REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 002313/2024
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JU
(3) REVISED : NO
/9./·07· g.J){
DATE MAHOSI J
In the matter between:
BROUGHTON CLINTON AMISS N.O.
JULIEANN AMISS N.O.
and
FE INDUSTRIAL SUPPLIES CC
JUDGMENT
Mahosi, J
First Plaintiff
Second Plaintiff
Defendant
[1] This is an application for summary judgment. The issue is whether the
defendant's plea contains sufficient facts to substantiate a bona fide defence.
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[2] The first and second plaintiffs are trustees of the Amiss Family Trust registered
in accordance with the Trust Property Control Act1 and trading as BAC Logistics. The
defendant is a Close Corporation registered and incorporated in terms of the
Companies Act2 of the Republic of South Africa.
[3] Central to th is matter is a written credit agreement ("the Agreement'') dated 26
May 2023 in terms of which BAC Logistics agreed to render logistics services to the
defendant at its special instance and request. Following its conclusion, on 06 October
2023 to 06 November 2023, BAC Logistics provided the defendant with logistics
services to the total value of R 749,135.00 (Seven Hundred Forty-Nine Thousand One
Hundred Thirty-Five Rands) and $ 3,000.00 (Three Thousand United States Dollars).
Based on the defendant's failure to pay for the services, the plaintiffs issued a
summons against the defendant on 15 January 2024.
[4] The matter was defended, and in its plea, the defendant denied being indebted
to the plaintiffs for the amount claimed in the particulars of claim, on the basis that the
latter were in breach of the written Subcontractor's Agreement concluded between the
parties on 22 May 2023. In particular, it alleged that the plaintiffs breached clause 21
("Restraint of Trade clause") by unlawfully approaching and contracting to do work
directly with its customers in 2023 and clause 36.1 by failing and refusing to engage
with it, within fourteen days, and to negotiate in good faith to resolve the matter. The
defendant claimed to have incurred damages and has instituted a counterclaim against
the plaintiffs for damages amounting to R1 ,267,500.00 and R5 ,290.00 in respect of an
outstanding invoice for escorting and tracking services.
[5] Vexed by the defendant's defences, the plaintiffs filed th is application, asserting
that their claim was based on a contract and referring to the defendant's denial as "bald
that their claim was based on a contract and referring to the defendant's denial as "bald
and unsubstantiated". They further averred that the defendant's counterclaim was
contractually excluded by clause 27.1 of the Agreement, which read:
"Unless otherwise specifically agreed in writing by the Creditor, the Debtor shall
pay all amounts due, without deduction or set off, to the Creditor immediately
upon presentation of the invoice. It is agreed that the payment shall not be
1 Act 57 of 1988, as amende d.
2 Act 71 of 2008 .
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withheld or deterred on account of any Claims or Counterclaims which the
Debtor may allege."
[6] The defendant filed an affidavit resisting the summary judgment on the basis
that it was ill-founded because the plaintiffs failed to specifically deny the breach of the
subcontractor's Agreement, which entitled it to a counter-relief that could only be
determined at trial. It averred that the plaintiffs' affidavitfell short of the requirements of
Rule 32(2)(b) as it fails to explain why the defence it pleaded does not raise a triable
issue.
[7] Rule 32 of the Uniform Rules of Court regulates the summary judgments and it
reads:
"(1) Where the defendant has delivered notice of intention to defend, the
plaintiff may apply to the Court for summary judgment on each of such
claims in the summons as is only-
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment;
together with any claim for interest and costs.
(2)
(a) Within 15 days after the date of delivery of the plea, the plaintiff
shall deliver a notice of application for summary judgment,
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 subrule (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 as pleaded
does not raise any issue for trial.
(c) If the claim is founded on a liquid document a copy of the
document shall be annexed to such affidavit and the notice of
application for summary judgment shall state that the application
will be set down for hearing on a stated day not being less than 15
days from the date of the delivery thereof.
