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[2024] ZAKZPHC 113
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Janse Van Rensburg v Joubert and Another (Leave to Appeal) (593/2023P) [2024] ZAKZPHC 113 (28 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
593/2023P
In the matter between:
DAVID
SCHALK JANSE VAN RENSBURG
PLAINTIFF/RESPONDENT
And
CORNELIUS
IGNATIUS MICHAEL JOUBERT
FIRST DEFENDANT/FIRST APPLICANT
MARION
ROBERT MOXHAM
SECOND DEFENDANT/SECOND APPLICANT
JUDGMENT IN
APPLICATION FOR LEAVE TO APPEAL
P
C BEZUIDENHOUT J
:
[1]
Applicants seek leave to appeal against my order granting summary
judgment against
them in terms of paragraph 1, 1.1 and 1.3 of the
notice of application for summary judgment. A lengthy notice of
application
for leave to appeal setting out various factors which it
was submitted is incorrectly found and what should have been found
was
filed and I am not going to repeat it herein as it forms part of
the papers. I will however deal with various of the issues
which in my view are relevant.
[2]
Applicants filed heads of argument in support of their application
for leave to appeal.
In paragraph 2.1 is it stated that the
Court erred in not distinguishing between Charcoal and Biochar.
No distinction was
made because neither the agreement of sale nor the
2018 report refers to Biochar, nor is there any explanation that
Biochar may
be called something else. The agreement
specifically states that it is a sale of a Pyrolysis Charcoal Plant.
Also the
certificate which is referred to and which at the time that
the sale was concluded was already two years old does not refer to
Biochar but only to activated carbon. Accordingly nowhere in
the papers except in the affidavit filed on behalf of Applicants
is
there reference to Biochar.
[3]
It was further submitted that in paragraph [8] of the judgment it was
found that the
plant produces 83 % Biochar. This is incorrect
without foundation and misleading as in paragraph 8 it states as
follows:
“
It
is contended on behalf of Defendants that this report is a guarantee
given to them that it would produce 97 % pure Biochar where
it was
only producing 83 % pure Biochar.”
It was therefore not a
finding that was made by the Court.
[4]
In paragraph 4.6 of the heads of argument it is submitted that the
Court erred in
finding that the plant produces at 83 % purity and in
paragraph 4.8 that this was factually incorrect as 83 % is not
Biochar and
refer to paragraph 14 of the judgment. Once again
it is quoted incorrect and misleading as in paragraph [14] of the
judgment
it states:
“
In
paragraph 5 to 7 of their plea they set out that the agreement was
concluded at a time when plaintiff was informed what the plant
was
required for and that it was sold as being capable of producing a
product known as Biochar with the purity of 97.2 %.
That it is
not suitable for that purpose, could not produce it and only produce
Biochar at a purity of 83 % or less.”
There is no finding by
the Court that it was producing at 83 % purity.
[5]
During argument it was submitted that the report of Mr Phipps
indicate that the plant
was incapable of producing this product.
In paragraph 2.8 on page 18 of the summary judgment papers it states:
“
The
test batches reveal that the plant could only produce fixed carbon of
84 % quality and volatiles of excess of 15 %. The
test
confirming the said results were conducted by Mr. Daryl Phipps from
adsorb.”
The report of Mr. Phipps
is attached at page 53 of the indexed papers. The report of Mr.
Phipps makes no mention that he conducted
any tests and only states
that it is his opinion following the review of photographs.
There is also no mention in the plea
of any such report.
[6]
In considering the summary judgment it is to be considered having
regard to the particulars
of claim and the plea and counter claim.
Applicant relies mainly on the clause in the agreement which is
contained in paragraph
5.1 that states:
“
The
plant is sold as a used plant with no guarantees after production has
been proved.”
