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REPUBLIC OF SOUTH AFRICA
. \\)Dcc1 .,
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
REPOR TABL E : Y ES/NO (1)
(2)
(3)
OF INT ER EST TO TH E JU DG ES : Y ES/NO
RE V IS ED : YES/NO
VANWYK ASL (AJ)
SIGNATURE
In the m atter between:
15 September 2025
DATE
SIZABANTU PIPING SYSTEMS (PTY) LTD
LIMPOPO
and
BATELINE INVESTMENTS (PTY) LTD
MASHUPJE PATRICK MADISHA
JUDGMENT
VANWYK ASL {AJ):
INTRODUCTION
CASE N2: 12894/2022
APPLICANT/PLAINTIFF
FIRST DEFENDANT
SECOND RESPONDENT
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[1] This is an application for summary judgment in terms of Rule 32 of the Uniform
Rules this Court. The relief claimed by the Plaintiff is as follows:
"1. Payment of the sum of R 478 070 .86
2. Interest on the sum of R 478 070.86 at the rate of 9. 75% per annum as
from 13 December 2022 to date of payment
3. Costs of suit to be taxed on the attorney and client scale
4. Further and/or alternative relief"
[2] On 18 November 2019, the first defendant duly represented by the second
defendant applied to the plaintiff for credit and concluded a written credit facility
agreement.
[3] The plaintiff would sell and deliver goods to the first defendant and grant credit
facilities to the first defendant for goods sold and delivered at plaintiffs agreed
prices alternatively its prevailing prices at the time.
[4] On 18 November 2019, the second defendant bound himself as surety and co
principal debtor in solidum with the first defendant unto and in favour of the
plaintiff for all payments due and payable by the first defendant.
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[5] The plaintiff alleges that follow ing the w ritten agreement as aforesaid, the first
and/or second defendants failed and/or refused and/or neglected to make
payment for goods sold and delivered to them during the period July 2020 to
December 2021 .
[6] As regards the history of this matter, the plaintiff obtained default judgment on
1 June 2023 (as per Naude- Odendaal J). On 5 November 2024 the judgement
and order granted on 1 June 2023 w ere rescinded and set aside. The
rescission application w as not opposed by the plaintiff.
[7] In both the founding affidavit in support of the rescission of judgment
application and in the answ ering affidavit resisting summary judgement
(including the plea), the first and second respondents in essence raised similar
defences to the plaintiffs claim. The plaintiff w as clearly aw are of these
defences at all material times. I w ill succinctly deal w ith these defences later in
this judgment.
[8] The respondents complain that the plaintiff failed to meet the requirements of
Uniform Rule 32(2)(b) specifically explaining "briefly wh y the defence as
pleaded by the respondents does not raise issues for trial". The first and
second respondents stated as follow s in this regard:
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8.1 That the Plaintiff's verifying affidavit deposed to by Mr. Randall Jooste
failed to meet the obligation imposed on the plaintiff as regards
Uniform Rule 32(2)(b) in that :
8.1.1 The affidavit deposed to by Jooste attempt a cursory dismissal
of the respondent's reliance on a deed of cession by submitting
it is merely in securitatem debiti. It avoids the respondents
primary defence that the deed of cession together w ith the
plaintiff's statement of account, addressed to "Bateline/Koephu
Cession-bcm" does not merely relate to security but are
primary facts and evidence indicating that the underlying
transactions w ere conducted between plaintiff and
Bateline/Koephu -Joint Venture.
8.1.2 The Plaintiffs affidavit in support of summary judgment provides
no cogent explanation w hy the primary facts or evidence
presented by the respondents as regards the identity of the
debtor and correct contractual framew ork does not raise a
triable issue.
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[9] I considered the plaintiff's affidavit in support of summary judgment holistically
and I agree w ith the issues raised by the respondents in paragraphs 8.1.1 and
8.1.2 supra. The plaintiff failed to strictly comply w ith Uniform Rule 32(2)(b) by
meaningfully engaging w ith-and addressing all the defences pleaded by the
respondents.
[9] I am of the view that the purpose of the sub-rule is firstly for a plaintiff to
explain and disclose, under oath, w hether factually and/or legally all the
defences raised by a respondent failed to raise issues for trial. The express
w ording of subrule 2(b) "§11.Y _ _issues for triaf' places an obligation on the
plaintiff to carefully assess fill defences raised by a respondent and to explain
under oath as aforesaid w hy there does not exist any issue w hich is triable. It
follow s that in the absence of an explanation by the plaintiff in accordance
w ith w hat is stated herein there is simply non-compliance w ith the sub-rule.
[1 O] Secondly, if a plaintiff complied w ith w hat is expected from the sub-rule it
empo w ers a court to effectively, transparently and fairly ascertain w hether
genuine triable issues or defences exist betw een the parties 1.
