IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
NOT REPORTABLE
Case No.: 3374/2024
In the matter between:
SIPHO GCORA Plaintiff
and
ASCON ENGINEERING CC First Defendant
GONASAGREE MATHURA Second Defendant
JUDGMENT
EKSTEEN J:
[1] This is an application for summary judgment in which the plaintiff , Mr Gcora,
seeks payment of R1 172 297,75 (one million one hundred and seventy two thousand
two hundred and ninety seven rand and seventy five cents) for professional services
rendered to the first defendant , Ascon Engineering CC (Ascon) . He issued summons
against both defendants , who have entered an appearance to defend and delivered a
plea. The second defendant, Ms Mathura, is the sole member of Ascon , and, although
Mr Gcora sought summary judgment against the defendants , the particulars of claim do
not reveal whether judgment is sought against them jointly, jointly and severally, or in
the alternative.
[2] Mr Gcora alleged that in February 2022, at Gqeberha “the Defendants engaged
the professional services of the Plaintiff to represent the First Defendant in a dispute
against the Nelson Mandela Bay Municipality (the Municipality) arising from a tender
contract concluded between the First Defendan t and the Municipality ‘ for the
construction of minor sewerage infrastructure ’.”
[3] The dispute resolution process envisaged required the issue to be referred first to
adjudication, facilitated by an independent adjudicator who would ultimately issue a
bindi ng adjudication decision and, thereafter, in the event of either party being
dissatisfied with the decision , or requiring the decision of the adjudicator to be made an
arbitral award, to arbitration. It was agreed between the parties that Mr Gcora would b e
remunerated for his services to Ascon in the dispute at a rate of R950.00 per hour. As
the dispute progressed, he submitted invoices which were duly paid. At the conclusion
of the adjudication process the adjudicator ruled that the municipality was liab le to
Ascon in the amount of R11 722 975.59, which was immediately due and payable. The
municipality was dissatisfied with the adjudication and referred the matter to arbitration
to challenge the decision. Ascon responded with a referral of its own to seek an arbitral
award confirming the decision of the adjudicator.
[4] The material portion, for purposes of the summary judgment, of Mr Gcora’s
particulars of claim thereafter record:
’12. On 9 June 2022, following t he referral of the Dispute by both the First
Defendant and the Municipality to arbitration, the First Defendant
proposed to the Plaintiff that the Plaintiff agree to accept payment of a
fee amounting to 10% (ten per cent) of any amount awarded and paid
to the First Defendant in the Dispute going forward as his fee for
services rendered.1
13. The Plaintiff agreed to the Defendants’ proposal and proceeded to
represent the First Defendant in the aforesaid arbitrations.
14. The Municipality … withdrew the arbitration referred by it seeking to
set aside the adjudication decision whilst the arbitration proceedings
instituted by the First Respondent for the adjudication decision to be
made an arbitral award proceeded and ultimately resulted in an
arbitral awar d to the effect that the amount of R11 722 975.59 which
was found to have been immediately due and payable to the First
Defendant in the adjudication decision was indeed immediately due
and payable to the First Defendant.
…
16. On 18 August 2023, the Mun icipality … paid to the First Defendant the
amount of R11 722 975.59 which had been found to have been
immediately due and payable to the First Defendant in the adjudication
outcome.
17. Upon receiving the aforesaid sum of R11 722 975.59 from the
Municipality on 18 August 2023 , an amount of R1 172 297.56, being
10% of R11 722 975.59, immediately fell due and payable to the
Plaintiff in fees for services rendered , as per the parties’ subsequent
agreement.
18. On 19 August 2023 , the Defendant s … terminated the Plaintiff’s
mandate to act for the First Defendant in the Dispute.
1 The plaintiff did not comply with rule 18(6) in that the particulars of claim do not disclose whether the
alleged agreement was oral or in writing or partly oral and partly in writing. It does not disclose who, on
behalf of Ascon , concluded the agreement nor where it was concluded.
…
24. The Plaintiff’s attorneys addressed a further letter to the Defendants’
attorneys on 13 August 2024, inter alia:
…
24.2 Demanding immediate payment by the Defendants to the
Plaintiff of the sum of R1 293 190.75, comprising the
following:
24.2.1 R1 172 297.56 , being 10% of the amount received by
the Defendants from the Municipality in terms of the
adjudication outcome; and
24.2.2 Interest at the rate of 11.25% per annum from 18
August 2023, amount to R120 893.19.
