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Introduction
[1] This is an application by Kgatelopele Lime Northern Cape (Pty) Ltd (“the
applicant” or “KP Lime”) for summary judgment in the sum of R9,758,797.60
against Ubuntu Lime Holdings (Pty) Ltd (“the respondent” or “Ubuntu”) for
payment of amounts owing on unpaid invoices arising from the supply of lime
and related materials.
[2] The claim arises out of a commercial agreement between the parties in terms of
which the applicant supplied lime and related products to the respondent.
Despite repeated demands, the respondent has failed to pay the outstanding
invoices.
[3] The respondent filed a plea and an affidavit resisting summary judgment. The
question for determination is whether the respondent has disclosed a bona fide
defence as required by Rule 32(3)(b) of the Uniform Rules of Court.
Factual background
[4] The applicant avers that it supplied lime and related products to the respondent
at the latter’s request. The respondent accepted delivery and raised no dispute
regarding the quality or quantity of the goods delivered.
[5] Invoices totalling R9,758,797.60 were issued by the applicant. Despite demand,
the respondent failed to settle the invoices.
[6] In its plea, Ubuntu denies the existence of a valid agreement between the parties,
but simultaneously , admits experiencing financial hardship, which it says
explains its failure to make payment.
[7] However, in its affidavit resisting summary judgment, Ubuntu’s position shifts. It
no longer denies the existence of an agreement; instead, it acknowledges that
there was an agreement between itself and KP Lime as appears from pages 01–
88 of the respondent’s affidavit at paragraph 26.
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[8] Ubuntu even refers to a specific example of KP Lime supplying lime and related
products, as recorded in its affidavit (pages 01 –87 at paragraph 2.6). It thus
accepts that the applicant duly performed under the contract.
[9] The respondent further contends that, following the conclusion of an Enterprise
and Supplier Development Agreement, it had a “reasonable expectation” that all
parties would make a reasonable profit, as appears from paragraph 2.4 of its
affidavit. On this basis, Ubuntu seeks to avoid liability for the outstanding debt.
[10] Additionally, Ubuntu raises two special pleas — the first relying on an arbitration
clause (clause 12.1), and the second based on unspecified “allegations on the
pleadings”. In its affidavit, Ubuntu also complains that KP Lime has attached
documents contrary to Rule 32.
Legal framework
[11] The principles governing summary judgment are settled. Rule 32 of the Uniform
Rules of Court permits a plaintiff to apply for summary judgment where the
defendant has no bona fide defence and merely seeks to delay the inevitable.
[12] In Maharaj v Barclays National Bank Ltd,1 the court held that the defendant must
disclose fully the nature and grounds of the defence and the material facts relied
upon therefor. A vague or contradictory averment does not meet this threshold.
[13] Similarly, in Breitenbach v Fiat SA (Edms) Bpk,2 the court held that a defendant
resisting summary judgment must set out the defence with sufficient particularity
to satisfy the court that, if proved at trial, it would constitute a valid defence.
[14] The purpose of summary judgment was restated by the Supreme Court of
Appeal in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture,3 where the court stated:
1 1976 (1) SA 418 (A) at 426A–C.
2 1976 (2) SA 226 (T).
3 [2009] ZASCA 23; 2009 (5) SA 1 (SCA) at [32].
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“The rationale for summary judgment proceedings is impeccable. The procedure
is not intended to deprive a defendant with a triable or a sustainable defence of
her/his day in court.”
Analysis
[15] The respondent’s plea and affidavit are irreconcilable. In its plea, it denies the
existence of an agreement. Yet, in its affidavit, it accepts that an agreement
existed and that KP Lime supplied goods. The respondent cannot approbate and
reprobate.
[16] The acknowledgment of financial hardship by the respondent, both in its plea
and affidavit, confirms that the failure to pay is not due to any legal dispute, but
rather to inability to pay — which is not a defence in law.4
[17] The argument that the debt should not be enforced because the respondent had
a “reasonable expectation of profit” under the Enterprise and Supplier
Development Agreement is misconceived. Contractual obligations are not
suspended by subjective expectations of profitability.
[18] The reliance on the arbitration clause (clause 12.1) is similarly misplaced. The
respondent has not filed an application to stay the proceedings under section
6(1) of the Arbitration Act.5 A mere reference to an arbitration clause in the plea,
without a proper procedural invocation of arbitration, does not oust this Court’s
jurisdiction.6
[19] The respondent’s further complaint that KP Lime attached documents contrary
to Rule 32 is of no moment. Rule 32(2)(b) expressly allows the applicant to annex
documents supporting its claim.
4 See Arend and Another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 303G–H.
5 Act 42 of 1965.
6 See PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Ltd [2007] ZASCA 9; 2009 (4)
SA 68 (SCA) at [7].
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Date of Hearing: 08 October 2025
Date of Judgment: 20 October 2025
Appearances:
For the Applicant: Michael Dafel
Instructed by: Zain Randeree & Suhail Hoosen
For the Respondent: Pieter Coetzee
Instructed by: Baloyi AW & Associates