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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 09/11/2007

CASE NO: 13668/2007

UNREPORTABLE

In the matter between:

FEDERATED TIMBERS (PTY) LTD APPLICANT

And

PHEKGOGA BUSINESS ENTERPRISE CC 1^ST RESPONDENT

MR. KAIZER MAKGOPO PHEKGOGA 2^ND RESPONDENT

POLOKWANDE MUNICIPALITY 3^RD RESPONDENT

JUDGMENT

SERITI, J

1. The plaintiff issued summons against the defendants claiming payment of an amount of R65 999.46, interest at the rate of 17% per annum plus costs on an attorney and client scale.

2. The plaintiff granted credit facilities to the first defendant on certain terms and conditions and the second defendant bound himself as surety and co principal debtor. The involvement of the third defendant is irrelevant at this stage as the plaintiff does not seek any order against the third defendant and I will not deal with the third defendant at all.

3. The plaintiff issued summons against the defendants in respect of goods sold and delivered and services rendered, at the special instance and request of the first defendant. After summons were served, first and second defendants entered appearance to defend, and immediately thereafter, plaintiff launched an application for summary judgment.

4. The first and second defendants opposed the summary judgment application and filed an opposing affidavit. In the opposing affidavit the defendants alleged, inter alia, that the plaintiff has failed to comply with the peremptory provision of rule 32(1) in that plaintiff failed to verify the cause of action, the particulars of claim are excipiable in that they lack averments to sustain a cause of action, etc.

5. From the papers, it is clear that the respondents have not raised any defence as far as the merits of the case are concerned. Respondents raised only technical issues as mentioned in the previous paragraphs. The plaintiff’s counsel in her heads of argument correctly so submitted that the points in limine raised by the defendants have no merit.

The cause of action is properly verified by Mr Theo Willem Coetzee, the Area Credit Manager of the applicant, the particulars of claim contains all the necessary averments to sustain a cause of action against the first and second defendants. The second defendant is sued on the basis of the deed of surety ship. The question whether the plaintiff has a claim or not against the third respondent is irrelevant.

6. The plaintiff has, on the papers made out a case for the relief it seeks in its application. The only difficulty is the question of costs. The amount claimed in this matter, in terms of section 29 of the Magistrate’s Court Act 32 of 1944, read in conjunction with GN1411 of 30 October 1998 falls within the jurisdiction of the magistrate’s court.

7. In my view, the plaintiff instituted this action in the high court instead of instituting same in the magistrate’s court which has jurisdiction to hear this matter. It will be unfair to burden the respondents with high court’s costs. On the other hand, the defendants have incurred high court costs in order to defend the matter.

8. For the reasons mentioned in the previous paragraph. I believe that the plaintiff is not entitled to attorney and client fees, but to party and party costs on the appropriate magistrate’s court scale.

9. The court therefore makes the following order against first and second defendants.

9.1 Payment of the amount of R65 999.46 jointly and severally, the one paying the other to be absolved.

9.2 Payment of interest on the amount of R65 999.46 at the rate of 17% per annum calculated from date of this judgment to date of payment.

9.3 Costs of the plaintiff on the applicable magistrate’s court’s party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

13668/2007

Heard on: 8 May 2007

For the Applicant: Adv M Antwerpen

Instructed by: Messrs Weavind and Weavind Attorneys,

Pretoria

For the Respondents: Adv N M Leballo

Instructed by: Messrs Sekonya Attorneys, Pretoria

Date of Judgment: 9 November 2007

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