…
26. Despite demand, as aforesaid, the Defendant (sic) has to date failed,
refused or neglected to pay the aforesaid sum to the Plaintiff.
WHEREFORE the Plaintiff claims:
(a) Payment of the sum of R1 172 297.56 being the Plaintiff’s outstanding
fees;
…’
[5] As adumbrated earlier the defendants have delivered a plea. In their plea over
they allege that Ascon, represented by Ms Mathura, engaged the plaintiff to represent
Ascon . Ms Mathura also entered a special plea (the first special plea) in which she
recorded:
‘2. It is the First Defendant that -
2.1 has a dispute with the Municipality; and
2.2 received payment from the Municipality in respect of an
adjudication award; and
2.3 is allegedly liable to the Plaintiff on the Plaintiff’s version.
3.
3.1 The Second Defendant’s purported obligation to the Plaintiff for
the liabilities of the First Defendant, require a Suretyship, in
writing , in accordance with the provisions of t he General Law
Amendment Act.
3.2 No such Suretyship was ever executed by the Second
Defendant.’
[6] In respect of the agreement alleged in paragraph 12 of the particulars of the
plaintiff’s claim the defendants contended, in their plea over:
“16. AD PARAGRAPH 12
16.1 The First Defendant admits that it agreed to pay the Plaintiff
10% of any amount recovered in an arbitration beyond the
amount of the Adjudication Award.
16.2 The express agreement between the Plaintiff and the First
Defendant was that if the First Defendant received an Award
and payment beyond the extent of the Adjudication Award,
relying on the Plaintiff’s professional services, the First
Defendant would pay to the Plaintiff 10% o f any such amount
‘going forward’ as his fee for services rendered”.
[7] They also entered a special plea (the second special plea) in which they said:
“5.2 At the time the Adjudication Award was issued, according to the
Plaintiff, the agreement in place wa s that the First Defendant would
pay the Plaintiff R950 ,00 per hour.
5.3 The alleged agreement of 9 June 2022, … was allegedly concluded
after the Adjudication Award and according to the Plaintiff, amounted
to an agreement that going forward, the First De fendant would pay the
Plaintiff 10% of ‘ any amount awarded and paid to the First Defendant
in the dispute going forward as his fee for services rendered’.
5.4 The 10% agreement alleged by the Plaintiff was concluded after the
Adjudication Award and was in respect of ‘ the dispute going forward’
and was not retrospective to an award made prior thereto.”
[8] The Defendants contended, accordingly, that the averments set out in paragraph
12 did not disclose a cause of action.
[9] In summary, it was common cause on the pleadings that Mr Gcora was engaged
to represent Ascon in the adjudication process at an agreed rate of R950.00 per hour ,
and that he had submitted invoices in respect of those services which were paid. The
pleadings reflect that an arbitral award had been made confirming the liability of the
municipality to Ascon which had been duly paid on 18 August 2023. Mr Gcora’s cause
of action herein lies in the alleged contractual agreement set out in paragraph 12 of the
particulars o f claim2. As I have said, the conclusion of an agreement is common cause ,
but there is a material dispute as to what the agreement was.
The summary judgment
2 Quoted at para 4 above.
[10] A plaintiff seeking summary judgment is required, together with the application
for summary judgment, to file an affidavit made by the plaintiff, or by any other person
who can swear positively to the facts. The deponent to such an affidavit is required to
verify the cause of action and the amount of the claim, if any, to identify any point of law
relied upon , and the facts upon which the plaintiff’s claim is based. They are also
required to explain why the defence, as pleaded, does not raise any issue for t rial.3 A
court must be satisfied that each of these requirements has been fulfilled before it can
hold that there has been proper compliance with rule 32(2)(b).4 If, ex facie the affidavit,
the requisite verification has not occurred summary judgment c annot be granted.5
[11] In order to meet th e requirement a plaintiff must verify all the facts supporting his
cause of action.6 In Swartzberg7 the affidavit had stated that ‘the defendant is indebted
to the plaintiff in the amount set out in the plaintiff’s particulars of claim for this action’.
