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[2024] ZAFSHC 147
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King Price Insurance CO v Joubert (4083/2023) [2024] ZAFSHC 147 (24 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 4083/2023
REPORTABLE:
NO
OF
INTEREST
TO OTHER JUDGES: NO
REVISED.
NO
In
the matter between:
KING
PRICE INSURANCE CO
Plaintiff
(Registration
Number:
2009[…])
and
FREDERICK
CHRISTAAN JOUBERT
Defendant
(Identity
Number:
7[…])
HEARD
ON:
23 November 2023
CORAM:
JORDAAN,AJ
DELIVERED
ON:
24 May 2024
[1]
This is an
application for summary judgment brought in terms of Uniform Rule 32
of this court. The Applicant in this summary judgment
application, is
the Plaintiff in the action instituted against the Defendant, who in
turn, is the Respondent in this application.
The parties will herein
be refered to as in the main action.
[2]
The
Defendant
took
out three insurance
policies
with the Plaintiff,
vide
[1]
:
2.1.1
Policy number
22-23-14293
with a premium
of R736 567,96;
2.1.2
Policy number
22-23- 17538 with a premium
of R358
614,26;
2.1.3
Policy number
22-23-18324
with a premium
of R332
998,96.
All
the above-mentioned premiums were payable yearly, at end of soyabean
harvesting season, which is 31 May 2023.
[3]
The premiums
amounting
in total to R1
428 181,18, were due and payable
on the 31
st
of May 2023. The Defendant however, failed to make payment to the
Plaintiff.
[4]
As a consequence
the Plaintiff
issued summons claiming
inter alia:
4.1
Payment in the
amount of R1 428 181,18;
4.2
Interest on
the aforesaid amount calculated at 10,5% a
tempora
morae
from
31 May 2023 to date of final payment, alternatively, from date of the
summons until the date of final payment, alternatively,
from the date
of
the
summons until the date of final payment;
4.3
Costs of suit.
[5]
The
Defendant
filed
notice of intention to defend the action and a plea
[2]
wherein
he admits that he concluded the insurance policies with the
Plaintiff, he admits the premium per policy, he admits the amount
of
the premiums totalling R1 428 181,18, he admits the agreements and he
admits that he refused to make payment to the Plaintiff.
The
Defendant pleaded that the Plaintiff repudiated the contract prior to
the 31st
of
May 2023 through its omission to do a proper assessment after damages
were reported timeously and by its unlawful insistence
for payment
prior to the 31st
of
May 2023.
[6]
Having
received the Defendant's plea, the Plaintiff filed an application for
summary judgment.
[7]
The Defendant
did not file an affidavit opposing summary judgment, but filed a
notice of intention to oppose summary judgment and
heads of argument.
[8]
At the
hearing, the Defendant faced with the Plaintiff's submission that the
Defendant failed to comply with Rule 32, submitted
that it will raise
a point
in
limine.
[9]
Point
in
Limine:
The
underwriting company in terms of the policy document (insurance
Agreement) is Gemoedsrus Verskansing Eiendoms Beperk, however
the
deponent on behalf of the Plaintiff in his founding affidavit states
that he is the Chief Executive Officer of "Gemoedsrus
and
Agricultural Insurance Underwriting Company". No nexus is made
out between the Plaintiff and "Gemoedsrus and Agricultural
Insurance Underwriting Company" on the papers. There is also no
nexus between Gemoedsrus Verskansing Eiendoms Beperk and Gemoedsrus
and Agricultural Insurance Underwriting Company on the papers before
court. The Defendant submitted that the summary judgment application
is therefore fatally defective.
[10]
The Plaintiff
submitted that the requirement of Rule 32 is that a person who can
swear positively to the facts, explain briefly
why the defence as
pleaded does not raise any issue for trial. The deponent has personal
knowledge and has dealt with the matter
personally including dealing
with the plaintiff and the defendant's broker. Even if its two
different companies it is irrelevant
as personal knowledge is all
that is required by Rule 32.
[11]
Summary
judgement enables a plaintiff to obtain judgment against a defendant
without resorting to trial when a defendant has no
defence to a claim
based on a liquid document, for a liquidated amount of money, for
delivery of movable property, and for ejectment.
The instant
application for summary judgment is for delivery of movable property.
[12]
Rule
32.(2)(a)
and (B)
provides:
"
(a)
Within 15 days after the delivery of the plea
the plaintiff shall deliver a notice of application. for summary
judgement, together
with an affidavit made by the plaintiff or by any
other person who can swear positively to the facts.
(b)
the
plaintiff shall, in the affidavit referred to in sub rule (2)(a)
verify the cause of action and the amount, if any, claimed,
and
identify any point of law relied upon and the facts upon which the
plaintiff's claim is based, and explain briefly why the
defence has
pleaded does not raise any issue for trial."
[13]
Rule 32.3
provides that the defendant may
:
"(a)
Give
security
to
the
satisfaction of
the
court
for
any
judgement
including
cost
which may be
given; and or
(b)
satisfy
the court by affidavit ( which shall be delivered five days before
the day on which the application is to be heard), or
with leave of
the court by oral evidence of such defendant or of any other person
who can swear positively to the fact that the
defendant has
a
bona fide
defence to the action; such affidavit or evidence shall disclose
fully the nature and grounds of the defence and the material
facts
relied upon therefore."
