Ciolli Readymix (Pty) Ltd v PC Floors SA (Pty) Ltd (13491/16) [2016] ZAGPJHC 400 (24 June 2016)
- Citation
- [2016] ZAGPJHC 400
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P L Carstensen
- Case number
- 13491/16
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P L Carstensen
- Case number
- 13491/16
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the defendant failed to establish a bona fide defence to the plaintiff's claim. Although the defendant alleged defects in the concrete, it did not notify the plaintiff within the contractually required three-month period, nor did it provide an expert report to substantiate its allegations. Remedial work was undertaken by the defendant without affording the plaintiff an opportunity to inspect or remedy the defects. The defendant only raised the issue of defects after receiving a letter of demand, and its actions were inconsistent with the terms of the agreement. Accordingly, the defendant's opposition to summary judgment was not bona fide, and summary judgment was granted in favour of the plaintiff.
Court disposition
Summary judgment granted in favour of the plaintiff.
Orders
- Summary judgment is entered against the defendant in favour of the plaintiff for payment of the sum of R2 239 313.42.
- Interest on the aforesaid amount at the rate of 10.25% from 1 April 2016 to date of payment.
- Costs of suit on the party and party scale.
02
Material facts
Parties
Ciolli Readymix (Pty) Ltd
Plaintiff Counsel: M J CookePC Floors SA (Pty) Ltd
Defendant Counsel: H van BeekAmounts and remedies
- Principal Amount Awarded: ZAR 2,239,313.42
- Interest Rate: ZAR 10.25
03
Procedural history
Posture
Summary Judgment Application / Hearing and Determination of Summary Judgment
04
Questions and positions
Legal issues
- 01
Whether the defendant has established a bona fide defence to the plaintiff's claim for payment for goods sold and delivered.
- 02
Whether the defendant's counterclaim regarding alleged defects in the concrete constitutes a valid defence to summary judgment.
- 03
Whether the defendant complied with the contractual requirement to notify the plaintiff of defects within three months of supply.
Party arguments
- Applicant
- The plaintiff contends that it supplied concrete to the defendant, who accepted delivery and did not dispute the amount claimed. The plaintiff argues that the defendant failed to pay for the goods and did not raise any complaint about defects until after receiving a letter of demand. The plaintiff asserts that the defendant did not comply with the contractual obligation to notify of defects within three months and that any remedial work was done without the plaintiff's knowledge or opportunity to inspect.
- Respondent
- The defendant admits receipt and installation of the concrete but alleges that the product was defective, resulting in pit marks due to wood shavings. The defendant claims to have performed remedial work and, after further inspections, attempted to contact the plaintiff without success. The defendant seeks to institute a counterclaim for the alleged defects and argues that summary judgment should not be granted until this issue is resolved.
05
Court’s reasoning
Legal principles
- 01
Rule 32 of the Uniform Rules of Court
A defendant opposing summary judgment must establish a bona fide defence and set out facts which, if proved at trial, would constitute such a defence.
- 02
Written agreement between the parties
Where a contract requires notification of defects within a specified period, failure to comply with this requirement may preclude reliance on such defects as a defence.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the defendant failed to establish a bona fide defence to the plaintiff's claim. Although the defendant alleged defects in the concrete, it did not notify the plaintiff within the contractually required three-month period, nor did it provide an expert report to substantiate its allegations. Remedial work was undertaken by the defendant without affording the plaintiff an opportunity to inspect or remedy the defects. The defendant only raised the issue of defects after receiving a letter of demand, and its actions were inconsistent with the terms of the agreement. Accordingly, the defendant's opposition to summary judgment was not bona fide, and summary judgment was granted in favour of the plaintiff.
Obiter and limits
- The defendant's delay in raising the issue of defects undermined its credibility and the bona fides of its defence.
- The absence of an expert report or substantiating evidence further weakened the defendant's position.
Court disposition
Summary judgment granted in favour of the plaintiff.
- Summary judgment is entered against the defendant in favour of the plaintiff for payment of the sum of R2 239 313.42.
- Interest on the aforesaid amount at the rate of 10.25% from 1 April 2016 to date of payment.
