Mali J
[1] This is an application for summary judgment for the payment of the sum of R47
079.82 (Forty -seven thousand and seventy -nine rand and eighty -two cents)
payable. The applicant is a company duly registered within the laws of the
Republic, which specializes in installations, repairs and maintenance of electric
pumps and among other engineering works. The respondent is a company duly
registered within the laws of the Republic.
[2] The claim arises from a written agreement concluded between the parties
during February 2024 for the supply and installation of a condenser pump and
related components for an Ammonia Refrigeration Plant at a third-party site.
The Contractual Background
[3] On or about 26 February 2024, the parties concluded a written contract in terms
of which the applicant undertook to supply specified parts, a new condenser
pump, and to perform installation work. The agreed contract price was R75
721.59, fixed and firm, not subject to escalation or exchange rate fluctuations,
and exclusive of VAT (“the Order Price”). The respondent undertook to pay a
deposit of R60 000.00, however the respondent paid only R40 000.00. Despite
the short payment, the applicant proceeded with and completed the works in
accordance with the agreement.
[4] The respondent has failed to pay the outstanding balance of R47 079.82,
notwithstanding demand. The applicant thereafter instituted action proceedings
and now seeks summary judgment.
The Respondent’s Defence
[5] The respondent raises, in essence, the following defences:
(a) That the contract was valid only from 20 February 2024 until 4 March 2024;
(b) That no written agreement was concluded e xtending the contract beyond
March 2024 as required by clause B.1.17.3 of the agreement;
(c) That the payment of R40 000.00 was made pursuant to a verbal agreement
concluded after the alleged lapse of the contract;
(d) That the invoice relied upon does not constitute a liquid document because
the underlying contract was invalid.
Clause B.1.17.3 of the agreement provides:
“No alteration, variation, amendment or modification of the Order or any of the
terms hereof shall be of any force or effect unless reduced to writing and signed
by or on behalf of the parties.
The Applicable Legal Principles
[6] Summary judgment is an extraordinary and stringent remedy. Its purpose is to
enable a plaintiff with a clear case to obtain swift enforcement of a claim where
the defendant has no bona fide defence.
[7] In Maharaj v Barclays National Bank Ltd 1, the Appellate Division held that a
defendant resisting summary judgment must satisfy the court that he or she has
a bona fide defence and must fully disclose the nature and grounds thereof and
the material facts relied upon. In Joob Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture 2, the Supreme Court of Appeal reaffirmed that
summary judgment is intended to prevent sham defences and delay. More
recently, in Majola v Nitro Securitisation 3, the court reiterated that where a
defendant fails to disclose a genuine and triable defence, summary judgment
must follow.
1 1976 (1) SA 418 (A) 426.)
2 [2009] 3 All SA 407 (SCA) (27 March 2009)
3 2012(1) SCA 226, para 25.
[8] Following the amendments to Rule 32, in Tumileng T rading CC v National
Security and Fire (Pty) 4 Ltd confirmed that the core enquiry remains whether
the defendant has disclosed a bona fide defence to the claim.
[9] A claim for a fixed and agreed contractual amount constitutes a claim for a
liquidated amount of money within the meaning of Rule 32.
Evaluation
[10] Regarding the alleged lapse and non -variation clause, the respondent’s
principal defence is that the contract lapsed on 4 March 2024 and was not
revived in writing as required by clause B.1.17.3. It is, however, common cause
that the applicant performed the work and that the respondent accepted and
benefited from such performance. The respondent cannot accept performance
and thereafter rely on an alleged technical lapse to avoid its reciprocal
obligation to pay.
[11] In SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren5, the Court upheld the
enforceability of non-variation clauses. Nevertheless, the Shifren principle does
not permit a party who has accepted full performance to evade payment based
on a technical argument unrelated to the quality or existence of performance.
Moreover, a waiver may arise from conduct. In Nkengana v Schnetler 6, the
court held that a party may waive strict compliance with contractual provisions,
and such waiver may be inferred from conduct.
[12] The respondents’ payment of R40 000.00 and its acceptance of completed
performance are inconsistent with an intention to treat the contract as having
lapsed.
[13] On reciprocity t he agreement is a bilateral contract involving reciprocal
obligations. In Botha and Another v Rich NO and Others 7, the Constitutional
Court emphasised that bilateral contracts are cooperative ventures grounded
4 [2020] ZAWCHC 28
5 1964 (4) SA 760 (a)
6 [2010] ZASCA 64; para 13
7 [2014] ZACC 11
in reciprocity and good faith. Where one party has rendered full performance,
the other is obliged to render its counter -performance unless a recognised
defence exists. The following is instructive:
“Bilateral contracts are almost invariably cooperative ventures where two parties have
reached a deal involving performances by each in order to benefit both. Honouring
that contract cannot therefore be a matter of each side pursuing his or her own self -
interest without regard to the other party’s interests. Good faith is the lens through
which we come to understand contracts in that way. In this case, good faith is given
expression through the principle of reciprocity and the exceptio non - adimpleti
contractus.”
[14] The respondent does not allege defective performance nor invoke the exceptio
non- adimpleti contractus. Its defence rests solely on alleged invalidity arising
from n on-compliance with the non -variation clause. That defence is
unsustainable considering the undisputed performance and acceptance
thereof.
[15] Pertaining the defence of unliquidated amount and bona fide defence the
applicant’s claim is for a fixed contractual a mount less payment received. The
indebtedness is readily ascertainable. In Breitenbach v Fiat SA (Edms) Bpk 8,
the court held that a defendant opposing summary judgment must set out facts
which, if proved, would constitute a defence in law. Bald or technic al defences
do not suffice.
[16] The respondent has failed to disclose facts which, if established at trial, would
constitute a valid defence against the claim for payment. The defence is
technical, inconsistent with the respondent’s conduct, and does not raise a
triable issue.
8 1976 (2) SA 226(T) at 227G-228B