(3) The defendant may-
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(a) give security to the plaintiff to the satisfaction of the Court for any
judgment including costs which may be given; 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 w ith the
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 therefor."
[8] The summary judgment procedure is designed to enable plaintiffs with clear
cases to obtain prompt enforcement of their claims against defendants who lack valid
defences. Th is remedy is considered extraordinary and drastic, as it effectively denies
the defendant the opportunity to contest the claim. Courts emphasise that it is granted
based on the supposition that the plaintiff's case is unimpeachable and the defendant's
defence appears to be flawed and without merit.3'
[9] In the case of Raumi x Aggregates (Pty) Ltd v Richter Sand CC and Another,4 the
Court emphasised that summary judgment applications aim to quickly dismiss cases
that lack a genuine triable issue, thereby saving judicial resources and enhancing
access to justice. When such an application is made , the applicant has the right to a
prompt hearing of the application, wh ich is protected under Section 34 of the
Constitution.
[1 O] The Supreme Court of Appeal, in Co hen NO and Others v Dea ns,5 clarified that
the prospects of success for a defence do not matter. If the defence is legally valid and
can be proven during a trial, a summary judgment application will be unsuccessful.6
The key question is whetherthe defendant present facts that raise a triable issue and a
viable legal defence, thereby requiring them to disclose the nature and grounds of their
defence fully. Thus , the defendant need only provide facts that could support a good
defence fully. Thus , the defendant need only provide facts that could support a good
defence if proven at trial.7
3 See Maharaj v Barclays N ational Bank Ltd 1976 (1) SA 418 {A).
4 2020 (1) SA 623 (G J), at [16].
5 [2023] ZASC A 56.
6 Id at [29].
7 Id at [31 ].
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[11) The plaintiffs submitted that the defendant's counterclaim was not a bona fide
defence, as it was excipiable and contractually excluded by clause 27.1 of the
Agreement. It referred this Court to the judgment in the case of Tesven CC and
Another v South African Bank of Athens.8 In that case, the Supreme Court of Appeal
(SCA) clarified that, under Rule 32(3)(b), the Court has the discretion to refuse
summary judgment, even if the defendant's opposing affidavit lacks exhaustive material
facts necessary for evaluating their bona tides. The SCA referred to a judgment in
Maharaj v Barclays National Bank Ltd,9 in which Corbett JA referred to the
'extraordinary and drastic nature' of the remedy of summary judgment and said the
following:
"(O)ne of the ways in which a defendant may successfully oppose a claim for
summary judgment is by satisfying the Court by affidavit that he has a bona fide
defence to the claim. Where the defence is based upon facts, in the sense that
material facts alleged by the plaintiff in his summons , or combined summons , are
disputed or new facts are alleged constituting a defence, the Court does not
attempt to decide these issues or to determine whether or not there is a balance
of probabilities in favour of the one party or the other. All that the Court enquires
into is: (a) whether the defendant has "fully" disclosed the nature and grounds of
his defence and the material facts upon which it is founded, and (b) whether on
the facts so disclosed the defendant appears to have, as to either the whole or
part of the claim, a defence which is both bona fide and good in law. If satisfied
on these matters the Court must refuse summary judgment, either wholly or in
part, as the case may be. The word "fully", as used in the context of the Rule
(and its predecessors), has been the cause of some judicial controversy in the
past. It connotes, in my view, that, while the defendant need not deal
past. It connotes, in my view, that, while the defendant need not deal
exhaustively with the facts and the evidence relied upon to substantiate them, he
must at least disclose his defence and the material facts upon which it is based
with sufficient particularity and completeness to enable the Court to decide
whether the affidavit discloses a bona fide defence. (See, generally, Herb D
Dyers (Ply) Ltd v Mohamed and Another 1965 (1) SA 31 (T); C altex Oil (SA ) Ltd
v W ebb and Another 1965 (2) SA 914 (N ), Arend and Another v Astra Furnishers
(Ply) Ltd (1974 (1) SA 298 (C )] at 303 4; Shepstone v Shepstone 1974 (2) SA
462 (N ).) At the same time the defendant is not expected to formulate his
8 [1999] ZA SCA 75; 2000 (1) SA 268 (SC A).
