plaintiff states
that the agreement was entered into on 30
May 2010 whereas in the last page of the agreement it is evident that
the correct date
is 8 May 2008 and thus it is denied that the
agreement attached to the particulars of claim is the same one the
plaintiff is alleging.
[4] Lastly, the plaintiff
alleges that the service, level agreement was entered into for a
period of 25 years and an agreement for
such a period is unlawful in
terms of s33 of the Municipal Finance Management Act 56 of 2003. In
oral submissions the defendant
did not persist with this defence and
it is not necessary for me to decide on it.
[5] In
order to successfully resist an application for summary judgment, the
defendant may satisfy the court by an affidavit that
he has a
bona
fide
defence
to the claim. The defence must be a defence in law and the facts set
out in the affidavit must support such a defence. There
must also be
a full disclosure in the affidavit with regard to the nature and
grounds of defence as well as the material facts
relied upon.
CENTRAL
NEWS AGENCY LTD v CILLIERS
1971
(4) SA 351
(NC).
[6] In
this matter, the defendant is raising a technical objection namely,
that the annexures to the particulars of claim are illegible
and as a
result liability is denied. In essence, the contention is that
plaintiff’s pleading are not technically correct.
In support of
this contention, the defendant relies on the decision of this court
in
GULF
STEEL (PTY) LTD v RACK-RITE BOP (PTY) LTD AND ANOTHER 1998 (1) SA 679
(O)
where
it was stated that even where the defendant has failed to raise a
bona
fide
defence,
there are two basic requirements that the plaintiff has to meet
namely a clear claim and pleadings that are technically
correct. If
either of these requirements is not met, the court is obliged to
refuse summary judgment.
[7] I
do not agree with the submission by the defendant. The facts in this
case are distinguishable from the facts in the
GULF
STEEL
-case.
Firstly the documents before me are legible more in particular the
annexures the defendant is complaining about namely the
two service
level agreements and the invoice. Lawyers are perceived and known to
be gentlemen. This perception permeate even in
the Rules of Court
which are in essence rules of combat in legal skirmishes by providing
for full disclosure of ammunition in one’s
possession so as not
to take an opponent by surprise. If, as appears to be the case
herein, the copies provided to the defendant
were not legible, it
behove the defendant to have brought this to the attention of the
plaintiff in a non litigious manner either
by a letter or a
telephone. No prejudice would have ensued. See
DE
KLERK v DE KLERK
1986
(4) SA 424
(W). Sadly it failed to do neither and tenaciously took
the point against the plaintiff.
[8] Secondly it is clear
that the issue of dates referred to above namely 30 May 2010 instead
of 8 May 2008 was a typographical
error which is capable of being
corrected and is not prejudicial to the defendant. It is also self
evident that the defendant is
aware of the plaintiff’s case
against it. I agree with the sentiments expressed in
STANDARD
BANK OF SOUTH AFRICA LTD v ROESTOF
2004 (2) SA 492
(W) where
it was stated that it is difficult to justify an approach that
refuses application for summary judgment where the papers
are not
technically correct due to obvious and manifest error which causes no
prejudice especially when it is clear that the defendant
knows and
appreciates plaintiff claim against it.
[9] It seems clear to me
that other than the technical objections raised by the defendant, it
has no answer to the plaintiff’s
claim. One also has to bear in
mind that part payment of the original invoice of R1 114 412-00 in
the amount of R 500 000-00 has
already been made with no hassles.
[10] It was submitted
that because of the conduct of the defendant, I should saddle it with
an order for costs on attorney and client
basis. It is indeed true
that a court may impose a punitive costs order as a show of
disapproval towards a litigant’s conduct
of the proceedings.
The defendant is aware that there is a balance outstanding due to the
plaintiff. It raises no defence if any,
other than a technical
defence to the plaintiff’s claim which had no merit. It was
merely delaying the plaintiff. I am of
the view that it has to be
saddled with a punitive costs order.
ORDER
[11] In the circumstances
the following order is made.
1. Summary judgment is
granted in the amount of R 614 412-70 together with costs on attorney
and client basis.
2. Interest thereon at
the rate of 15.5%
a tempora morae
from 13 July 2010.
__________________
D.I. MATLAPENG, AJ
On behalf of Plaintiff:
Adv. C. Ploos van Amstel SC
Instructed by:
Qwelane, Theron & Van
Niekerk
BLOEMFONTEIN
On behalf of Defendant:
Adv. P.J.J. Zietsman
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/wm/sp