Recess (PTY) Ltd v Tugela Distributors (PTY) Ltd (865/17) [2017] SZSC 252 (24 November 2017);

 

 

IN THE HIGH COURT OF SWAZILAND

 

HELD IN MBABANE                                                                     Case No. 865/2017

 

In the matter between:

 

RECESS (PROPRIETARY LIMITED t/a

RECESS PLANT HIRE                                                                   Plaintiff

 

And

 

TUGELA DISTRIBUTORS (PTY) LTD                                          Defendant

 

 

JUDGMENT

 

Neutral Citation:  Neutral Citation: Recess Proprietary Limited t/a Recess Plant Hire vs Tugela Distributors (PTY) Ltd (865/17) [2017] SZSC 252 (24 November 2017)

 

Coram                                 :   M. LANGWENYA J

 

Heard                                  :   06 October, 2017

Delivered                            :   24 November, 2017

 

Summary

Summary Judgment application-plaintiff claiming money due for hiring of bobcat skid loader and a JCB EDX TLB back-hoe loader-defendant not denying that it hired the said machinery-defendant disputing amounts claimed for dates predating agreements which are a subject of this application-this a triable issue-defendant does not dispute he has not discharged its obligation in terms of the oral agreements to the extent that the amount being claimed of E208 080.00 and interest thereon is due and owing-defendant’s argument that oral agreement was cancelled at its instance has no substance-summary judgment granted in favour of invoices that the defendant signed-a bald and bare denial to pay by the defendant is both bad in law and not a bona fide defence.

 

 LANGWENYA J

[1]        On 20 June 2017, the plaintiff issued summons in terms of rule 17 (1) against the defendant under case number 865/2017 claiming inter alia payment of the sum of E247 650.00 being money due and owing to the plaintiff in terms of a plant hire oral agreement between the parties in March 2017. The sum of E247 650.00 was later reduced to E208 080.00 by the plaintiff in its heads of argument.

Upon being served with the summons the defendant duly entered appearance to defend.

[2]        In response to the notice of intention to defend, the plaintiff filed an application for summary judgment. The plaintiff alleged that the appearance to defend was filed by the defendant solely for purposes of delaying the action as the defendant did not have a bona fide defence to plaintiff’s claim.

[3]        On 26 July 2017 the defendant filed an affidavit resisting summary judgment where it did not deny that:-

i)          The parties entered into an oral agreement in respect of a plant (bobcat loader) hire   to the defendant at E12000.00 per month for the duration of the hire;

ii)         The parties also entered into another oral agreement where the plaintiff would hire a TLB plant machinery for a period of three months at E300 per hour;

iii)        That the terms of the oral agreements captured in paragraphs 4 and 5 of the plaintiff’s declaration are binding on the parties; and

iv)        That the defendant has not discharged its obligation in terms of the oral agreements to the extent that the amount being claimed of E208 080.00 and interest thereon is due and owing. Put differently, the defendant does not in its affidavit resisting summary judgment and its heads of argument deny liability to pay the amount being claimed but instead it chose to explain why it has not paid the amount still outstanding.

[5]        It is in these circumstances that the plaintiff argued that the defendant’s affidavit resisting summary judgment has been filed to simply delay the inevitable.

[6]        In opposing the application for summary judgment, the defendant contended that it had called the plaintiff to cancel the oral agreement in respect of the bobcat loader on 31 March 2017. According to the defendant, the reason it cancelled the oral agreement of the hired bobcat loader was because it was small and slow in the performance of the duties for which it was hired. The plaintiff disputes this fact and argues that the defendant was not entitled to unilaterally change the terms of the contract.

[7]        The defendant states that it duly paid E12 000 to the plaintiff on 6 April 2017. In countering this assertion, plaintiff states that the amount of E28 000.00 represented in ‘T1’ was in relation to another claim and not the claim before the court.

[8]        The defendant argues that after ‘cancelling’ the agreement, it requested the plaintiff to collect the bobcat loader which was now kept at defendant’s premises without being used. According to the defendant, the plaintiff only showed up two months after the contract had been ‘cancelled’ to collect the bobcat loader. For this reason, so defendant’s argument goes, it is not indebted to the plaintiff because the bobcat attracted no charges as it was not used following ‘cancellation’ of the contract. On the contrary, so defendant argues, the plaintiff owes the defendant for the storage of its bobcat after the ‘cancellation’ of the contract.

[9]        The defendant says it communicated with the plaintiff and ‘cancelled’ the agreement of hiring the bobcat loader[1]. The defendant does not specify the person through whom he communicated the cancellation of the contract. The defendant also fails to explain with whom, on the plaintiff’s side he spoke regarding the ‘cancellation’ of the contract.