9 1976 (1) SA 418 (A) at 426A -G .
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opposition to the claim with the precision that would be required of a plea; nor
does the Court examine it by the standards of pleading. (See Estate Potgieter v
Elliot 1948 (1) SA 1084 (C) at 1087; Herb Dyers case supra at 32.)"10
[12] In the current matter, the plaintiffs submitted that the defendant's plea contains
no pleaded facts to substantiate a bona fide defence when considered in light of the
admitted Agreement and its specific terms. What is ~pparent is that the defendant
denied liability to the plaintiffs' claim and instituted a counterclaim for damages
resulting from a breach of a restraint of trade clause as contained in the subcontractor's
Agreement.
[13] In its plea and counterclaim, the defendant claims that the plaintiffs ~reached
clause 21 of the subcontractor's Agreement by directly engaging with its customers
during 2023, resulting in damages of R1 ,267,500.00 and an unpaid invoice for services
totalling R5 ,290.00. The plaintiffs allegedly failed to meet with the defendants within a
specified timeframe to negotiate a resolution, further complicating the issue. The
defendants sent a demand letter to the plaintiffs, requesting thatthey rectify the breach,
wh ich the plaintiffs failed to address. In the affidavit resisting summary judgment, the
defendant submitted the date on which the breach occurred, the customer with whom
the plaintiffs allegedly did business, and how it quantified its claimed amount.
[14) Although the defendant's plea does not exhaustively address the facts and
evidence relied upon to substantiate them, its affidavit, when considered in relation to
the plaintiffs' claim , appears to present a legitimate defence. It has sufficiently outlined
the defence and the key facts supporting it, meeting the requirements of Rule 32(3)(b).
The subcontractor's Agreement relied upon by the defendant is allegedly the main
contract governing the parties' business relationship. The plaintiffs signed it on 19 May
contract governing the parties' business relationship. The plaintiffs signed it on 19 May
2023, and the defendantsigned iton 22 May 2023, which was before the conclusion of
the Agreement relied upon by the plaintiffs.
[15] To the extent that the plaintiffs do not deny the breach of the restraint of trade
clause and that it resulted in the defendant incurring financial loss, it follows that the
latter fully disclosed the nature and grounds of its defence, wh ich is both bona fide and
good in law. Overall, both parties accuse each other of breaching contractual
10 See also Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227G 228F .
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obligations, leading to financial claims. The two agreements relied upon by both parties
require the Court's interpretation to determine whether the parties are liable for
damages against each other.
[16] On the facts disclosed, the defendant's defence that, it has a counterclaim
resulting from the subcontractor's Agreement, which it concluded with the plaintiffs,
cannot be considered a sham defence or mala fides. It is a reasonable defence and
valid in law. Therefore, the summary judgment should be refused.
[17] The general rule is that the costs should follow the result, being the successful
litigant. There is no reason to deviate from this general rule in the circumstances of this
matter.
Order
[18] Accordingly, the following order is made :
1. Summary judgment is refused.
2. The defendant is granted leave to defend the main action.
3. The plaintiffs are to pay the defendant's costs of suit.
Acting Judge of the High Court
Heard: 15 April 2025
Delivered: This judgment was prepared and authorised by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives through email and by uploading it to the electronic file of this matter on
Caseline. The hand-down date is deemed to be 21 July 2025.
APPEARANCES :
For plaintiffs:
Instructed by:
For defendants:
Instructed by:
Advocate B.D. Stevens
Jurgens Bekker Attorneys
Advocate S .S. Cohen
Larry Marks Attorneys
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