IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTAB LE:-/NO
(2) OF INTEREST TO OTHER JUDGES: /NO
(3) R~VISED .
. ,~.lr./a.s ....
DATE
In the matter between:
TRINEXUS CONSTRUCTION (PTY) LTD
and
BELLA TOR CONSTRUCTION (PTY) L TO
HENDRIK JOHANNES ESTERHUIZEN
AND
In the matter between:
MANOS (PTY) LTD t/a BUILD-IT NORTHRIOING
And
BELLA TOR CONSTRUCTION (PTY) L TO
HENDRIK JOHANNES ESTERHUIZEN
Case No: 1407/2023
Plaintiff
First Defendant
Seco nd Defendant
Case No: 1348/2023
Plaintiff
First Defendant
Second Defendant
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Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date for the handing down of the
judgment shall be deemed to be 11 August 2025.
JUDGMENT
MERVYN M RIP, AJ:
INTRODUCTION
[1] I mus t immediately apologise for the delay in handing down this judgement.
[2] This is an application for summary judgement. The two matters were heard
and argued together and consequently I will deliver one judgement in
respect of the two matters. The first defendant was liquidated after the
institution of the action and the only defendant that is before court is the
second defendant who stood as surety for the obligations of the first
defendant.
[3] In the opposing affidavit filed by the Second Defendant, the Second
Defendant raises a number of technical disputes relating to the claim. Such
disputes include reliance on a purported oral agreement that allegedly
preceded the written agreement. Also claims in respect of interest claimed
by the Plaintiff, that the Defendant claims cannot be allowed.
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[4] The second defendant raises the issue of non-joinder. This is based upon
the fact that the written agreement on which each of the plaintiffs rely in the
respective claims that I am dealing with, also has the names of other
companies on the application for credit form. The second defendant argues
that all of the companies named on the application for credit need to be
joined, it would seem in the same action, to cover the format of the
application for credit. The plaintiff states that this is not a requirement since
the form is used by different companies and only the company that relies
upon it is claiming the amount for payment.
[5] I do not see on what basis the other companies whose name happened to
be on the application for credit need to be joined to the proceedings. It is
clearly pleaded that the Plaintiff companies, in each instance, is the
company that supplied the goods to the First Defendant and there is no
basis that anyone else has a direct or substantial interest in this matter. I
find that the joinder point has no merit.
[6] In respect of the actual amount claimed as being owing, there is no real
defence raised. In fact the defence seems to be that the Defendants cannot
say how much is owing due to the fact that documentation that they believe
is necessary to work out how much is owing, if anything, has not been given
to the Defendant by the Plaintiff. This notwithstanding requests for such
documentation. The fact that the goods as described were delivered by the
respective Plaintiffs is not denied.
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[7] In my view such bald and sketchy allegations are simply not sufficient to
deal with the amount that is claimed to be owing. One wou ld expect a
defendant to have records of what has been paid and when such amounts
were paid to the Plaintiff. The Defendant cannot simply state that it is not
possible to determine what is owing to the Plaintiff because the Plaintiff
must show through documentation how these amounts are made up. This
type of narrative is in my view a classic examp le of the many instances
where our Courts have stated that bald and sketchy explanations and
defences are not sufficient to stave off summary judgement.
[8] It is clear from the narrative that has been given by the Deponent, the
second Defendant, that there was a business relationship between the First
Defendant, run and managed by the Second Defendant, and the respective
Plaintiffs. It is clear that the First defendant did in fact receive goods from
the Plaintiff for the purposes of its construction business. Such relationship
is in fact common cause.
[9] The Second Defendant further claims that the money is not payable in
terms of an oral agreement that requires the First Defendant to receive
payment for the construction work that it did before it became liable to pay
for the goods received from the Plaintiff. Such agreement, apart from again
being vague, bald and sketchy does not accord with the written terms of
the agreement relied upon by the Plaintiffs.
[1 O] In this regard the very well-known authorities of Breitenbach v Fiat SA
(Edms) Bpk 1976 (2) SA 226 (T) and Maharaj v Barclays National Ba11\
15
1976 (1) SA 418 (A) find application. It is further stated that any defence
must be a defence that is good in law. The oral agreement defence
contradicts the written agreement between the parties and is in any event
described in bald and sketchy averments. No details of whe n, how, with
whom exactly and where this oral agreement was entered into.
[11] Considering all that was placed before I am not satisfied that the Second
Defendant has provided a bona fide defence in either of the aforementioned
matters,
ORDER:
In the circumstances, I grant summary judgement as follows in favour of the
Plaintiffs in the following terms:
IN Case No: 1407/2023
1. Payment in the amount of R324 081.80;
2. Interest on the amount of R324 081.80 at a rate of 10.5% per annum, from
19 January 2023 to date of final payment;
3. Costs of suit, including the costs of the summary judgment application,
unopposed attorney and client scale.
In Case No: 1348/2023
4. Payment in the amount of R 1 281 745.47;
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5. Interest on the amount of R 1 281 745.47 at a rate of 10.5% per annum ,
from 19 January 2023 to date of final payment;
6. C osts of suit, including the costs of the summary judgme nt application,
unopposed attorney and client scale.
Hearing date:
Judgment date:
Counsel for the Plaintiff:
Plaintiffs' Attorneys:
MERVYN MR
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
9 September 2024
10 August 2025
A dv J Schoeman
Counsel for the 2nd Defendant:
2nd Defendant's Attorneys:
Nixon & Collins Attorneys.
Adv HP Wessels
Delberg Attorneys