It is submitted that in
light of the case of Joob Joob Investments (Pty) Ltd v Stocks
Mavundla ZEK Joint Venture
2009 (5) SA 1
(SCA) that it must be fully
ventilated at trial as there were emails complaining about the
plant. It cannot produce Biochar
and that it was not what the
parties had intended to purchase. What was alleged the plant
can produce it cannot produce.
There is a factual dispute and
accordingly leave to appeal should be granted. There must be a
triable issue on a
bona fide
defence for summary judgment to
be refused. In my view this decision does not assist
Applicants.
[7]
It was submitted on behalf of Respondents that in the agreement it
sets out the terms
on which the plant was sold. It did produce
and nowhere does it state that it had to produce Biochar but that it
is a Pyrolysis
Charcoal Plant which was sold. Also from the
letters and the emails it is apparent that Applicants stated that
they were
doing something wrong. In paragraph 13.1 of the
agreement it specifically states that neither party shall be bound by
any
representations, warranty, promise or the like not recorded
therein. In paragraph 13.2 no addition to, various or agreed
cancellation of the sale agreement shall be of any force or effect
unless in writing and singed by and on behalf of the parties.
[8]
It was submitted that production was proved and that accordingly
there is no prospects
of success on appeal.
[9]
As set out above various contentions by Applicants regarding what was
held in the
judgment is incorrect.
[10]
Further the main reliance of Applicant is on clause 5.1 where it
says:
“
The
plant is sold as a used plant with no guarantees after production has
been proved.”
It is submitted by
Applicants that it was not proved that production of what was agreed
concerned. As I set out in the
judgment if it was such a
necessary term of the agreement and that it was agreed between the
parties one would have expected that
the agreement would have clearly
set out that Biochar of purity of 97.2 % had to be produced. No
such can be found in either
the agreement nor in the report which as
I have stated clearly did not form part of the agreement. The
terms of the agreement
are clear and that no other guarantees were
provided.
[11]
It was submitted that I should have found that the agreement was
breached as no assistance was
given and ought to have incorporated
the 2018 report into the sale agreement. Clauses 13.1 and 13.2
of the agreement excludes
this.
[12]
The counter claim is based solely upon the reasons which have been
set out in the plea which
was found not to be sufficient and
sustainable and accordingly the counter application could also not
succeed.
[13]
Having regard to the terms of the agreement, where no mention of
Biochar is made nor in the report
which as I have stated was made two
years prior to that and which is specifically excluded in terms of
the agreement, production
was indeed done and there was nothing in
clause 5.1 stating what production was necessary but merely
production. If that
was a vital part that it had to produce
Biochar at 97.2 % one would have expected clause 5.1 to have set that
out.
[14]
Considering all these factors which I have dealt with, in my view,
there is no prospect that
another court will come to a different
conclusion on these facts.
Order:
The application for leave
to appeal is dismissed with costs.
P C BEZUIDENHOUT J.
JUDGMENT RESERVED
ON:
23 OCTOBER 2024
JUDGMENT HANDED DOWN
ON:
28 NOVEMBER 2024
COUNSEL FOR
PLAINTIFF/RESPONDENT:
ADV B DE BEER
Instructed
by:
Olivier and Pinto Inc. attorneys
Pretoria
Tel:
0878222142/0824660186
Email:
info@olivierpinto.co.za
;
omatt@netactive.co.za
Ref:
LIT – J1
c/o:
Botha & Olivier Inc. Attorneys
Pietermaritzburg
033
3427190
Email:
cathys@bando.co.za
Ref:
Sanet Botha/cls/0.44
COUNSEL FOR
DEFENDANTS/APPLLICANTS: ADV E
COLRMAN
Instructed
by:
EW Van Zyl Attorneys
Johannesburg
Tel:
011 472 1473/011 472 1640
Email:
ewvanzyl@ewvanzylatt.co.za
;
info@ewvanzylatt.co.za
Ref:
EWVZ//M910
c/o:
Viv Greene Attorneys
Tel:
033 342 2766
Email:
anasia@vglaw.co.za