[14]
The
rationale and requirements for the grant or refusal of summary
judgment are trite and are summarised in the Supreme Court of
Appeal
judgment of Joob Joob Investments
[3]
as
follows:
"The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant
with a triable
issue or
a
sustainable defence
of her/his day
in court. After
almost a
century of successful application in our
courts,
summary judgment proceedings
can
hardly
continue
to
be
described
as
extraordinary.
Our
courts,
both of first
instance and at appellate level, have during that time rightly been
trusted
to
ensure
that
a defendant
with a triable
issue
is not shut
out. In
the
Maharaj
case at
425G-426E,
Corbett JA was
keen to
ensure, first,
an examination
of whether
there
has
been
sufficient
disclosure
by
a
defendant
of the
nature and
grounds
of his defence
and the facts upon which it is founded. The second consideration
is that the
defence so disclosed must be both bona fide and good in law. A court
which is satisfied that this threshold has been
crossed is then bound
to refuse summary judgment. Corbett JA also warned against requiring
of a defendant the precision apposite
to
pleadings.
However,
the learned
judge
was equally
astute to
ensure that
recalcitrant
debtors pay
what is due to a creditor.
Having
regard to its purpose and its proper application, summary judgment
proceedings only hold terrors and are drastic for a defendant
who has
no defence. Perhaps the time has come to discard these labels and to
concentrate rather on the proper application of the
rule, as set out
with customary clarity and elegance by Corbett JA in the
Maharaj
case at 425G-426E."
[15]
The
test for the granting of a summary judgment is whether the Defendant
has satisfied the Court that he has a
bona
fide
defence
to the action.
[4]
What
this entails is whether the facts put up by the Defendant raised a
triable issue and a sustainable defence in law deserving
of their day
in court. The defense must not be bald, vague or sketchy.
[16]
The
defendant
has
not
filed
an
affidavit
in
terms
of
Rule
32.(3)(b). The
defendant
chose
to
raise
a
in
limine
point,
through
submissions
from the bar and by filing heads of argument. His plea on the
merits are
but
allegations
as it
is not
contained
in
an affidavit
in
terms of rule
32.3.
[17]
The point
in
limine
assert
that there is no nexus between the Plaintiff and the
deponent and
the
company
that he works
for
nor
between the
Plaintiff's underwriting company and the deponent's company or the
company for which the
deponent
works. There is no requirement in Rule 32 for
such a nexus,
what is required is any other person who can swear positively to the
facts.
[18]
In
paragraph
1.3
and
1.6
of
the
deponent's
affidavit
he
states:
[5]
"In
my capacity as managing director, I have personally dealt with the
issues giving rise to the plaintiff's cause of action".
"I
have personally dealt with the issues and discussed the matter with
the insurer (the plaintiff), and the defendant's broker."
[19]
The
deponent in accordance with Rule 32.(2)(a) is any other person who
can swear positively to the facts. The summary judgement
application
is brought by the same plaintiff as in the main action with who the
defendant admits to having entered into policy
agreements. This
court
having
regard to
the
dictum
in
Maharaj
[6]
is
satisfied
that
the deponent
is
a person
who
can
swear
positively
to the
facts.
[20]
Accordingly
the application for summary judgement is not fatally defective
as submitted
in the point
in limine.
[21]
The deponent
verified the cause of action, the facts upon which the claim
is based, the
amount
claimed,
the
plaintiff
performed
in
terms of the
contract while the defendant did not raise a dispute on the
assessment
within
the
time frame
allowed,
failed to
comply
with terms of
the agreement, while admitting entering into the insurance policy,
that the premiums
were payable
as
stipulated in
the agreement and the amount of the premiums totaling R1 428 181,18.
Thereby asserting that defendant raised no issue
for
trial.
[22]
The defendant
by
not
submitting an affidavit as required in Rule 32.3 has
not
disclosed
the
nature
and
grounds
of
his
defence
and
the material
facts relied upon.
[23]
The
defendant's argument failed to assail the detailed account provided
in the plaintiff's affidavit. The defendant as already pointed
out
herein
failed
to
file
an affidavit
as provided in
Rule
32.3
[24]
Accordingly,
I make the
following
order:
ORDER
[25]
Having read
the papers and heard the submission of counsel, the following order
is made:
26.1
The
Defendant's point in limine is dismissed
with costs,
26.2
Summary
judgement is entered in favour of the Plaintiff against the
Defendant
for
payment
of
R1,428,181.18,
26.2.1
Interest
on the
aforesaid
amount of
Rl,428,181.18
calculated at
10.5% a
tempore
mora
from
31 May 2023 to date of final payment:
26.2.2
Costs of suit
on party
and
party
scale.
M.T.
JORDAAN, AJ
Counsel
for Plaintiff:
Adv.
MDJ Steenkamp
Instructed
by
WEAVIND
& WEAVIND ATTORNEY
Email:
nic@weavind.co.za
lizerie@weavind.co.za
Counsel
for Defendant:
Adv
J LUBBE SC
Instructed
by
DU
RANDT & LOUW INC
Email:
spannies@iafrica.com
[1]
Paginated
Bundle: pages 11 to 26 Annexures "KP1, KP2 and KP3"
[2]
Paginated
Bundle: pages 27 to 30
[3]
2009
(5)
1
(SCA)
at
11G-12D
[4]
Rule
32(3) of the Uniform
Rules
of Court
[5]
Paginated
Bundle: Page 39 paragraph 1.3 and 1.6
[6]
1976
(1) SA 418
(A)