Bridgestone SA (Pty) Ltd v S.A. Truck Bodies (Pty) Ltd (842/2008) [2008] ZAFSHC 27 (15 May 2008)

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[2008] ZAFSHC 27
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Bridgestone SA (Pty) Ltd v S.A. Truck Bodies (Pty) Ltd (842/2008) [2008] ZAFSHC 27 (15 May 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 842/2008
In the case between:
BRIDGESTONE
SA (PTY) LTD
Applicant
and
S
A TRUCK BODIES (PTY) LTD
Respondent
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
HEARD
ON:
24
APRIL 2008
_______________________________________________________
DELIVERED
ON:
15 MAY 2008
_______________________________________________________
[1] The plaintiff
instituted an action for summary judgment for payment of the amount
of R1 220 256,00. The claim arises from a
sale and delivery of
goods by plaintiff to the defendant for the period 1 November 2007
to 29 November 2007 together with interest
at the rate of 15,50% per
annum.
[2] The
defendant filed a notice of intention to defend the action. In the
opposing affidavit the defendant stated that:
“
Ek
beklemtoon, soos hierinlater meer volledig uiteengesit, dat die
verweerder ‘n geldige teeneis teen die eiser se vordering het,
wat
die eiser se vordering in total uitwis, en gevolglik geld as ‘n
bona
fide
verweer teen die
aksie wat deur die eiser ingestel is.“
The defendant’s
indebtedness to the plaintiff is not disputed.
[3] The summary of the
facts giving rise to the alleged counterclaim is the following:
First it is alleged that before 2001 the
plaintiff was manufacturing
and selling tyres to Henred Fruehauf (Pty) Ltd (“
Henred
Fruehauf”
)
a manufacturer of trailers through its affiliate company Maxipress
Tyres (Pty) Ltd (“
Maxiprest
”).
Plaintiff paid R70,00 per tyre to Maxipress for services rendered
to Hendred Fruehauf which was included in the purchase
price of the
tyres. During 2001 the defendant took over Henred Fruehauf. When
plaintiff took over Henred Fruehauf, plaintiff wanted
the defendant
to continue buying tyres from it. The negotiations around this
arrangement did not bear any fruits and the deal was
abandoned.
[4] On or about 30
January 2002 the parties entered into an oral agreement on the
following terms:
4.1 That plaintiff will
invoice the defendant for R200,00 more than the normal price which
amount will be paid back to the defendant.
4.2 In
addition plaintiff will pay the respondent R70,00 as rebate although
in reality it was reimbursement for the amount paid
to Maxiprest as
per the original arrangement with Henred Fruerhauf;
However the R200,00
negotiations did not materialise. But the R70,00 rebate remained
valid between the parties.
[5] The defendant
opposed this matter and filed an answering affidavit and a
counter-claim. In the opposing affidavit the defendant
averred
unrefuted that it laboured under the impression that the R70,00
rebate was paid back as per the 2002 oral agreement until
in 2005
when it discovered that no such rebates had been paid. This matter
was taken up with plaintiff but was never resolved.
In the period 1
March 2002 to 30 November 2007 defendant bought
60
854
tyres from plaintiff but the
R70,00
rebate amounting to
R4
259 780,00
was never paid. Therefore plaintiff was in breach of the 2002 oral
agreement.
[6] Secondly, the
defendant alleged that an amount of
R29
879,60
appeared on the plaintiff’s monthly statement but it was not
supported by any invoice.
[7] In its Heads of
Argument plaintiff averred the following in respect of the
defendant’s counterclaim:
“
3. Defendant’s counterclaim
falls short of the abovementioned requirements in the following
respects:
Defendant makes a bold and
unsubstantiated allegation that plaintiff’s claim of
R1
220 256,00
relates to purchases made only for the month of November 2007. He
must have some sort of documentation in support thereof,
but
chooses not to present it to the Court.
A further bold and unsubstantial
allegation is made that certain facts were brought under the
attention of plaintiff as a result
whereof payment for the
November account was withheld. The allegations regarding the
facts and circumstances lacked particularly
as to whom these
notices has been directed as well as to the specifics of the date
and time. No documents of proof of these
allegations are annexed.
The averment to whom the amount
of
R70,00
per tyre should be paid is vague and embarrassing. If the amount
of
R70,00
were paid to MAXIPREST
in stead of to
HENRED FRUEHAUF, which is a complete separate entity from
defendant, defendant himself will inevitably not be
entitled to
the payment of such rebate.
Defendant’s affidavit contains
hearsay evidence. The Court is left completely in the dark as to
the identity of the source
of the hearsay.
Defendant further alleges that
tyres for an amount of
R60
854,00
were sold
by plaintiff to defendant during the period 1 March 2002 to 30
November 2007. The Court is left completely in the
dark as to how
this quantity is arrived at. No proof in support of these figures
are tendered to the Court.
