IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL DIVISION: PIETERMARITZBURG
Case No: 427/25P
In the matter between:
AFRI IN TRANSIT (PROPRIETARY) LIMITED PLAINTIFF
(Registration number: 2016/123531/07)
and
NOMAPHASI TRANSPORT AND LOGISTICS DEFENDANT
PROPRIETARY LIMITED t/a RT COAL
(Registration number: 2019/613569/07)
___________________________________________________________________
ORDER
The following order is made:
1. The defendant’s first special plea is dismissed.
2. The defendant is ordered to pay the sum of R913 866.97 to the plaintiff ;
3. The defendant is ordered to pay interest on the aforesaid amount at the rate of
11.5%, calculated from the date of 1 December 2023;
4. The defendant is ordered to pay the costs of the summary judgment application.
5. The defendant is granted leave to defend the balance of the plaintiffs claim in
the action with cost to be in the cause.
2
JUDGMENT
Pillay AJ:
[1] The plaintiff, Afri In Transit (Pty) Ltd, instituted an action against the defendant
Nomaphasi Transport and Logistics Proprietary Limited (Nomaphasi) trading as RT
Coal. The plaintiff’s action is for payment of the sum of R8 519 837 (eight million, five
hundred and nineteen thousand, eight hundred and thirty-seven rand) together with
interest.
[2] The defendant entered an appearance to defend the action and delivered two
special pleas and a plea to the merits of the claim. The plaintiff filed an application for
summary judgment accompanied by a sworn statement alleging that the defendant
has not disclosed a bona fide defence against the plaintiff's claim and that that the
defendant admits a number of essential allegations in the plaintiff's particulars of claim.
[3] In resisting summary judgment, the defendant’s special pleas relate to that of
non-joinder and misjoinder, whilst its main defence to the claim is that it has
established a bona fide defence which requires that the issues in dispute require
ventilation at trial.
[4] There is accordingly one issue for determination, that being whether the
defendant has disclosed a bona fide defence to the plaintiff’s claim. It is necessary to
consider the plaintiff’s pleaded case and whether the defendant has raised a triable
and bona fide defence.
[5] The plaintiff alleges that during or about January 2023, the plaintiff and
defendant entered into an oral agreement, under which the plaintiff was to periodically
acquire coal from the defendant. In concluding the agreement as aforesaid, the plaintiff
was duly represented by Makame Monnakgotla (‘Mr Monnakgotla’), alternatively
3
another duly authorized representative of the plaintiff, and the defendant was duly
represented by Makusi Richard Mazibuko (‘Mr Mazibuko’).
[6] It was agreed that the defendant would, for each individual order received,
furnish and transport coal, to the plaintiff, with the cost of each delivery to be mutually
established by both parties at the time the order was placed, and that the plaintiff would
make payment in advance to the defendant for each order of coal before it was
delivered to the plaintiff.
[7] During or about June 2023, the plaintiff ordered 5 000 tons of coal from the
defendant, at a price of R600 per ton excluding value added tax (VAT), for the
aggregate amount of R3 450 000 inclusive of VAT. The defendant issued an invoice
to the plaintiff for the sum of R3 450 000.
[8] In July 2023, the plaintiff ordered a further 10 000 tons of coal from the
defendant, at an agreed price of R600 per ton, excluding VAT, for the aggregate
amount of R6 900 000. The defendant again invoiced the plaintiff in aforesaid amount.
Consequently, based on the invoices issued, the defendant was obliged to supply and
deliver a total of 15 000 tons of coal for the total cost of R10 357 000.
[9] The plaintiff alleges that it duly performed its obligations in terms of the
agreement and remitted three separate payments, each amounting to R3 450 000, to
the defendant on the specific dates of 30 June 2023, 31 July 2023, and 7 August 2023.
