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2024
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[2024] ZAFSHC 349
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Reef Caterers (Pty) Ltd v Vaal Christian School NPC (1645/2024) [2024] ZAFSHC 349 (7 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable
/
Not
reportable
Case number:
1645/2024
In
the matter between:
REEF
CATERERS (PTY) LTD
PLAINTIFF
And
VAAL
CHRISTIAN SCHOOL NPC
DEFENDANT
Coram:
Loubser J
Heard:
31
October 2024
Delivered:
7 November 2024
Summary:
Summary judgment – whether replication filed
together with summary judgment application may be considered for
purpose of determining
whether Defendant’s defence is
bona
fide
ORDER
1.
Summary judgment in the amount of
R386 650.29 is entered in favour of the Plaintiff against the
Defendant.
2.
The defendant to pay the costs of the
summary judgment application and the action on the party and party
scale, including the fees
of counsel on scale B.
JUDGMENT
LOUBSER J
[1]
This is an application for summary judgment
by the Plaintiff against the Defendant for payment of the amount of
R386 650.29.
The application followed on a summons issued by the
Plaintiff, and a plea that was subsequently filed by the Defendant.
In terms
of the summons, a written contract was concluded between the
parties on about 22 May 2023, in terms of which the Plaintiff was to
provide catering services to the Defendant school at a monthly fee
payable by the Defendant. It is alleged that the Defendant fell
in
arrears with the payments in the amount claimed, and that the
Plaintiff then terminated the contract on 11 January 2024.
[2]
In its plea, the Defendant denied that the
Plaintiff had complied with all its obligations in terms of the
contract in that the
Plaintiff failed to provide the agreed services
in a professional manner. Students at the school contracted food
poisoning as a
result, which caused parents to remove students from
the school. As a further result, the school did not receive timeous
payments
from its students, and the school suffered vast financial
losses following the said conduct of the Plaintiff, it is stated in
the
plea. The Defendant could therefore not make payment to the
Plaintiff.
[3]
The Defendant further pleaded that the
outstanding amount claimed, is denied. It also alleged that the
invoices on which the outstanding
amount is based, were never
received by the Defendant.
[4]
The Plaintiff then filed a replication to
the plea on about 11 June 2024. Together with the replication, the
Plaintiff filed this
application for summary judgment. In the
replication, it is denied that the Plaintiff had breached the
contract, and it is alleged
that the Defendant’s own financial
constraints were the reason for its failure to make timeous payment
of the Plaintiff’s
invoices. The Plaintiff further referred to
a meeting on 30 November 2023 between the parties, where a
representative of the Defendant
confirmed that the contract was
terminated as a result of the Defendant’s financial
constraints.
[5]
The Plaintiff further alleged in the
replication that the relevant invoices were delivered to the
Defendant by hand as well as by
email and by letter, and copies of
the emails and the letter are attached to the replication.
Screenshots of WhatsApp messages
exchanged between representatives of
the Plaintiff and the Defendant on 11 January 2024 are also appended
to the replication. The
representative of the Defendant informed in
one of those messages as follows:
“
Hi
Clinton, I’m not sure why Reef Caterers are involving attorneys
at this stage. I have communicated regularly with the CEO
and
director informing them that on opening week we will make payment on
the account. We just haven’t had the funds to date”.
[6]
In its affidavit in support of summary
judgment, the Plaintiff contends that none of the defences raised by
the Defendant are
bona fide
or
raise a dispute which requires ventilation at trial. In terms of Rule
32(3)(
b
) a
defendant in summary judgment proceedings must satisfy the court that
he has a
bona fide
defence to the action. He must disclose fully the nature and grounds
of his defence and the material facts relied upon therefore.
[7]
In contending as such, the Plaintiff
referred to the communications appended to the replication, and said
that it is clear that
the invoices were sent to the Defendant. Also,
it is clear from those communications that it was not any alleged
breach of contract
by the Plaintiff which resulted in the Defendant’s
failure to pay. At the time, the Defendant never alleged any failures
by the Plaintiff in the execution of its duties, the Plaintiff said.