[10]      When the contracts (the subject of claim A and claim B) were sealed the parties representing both the plaintiff and the defendant are spelt out. Curiously, and if defendant’s version is to be believed, when the oral hire agreement of the bobcat loader is cancelled the party to whom the ‘cancellation’ of the agreement was addressed is not stated. This omission can only lead to one inescapable conclusion-that the contract was not in law terminated.

[11]      The defendant asserts further that the plaintiff was asked to collect the bobcat loader from defendant’s premises to which plaintiff agreed and undertook to collect the bobcat loader at a later date. This assertion suffers from the same impediment as the above. The party representing the plaintiff to whom the defendant communicated the ‘cancellation’ of the contract is not stated. This omission can only lead to one inescapable conclusion-that no such communication was made to the plaintiff.

[12]      Following the conclusion of the agreement concerning the hiring of the bobcat loader, the plaintiff submitted invoices to the defendant for payment for use of the machinery. The invoices referred to hereunder were submitted:-

Invoice number 165 in the amount of E12000.00 (RPH1) dated 25/2/17

Invoice number 154 in the amount of E12000.00 (RPH2) dated 8/2/17

[13]      On 6 April 2017, the defendant paid a total of E28000.00 through annexture ‘T1’. According to the plaintiff, this payment was for a claim that is unrelated to the claims which are a subject of this application. On the contrary, the defendant posits that ‘[T]he plaintiff thereafter dully (sic) represented its invoice for E12 000.00…which was paid on 6th April, 2017. See annexure “T1[2]”.

[14]      There is no dispute that the defendant paid an amount of E28000.00 on April 6 2017. The dispute is on what defendant was paying for. ‘T1’ reflects payment of E28000.00 which was done in two parts-first, was the payment of E18000 and second, the payment of E10000.00. The plaintiff argues that the E28000.00 was payment for the TLB hire[3]. Defendant argues that he paid E12000.00 for the services of the bobcat loader. This matter is best left to trial to ascertain what the payment was for.

Claim B

[15]      On or about March 2017 the parties entered into an oral plant hire agreement in respect of plaintiff’s JCB 3DX TLB back-hoe loader (hereinafter referred to as the TLB). The salient terms and conditions of the agreement were:-

i)          That the defendant would hire the plaintiff’s TLB at a dry rate (defendant to supply fuel) of E300.00 per hour;

ii)         The agreement commenced on 1 March 2017 to 31 May 2017;

iii)        The plaintiff would submit invoices at the end of each calendar month in respect of hours worked by the TLB;

iv)        The defendant confirmed the oral agreement through a proposal and presented it to the plaintiff. The proposal is marked as annexture ‘RPH3’;

[16]      Following the conclusion of the hire of the TLB agreement, the plaintiff issued the following invoices:-

Invoice number 191 in the amount of E76 200.00 (RPH4) dated 31 May 2017

Invoice number 161 in the amount of E18 000.00 (RPH5) dated 14 February 2017

Invoice number 167 in the amount of E18 000 (RPH6) dated 28 February 2017

Invoice number 179 in the amount of E65 100 (RPH7) dated 2 May 2017.

Invoice number 174 in the amount of E66 780 (RPH8) dated 31 March 2017

Invoice number 174 initially reflected an amount of E76 350.00 as owing by the defendant. This amount was reduced to E66 780.00 after a sum of E6 500; E2 600 and E470 were deducted as these were expenses incurred by the defendant when he replaced a tyre for the bobcat loader; hired a breakdown and bought diesel respectively in attending to the bobcat loader. These expenses, it was agreed would be deducted from the payments that the defendant had to make for service rendered.

Notably invoice numbers 179 and 174 were signed by the defendant (RPH 7 & RPH8 respectively).

[17]      The defendant refutes invoice number 161 and 167 (dated 14 February 2017 and 28 February 2017 respectively) and argues that invoices predating 1 March 2017, the date the TLB contract was concluded- are unknown to it. I am inclined to agree with the defendant in this respect. It is mischievous of the plaintiff to have included invoices that were the subject of claims that are unrelated to this application. Summary judgment cannot be granted for the payment of invoices that are not the subject of the claims of this application.

[18]      Invoice number 191 although disputed by the defendant clearly reflects the service rendered by the plaintiff’s TLB for the month of May 2017. Except for a bald and bare denial of invoice number 191 the defendant does not proffer a defence which is both bona fide and good in law. Unsubstantiated averments by any stretch of imagination do not amount to a bona fide defence. The failure to set out fully all the averments the defendant relies on goes against the grain of the legal requirements in an application for summary judgment.