[10] The plaintiff alleges that the defendant breached the terms of the agreement by
failing to deliver the full quantity of coal that the plaintiff ordered. The plaintiff alleges
that the defendant only delivered 2 652 tons of the 15 000 tons of coal that it ordered,
and for which the plaintiff paid for and accordingly failed to deliver 12 348 tons of coal.
[11] Following the defendant's breach of contract, the plaintiff cancelled the
agreement and communicated its election to the defendant. The plaintiff pleads in the
agreement and communicated its election to the defendant. The plaintiff pleads in the
alternative that the parties orally agreed to terminate the agreement in November
2023, and that it became entitled to claim restitution in the amount of R8 519 837.
4
[12] On the 12 January 2024, the defendant, duly represented by Mr Mazibuko,
acknowledged the outstanding quantities of coal in the amount of 12 900 tons and
recorded that the defendant undertook to repay the plaintiff in monthly instalments of
R1 500 000. The defendant had simultaneously provided a payment reconciliation for
4 140 tons of coal to be taken into account.
[13] The defendant in its first special plea of misjoinder, alleges that the entity known
as Nomaphasi exists separately from the entity known as RT Coal (Pty) Ltd, which has
the registration number: 2019/535475/07 (‘RT Coal’) and that the plaintiff ought to
have joined the two entities and cite them separate from each other.
[14] It is clear that the plaintiff has named only one entity as the defendant , that
being Nomaphasi Transport and Logistics (Pty) Ltd, registered under number
2019/613569/07, which conducts business as RT Coal. It is also undisputed that this
particular entity was the one that issued the invoices to the plaintiff and received the
payments previously mentioned. The invoices, which the defendant acknowledges,
explicitly list the defendant's business trading name. The defendant’s first special plea
is accordingly without merit and does not constitute a bona fide defence.
[15] The defendant's second special plea of non-joinder, relates to the omission of
a necessary party, that being Mamokebe Investments (Pty) Ltd, or ‘Mamokebe’, which
entity allegedly owes 4 140 tons of coal to the plaintiff. The plaintiff has countered this
special defence by pointing out that the current claim does not seek the delivery of
coal, as the plaintiff is seeking the reimbursement of funds previously paid to the
defendant for coal that was never delivered.
[16] I agree that the particulars of claim clearly demonstrate that the plaintiff's claim
is against the defendant, and that it is entitled to sue the defendant it alleges is
is against the defendant, and that it is entitled to sue the defendant it alleges is
indebted to it. The allegation that the plaintiff allegedly sued the wrong party, which is
in any event was not supported by the common cause documents, is not a basis for a
special plea of misjoinder.
[17] The determination of whether all interested parties have been properly included
in a specific action is dependent on how and to what degree, a court's eventual ruling
5
might impact the interests of third parties. The test is, therefore, whether or not a party
has a direct and substantial interest in the subject-matter of the action, that is, a legal
interest in the subject-matter of the litigation which may be affected prejudicially by the
judgment of the court.
1
[18] The second special plea is premised on the contention that there is a non-
joinder of Mamokebe, an entity which has an interest in the relief claimed against the
defendant, being repayment of amounts paid to the defendant by the plaintiff. The
affidavit resisting summary judgment also makes reference to the second special plea
and the involvement of Mamokebe.
[19] It is clear that the plaintiff makes the election as to the party that it intends to
sue. The party that the plaintiff elects to sue is based on its pleaded case, and which
in this case is the defendant. The plaintiff has pleaded that it is the defendant that is
indebted to it, and if the court finds that the defendant is not the correct debtor, then
the plaintiff’s claim must fail, as the incorrect party would have been sued.
[20] In Shingadia v Shingadia,
2 Goldin J summed up the position as follows: -
‘There is also authority for the view that a defendant has been allowed to demand a joinder of
a party as of right in cases of joint owners or joint contractors and partners, in all of which
cases there exists a joint financial or proprietary interest (see Morgan and Another v Salisbury
Municipality 1935 AD 167; Amalgamated Engineering Union v Minister of Labour 1949 (3) SA
637 (AD)). In my view the defendant's contention is not without substance and he has put
forward a triable and arguable issue which is sufficient ground for the refusal of an application
for summary judgment.’
