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NOT REPORTABLE, 6 SEPTEMBER 2007

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

6 SEPTEMBER 2007

CASE NO: 25063/2007

In the matter between:

RAMANO

APPLICANT/PLAINTIFF

and

MAPHOSA CHABANGO FORMWORK CC DANIEL RUDOLPH HOL TZHAUSER

FIRST DEFENDANT SECOND DEFENDANT

JUDGMENT

MAVUNDLA J.,

[1] This is the reserved judgment of an opposed application for summary

judgment that came before me on the 31 August 2007.

[2] The applicant has already obtained default judgment against the first

defendant on the 21 August 2007 for the payment of an amount of

R223 433,58 plus interest of 15.5% per annum from the date of service of the summons, being the 6 of July 2007. Accordingly, this summary judgment application is only against the second defendant.

[3] The plaintiff alleges in its particulars of claim that on the 16 January 2006,

the plaintiff, dully represented by Cathrina Petronella Magdalia Dias, one of the partners of the plaintiff, and the first defendant, duly represented by the second defendant, who was a member of the first defendant at the time, entered in into a written agreement, a copy of which is attached to the summons as annexure B, of which the express, alternatively implied, alternatively tacit terms were that:

3.1 plaintiffs would make available the construction equipment, which is

listed in annexure B.

3.3 The first defendant would pay rental in the amount of R15, 000, 00

3.4 The rental would be paid in advance to the plaintiff by the first

defendant, on or before the first day of the month;

3.5 the second defendant bound his property, known as Erf 719

Wespark, better known as 20 Maggs, Wespark, in his personal capacity, as surety for the first defendant, for any damages or loss that the plaintiff may suffer, due to the first defendant.

[4] The plaintiff further alleges that it complied with its part of the agreement

by delivering and providing the goods as requested by the first defendant. The plaintiff further alleges that it delivered the total goods to the first defendant, as set out in annexure D. The total rental for the goods hired by the plaintiff accumulated to R30 000,00 per month, as the amount of goods requested by the first defendant increased.

[5] In paragraph 6 of its particulars of claim, the plaintiff further alleges that on

1 September 2006, the first defendant breached the agreement between the parties, due to the fact that first defendant failed to make necessary payment in the amount of R15,000,00 and mains in such breach. In paragraph 7 the plaintiff further alleges that the first defendant has failed to return the goods of and to the plaintiff. It further stated that it brought two applications for the return of these goods but notwithstanding two court orders the first defendant fails to return such goods.

[6] In opposing the summary application the second defendant denies that

he does not have a bona fide denfence against the plaintiff's claim and that he entered a defence merely to delay the action. He says that the plaintiff knew that this is a matter of the nature referred to in rule 32(9)(a), where:

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6.1 the case is not within the terms of rule 32 (1); or

6.2 the plaintiff knew that the second defendant relies on contention

which entitle hi to defendant the matter,

6.3 the court may order that the action be stayed until the plaintiff has paid the costs of the defendant, and it further request that such costs should be taxed as between attorney and client.

[7] The second defendant attacks the plaintiff's locus standi, in that where as

the plaintiff claims as a partnership consisting of three partners, namely (i) Cathrina Petronella Magdellena Dias, (ii) Gil Praqa Dias and (iii) Joss Romano Dias, who trade as Ramanos Engineering, the attached agreement B has an appendix B which purportedly reflects an agreement between a partnership of which the partners are only two, namely (i) Gil Romano Praqa Dias and (ii) Joss Romanos Dias. The second defendant states that the plaintiff has failed to link the plaintiff to the alleged agreement concerned and has failed to show that the rights arising from the alleged agreement somehow have been transferred from "Scaffolding Centre" to the plaintiff. And that therefore the plaintiff has failed to show any grounds entitling it to any relief it seeks.

[8] The second defendant further states that the plaintiff's claim does not fall

within the ambit of rule 32(1) since the allegation in paragraph 8 of the particulars of claim are in respect of damages suffered in the amount of R223,433,58 in respect of arrear rental as well as loss of stock that was allegedly never returned by the first defendant. In paragraph 8 the plaintiff further states that it received a quotation for the replacement costs of the lost of stock as reflected in annexure "I" at page 211. I must hasten to point out that in annexure "I", the amount reflected therein is R235,924.73. The second defendant states that the plaintiff has failed to indicate which amount is for arrear rental and which amount is for the replacement of the stock. He states further that in so far as the claim for loss of stock is

concerned, he denies that same is a liquidated claim falling within the ambit of rule 32(1). He further states that in so far as the plaintiff's claim is for damages as reflected in paragraph 8, such does not fall within the purview of rule 32(1).

[9] The second defendant further avers that whereas the calculation of the

amount of R223, 433,58 is apparently calculated at a rate of R30,000,00 from 1 August 2006 to 1 April 2007, together with interest thereon, as reflected in annexure H, the alleged agreement indicates that rental amount was only R 15,000,00 as reflected in annexure D attached to the particulars of claim, and that the plaintiff has failed to comply with the provisions of rule 18(6) of the Uniform Court Rules. He states that he will resort to rule 18(12) and rule 30.