- Costs of suit on the party and party scale.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 13491/16
In the matter between:
CIOLLI READYMIX (PTY) LTD Plaintiff and PC FLOORS SA (PTY) LTD Defendant
JUDGEMENT
CARSTENSEN AJ:
1. The Plaintiff seeks summary judgement in the amount of R2 239 313.40 in respect of goods sold and delivered by the Plaintiff to the Defendant, being concrete.
2. The Defendant does not dispute the amount of the Plaintiff’s claim, nor that the concrete was delivered.
3. The Defendant, however, raises a counterclaim contending that the concrete which was delivered, was installed as a floor at the site of the Defendant’s client during June / July 2015 and was defective. The Defendant states, in a letter of the 8th April 2016 as read with its opposing affidavit, that when the 3 month inspection was carried out the Defendant found numerous pit marks caused by wood shavings in the concrete underneath the hardened layer.
4. The Defendant carried out remedial work, however, during the 6 month inspection it was again noticed that there were more pit marks which appeared due to wood shavings.
5. After the 6 month inspection, the deponent to the Defendant’s affidavit, namely Lorandt Kapp, advised that he tried on numerous occasions to contact the Plaintiff’s representatives telephonically, but that they did not answer their phones. It appears Kapp then did nothing for a number of months.
6. The Plaintiff, on the other hand, not having received payment, issued a letter of demand in terms of Section 129 and 130 of the National Credit Act on the 31st March 2016.
7. In response to this demand, the Defendant addressed the letter referred to above, dated 8th April 2016 contending that the concrete was defective and that it would obtain the assistance of its concrete specialist, Mr Bruce Raath, to assure the Defendant and the Defendant’s client that the floor defects will have no structural impact.
8. From the letter of the Plaintiff dated 3rd May 2016, attached to the affidavit opposing summary judgement, it appears that the Plaintiff immediately inspected the floor on the 9th April 2016 and found that remedial work had been effected to the floor by the Defendant, or perhaps the Defendant’s contractor.
9. The Defendant thus opposed the application for summary judgement as it seeks an opportunity to institute a counterclaim for the defects.
10. I am not satisfied that the Defendant has established a bona fide defence for the following reasons:
10.1. despite the fact that the Defendant inspected the floor 3 months after installation and allegedly found defects, it did not draw the Plaintiff’s attention to this fact;
10.2. it was only after the Defendant received the letter of demand that it addressed the letter dated 8th April 2016 to the Plaintiff;
10.3. the expert’s report of Bruce Raath is not attached to the opposing affidavit and it does not even appear that such report has been obtained;
10.4. the Plaintiff was not afforded an opportunity to inspect or to remedy the defects because the Defendant itself, according to its version, had remediated the defects on two occasions after the 3 month and 6 month inspection, without advising the Plaintiff. This is despite the fact that the Plaintiff inspected the floor the day after it received the complaint;
10.5. in terms of the written agreement between the parties, the Defendant was obliged to draw the Plaintiff’s attention to any defects within 3 months of date of supply. The Defendant did not dispute the provisions of the agreement. It is apparent that the Defendant did not even draw the Plaintiff’s attention to the defects 3 months after it became aware of the defects;
10.6. it is clear that the Defendant became aware of the defects in approximately October 2015, but waited until April 2016 to address a letter of complaint to the Plaintiff.
11. Consequently, I am not satisfied that the Defendant has established a bona fide defence and am satisfied that summary judgement ought to be granted.
12. In the result, I make the following order:
12.1. Summary judgement is entered against the Defendant in favour of the Plaintiff for:
12.1.1. payment of the sum of R2 239 313.42;
12.1.2. interest on the aforesaid amount at the rate of 10.25% from the 1st April 2016 to date of payment;
12.1.3. costs of suit on the party and party scale.
_____
P
L CARSTENSEN
ACTING
JUDGE OF THE
HIGH
COURT
HEARD: 14 JUNE 2016
DELIVERED: 24 JUNE 2016
COUNSEL FOR PLAINTIFF: M J COOKE
INSTRUCTED BY: VAN WYK VAN DEVENTER INC.
COUNSEL FOR DEFENDANT: H VAN BEEK
INSTRUCTED BY: HATTINGH MASSEY BENNETT INC.
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.