In this regard Margo J held that ‘the portion of the plaintiff’s affidavit quoted above is
fairly capable of meaning that the deponent intended to verify not only the amount but
also the facts set out in the plaintiff’s particulars of claim in the summons . Accepting
that the language used may be forced into yielding such a meaning, I am still left in
doubt as to whether or not that is indeed the meaning intended. … In some of the
decided cases it has bee n said that it is enough if the verification on oath refers to the
averments and confirms the correctness thereof. In the present case the plaintiff’s case
does not even pass that test.’8
3 Rule 32(2)(b).
4 See Erasmus: Superior Court Practice (2nd ed) at D1 -402G, and the authorities referred to therei n at fn
4.
5 Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Limited 1959 (3) SA 362
(W) at 366C -D; Visser v De La Rey 1980 (3) SA 147 (T) at 150 D-F; Absa Bank Limited v Co ventry 1998
(4) SA 351 (N) at 353D -E; and Shackleton Credit Management (Pty) Ltd v Micro zone Trading 88 CC and
Another 2010 (5) SA 11 2 (KZP) at 123I -J.
6 All Purpose Space Heating Co. of SA (Pty) Ltd v Schweltzer 1970 (3) SA 560 (D) at 563; and see
Northern Cape Scrap & Metals (Edms) Beperk v Upington Radiators & Motor Graveyard (Edms) Beperk
1974 (3) SA 788 (NC); Dows on & Dobson Industrial Ltd v Van der Werf and Others 1981 (4) SA 417 (C)
at 426 -8.
7 Barclays National Bank Ltd v Swartzberg and Others 1974 (1) SA 133 (W).
8 At 134 F-H.
[12] That brings me to the supporting affidavit in the present applica tion for summary
judgment which appears to me to fall into the same category . Ms Olowookorun , who
appeared on behalf of Mr Gcora , was constrained to acknowledge that there was no
express verification of the cause of action or the facts on which the claim is based in the
affidavit. Mr Gcora deposed to the supporting affidavit. He confirmed that the facts
deposed to are within his personal knowledge and proceeded to r ecord that he had
instituted a claim for payment of a liquidated amount of R1 172 279.56 , and that
defendants had entered an appearance to defend , and filed a plea. Later he said:
‘In compliance with Rule 32(2)(b), I hereby state that in my opinion, the first
and second defendants have no bona fide def ence and the notice to defend
has been entered sole ly for purposes of delay.”
[13] Ms Olowookorun was constrained to submit that these averments were adequate
to verify the cause of action and the facts on which it is based . The submission is
clearly wrong. As I have said, the cause of action is an alleged contractual liability
arising from the disputed agreement set out in paragr aph 12 of the particulars of claim.
Nowhere in the supporting affidavit is there any suggestion of the verification of the
correctness of the pleaded case nor is there any reference to the alleged agreement. In
that respect the application is clearly materially defective.
[14] In Shackleton9 Wallis J held , correctly , that ‘t he proper starting point is the
application. If it is defective , then cadit quaestio.’ That is the end of the matter, and,
accordingly , summary judgment cannot be granted. It is not strictly necessary to deal
further with the arguments raised. However, it is not the only shortcoming. As the
matter has been fully argued before me I shall address some of the further issues
raised.
[15] I reve rt to rule 32(2)(b) and the requirement for Mr Gcora to explain briefly, in the
supporting affidavit , why the defence as pleaded does not raise any issue for trial. Ms
9 At 122 I.
Mathura , as adumbrated earlier, entered a special plea in which she denied liability for
the obligations of Ascon, and in her plea over she explained that she had acted merely
as a representative of Ascon in engaging the services of Mr Gcora . In the supporting
affida vit for summary judgment Mr Gcora did not attempt to engage with the merit of the
defence or the bona fides thereof. Rather, he contented himself by saying that, even if
the special plea were to succeed , it would not bar his claim against Ascon. In that
respect he is correct . However, that is no answer to the special plea. In this respect,
too, the application is materially defective. In any event, the first special plea does raise
a valid defence in law for Ms Mathura, if proved at the trial.
[16] I pause to record that during argument , and in the heads of argument filed on
behalf of Mr Gcora , much was made of Ms Mathura’s role as sole member of Ascon in
the interaction with Mr Gcora . I was referred to Makate10 where it was held that the only
allegation that the plaintiff has to prove , and thus aver , in order to prove the ostensible
authority of an agent, is that the princip al created an appearance that the agent had the
power to act on the princip al’s behalf, w hereafter, the principal is not at liberty to deny
such agency due to a lack of authority.
