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2009
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[2009] ZAGPPHC 350
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Heightsafety International (Pty) Ltd v Burger Emoyeni Skylights (Pty) Ltd (57690/2009) [2009] ZAGPPHC 350 (2 December 2009)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
CASE
NUMBER 57690/2009
DATE:
2 DECEMBER 2009
IN
THE MATTER BETWEEN:
HEIGHTSAFETY
INTERNATIONAL (PTY)
LTD PLAINTIFF
AND
HI
RGER F.MOYENI SKYLIGHTS (PTY)
LTD DEFENDANT
JUDGMENT
[1]
The Plaintiff claims payment of the amount of R790 985.46. being an
amount allegedly due to it by the Defendant for (inter alia)
rope
access and height safety services rendered by the Plaintiff to the
Defendant.
[2]
When the Defendant entered appearance to defend, the Plaintiff on or
about 1 October 2000 proceeded with an application for
summary
judgment, which is the matter currently before me.
[3]
The Defendant raises a number of defences against the Plaintiff’s
application, but as a result of the finding that I have
reached
regarding one of these defences and the circumstances of the case, it
is not necessary and would perhaps be imprudent to
ileal with the
remainder of the defences.
[4]
A number of the defences raised by the Defendant namely relate to the
question whether the Plaintiffs summons and particulars
of claim are
excipiable. 1 consider these as matters that should best be resolved
should the Defendant in due course tile an exception.
My premature
comments regarding these matters may unduly influence one or another
of the parties, and are best avoided in the circumstances.
[5]
The Defendant alleges in paragraph 31 of the Opposing Affidavit that
the services that the Plaintiff was contracted to render
involved
specialist labour, being labourers qualified and competent to do work
at elevations high above the ground where cladding
had to be affixed,
and the equipment required to enable these labourers to do the work.
[6]
The Defendant then alleges (in paragraph 33 of the Opposing
Affidavit) that -
[a]
the Plaintiff was unable to do the work that it was contracted to do:
[b]
the Plaintiff inter alia failed to keep
to agreed time limits:
[c]
the Plaintiff failed to do the work to
an acceptable standard: and
[d]
in the premises, the Plaintiff breached the agreement between the
parties.
[7]
As a result of the Plaintiffs breach of their agreement, so the
Defendant contends, the Defendant has suffered damages in the
amount
of R2 715 190,30. 1 he amount concerned was withheld from the
Defendant by the third party to whom it was in turn contracted
in the
construction of a soccer stadium in Durban.
[8]
Although the calculation of the amount of the damages is not set out
in the Opposing Affidav t, the nature thereof is thus disclosed
by
the Defendant.
[9]
The Defendant in addition alleges that
the Plaintiff was at all relevant times aware of the Defendant's
obligations to the third
party, and more particularly the time limits
which the Defendant had to comply with, and also that the Plaintiff
was aware that
if the Defendant did not comply with its obligations,
it would suffer damages. In short, the Defendant is alleging that the
damages
that it has allegedly suffered was at all relevant times
within the contemplation of the parties, and thus not too remote.
[10]
The Defendant expressly states that it
intends recovering the amount concerned from the Plaintiff by way of
an intended counterclaim.
[11]
It is trite that the Defendant is entitled to rely on an intended
counterclaim for an unliquidated amount which exceeds the
Plaintiffs
claim, to oppose the application for summary judgment.
[12]
The question thus arises whether the Defendant has set out the
intended counterclaim in sufficient particularity to enable
me to
find that the defence against the application is bona fide and good
in law.
[13]
As I understand it. the test is not whether the Defendant could have
said more, but rather whether it has said enough. In finding
that the
Defendant has crossed this threshold. I take inter alia the following
into consideration:
[a]
The Defendant is not expected to formulate his opposition with the
precision that would be required of a pleading.
[b]
The Defendant has however made an allegation regarding each of the
jacta probanda required for a claim for damages arising from
breach
of contract, being the existence of the agreement, the terms relied
upon, the fact of the breach of the terms concerned
and the nature of
such breach, the fact that damages were suffered and the causal
element, and the fact that the damages were not
too remote.
[c]
T
he Defendant has also staled the extent
of the counterclaim, and although the exact calculation thereof has
not been disclosed,
the amount concerned is clearly not just a rough
estimate or a figure plucked out of the air. In addition, the nature
of the damages
has been disclosed.
[d]
The Defendant is not at this time
enjoined to prove the counterclaim, and is thus not obliged to
provide the factaprobantia regarding
its counterclaim.
[e]
The Defendant's counterclaim exceeds the
Plaintiff’s claim more than threefold.
[14]
In the premises the Defendant has to my mind raised bona fide
triable
[a]
Leave is granted to the Defendant to defend the action.
[b]
The costs ol the application for summary judgment are costs is the
cause.
S.
D. Wagener
Acting
Judge of the North Gauteng High Court. Pretoria.