CTP Limited t/a Plasticwrap v Osmans Spice Works CC (15232/2007) [2008] ZAKZHC 105 (20 June 2008)

IN THE HIGH COURT OF SOUTH

AFRICA

REPORTABLE

DURBAN

AND COAST LOCAL

DIVISION

CASE NO: 15232/2007

In the matter between:

CTP LIMITED t/a

PLASTICWRAP

Plaintiff

and

OSMANS

SPICE WORKS CC

Defendant

JUDGMENT

MSIMANG, J:

The plaintiff in this matter applies for summary judgment against the defendant. The application is based on a simple summons and the amount claimed therein is R371 934,94 for goods sold and delivered during the period July to September 2007 pursuant to certain oral contracts concluded by and between the plaintiff and the defendant. An averment is made that the original amount agreed upon was R502 878,27 and that a sum of R130 945,53 has since been paid, leaving a balance of the said amount R371 934,94.

In the opposing affidavit resisting the granting of the application the defendant disputes the indebtedness to the plaintiff, as alleged in the summons or at all. According to the defendant, the amount which had initially been claimed by the plaintiff had been queried, resulting in the plaintiff faxing copies of the relevant invoices as well as one waybill to the defendant. Upon an examination of the said waybill, the defendant further contends, it became clear that it had been issued by the plaintiff’s transport contractors, that it was not properly for the defendant, not signed by any person belonging to or authorised by the defendant and that, as the defendant puts it, the waybill was “quite clearly a mistake”.

The defendant then refers to Rule 18(6) of the Uniform Rules and points out that, pursuant to the provisions of that Rule, a party who in his pleading relies upon a contract, he or she shall disclose, inter alia, the date when, place where and the particulars of a person by whom it was concluded. As none of these requirements had been complied with in the plaintiff’s simple summons, the same is defective and can therefore not sustain the relief sought in the application.

Rule 17 provides that every person making a claim against any other person through the office of the Registrar may sue out a summons or combined summons addressed to the Sheriff directing him to inform the defendant, inter alia, that if he disputes the claim and wishes to defend, he shall within the time stated therein, give notice of his intention to defend and thereafter, if the summons is a combined summons, within 21 days after giving that notice, deliver a plea (with or without a counterclaim), an exception or an application to strike out. In every case where the claim is for a debt or liquidated demand, the summons shall, pursuant to that Rule, be as near as may be in accordance with Form 9 of the First Schedule. In Form 9, and on the space reserved for the insertion of plaintiff’s claim the following words appear in parenthesis :-

“(here set out in concise terms plaintiff’s cause of action)”

In contradistinction to the situation where a claim is not for a debt or liquidated demand the rules require the summons, in that case, to be as near as may be in accordance with the longer Form 10 of the First Schedule and also that, annexed to the summons in that case, shall be a statement of the material facts relied upon by the plaintiff in support of his claim and, the following sentence, which is missing in the case of a simple summons, is then added :-

“….. which statement shall inter alia comply with rule 18.”

On a proper construction of the provisions of the rule it is therefore evident that, unlike in the case of a combined summons, a simple summons does not have to be drafted with the particularity and detail required in the statement of material facts required to be annexed to a summons where a claim is not for a debt or liquidated demand. In Volkskas Bank Ltd v Wilkinson and three similar cases1 it was held that in a simple summons :-

“…… the claim be set out with sufficient clarity for the Court to decide whether judgment should be granted and for the defendant to be made aware of what is being claimed from him.”

and in B W Kuttle & Association Inc v O’Connell Manthe and Partners Inc2 Tebbutt J made the following remarks regarding the object of a simple summons :-

“……..it must…… inform the defendant of the nature of the claim or demand he is required to meet. But it need do no more than that. It need not go into minute particulars.”

Upon perusal of the provisions of Rule 17, it also becomes clear that it has never been intended that a simple summons should comply with the provisions of Rule 18. Defendant’s resistance to summary judgment based on such non-compliance must accordingly fail.3

Mr. Tobias, who appeared for the defendant, however, submitted that, in any event, the allegations contained in defendant’s opposing affidavit constitute a bona fide defence to plaintiff’s claim and therefore that plaintiff’s application should be dismissed.

Rule 32(3)(b) provides that, upon the hearing of an application for summary judgment, the defendant may satisfy the Court by affidavit that he has a bona fide defence to the action; such affidavit shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

Defining the term bona fide in this context Colman J remarked as follows in Breitenbach v Fiat SA (Edms) Bpk4 :-

“….. It will suffice, it seems to me, if the defendant swears to a defence, valid in law, in a manner which is not inherently and

seriously unconvincing ….”.

Regarding the requirement of full disclosure, the Honourable Judge held :-

“… the word ‘fully’ should not be given its literal meaning …… no more is called for than this: that the statement of material facts be sufficiently full to persuade the Court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff’s claim. What I would add, however, is that if the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the Court to consider in relation to the requirement of bona fides. 5

In the defendant’s opposing affidavit an admission is made that, upon enquiry, copies of invoices and a waybill were provided and yet, in the affidavit, only the waybill is dealt with, nothing being said about those invoices. Also, the allegation regarding payment of the amount of R130 945,53 is not addressed at all. Both these allegations are material and, in my judgment, ought to have been dealt with. Besides, the submissions addressed to the waybill, which purport to constitute a defence to plaintiff’s claim, are so vague and sketchy that I am not persuaded that they constitute a defence to the plaintiff’s claim. I am reminded of the following comment made by Colman J in Breitenbach (supra) which are apposite to defendant’s opposing affidavit in casu:-.

“That, in my judgment, is far less than can be expected from a defendant in summary judgment proceedings. It lacks forthrightness, as well as the particularity, that a candid disclosure of a defence should embody. The impression which one receives is rather that the defendant was being deliberately vague .….. Clearly Rule 32(3)(b) was not complied with ……” 6

I accordingly grant an order in terms of paragraphs 1, 2 and 3 of the Notice of Application.

For the Plaintiff:

Adv. G R Thatcher (instructed by Berkowitz Cohen & Wartski correspondent’s for Lionel Murray Schwormstedt & Louw)

For the Defendant: Adv. D G Tobias (instructed by M/S Shaukaqt Karim & Co.)

Matter argued:

17 June 2008

C A V

Judgment delivered: 20 June 2008.

1 1992 (2) SA 388 (C) at 395 A;

2 1984 (2) SA 665 (c) at c-d; see also Standard Bank of SA v Oneanate Investments (in liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) esp. at 825 B-E;

3See Frank Keevey Ltd v Koos van der Merwe Beleggings 1970 (3) SA 429 (O) especially at 430 E – 431 H;

4 1976 (2) SA 226 (T) at 228 A-B;

5Ibid. At 228 D-E;

6At 231 A-B.