[1] Tum ileng Trading CC v N ational Security and Fire (Pty) Ltd 2020 (6) SA 624 (:NCC) - para 22, the
follow ing w as said: "what the am ended rule does seem to do is to require a plaintiff to consider very
carefully its ability to allege a belief that the defendant does not have a bona fide defence. This is
because the plaintiff's supporting affidavit now falls to be made in the context of the deponent's
knowledge of the content of a delivered plea. That provides a plausible reason for the requirem ent of
som ething more that a formulaic supporting affidavit from the plaintiff. The plaintiff is now required to
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[11] Within the context that summary judgement applications w hich are robust
and extraordinary in nature w hich should only be granted by a court in the
clearest of cases, it follow s that if the application is defective then cadit
quaestio2 w hich signifies the end of the application.
[12] Accordingly the point in limine raised by the respondents is upheld.
[13] In determining w hether to grant leave to defend the action or dismiss the
application for summary judgment, I deem it necessary to deal w ith the
respondents' main defence(s) to the plaintiff's pleaded claim. The reason for
this approach is because the plaintiff w as aw are of the respondents'
defence(s) before they filed their plea and thereafter and consciously elected
to institute these proceedings.
[14] On 12 November 2019 a deed of cession w as concluded betw een
Bateline/Koephu -Joint Venture as the contractor and the plaintiff and
Polokw ane Municipality for paymen t relating to project ma terials. The
engage with the content of the plea in order to substantiate its averments that the defence is not bona
fide and has been raised m erely for purposes of delay."
[2] S hackleton C redit M anagem ent (Pty) Ltd v M icrozone Trading 88 C C 2010 (5) SA 112 (KZP ) at para 25.
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relevant extract of Annexure "SP1" attached to the respondent's plea reads
as follows:
"I/We the undersigned ("the contractor" KOEPHUIBA TEL/NE JV
Do hereby cede, assign and make over to and in favour of ("the
Creditor'? SIZABANTU PIPING SYSTEMS (PTY) LTD all my/our
rights, title and interest in and to all and any process payments
money due to me/us in terms of contract no PM01/2019 for inter
alia the supply of materials, services supplied or retention in terms
of the aforesaid contract by the Polokwane Municipality. I/We do
hereby irrevocably request Polokwane Municipality to pay "the
creditor" per payment certificate monies due to me/us as calculated
by the project engineer, and set out in Annex 83 attached to the
certificate in respect of the following project" This "deed of cession
and authority" shall be final and binding and remain in force and
effect for as long as any amounts are owing by me/us from time to
time to "the creditor" unless cancelled by mutual agreement of both
"the contractor" and "the creditor"
[15] The respondents deny that the goods were sold or supplied to the first
respondent pursuant to the credit application attached to plaintiffs' particulars
of claim as "Annexure A ". In support thereof the respondents pleaded and
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argued that the goods were sold and supplied to the Joint Venture
Bateline/Koephu -Joint Venture. Further, this is supported by the plaintiff's
statement of account, ''Annexure C " to its particulars of claim w hich indicates
that the statement is addressed to "Bateline/Koephu Cession -bcm".
[16] In essence it is the respondent's case that the joint venture established
between the first defendant and Koephu Business Enterprise CC are liable to
the plaintiff for payment and accordingly Koephu Business Enterprise CC
ought to have been joined to these proceedings.
[17] In evaluating the facts before me holistically and specifically on this point, I am
of the view that the dispute/defence as regards the identity of the debtor
constitutes an issue w hich ought to be determined at trial. The respondents
filed a special plea of non-joinder in this regard. It follow s that if the
respondents are successful w ith the aforesaid triable issue, it w ould
constitute a complete defence to the plaintiff's claim.
[18] A Joint Venture is a specific category of partnership3. In Mahomed v Karp
Bros4 the court said the follow ing:
[3] Bester v van N iekerk 1960 (2) SA 779 (A) at 783D to 785A.
[4] 1938TPD1 12at113.
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"While a partnership is in existence no judgment on a partnership obligation
can be taken against the individual partners personally. It is only after the
dissolution of a partnership that a creditor of the partnership can sue the
members of the firm as individuals jointly and severally for the debt, and, if
execution be necessary, proceed forthwith to execute on the assets of each
member ".
[19] It is trite that a party must be joined if they have a direct and substantial
interest which may be affected prejudicially by the judgment of the court5. A
defendant may of right demand joinder in the case of partners6.
[20] The principles governing summary judgment are trite and need not be
restated. Suffice to refer to the well-known judgment in Maharaj v Barclays
National Bank Limited 1976 (1) SA 418 A at 426A-C where the court held
as follows regarding the discretion of the court:
''Accordingly, one 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 tide defence to the claim. Where the defence
[5] Morudi and O thers v NC Housing Services and Development Co Limited and O thers 2018 ZACC 32 at
para 29 w ith citation of Judicial Services Comm ission v Cape Bar Counc il 2013(1) SA 170 (SCA ) at para
12.
[6] Morgan and Another v Sa lisbury Mu nicipality 1935 AD 167 at 171.
