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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 1417/2021
In the matter between:
GOSCOR FINANCE (PTY) LTD Plaintiff/Applicant
and
AFRICO BUILDING SOLUTIONS (PTY) LTD First Respondent/Defendant
ANDRE DE JONGH Second Respondent/Defendant
JUDGMENT
MALINDI J
Introduction
[1] This is an application for summary judgment instituted on 12 April 2023, and is
opposed.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
______________ __ ______
DATE SIGNATURE
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[2] The parties are referred to as in the main action.
[3] The issues for determination are as follows:
3.1. Whether the Court has jurisdiction to hear and adjudicate this
application;
3.2. Whether the plaintiff ought to have referred the matter to arbitration;
3.3 Whether the first and second defendants are jointly and severally liable
to the plaintiff;
3.4. Whether the defendants have raised defences to the plaintiff’s claim
which meet the threshold for defences in summary judgment
applications in terms of Rule 32(3)(b) of the Uniform Rules of Court.
3.5. Whether the plaintiff has complied with the requirements in terms of Rule
32 of the Uniform Rules, and made out its case for the relief that it seeks.
[4] The plaintiff’s claim is based in the law of contract.
The legal framework
[5] Rule 32(2)(b) and (3)(b) provide as follows, respectively:
“(2)(b) The Plaintiff shall in the affidavit referred to in sub-rule 2(a) verify the cause of
action and the amount, 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.”
“(3)(b) satisfy the court by affidavit (which shall be delivered before noon on the court
day but one preceding the day on which the application is to be heard) or with the leave
of the court by oral evidence of himself or of any other person who can swear positively
to the fact that he 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.”
[6] The plaintiff has set out its claims and the alleged breaches of the contract by
the defendants.
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[7] Jurisdiction of this court is pleaded by the plaintiff on the basis of clause 15.1
of the Master Rental Agreement,1 which states that the plaintiff may elect to sue
out of the Gauteng Lo cal Division, notwithstanding that the court may not
otherwise enjoy such jurisdiction. It is contended therefore that it is not open to
the defendants to challenge the jurisdiction of the Gauteng Local Division which
is specifically stipulated as the court of jurisdiction at the plaintiff's election
notwithstanding lack of its jurisdiction otherwise.
[8] As to the referral to arbitration issue, t he plaintiff contends that although its
claims arise out of the Main Rental Agreement (the MRA) they do not constitute
a dispute as contemplated in terms of clause 25 of the MRA as the MRA has
been cancelled. It contends therefore that they constitute a contractual claim
that has been breached and can therefore not be resolved through a non -
existent agreement. It contends that clause 25.1 of the dispute resolution clause
supports this contention as it states:
“In a dispute or difference arising between the parties, during the course of its
agreement, ( ‘the dispute’) sh all, within two business days of the disputes being
declared, be referred…”
[9] On the other hand, the defendants refer to clause 25.7 which states that clause
25 shall remain in effect despite a termination of the MRA.
Evaluation
[10] I dispense with the plea of non-joinder first. A plea of non-joinder is competent
if the order granted would adversely affect a party that is not joined to the
proceedings. In this matter the entities referred to by the defendants will not be
affected by any order of this court. This special plea has no merit in the
circumstances.
[11] The defendant s submit that the special plea of jurisdiction and arbitration
constitute bona fide defences. They also challenge the invoiced amounts on
the basis that the rented “Front-End Loader (“FEL”) needed repairs and was
the basis that the rented “Front-End Loader (“FEL”) needed repairs and was
therefore not utili sed as required. They claim , inter alia, that the plaintiff still
1 POC2: CaseLines section 01-19.
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charged rent when it had instructed the first defendant that the FEL was not to
be used under any circumstances pending repairs.
[12] As stated in Maharaj v Barclays Bank Limited 2 the defendant is required to
disclose “a defence which is both bona fide and good in law.”
[13] The defendants rely for their defence on two points of law - jurisdiction and an
arbitration clause . If they are not good in law the defen ces will fail and will
therefore not be bona fide. And, if they are good in law they must be bona fide
defences.
[14] On the question of jurisdiction the defendants rely on Credibility Sponsors CC
v Bosman 3 and Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 4 that
jurisdiction cannot be established merely by agreement between the parties
unless it exists through the traditional factors that establish jurisdiction.
[15] Furthermore, the defendants submit that an arbitration clause survives the
cancellation or lapse of a contract if a dispute arising out of the performance of
such contract is arbitrable.
[16] Clause 25.7 of the MRA is a restatement of the law in this regard. The law is
that the arbitration clause is excisable from the contract and it survives it for
purposes of resolving disputes arising out of the performance of the contract. 5
This is a good point of law and will on its own result in an action being held in
abeyance pending arbitration.
[16] Whether the MRA was entered into in Kempton Park or Postmasburg is a matter
in dispute between the parties . At this stage it is not required of the court to
determine this in its finality. As was stated in Maharaj (supra):
“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
2 1976(1) SA 418 (A) at 426.
2 1976(1) SA 418 (A) at 426.
3 [2001] 2 All SA 286 (T).
4 1987 (4) SA 883 (A).
5 Scriven Bros v Rhodesian Hides and Produce Co. Ltd and Others 1943 AD 393 at 401
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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.
…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 particulari ty
and completeness to enable the Court to decide whether the affidavit discloses a bona
fide defence.”
[17] This is a genuine triable issue on jurisdiction and should not be decided in a
summary judgment.
Conclusion
[18] The defendants have raised two points of law - on jurisdiction and whether the
matter is subject to arbitration and therefore that the court should refer the
matter to arbitration unless compelling circumstances dictate that it should
assume jurisdiction. The plaintiff has not pleaded such circumstances.
[19] On territorial jurisdiction, a party may consent to jurisdiction of a court of another
level, for example, to the jurisdiction of a higher or lower court which would
otherwise have jurisdiction. They may not clothe a court with jurisdiction which
it otherwise does not have.
[19] The acknowledgement of debt, whether made before the institution of
proceedings, does not determine the question of arbitration. What is required
is that the dispute arises out of the execution of the MRA whether extant of
terminated.
[20] I have come to the conclusion that the application for summary judgment stands
to be dismissed.
[21] I therefore make the following order:
1. The application for summary judgment is dismissed.
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2. The applicant is to pay the cost of the application, including cost s of
counsel at scale B.
3. The defendants are to pay the reserve d costs of 14 November 2023
jointly and severally, the one paying and the other to be absolved,
including costs of counsel at scale B.
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G MALINDI, J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES
For the Plaintiff/Applicant: A Whitaker
Instructed by: Knowles Husain Lindsay Inc
For the Defendants/Respondents: No appearance
Instructed by: Issued notice of withdrawal
Date of hearing: 11 March 2024
Date of judgment: 22 December 2025