[19]      It is my considered view that the defendant has no bona fide defence to the payment of the following invoices:-

           Invoice number 191 (RPH4) amounting to    E76 200.00

           Invoice number 179 (RPH7) amounting to    E65 100.00

           Invoice number 174 (RPH8) amounting to    E66 780.00

                                                          Total               E208 080.00

[20]      The summary judgment procedure is set out in Rule 32 of the High Court Rules. The rule states as follows:-

32 (1) Where in an action to which this rule applies and a combined summons has been served on a defendant or a declaration has been delivered to him and that defendant has delivered notice of intention to defend, the plaintiff may, on the ground that the defendant has no defence to a claim included in the summons, or to a particular part of such a claim, apply to the court for summary judgment against that defendant.

(2) This rule applies to such claims in the summons as is only-

(a) On a liquid document;

(b) For a liquidated amount in money;

(c) …

(d) …

(3) (a) An application under sub-rule (1) shall be made on notice to the defendant accompanied by an affidavit verifying the facts on which the claim, or the part of the claim, to which the application relates is based and stating that in the deponent’s belief there is no defence to that claim or part, as the case may be, and such affidavit may in addition set out any evidence material to the claim.

The procedure is a drastic remedy given to a plaintiff who believes that his case is unanswerable and the defendant has no bona fide defence to the claim[4].

The approach in summary judgment applications has been described in varying terms by the High court but all in an effort to make it clear that such a remedy should be availed where the defendant has no bona fide defence and that his appearance to defend has been entered to delay the inevitable.

[21]      The quintessence of the remedy of summary judgment is to grant immediate relief-without the expense and delay of a trial- to a plaintiff who believes that the defendant’s defence is not bona fide and is entered only for dilatory purposes. Put differently, summary judgment is one sure way by which unscrupulous litigants who seek to delay a just claim by defending the indefensible are frustrated.

In the case of Crede v Standard Bank of South Africa[5], Kannemeyer J remarked:

One must bear in mind that the granting of summary judgment is an extraordinary and drastic remedy based upon the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus or bad in law’

[22]      In order to defeat an application for summary judgment the defendant is required to show that his appearance to defend is not aimed at delaying the matter but that he has a bona fide defence to the claim. In order to do so, the defendant must allege facts that disclose a defence and that are sufficient to establish that defence. It follows therefore that bald assertions or vague generalisations would not suffice.

[23]      The onus is on the defendant to show that he has a bona fide defence to the action. In order to succeed in having an application for summary judgment dismissed, the defendant must establish that ‘there is a mere possibility of his success[6]’; that ‘he has a plausible case’; that ‘there is a triable issue[7]’ or ‘that there is a reasonable possibility that an injustice may be done if summary judgment is granted[8]

[24]      The issue is thus whether the defendant has discharged the onus on it. Has the defendant deposed to a defence which, if proved at trial would constitute a good defence to the plaintiff’s claim? I have examined the defence raised by the defendant in regard to both plaintiff’s claims. I have found that the defendant’s bald assertion of no indebtedness when the facts and evidence dictate otherwise; coupled with his bare denial of indebtedness concerning invoices that he has signed acknowledging the debt speaks volumes about its inability to raise a bona fide defence. In my view this is a classical case where a notice of intention to defend and an affidavit resisting summary judgment were filed with one objective and one objective only-being that of frustrating the plaintiff’s valid and legal claim. This type of conduct cannot be allowed to prevail in this court.

 

Order

[25]      Accordingly, I grant summary judgment to the plaintiff in the following terms:-

1.         Payment of the sum of E208 080.00 (Two hundred and eight thousand and eighty Emalangeni only).

2.         Interest thereon at the rate of 9% per annum a temporae morae

3.         The defendant is granted leave to defend the balance of the claim of E39 570.00 (Thirty nine thousand, five hundred and seventy Emalangeni)

4.         Costs on the ordinary scale.

 

  

 

For the Plaintiff                                   Mr B. Magagula

For the Defendant                              Ms Mabila

 

 

 

 

[1] Refer to paragraph 5 of Defendant’s affidavit resisting summary judgment where it is stated ‘On or about 31st March, 2017, the defendant communicated with the plaintiff that he was cancelling the verbal lease agreement in respect of the bobcat loader…’

[2] See Paragraph 5 of Defendant’s affidavit resisting summary judgment.

[3] See Paragraph 4.1.2 of Plaintiff’s Heads of argument.

[4] See Zanele Zwane v Lewis Store (Pty) Ltd, t/a Best Electric, Civil appeal Number 22/2001; Swaziland Development and Financial Corporation v Vermark Stephanus High Court Civil case Number 4021/2007.

[5] 1988 (4) SA 786 at 789 (E).

[6] Mater Dolorosa High School v R.J.M Stationery (Pty) Ltd Appeal Case Number 3/2000.

[7] Sinkhwa SemaSwati Ltd t/a Mister Bread Bakery and Confectionary V.P.S.B. Enterprises (Pty) Ltd Case Number 3839/2009.

[8] Mfaniseni Lyford Mkhaliphi v Somageba Investments (Pty) Ltd Case Number 1044/2011.