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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)

 

Case No: A15/22

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3)REVISED:  YES

DATE: 03/05/2024

SIGNATURE

 

In the matter between:

 

Siyaphula Engineering                                    First Appellant

 

Mark Kevin Ndlovu                                          Second Appellant

 

And

 

Waco Africa Proprietary Limited                    Respondent

 

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10:00 on 03 May 2024.

Judgment

 

Phahlamohlaka AJ (with Mankge J concurring)

 

[1] This is an appeal against the whole Judgment and order of the magistrate’s court at Amersfoort per magistrate Mr Haasbroek granting summary judgment against the appellants for payment of the sum of money with costs on attorney and client scale.

 

[2] The respondent’s claim in the court a quo is premised on a written agreement of hire whereupon the respondent leased to the first appellant certain Mobile (Modular) housing units and a deed of surety by the second appellant. According to the respondent the contract period was between June and December 2019. However, there was an automatic renewal which would run on a month-to-month basis. The appellants are disputing the existence of any contract between the parties, let alone the automatic renewal clause.

 

[3] The appellants filed notice of appeal out of time, but they filed an application for condonation for the late filing of the appeal. The appellants ascribed the delay to the fact that their erstwhile attorney has retired and handed the appellants file to another firm of attorneys without the appellants instructions. The delay was therefore, according to the appellants, occasioned by the attorneys not filing the appeal on time.

 

[4] The condonation application was not opposed and given the fact that the delay was caused by the legal representatives who had a duty to advise the appellant properly, I am satisfied that the appellant gave a full and satisfactory account for the delay. Consequently, condonation for the late filing of the appeal ought to be granted.

 

[5] The appellants’ grounds of appeal can be summarised as follows:

 

5.1 That the court a quo ought not to have found that the respondent had made out a case for summary judgment.

 

5.2 That the court a quo erred by finding that the contract giving rise to the dispute between the parties was signed by the second appellant whereas it was not signed by the second appellant.

 

5.3 That the court a quo erred by finding that the agreement between the parties extended beyond a period of six months on a month-to-month basis.

 

5.4 The court a quo ought to have found that the appellants raised a bona fide defence and/or triable issues.

 

[6] It is now settled that the party seeking summary judgment must show that there is no genuine dispute of facts and that the legal issues can be decided on the basis of the evidence before the court. On the contrary, the defendant who elects to oppose a summary judgment application must show in their opposing affidavit that they have a bona fide defence in the action. A bona fide defence was defined in Maharaj v Barclays National Bank Ltd[1]  to be a defence that is good in law and pleaded with sufficient particularly.

 

[7] In the unreported judgment of the then WLD in PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Ltd[2], the judgment that was upheld by the SCA[3], Tsoka J said the  following: “… if the plaintiff has an unanswerable claim against the defendant and the defendant has no bona fide defence to the claim of the plaintiff, and the notice of appearance to defend was filed solely for the purposes of delay, the plaintiff would be entitled to summary judgment. The plaintiff is entitled to a quick remedy rather than to wait for a long period.”

 

[8] If the defendant raises triable issues in their affidavit the court must be reluctant to grant summary judgment because granting summary judgment under those circumstances would be to deny the defendant an opportunity to present its case at the subsequent trial.

 

[9] In the heads of argument[4], counsel for the appellants gives the following background facts:

 

 “2.1 In 2019 and in a representative capacity as the director of the first appellant the second appellant negotiated a contract for the rental of the containers with the respondent. The respondent in turn sought to confirm the credit worthiness of the appellants and wanted to do background checks of both appellants and thereafter conclude a written agreement with the first appellant.

 

2.2 in an attempt to circumvent the background checks sought by the respondent and in order to avoid delays in concluding the contracts, the second appellant in his representative capacity negotiated another contract by making a counteroffer to the respondent.