[21] The defendant’s second special plea is also linked to the defendant’s main plea
insofar as the involvement of Mamokebe is concerned. The defendant denies that it
insofar as the involvement of Mamokebe is concerned. The defendant denies that it
had the duty to deliver 15 000 tons of coal to the plaintiff and alleges a further oral
agreement whereby the parties agreed over time that Mamokebe would deliver coal
to the plaintiff equivalent to 4 140 tons.
1 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 657; Henri Viljoen (Pty)
Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 168 - 170.
2 Shingadia v Shingadia 1966 (3) SA 24 (R) at 26D-F.
6
[22] The defendant further pleaded that that due to operational disturbances at the
mine, it had committed to undertaking mining construction work for the plaintiff at an
alternative location, specifically the Foloyi Mine. The understanding was that the cost
of these services would be offset against any existing financial obligations.
[23] According to the oral agreement that the defendant places reliance, the parties
agreed that the defendant will provide a payment reconciliation at the end of 2024 with
respect to the repayment. The 4 140 tons that Mamokebe must deliver to the plaintiff
were invoiced at R690. per ton (VAT inclusive) under the parties’ agreement. This is
notwithstanding an extra payment of R300 000 made by the defendant to the plaintiff
on 2 May 2024.
[24] A reconciliation dated 2 May 2024 is attached to the defendant ’s plea and
makes reference to several payments in relation to work done in January 2024 and
compensation by the task force. The reconciliation takes into account payment of
R300 000 and a total balance of R913 866.97.
3
[25] In resisting summary judgment, the defendant, contends that the affidavit in
support of the application for summary judgment does not comply with regulation 2(a)
of the Regulations Governing the Administration of an Oath or Affirmation (‘the
Regulations’).
4 The plaintiff has correctly pointed out that the Regulations do not
contain a regulation 2(a), and that there is no requirement that the Commissioner of
Oaths has to initial each page of an affidavit. Regulation 4(2) (a) mandates that the
Commissioner of Oaths to sign the declaration and print his full name and business
address below his signature.
[26] The absence of a requirement for the Commissioner of Oaths to initial every
page of a sworn statement has been affirmed in various decisions. The defendant’s
3 Defendant’s plea, page 42, annexure “B”.
4 Regulations Governing the Administration of an Oath or Affirmation GN R1258 in GG 3619 of 21 July
1972.
7
counsel did not persist with this point during argument.5 I take the view that such a
technical point must be rejected.6
[27] It is clear, that apart from the various special pleas, the defendant’s main
opposition to summary judgment is that it has a valid bona fide defence because it
already refunded or settled the plaintiff’s outstanding monies. The defendant alleges
that outstanding monies were sufficiently defrayed and that its affidavit and plea show
there is a genuine factual dispute between the parties.
[28] The defendant alleges that the amounts claimed by the plaintiff are incorrect
and that confirmation of performance in accordance with the oral agreement remains
a triable issue.
[29] In assessing the various defences raised and whether the defendant's
assertions amount to unsubstantiated claims it is necessary to examine the plea in
conjunction with the opposing affidavit and take into account any discrepancies
between these two documents. Insofar as the oral agreement contended for by the
plaintiff is concerned, there is no dispute that the plaintiff effected three payments of
R3 450 000 to the defendant on 30 June 2023, 31 July 2023, and 7 August 2023.
[30] The defendant has further acknowledged the outstanding quantities of coal in
the amounts of 12 900 tons and undertook to repay the plaintiff in monthly instalments
of R1 500 000. The acknowledgement which is attached to the plaintiff particulars of
claim also records that the defendant attached a revised payment reconciliation for the
plaintiff’s approval which had taken the 4 140 tons into account as per the latest
instruction from the Task Force, and that the defendant awaited further advice.