[17] This is, of course, correct , but the matter related to ostensible authority to act on
behalf of another. It is irrelevant to this matter as it is Ms Mathura’s case that she was
authorised to, and did , act on behalf of Ascon in engaging the services of Mr Gcora. It
does not follow that the authority to represent Ascon brings about a liability on the part
of Ms Mathura .
[18] In respect of the second special plea, Mr Gcora’s only response was that the
defen ce was ‘technical’. That is not an explanation as to why it does not raise an issue
for trial. For all these reasons the application for summary judgment is fatally defective
and cannot succeed.
10 Makate v Vodacom Ltd 2016 (4) SA 121 (CC).
[19] I turn to the merits of the defence raised in the plea over. As I have explained,
Mr Gcora’s cause of action is a contract. It has not been alleged whether the contract is
oral or in writing, but no written portion has been referred to . I shall assume , for
purposes of the present judgment , that an oral agreement is relied upon. The terms of
the agreement are in dispute and there is no suggestion , in the supporting affidavit for
summary judgment , of any ground upon which it may be found that the dispute raised is
not bona fide. In the event that Ascon is able to establish that its version of the terms of
the agreement is correct it would constitute a valid defence in law. What the terms of
the agreement in fact w ere can only be decided upon evidence. Accordingly, I am of
the view that both the defendants should be granted leave to defend the action.
Costs
[20] In the defendants ’ affidavit resisting the application for summary judgment the y
sought an order for costs de bon is propr iis, on a scale as between attorney and client ,
against Ms Olowookorun . Ms Morris, who appeared on their behalf , did not persist in
the prayer. She did, however, seek an order for costs on a scale as between attorney
and client as against Mr Gcora .
[21] A court hearing an application for summary judgment may make an order for
costs as to it may seem just.11 Where summary judgment is refused and leave to
defend is given the usual order for costs is that the costs should be costs in the cause.
This, howeve r, is not an inflexible rule. Rule 32(9)(a) provides, inter alia, that where a
plaintiff makes an application for summary judgment in circumstances where, in the
opinion of the court, he knew that the defendant relied on a contention which would
entitle t hem leave to defend, the court may order that the action be stayed until the
plaintiff has paid the defendant’s costs; and may further order that such costs be taxed
as between attorney and client.12
11 Rule 32(9).
12 See also Mahomed Adam (Pty) Ltd v Barrett 1958 (4) SA 507 (T) at 509B; and CitiBank NA , South
Africa Branch v Paul NO and Another 2003 (4) SA 180 (T) at 190A -E.
[22] I have set out the material portion of the pleadings e arlier. The defence raised by
Ms Mathura in the first special plea is not complex. Mr Gcora made no contrary
averment in the particulars of his claim , nor did he attempt to engage with the defence
in the supporting affidavit. Notwithstanding the misguided arguments relating to
authority , it seems to me that Mr Gcora knew, or ought to have known , that Ms Mathura
contends that she had acted merely as an agent for Ascon and that she would,
accordingl y, be entitled to leave to defend.
[23] As Mr Gcora’s claim is contractual he bears the onus to establish the agreement
and the terms thereof. An unequivocal dispute relating to the terms of the agreement
has been pleaded and the effect of Ascon’s version of the agreement gave rise to the
second special plea. As I have said, the only response to the second special plea was
that it was technical in nature. That is not a response on which to found an application
for summary judgment. The factual d ispute relating to the terms of the agreement was
not addressed at all in the supporting affidavit. I am, accordingly, persuaded that in the
case of Ascon , too, Mr Gcora knew of the pleaded case which must necessarily give
rise to leave to defend. I cons ider that this is a proper case to award costs against him,
at this stage, on a punitive scale, but I do not think that it is justified to prevent him from
pursuing his claim pending payment of the costs. To do so would, in my view, be an
unjustified infr ingement with his right of access to the court.
[24] Accordingly, the following order is made:
1. The application for summary judgment is dismissed.
2. The defendants are given leave to defend the action.
3. The plaintiff is ordered to pay the costs occasioned by the application for
summary judgment on a scale as between attorney and client, such costs
to include the costs reserved at the postponement of the matter on 8 April
2025.
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff : Ms B Olowookorun
Instructed by: Bukky Olowookorun Attorneys
GQEBERHA
For 1st & 2nd Defendants: Ms K Morris
Instructed by: Friedman Scheckter
GQEBERHA
Date Heard: 29 April 2025
Date Delivered: 13 May 2025