 

2.3 the counteroffer was to the effect that the first appellant will pay to the respondent all the monies upfront for the duration of the contract which was a period of seven months. This was accepted by the respondent. The acceptance of the counteroffer by the respondent nullified all negotiations that initially took place before the parties. The counteroffer became binding on the first appellant and the respondent.

 

2.4 Once the duration of the agreed contract (based on counteroffer) between the parties had expired, that was the end of the contract. There were no subsequent contract(s) concluded by the parties” `

 

[11] The appellants contend that the contract relied upon by the respondent is disputed by the appellants, especially the signature of the second appellant. The appellants further argue that the respondent had a duty to prove that the signature is indeed that of the second appellant and this could only be determined in trial. Counsel for the appellants contends that the signature on the alleged agreement is disputed but in the same breath it was submitted before the court a quo that the amount agreed upon has been paid fully in advance. On the automatic renewal clause, Counsel for the appellants submitted that “these standard clauses appear to have slipped through the cracks and were not agreed on”. This argument contradicts the appellants' argument that the signature appearing on the agreement is not that of the second appellant.

 

[12] The appellant further argued that the claim is not based on a liquid document and that the amount of the claim is not a liquidated amount.

 

[13] The court a quo found that by August 2020 the first appellant had fallen in arrears and was no longer prepared to honour the lease agreement. In fact, the appellants sublet the equipment. This is evidenced by an email from m[...] dated 25 August 2020 which reads as follows: “Hi Jacqueline, I hope this finds you well. Our telephonic discussion on the 21st of August refers as I indicated that day this container rental agreement arrangement is simply not working for me. I still maintain that I do not want to continue with the arrangement anymore. It is a struggle to get the payments on a monthly basis as the different contractors get appointed during the course of the month and yet I am expected to pay rentals on the 1st of every month. One of the units in the cold stock yard got burned on or around 21st August and I do not have a clue what happened towards this responsibility.”

 

[14] Therefore, the argument that the agreement was only for seven months and that the appellants have paid rental for the seven months in advance and as such do not owe the respondent is not only opportunistic but also bizarre. In fact, the appellants are clutching on the straws hoping to salvage a defence which does not exist.

 

[15] It is clear from the facts presented before the court a quo that the appellants entered into a written lease agreement with the respondent and the agreement was extended on month-to-month basis. Because the appellants had to pay monthly rentals which are easily determinable the amount of the respondent’s claim is a liquidated amount. The court a quo, in my view, also correctly found that the agreement that the respondent relied on is a liquid document. Based on my finding at para 11, (above) I am of the view that the appellants’ argument that there was never a meeting of minds (consensus) between the parties, cannot stand, and the court a quo correctly rejected this argument.

 

[16] Consequently, I cannot find any misdirection by the court aquo. It is clear that the court a quo correctly found that the appellants have no bona fide defence to the respondent’s claim. This is also evidenced by the fact that the appellants are not even clear whether they entered into a written agreement with the respondent or not.

 

[17] I now turn to the issue of costs. It is trite that the issue of the award of costs is in the discretion of the court. However, it is an accepted principle of our law that the successful party must be awarded costs. I see no reason why I should depart from that principle.

 

[18]      The respondent asked for costs on the scale of attorney and client, even though I have found above that they are entitled to their costs as a successful party, I am of the view that the costs at a punitive scale not justified.  

 

[19] In the result I propose the following order:

 

(a)  Condonation for the late filing of the appeal is granted.

 

(b)  The appeal is dismissed with costs.

 

KF Phahlamohlaka

Acting Judge of the High Court,

Mpumalanga Division, Middelburg (Local Seat)

 

I agree. It is so ordered

 

 

TM Mankge

Judge of the High Court

 

For the Appellants:	Adv S Zimema
Instructed by:	Mjali and Zimema Attorneys
Email:	mafini.mjali@gmail.com
For the Respondent:	Adv Clive Van der Spuy
Instructed by:	Lanham-Love Gailbrath Van Reenen Attorneys
Email :	GavinS@llva.co.za
	anina@birmans.co.za
Date judgment reserved:	03 February 2024

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