Prescription of defendant’s
counterclaim is clearly applicable. The Court however is left in
the dark as to the amounts of
tyres sold before date of
prescription as well as the amount thereafter. Defendant’s
claim lacks particularity in this respect.
A further unsubstantiated
allegation is made that an amount of
R29
879,60
must be
deducted from plaintiff’s claim. Defendant refers to invoices
but does not present proof thereof to the Court neither
gives an
acceptable explanation why it is not done.”
[8] Plaintiff averred
further that the allegations made by the defendant were vague. The
defence was vague and lacked sufficient
particularity. In that way
the defendant was not
bona
fide.
[9] Rule 32 of the
Superior Court Rules of Practice provides that the defendant may
satisfy the Court by an affidavit that he has
a
bona
fide
defence to the action or a
bona
fide
counterclaim against the plaintiff. Such affidavit shall disclose
fully the nature and grounds of the defence of the counterclaim.
[10] In
GILINSKY
AND ANOTHER v SUPERB LAUNDERERS & DRY CLEANERS
1978 (3) SA 807
(O) at 810A the Court states the following:
“
It requires the affidavit to
state (a) the nature, and (b) the grounds of the defence, and (c)
the material facts relied upon to
establish such a defence and these
requirements must be stated fully.”
[11] In the seminal
judgment of
MAHARAJ
v BARCLAYS NATIONAL BANK (PTY) LTD
1976 (1) SA 418
(A) at 426 B – D, the Appellate Division stated
that the opposing affidavit must:
“…
. Disclose the defence with
particularity and completeness to enable the Court to decide whether
the affidavit discloses a bona
fide defence.”
[12] What “
fully
”
in the context of Rule 32 means is not exactly the same in each and
every case. Each case will be determined on its own merits.
In
CALTEX
OIL SA (PTY) LTD v WEBB & ANOTHER
1965 (2) SA 914
(N) at 916 G the Court held that it is clear from
all the decisions that in applications of this nature, the Court
does not examine
the evidence presented by the defendant in order to
see whether there is a balance of probabilities that a defence will
succeed.
All that is required is that the Court should be satisfied
that the defendant has presented ,where the defence is based upon
facts,
all the material facts upon which his defence is founded and
that they appear to disclose a
bona
fide
defence.
The Court then went on
to state that the word “
fully
”
connotes sufficient detail of the nature and grounds of the defence.
See too
TRAUNT
v DU TOIT
1966 (1) 69 (O) at 70 H – 71.
I am in respectful
agreement with the above dicta.
[13] It is trite that
the defendant is, at this stage, not required to demonstrate the
correctness of the facts stated by him nor
does the Court at this
stage have to weigh up or decide disputed factual issues or to
determine whether or not there is a balance
of probabilities in
favour of one party or the other. The test as shown in different
cases is not whether the defence to be raised
is likely to succeed
or fail, but merely whether it is
bona
fide
.
See
MULLER
AND OTHERS v BOPHUTHATSWANA DEVELOPMENT CORPORATION LTD
2003 (1) SA 651
(SCA) at 656.
[14] It
is against this background that I have to decide if the defendant
has proved he has a bona fide counter-claim. In this case
the
defendant’s counterclaim is that the plaintiff owes him an amount
of R4 290 000 based on an oral agreement. To my mind, the
defendant’s averments concerning its counterclaim was due and
payable to him. Furthermore, the averments are substantiated and
the
amounts owed are computed. These averments are not refuted. The
history of this oral agreement is set out clearly and at length.
In
my view the defendant’s affidavit sets out the nature and grounds
of the its counterclaim as clearly and succinctly as is
expected in
actions of this nature. The defendant’s inability to sue plaintiff
prior to the institution of this application for
summary judgment is
indicated in the opposing affidavit. Accordingly the issue of
prescription can be ventilated properly in the
main proceedings. See
Murray
and Roberts v Upington Municipality
1984 (1) SA 571
(A)
[15] It follows that the
defendant has set up a
bona
fide
defence as to the plaintiff’s claim as required by R32 (3) so as
to avoid summary judgment. Needless to state that summary judgment
is a drastic remedy which holds serious consequences for a
defendant. At worst, it has the effect of shutting the Court’s
door
on a defendant. It also allows a Court to grant judgment for
the plaintiff without hearing a defendant. Evidently such remedy can
only be granted after careful consideration and where a Court is
satisfied that a defendant does not have a bona fide defence.
[16] In the circumstance
I make the following order:
Application for
summary judgment is refused.
Defendant
is granted leave to enter an appearance to defend.
Costs
will be costs in the main action.
___________________

B. C. MOCUMIE, J
On
behalf of Applicant: Adv. D.M. Grewar
Instructed
by
Pierre
Krynauw Attorneys
C/o
Du Toit Louw Botha
BLOEMFONTEIN
On
behalf of Respondent: Adv. C Ploos van Amstel SC
Instructed
by
Mcintyre & Van
der Post
Bloemfontein
/em