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is based upon facts, in the sense that material facts alleged by the
Plaintiff in his summons , or combined summons , are dispute 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 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 bona
tide and good in Jaw. If satisfied on these matters the Court must refuse
summary judgment, either wholly or in part, as the case may be."
[21] As regards what is meant by the words 'fully' disclose, the Court in
Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 2280-E
explained as follows:
" I respectfully agree, subject to one addition, with the suggestion by Miller
J., in Shepstone v Shepstone, 1974 (2) SA 462 (N) at page 466- 467,
that the word fully should not be given its literal meaning in Rule 32(3),
and that no more is called for than this: that the statement of material
facts be sufficiently full to persuade the Court that what the Defendant
has alleged, if it is proved at the trial, will constitute a defence to the
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plaintiff's claim. What I would add, however, is that if the defence is
averred in a manner which appears in all the circumstances to be
needlessly bald, vague, or sketchy, that will constitute material for the
Court to consider in relation to the requirement of bona tides".
[22] The respondents pleaded and argued that on a proper construction of
''Annexure A " to the particulars of claim-the concluded credit application -,
does not constitute a contract of sale but rather a pactum de contrahendo7.
Mr Nel, appearing on behalf of the respondents, submitted during argument
that the credit application sets forth the general terms upon w hich the
plaintiff might from time to time agree to sell goods to the first respondent.
The argument suggested further that the plaintiff ought to have pleaded the
essentialia of the specific agreement(s) of sale concluded w ith the first
defendant/respondent (as opposed to the Joint Venture) for the specific
goods sold amounting to R 4 78 070 -86. I agree that there is a disconnect
between the terms of the credit application pleaded and the specific goods
purportedly sold and delivered.
[23] In Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd and Another 1998 (1) SA
679 (0)8 it was reiterated that a plaintiff seeking summary judgment must
[7] Hirschow itz v Moo lman and Others 1985(3) SA 739 A at para 765H - "A pactum de contrahendo is
"simp ly an agreement to ma ke a contract in future"
[8] para 683H to 6848.
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have a clear claim with pleadings which are technically correct. In the
absence of these peremptory requirements, summary judgement must fail.
[24] In Caltex Oil (SA) Ltd v Crescent Express (Pty) Ltd and Others 1967(1) SA
466 (0)9 it was stated that for a valid verification of the plaintiff's cause of
action under Uniform Rule 32(2), a complete cause of action must appear
from the particulars of claim. In the event of an incomplete cause of action it
cannot be said to be verified.
[25] The respondents raised issues and disputes as regards the quantum of the
plaintiff's claim, overpayment of materials to the plaintiff and set off w hich
ought to be applied under the circumstances pleaded. I do not intend to
deal w ith this aspect in much detail save to say that according to the
respondents, materials for which plaintiff received payment in the amount of
R 241 735-75 was collected by the plaintiff from the Joint Venture, the
plaintiff overcharged the Joint Venture by an amount of R 535 227-69 for
uPVC piping materials and R 264 879-65 in respect of pipe fitting materials if
compared to the agreed prices w ith plaintiff. I am of the view that w ithin the
w hole context of the defences raised by the respondents this aspect
constitutes further triable issues.
[9] para 469C.
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[26] The plaintiff w as at all material times before and after the filing of the
respondent's plea acutely aw are of their mu ltiple triable defences and if
reasonably and carefully assessed, summary judgment proceedings should
not have been pursued at all.
[27] As a result of the aforesaid coupled w ith the procedural irregularities the
application for summary judgment must fail.
[28] I am of the view that the plaintiff w as at all material times aw are that the
respondents relied on contentions and triable defences, as stated, w hich
w ould entitle the respondents to leave to defend. I am further of the view
that the persistence w ith this application w as clearly unreasonable under the
prevailing circumstances. I intend to make an appropriate order in this
regard.
ORDER
[29] Accordingly I make the follow ing Order;
[1] The application for summary judgement is dismissed.
[2] The First and Second Respondents are granted leave to defend the
main action.
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[3] The Plaintiff/Applicant is ordered to pay the First and Second
Respondents costs of this application for summary judgement on an
scale as betw een attorney and client.
[4] The main action is stayed until such time as the Plaintiff/Applicant has
paid the First and Second Respondents taxed or agreed costs of this
application as envisaged in Un iform Rule 32(9)(a).
HEARD ON
JUDGMENT DELIVERED ON
ASLVANWYK
Acting Judge of the H igh Court
Limpopo D ivision, Polokwane
APPEARANCES:
5 JUNE 2025
15 SEPTEMBER 2025 . This judgment
w as handed dow n electronically by
circulation to the parties' representatives
by ema il. The date and time for hand
dow n of the judgment is deemed to be at
10:00
15
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENTS
INSTRUCTED BY
D CHUENE
N IXON & COLLINS ATTORNEYS
C/O DU TOIT, SWANEPOEL , STEYN &
SPRUYT
POLOKWANE
E.J.J NEL
PERCY P.P MOSEHLA INCORPORATED
POLOKWANE