[31] In a letter of demand from the plaintiff dated 11 July 2024, the plaintiff
acknowledged the existence of a further agreement and recorded as follows:
5 Minister of Safety and Security and Others v Mohamed [2010] 4 All SA 538 (WCC) para 26. See also
Q4 Fuel (Pty) Ltd v Ellisras Brandstof en Olieverspreiders (Pty) Ltd and Others [2021] ZA LMPPHC 81
para 20, and O'Connor v Lexisnexis (Pty) Ltd (2024) 45 ILJ 1287 (LC) paras 60-61.
6 Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk 1979 (3) SA 391 (T) at 399A-B.
8
‘At the time when the Agreement was terminated, RT Coal had failed to deliver approximately
12 348 tonnes of Product to our client (which Product was valued at a total sum of R8 519
837.00 (eight million five hundred and nineteen thousand, eight hundred and thirty-seven
Rand) to our client despite being paid for same. The parties then agreed that RT Coal would
render services to our client to reduce the debt which RT Coal owed to it. We are instructed
that for various reasons, this arrangement only persisted for three months, and that the debt
was only reduced by R 909 150.00 (nine hundred and nine thousand one hundred and fifty
Rand) during this time.’
7
[32] The defendant has expressly maintained in its plea that the amount of R2 250
000, should have been paid by the plaintiff to the defendant, and that the plaintiff has
not addressed or disputed this claim and that such is an issue that needs to be decided
by a trial court.
[33] These averments by the defendant constitute material facts relied upon by the
defendant, and are in harmony with the affidavit resisting summary judgment where
the defendant alleges that ‘the applicant ought to have paid to the respondent a sum
in the amount of R2 250 000’. 8 In resisting summary judgment, the defendant also
alleges that it has fulfilled its obligations, by performing and delivering in accordance
with the oral agreement as specified in paragraph 8.2 of the its Plea.
[34] I have also taken into account the plaintiff ’s claim that in January 2024, the
defendant acknowledged the outstanding quantities of coal of 12 900 tons and that it
undertook to repay the plaintiff in monthly instalments of R1 500 000. Mr Prinsloo, for
the plaintiff, contended that the defendant failed to place this document in dispute and
that it is deemed to be admitted. Whilst I accept that the defendant had simply noted
the allegations pertaining to its acknowledgment and undertakings, the defendant’s
the allegations pertaining to its acknowledgment and undertakings, the defendant’s
failure to expressly deny the allegations is not dispositive of that issue.
7 Pleadings, page 19, annexure “POC7”.
8 Tumileng Trading CC V National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) para 25.
9
[35] Mr Prinsloo referred the court to the decision in NPGS Protection and Security
Services CC and Another v Firstrand Bank Limited 9 where the court outlined the
applicable principles as follows:
‘Rule 32(3) of the uniform rules requires an opposing affidavit to disclose fully the nature and
grounds of the defence and the material facts relied upon therefor. To stave off summary
judgment, a defendant cannot content him- or herself with bald denials, for example, that it is
not clear how the amount claimed was made up. Something more is required. If a defendant
disputes the amount claimed, he or she should say so and set out a factual basis for such
denial. This could be done by giving examples of pay ments made by them which have not
been credited to their account.
[13] As counsel for the respondent correctly submitted in his heads of argument, the appellants
did not deny the respondent's allegation that moneys were lent and advanced to NPGS in
terms of the credit facility, or that the credit facility was increased at the special instance and
request of NPGS. Furthermore, the appellants have not complained that NPGS never received
statements showing the balance of the moneys owed. It is also instructive that the appellants
do not assert that any repayment of these moneys lent and advanced has been made. Their
silence leads ineluctably to the conclusion that they were unable to meet the respondent's
allegations. In my view the defences raised by the appellants fall within those characterised
as “sham defences” by this court in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek
Joint Venture 2009 (5) SA 1 (SCA) ([2009] ZASCA 23) paras 31 and 33. There is no merit in
any of them.
