Federated Timbers (Pty) Ltd v Phekgoga Business Enterprise CC and Others (13668/2007) [2007] ZAGPHC 272 (9 November 2007)
The court found that the applicant had properly verified its cause of action and that the particulars of claim contained sufficient averments to sustain a claim against the first and second respondents. The respondents raised only technical objections and did not dispute the merits. The court held that the amount...
Source-derived case information.
- Citation
- [2007] ZAGPHC 272
- Parties
- Applicant: Federated Timbers (Pty) Ltd; Respondent: Phekgoga Business Enterprise CC; Respondent: Mr Kaizer Makgopo Phekgoga; Respondent: Polokwande Municipality
- Court
- High Courts - Gauteng
- Jurisdiction
- South Africa
- Case Number
- 13668/2007
- Procedural Posture
- Summary Judgment Application / Application for Summary Judgment Following Appearance to Defend
- Outcome
- Summary judgment granted in favour of the applicant against the first and second respondents for the amount claimed, interest, and costs on the magistrate's court scale.
- Judges
- W L Seriti
- Legal Topics
- Summary Judgment, Suretyship, Jurisdiction, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Federated Timbers (Pty) Ltd
Applicant
Phekgoga Business Enterprise CC
Respondent
Mr Kaizer Makgopo Phekgoga
Respondent
Polokwande Municipality
Respondent
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Appearance to Defend
Legal Issues
- 1 Whether the plaintiff complied with Rule 32(1) regarding verification of the cause of action.
- 2 Whether the particulars of claim sustain a cause of action against the first and second defendants.
- 3 Whether the plaintiff is entitled to attorney and client costs or only magistrate's court scale costs.
Ratio Decidendi
The court found that the applicant had properly verified its cause of action and that the particulars of claim contained sufficient averments to sustain a claim against the first and second respondents. The respondents raised only technical objections and did not dispute the merits. The court held that the amount claimed fell within the jurisdiction of the magistrate's court and that it would be unfair to burden the respondents with high court costs. Accordingly, the applicant was entitled to summary judgment for the amount claimed, interest, and costs on the magistrate's court party and party scale.
Court Disposition
Summary judgment granted in favour of the applicant against the first and second respondents for the amount claimed, interest, and costs on the magistrate's court scale.
Orders
- Payment of the amount of R65 999.46 jointly and severally, the one paying the other to be absolved.
- Payment of interest on the amount of R65 999.46 at the rate of 17% per annum calculated from date of judgment to date of payment.
Full Case Text
Judgment text and source record
37 paragraphs
/SG
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
DATE: 09/11/2007
CASE NO: 13668/2007
UNREPORTABLE
In the matter between:
FEDERATED TIMBERS (PTY) LTD APPLICANT
And
PHEKGOGA BUSINESS ENTERPRISE CC 1ST RESPONDENT
MR. KAIZER MAKGOPO PHEKGOGA 2ND RESPONDENT
POLOKWANDE MUNICIPALITY 3RD RESPONDENT
JUDGMENT
SERITI, J
1. The plaintiff issued summons against the defendants claiming payment of an amount of R65 999.46, interest at the rate of 17% per annum plus costs on an attorney and client scale.
2. The plaintiff granted credit facilities to the first defendant on certain terms and conditions and the second defendant bound himself as surety and co principal debtor. The involvement of the third defendant is irrelevant at this stage as the plaintiff does not seek any order against the third defendant and I will not deal with the third defendant at all.
3. The plaintiff issued summons against the defendants in respect of goods sold and delivered and services rendered, at the special instance and request of the first defendant. After summons were served, first and second defendants entered appearance to defend, and immediately thereafter, plaintiff launched an application for summary judgment.
4. The first and second defendants opposed the summary judgment application and filed an opposing affidavit. In the opposing affidavit the defendants alleged, inter alia, that the plaintiff has failed to comply with the peremptory provision of rule 32(1) in that plaintiff failed to verify the cause of action, the particulars of claim are excipiable in that they lack averments to sustain a cause of action, etc.
5. From the papers, it is clear that the respondents have not raised any defence as far as the merits of the case are concerned. Respondents raised only technical issues as mentioned in the previous paragraphs. The plaintiffâs counsel in her heads of argument correctly so submitted that the points in limine raised by the defendants have no merit.
The cause of action is properly verified by Mr Theo Willem Coetzee, the Area Credit Manager of the applicant, the particulars of claim contains all the necessary averments to sustain a cause of action against the first and second defendants. The second defendant is sued on the basis of the deed of surety ship. The question whether the plaintiff has a claim or not against the third respondent is irrelevant.
6. The plaintiff has, on the papers made out a case for the relief it seeks in its application. The only difficulty is the question of costs. The amount claimed in this matter, in terms of section 29 of the Magistrateâs Court Act 32 of 1944, read in conjunction with GN1411 of 30 October 1998 falls within the jurisdiction of the magistrateâs court.
7. In my view, the plaintiff instituted this action in the high court instead of instituting same in the magistrateâs court which has jurisdiction to hear this matter. It will be unfair to burden the respondents with high courtâs costs. On the other hand, the defendants have incurred high court costs in order to defend the matter.
8. For the reasons mentioned in the previous paragraph. I believe that the plaintiff is not entitled to attorney and client fees, but to party and party costs on the appropriate magistrateâs court scale.
9. The court therefore makes the following order against first and second defendants.
9.1 Payment of the amount of R65 999.46 jointly and severally, the one paying the other to be absolved.
9.2 Payment of interest on the amount of R65 999.46 at the rate of 17% per annum calculated from date of this judgment to date of payment.
9.3 Costs of the plaintiff on the applicable magistrateâs courtâs party and party scale.
W L SERITI
JUDGE OF THE HIGH COURT
13668/2007
Heard on: 8 May 2007
For the Applicant: Adv M Antwerpen
Instructed by: Messrs Weavind and Weavind Attorneys,
Pretoria
For the Respondents: Adv N M Leballo
Instructed by: Messrs Sekonya Attorneys, Pretoria
Date of Judgment: 9 November 2007