Fasken Martineau t/a Bell Dewar Inc v Roux Consolidated Investments (Pty) Ltd (50593/2017) [2018] ZAGPPHC 832 (23 February 2018)

Fasken Martineau t/a Bell Dewar Inc v Roux Consolidated Investments (Pty) Ltd (50593/2017) [2018] ZAGPPHC 832 (23 February 2018)

The court found that the plaintiff's claim was not liquidated, as the alleged written agreement and service terms were unsigned by the defendant, and the terms were not agreed upon. The defendant's assertion of a verbal agreement subject to taxation of fees by the Law Society constituted a bona fide defence. The court further held that the defendant's affidavit, although technically defective in terms of the commissioner of oaths' designation and area, substantially complied with the regulations and should not be disregarded on that basis. The court exercised its discretion to refuse summary judgment and granted the defendant leave to defend.

Citation
[2018] ZAGPPHC 832
Parties
Plaintiff: Fasken Martineau t/a Bell Dewar Inc; Defendant: Roux Consolidated Investments (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 February 2018
Case Number
50593/2017
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment application dismissed; defendant granted leave to defend.
Judges
Ngobeni
Legal Topics
Summary Judgment, Liquidated Claim, Professional Fees, Compliance With Affidavit Regulations
Civil Procedure Commercial and Corporate Summary Judgment Liquidated Claim Professional Fees Compliance With Affidavit Regulations

Case Brief

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Parties

Fasken Martineau t/a Bell Dewar Inc

Plaintiff

Roux Consolidated Investments (Pty) Ltd

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the plaintiff's claim is for a liquidated amount in money as required by Rule 32(1)(b).
  2. 2 Whether the defendant's affidavit opposing summary judgment is defective due to non-compliance with regulations governing commissioners of oaths.
  3. 3 Whether the defendant has disclosed a bona fide defence to the plaintiff's claim.

Ratio Decidendi

The court found that the plaintiff's claim was not liquidated, as the alleged written agreement and service terms were unsigned by the defendant, and the terms were not agreed upon. The defendant's assertion of a verbal agreement subject to taxation of fees by the Law Society constituted a bona fide defence. The court further held that the defendant's affidavit, although technically defective in terms of the commissioner of oaths' designation and area, substantially complied with the regulations and should not be disregarded on that basis. The court exercised its discretion to refuse summary judgment and granted the defendant leave to defend.

Court Disposition

Summary judgment application dismissed; defendant granted leave to defend.

Orders

  • The application for summary judgment is dismissed.
  • The defendant is granted leave to defend the action.