[14] Indeed, the court would be remiss in its duties if such defences, clearly devoid of any
bona fides, stand in the way of plaintiffs who are entitled to relief. The ever increasing
perception that bald averments and sketchy propositions are sufficient to stave off summary
perception that bald averments and sketchy propositions are sufficient to stave off summary
judgment is misplaced and not supported by the trite general principles developed over many
decades by our courts. See, for example, the well-known judgment of this court in Maharaj v
Barclays National Bank Ltd 1976 (1) SA 418 (A) where the proper approach to applications
for summary judgments is stated.’ (Footnotes omitted, my emphasis.)
[36] The document sought to be relied upon by the plaintiff , whilst referred to by the
plaintiff as an acknowledgment of debt, must be read in context of documents making
reference to the revised payment reconciliation and instructions from the task force. I
9 NPGS Protection & Security Services CC and Another v FirstRand Bank Ltd [2019] ZASCA 94; 2020
(1) SA 494 (SCA) .
10
am of the view that the document does not meet the requirements of a liquid document
in that it does not stipulate the exact amount of the debt, the exact payment terms and
or acknowledgment for payment of the amount of R8 519 837. The defendant ’s
opposition in fact discloses that there was an additional oral agreement . The
circumstances of such oral agreement may amount to a set-off and may very well
establish that the amount of R8 519 837 is inaccurate.
[37] It cannot be said that the defendant has tendered a bald denial. It has alleged
a further oral agreement, which appears to be supported by the supporting
documentation by both parties, and which brings into question the correct amount that
is owed to the plaintiff. Whilst the plaintiff has referred to these amounts as arbitrary,
such a determination and the computation of such alleged arbitrary amounts are an
issue which should be ventilated at trial.
[38] The Uniform Rules of Court clearly explain under what circumstances a plaintiff
may claim summary judgment. The applicable rule is rule 32(1), and it reads as follows:
‘The plaintiff may, after the defendant has delivered a plea, apply to 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.’
[39] It is clear from Uniform rule 32(1) that only claims fitting one of the four
prescribed categories are suitable for summary judgment; claims that cannot be so
classified must go to trial. The amount of R8 519 837. has been placed in dispute as
a consequence of another oral agreement alleged by the defendant. It cannot be said
that the defendant’s reliance on that oral agreement is not bona fide. I am also of the
view that the defendant is entitled to place in dispute that it is the incorrect party before
view that the defendant is entitled to place in dispute that it is the incorrect party before
court. The defendants second special plea is thus an issue which the trial court would
be in a better position to determine as such issue remains a factual dispute.
11
[40] I am of the view that the payment reconciliation relied upon by the defendant
and attached to the plea records ‘Foloyi work done’ and several other amounts,
including a payment of R300 000 should be ventilated at trial. The defendant however
acknowledges at the very least that it is liable for the amount of R913 866.97. It
provides no information that this amount has been paid and does not seek to tender
any sustainable or bona fide defence that it does not owe this amount.
[41] In Standard Bank of South Africa Ltd v Friedman ,
10 the court summed up the
position as follows:
‘I think it is abundantly clear what Rule 32(3)( b) requires of a defendant who deposes to an
affidavit to resist summary judgment. I also think that the time has come for courts to be slower
in coming to the rescue of defendants who have not properly complied with the provisions of
Rule 32(3)(b). In my view it will restore the purpose of the procedure which in recent years
has lost ground due to the reluctance of courts to shut a defendant out without a proper
ventilation of the dispute, even where the defe ndant has not made out a proper case on the
papers to avoid summary judgment. To my mind, if a defendant is so shut out, it cannot blame
the court or anyone else; it must shoulder the blame alone because no court will grant
summary judgment where a defendant has properly discharged the onus upon it in terms of
the applicable rule.
If courts do not adopt this approach the efficacy of this procedure will be at risk, and the time
may soon come to enquire whether the continued existence of such a procedure is justified
among the Rules of court.