[8]
The
core issue in this application is whether a plaintiff in summary
judgment proceedings can rely on allegations in its replication
and
annexures thereto in order to show a lack of
bona
fides
on the part of the Defendant. In the matter of
Ingenuity
Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd
[1]
it was held as follows:
[2]
“
A
replication also serves as a response to the defences raised in the
plea and explains why they do not raise triable issues. It
does not
serve as amplification of the cause of action. In this sense a
replication and the summary judgment affidavit under the
amended Rule
32 effectively perform similar functions. There is no reason why a
plaintiff should be precluded from delivering its
replication
simultaneously with its application for summary judgment and
incorporating by reference the allegations in the replication.”
[9]
I
respectfully agree with this view expressed in the
Ingenuity-decision, on condition that the application for summary
judgment
is not filed clearly after the replication has been filed.
When this happens, the plaintiff’s replication would constitute
a further procedural step which would mean that he has waived his
right to apply for summary judgment.
[3]
I therefore find that the Plaintiff was entitled to incorporate the
allegations in the replication by reference in its affidavit
in
support of summary judgment.
[10]
In terms of Rule 32(3)(
b
)
the Defendant now had to satisfy the court by affidavit that it has a
bona fide
defence to the action, and such affidavit must disclose fully the
nature and grounds of the defence and the material facts relied
upon
therefor, in order to avoid an order of summary judgment. In its
opposing affidavit the Defendant reiterated that the Plaintiff
had
breached the terms of the contract, and that he failure of the
Defendant to pay was due to the financial losses it suffered
as a
result of the Plaintiff’s breach. The Defendant further alleged
that the contract was mutually terminated at the meeting
of 30
November 2023, and reference is made to an email received by the
Defendant from the Plaintiff the following day, which reads
“as
discussed yesterday, we confirm that our contract was mutually
terminated due to financial constraints”. Significantly,
there
is no mention of an alleged breach of contract by the Plaintiff in
the said email.
[11]
The Defendant further persisted in its
denial that the invoices were ever sent to them, but the WhatsApp
message in which the Defendant
undertook to pay, is admitted. The
Defendant explains in relation to this message that it had not
specified what amount it would
pay. But this is not the point. The
point is that it is not explained why the alleged breach of the
Plaintiff was not referred
to in the WhatsApp message. Lastly, the
Defendant indicated that it intends to file a counterclaim in the
action as soon as its
losses have been quantified.
[12]
The mere existence of a potential
counterclaim here can, in my view, not stand in the way of summary
judgment. This is so, because
the existence of a counterclaim can
only be considered once the Defendant has shown that it has a
bona
fide
defence in that the Plaintiff had
breached the contract by providing defective services, causing the
Defendant financial loss.
That this defence is
bona
fide
, has not been shown, because there
is no prior indication or allegation to the effect that the
Plaintiff’s breach of contract
has caused the termination of
the contract. To the contrary, it is clear from the correspondence
and the emails that only the financial
constraints of the Defendant
resulted in its inability to pay at the time, which in turn resulted
in the termination of the contract.
[13]
Consequently, the Plaintiff is entitled to
an order of summary judgment in its favour. The
following
order is made:
1.
Summary judgment in the amount of
R386 650.29 is entered in favour of the Plaintiff against the
Defendant.
2.
The defendant to pay the costs of the
summary judgment application and the action on the party and party
scale, including the fees
of counsel on scale B.
P.J. LOUBSER, J
For
the Plaintiff:
Adv.
H. J. van der Merwe
Instructed
by:
Tim
du Toit Inc, Cape Town
Cooper
Majiedt Inc, Bloemfontein
For
the Defendant:
Adv.
P. C. Ploos van Amstel
Instructed
by:
Wessels
and Vorster Inc, Vereeniging
c/o
Phatshoane Henney Inc, Bloemfontein
[1]
2023
(5) SA 439 (WCC)
[2]
At
para [50]
[3]
Arum
Transport CC v Mkhwenkwe Construction CC 2022(2) SA (KZP)