[10] For the defendant to successfully resist summary judgment, he must

satisfy the Court that he has a bona fide defence. In order to do so he must set out facts, which if proven on trial, wil! constitute a defence to the plaintiff's case; vide Breitenbach v Fiat SA (Edms) Bpk;1_al_so Wilson Bayly Holmes (Pty) Ltd v Maeyane and Others² where the Court said that:

"Summary judgment may be granted if a defendant has not set out in his affidavit facts which if proved at a trial, will constitute an answer to the plaintiff's claim (Brietenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)."

[11] In Maharaj v Barclays National Bank Ltd³ Corbett J.A. said that:

"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 vide defence to

1 1976 (2) SA 226 (TPD) at 228A-E

2 1995 (4) SA 340 at 346f-h

3 1976 (1) SA418 at 426 A-C

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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 or the other party. 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. (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 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 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 sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence. (See, generally, Herb Dyers (pty) Ltd v Mahommed an Another 1965 (1) SA 31 (T); Caltex Oil (SA) Ltd v Webb and Another 1965 (2) SA 914 (N), Arend and Another v Astra Furnishers (Pty) Ltd (supra)4 at 303-4; Shepstone v Shepstone 1974 (2) SA 462 (N) at 467E-H. At the same time the defendant is not required to formulate his opposition to the claim with the precision that would be required of a plea; nor does the Court examine it by the standards of pleading (See Estate Potgier v Elliot 1948 (1) SA 1084; Herb Dyers case supra at 32.)"

41974 (1) SA 289 (C)

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[12] Where the Court is not satisfied that the case of the plaintiff is unassailable, the Court will not grant summary judgment, vide Breitenbach v Fiat SA (Edms) Bpk (supra).5 Section 34 of the Constitution of the Republic of South Africa, Act 108 of 1996 grants "Every person the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum." Having regard to the drastic and stringent nature and effect of summary jUdgment⁶, the Court in the exercise of its discretion, must be slow in shutting the doors of the Court to litigants, but must be influenced by the provisions of section 34 of the Constitution and learn more in granting leave to defendant, unless it is abundantly clear that the defendant does not have a bona fide dence.

[13] Rule 18(4) of the Uniform Court Rules provide that" Every pleading shall

contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the other party to reply." In casu, paragraph 8 of the plaintiff's particulars of claim, in my view, does not with precision indicate how is the amount of R223,433,58 arrived at. There is no clarity as to whether the aforesaid amount is computed on the bases of R15, 000,00 per month rental or the R30,000,00 per month rental.

[14] With regard to the question of locus standi,1 am of the view that there is merit on the point raised by the second defendant. Annexure uB" at paginated page 30 refers to "Scaffolding Centre" partnership consisting of Gil Romano Praqas Dias and Joss Romano Dias. Evidence would have to be lead to create the link between this Scaffolding Partnership, which

5 At 229E-G

6 Beitenbach v Fiat SA (Edms) Bpk (supra at 229G

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contracted with Maphosa & Chabangu Forwork CC (M&C Formwok) (the first defendant), and the Romano Engineering, a partnertship consisting of three partners, one of whom is Cathrina Petronella Magdellena Dias who is the deponent in the summary judgment application. It is correct that, on the face of the pleadings as they stand, that it is not clear how the partnership that consist of the three partners got to be involved in this matter.

[15] Further, in so far as the plaintiff alleges in paragraph 8 of the particulars of

claim that the damages in the amount of R223 433, 58 "by the Plaintiff is for arrear rental as well as loss of stock that was never returned by the First defendant.", the very fact that it is not clear as to what portion of this amount relates to the lost stock, and what amount is in regard to the arrear rentals, I am of the view that the particulars of claim, as they stands, are capable of being excerpted to as being vague and embarrassing.

[16] I am of the view that, I need not look at the issues raised as I would if the

matter was on trial. Alii need to decide is: "(a) whether the defendant has "fully" disclosed the nature and grounds of his defence and the material facts upon which it is founded. (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 fide and good in law. If satisfied on these matters" I must refuse the summary judgment. At this stage I need not plough through the bundle of affidavits that relate to the previous litigation between the two parties, which affidavits have been annexed to the particulars of claim, for me to understand what the plaintiff intended or what the defendant had admitted or not admitted with regard to the rental payable, or what stock was or was not returned. I need not seek the answers in those affidavits to see whether the defendant had at one or other stage admitted the locus standi of the defendant. That evidence

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would come to the fore when the matter is properly ventilated during trial. In the circumstances of this case, I am satisfied that the defendant has demonstrated that the case of the plaintiff is not unassailable. I am therefore of the view that in casu, it would not be proper to close the door of the Court in the face of the defendant and grant the summary judgment. I am of the view that leave to defend must be granted. With regard to cost, I am of the view that the proper cause to take is to order these to be cost in the cause.

[14] In the premises the following order is made:

14.1 The application for summary judgment is refused; 14.2 Leave to defend is granted to the second defendant; 14.3 Cost shall be costs in the cause.

/MP

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A .... ·.···/

·lV

N.M. MA VUNI4l-'A

JUDGE Of3..>1'HE HIGH COURT

'"

HEARD ON THE: 24 AUGUST 2007

DATE OF JUDGMENT: 06 SEPTEMBER 2007

PLAINTIFF'S ATT: MR. SERFONTEIN

PLAINTIFF'S ADV: MR. SCHOEMAN

2ND DEFENDANT'S ATT: MS. SERRAO

DEFENDANT'S ADV: WAGNER

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