A bona fide defence is disclosed if the defendant swears to a defence, valid in law, in a manner
that is not inherently or seriously unconvincing ( Breitenbach v Fiat SA (Edms)
Bpk 1976 (2) SA 226 (T) at 228B–C).
If the defence is averred in a manner which appears in all the circumstances to be needlessly
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 fides (Breitenbach v Fiat, supra, at 228E–F).’
[42] Rule 32(6)(b)(ii) provides that:
‘If on the hearing of an application made under this rule it appears —
(a) …
(b) that the defendant is entitled to defend as to part of the claim,
the court shall —
10 Standard Bank of South Africa Ltd v Friedman [1999] 1 All SA 142 (C) at 148.
12
(i) …
(ii) give leave to defend to the defendant as to part of the claim and enter judgment
against such defendant as to the balance of the claim, unless such balance has
been paid to the plaintiff’.
[43] The determination of summary judgment in circumstances where a bona fide
defence has been disclosed to part of the claim and where the defendant had not been
able to disclose a defence to part of the claim has been also pronounced upon in
Maharaj v Barclays National Bank Ltd,
11 where Corbett JA said:
‘If on the hearing of the application it appears that the defendant is entitled to defend as to part
of the claim, then, in terms of Rule 32 (6), the Court is bound to give him leave to defend as
to that part and to enter judgment against him for the balance of the claim, unless he has paid
such balance into 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 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
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
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 suffici ent particularity
and completeness to enable the Court to decide whether the affidavit discloses a bona
fide defence.'
[44] The defendant clearly had no defence to this claim, let alone a bona fide one.
It was clear to the defendant from a conspectus of the affidavit in support of summary
11 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 425H–426E.
13
judgment that the plaintiff alleged that ‘According to Annexure ‘B’, and even after
deducting the arbitrary amounts provided for in the said document from amounts owing
to the Plaintiff, the Defendant is left with an indebtedness to the Plaintiff in the amount
of R 913 866.97…’. This allegation was met with a bald denial and cannot be bona
fide in circumstances where the document was attached by the defendant and was
based on the defendant’s own reconciliation. Had there actually been any bona fide
defence available to the defendant in relation to the defendant’s indebtedness for the
amount of R 913 866.97 , such a defence should have been set out in the affidavit
resisting summary judgment. Liability to pay R913 866.97 is not challenged and is in
fact an amount which the defendant has reconciled and acknowledged. The
defendant’s inability to tender a defence constitutes a clear case for the plaintiff’s claim
for summary judgment.12
[45] I am satisfied that there is no reason to deviate from the principle that costs
should follow the result in the circumstances of this matter. The plaintiff was entitled
to proceed with summary judgment upon receipt of the defendant’s reconciliation,
which recorded its indebtedness for the amount of R913 866.97. The plaintiff has
succeeded in establishing that the defendant has not availed itself of a bona fide
defence for the amount of R913 866.97, which it has reconciled itself to being owed to
the plaintiff.
Order:
[46] In the result, I make the following order:
1. The defendant’s first special plea is dismissed.
2. The defendant is ordered to pay the sum of R913 866.97 to the plaintiff ;
3. The defendant is ordered to pay interest on the aforesaid amount at the rate of
11.5%, calculated from the date of 1 December 2023;
4. The defendant is ordered to pay the costs of the summary judgment
application;
5. The defendant is granted leave to defend the balance of the plaintiffs claim in
the action with costs to be in the cause.
the action with costs to be in the cause.
12 JNO G Teale & Sons (Pty) Ltd v Vrystaatse Plantediens (Pty) Ltd 1968 (4) SA 371 (O) at 374H.
Heard on: 9 October 2025
Delivered on: 12 December 2025
Appearances
For the applicant: Mr D Prinsloo
14
D Pillay AJ
Acting Judge of the H igh Court of South Africa
Instructed by: Beech Veltman Incorporated
For the respondent: Ms T Nqcobo
Instructed by: Ndlovu AZ. Attorneys