Hillandale Homeowners Association t/a Woodland Hills Wildlife Estate v Morolong (4964/2019) [2020] ZAFSHC 134 (4 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4964/2019

In the matter between:

HILLANDALE HOMEOWNERS ASSOCIATION

T/A WOODLAND HILLS WILDLIFE ESTATE 1st Applicant

and

M.C.L. MOROLONG

Respondent

HEARD ON: 28 MAY 2020

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 4 JUNE 2020

[1] This is an application for summary judgment. The application follows upon a summons issued by the plaintiff against the defendant on 24 October 2019 for payment of the sum of R 1 075 430-26 plus interest. According to the summons, the sum claimed is for levies and/or penalties declared by the plaintiff, together with interest, and which the defendant has failed to pay.

[2] The plaintiff attached several documents to his summons which show that the defendant became the registered owner of a certain erf in the Wildlife Estate of the plaintiff on 9 May 2008. As an owner, the defendant became a member of the plaintiff and as such he signed acceptance of the terms and conditions of the constitution and the rules of the plaintiff. In terms thereof, the defendant became liable for payment of all levies and fines for contravening the rules, as declared by the plaintiff.

[3] It is stated in the summons that the amount claimed is calculated from 1 November 2016 to 28 June 2019 as follows: Total levies R 38 077-52, total building penalties R 847 560-00, total interest thereon R 175 708-04, total cleaning levies R 4 570-00, total garden penalties R 3 440-00, total other penalties R 4 775-20, total aesthetical penalties R 1 140-00 and total click on/excess control charges in the amount of R 159-50.

[4] It is further stated in the summons that the levies and penalties charged against the defendant are set out in Annexures C1 and C2. Annexure C1 is a Statement - Activity showing the transactions from one November 2016 to 24 October 2019. In terms of this annexure , the total amount owing by the defendant on 28 June 2019, that is the last day of the period claimed for, was R 1 623 146-95 . There is no indication on the papers as a whole that the defendant has paid anything of this large amount after 28 June 2019. Why the plaintiff is only claiming the amount of R 1 075 430-26 for the period in question, is not explained in the summons. Perhaps the answer lies in annexure C2, which is a Customer Detailed Ledger containing the amounts charged on every invoice date and a summary of the billings under the separate headings. In this annexure, billings for legal fees in the amount of R 550 006-69 are shown, for which the Plaintiff is not claiming in his summons.

[5] In his Plea the defendant raised several defences, amongst others that the plaintiff had already claimed some R 80 000-00 for arrear levies and penalties from him in the Magistrate’s Court for the amounts owing during the period 1 November 2016 to 31 January 2017. This action was not defended by the defendant, and default judgment was entered against him for this amount. Subsequently, the property of the defendant in the Wildlife Estate was sold in execution and transferred to the new owner on 28 June 2019. The defendant pleaded that this amount of 80,000 was again included in the total amount claimed in the present summons. He pleaded that the cause of action in the present matter has therefore become res indicata.

[6] A further defence pleaded by the defendant was that he disputed the veracity of the contents of annexures C1 and C2 to the summons, and that the plaintiff is put to the proof thereof.

[7] In the application for summary judgment, the plaintiff claimed the amount of R 995 360-10 plus interest, and not the amount of R 1 075 430-26 plus interest claimed in his summons. In an affidavit filed in support of the application in terms of Rule 32(2)(b), the plaintiff conceded that the amount of R 80 070-16 has been duplicated in the action before this Court. This was the reason why the amount now claimed in summary judgment is only R 995 360-10. The plaintiff denied that the matter has become res indicata as a consequence. However, the Plaintiff gave no explanation as to how the duplication came about.

[8] As for the denial of the veracity of the contents of annexures C1 and C2 by the defendant, the plaintiff submitted that this denial does not raise a defence because there is no basis or supporting facts that are pleaded to support the denial.

[9] In presenting argument on the application for summary judgment, Mr. Gilliland appearing for the plaintiff, drew the Court’s

attention to the following inconsistencies in annexures C1 and C2: Firstly, that in terms of C1, the Defendant was owing an amount of R 1 623 146-95 one 30 June 2019, while in terms of C2, he was owing R 1 623 173-49 at that time, which amounts to a difference of R 26-54. Secondly, that a credit note of R 1 500-00 with the reference “sypaadjie” was granted on 10 October 2019 in C1, while there is no debit in the same amount recorded in C1. Thirdly, that when the total of the items claimed for in the summons is added to the legal fees in C2, the total amount is R 1 625 436-95. The difference here is then R 2 263-46, which, according to Mr. Gilliland, can easily be explained.

[10] The explanation is the following, he submitted: In C2, an invoice in respect of Cleaning of Erf in the amount of R 1 140-00 is recorded on 16 generally 2017, which amount was duplicated under the subheadings Other Penalties and Cleaning Premises. On 28 February 2018, interest in the amount of R 5 186-46 was recorded, but when it was carried over to the subheading Interest, it was recorded as R 5 159-92, the difference being R 26-54. Further, on 9 April 2018 an invoice in respect of Garden Penalty in the amount of R 1 150-00 is recorded, which amount was duplicated under the subheadings Other Penalties and Garden Cleaning. When these figures are calculated (R 1 140-00 plus R 1 150-00 minus R 26-54), the aforesaid difference of R 2 263-46 is clarified, Mr. Gilliland submitted. He submitted that the plaintiff’s claim is therefore capable of speedy and prompt ascertainment, and that it is therefore a claim for a liquidated amount of money.

[11] In his answering affidavit, the defendant reiterated the defences that were raised in his Plea. He went further to say, however, that the Plaintiff will have to show that the levies and penalties imposed on him were justified. This must be read with the fact that he had disputed the veracity of the contents of C1 and C2 in his Plea. He referred to the affidavit in support of summary judgment and submitted that the plaintiff will have to show the nature of the penalties imposed, the reason for those penalties and the reasonableness of such penalties. In a nutshell, he submitted that the claim is not for a liquidated amount, since it is not susceptible to prompt and speedy ascertainment.

[12] At the hearing of the application, Mr. Mazibuko appearing for the defendant concentrated his address on the submission that the claim of the plaintiff is not liquidated due to all the uncertainty surrounding the amount claimed. The claim is therefore not susceptible to a summary judgment in terms of Rule 32, he contended. Mr. Mazibuko referred me to the Supreme Court of Appeal judgment in Kertzer v Gardens Lodge Body Corporate (2019) 15 ZASCA, saying that the case is akin to the present matter, save for minor differences to the facts. In that case, the Court refused to endorse the granting of summary judgment by the Magistrate’s Court and by the High Court on appeal.

[13] The Appellant in that case, Mr. Kertzer, had questioned the rate of interest that the Body Corporate was entitled to charge on overdue amounts. On the facts of the case, the SCA came to the conclusion that Mr. Kertzer justifiably disputed the rate of interest. Carelse, AJA, writing for the unanimous court, said the following:

“Having regard to the manner in which the Body Corporate formulated its case by including within its capital claim, the justifiably disputed interest rate and ostensibly questionable charges, this is not an instance in which a court would be justified in giving summary judgment for the parts of the amounts claimed. How, one might rightly ask in the circumstances, could a court determine an amount which it could confidently say was owing.” (par 8 of the judgment)

[14] In my view, the Kertzer-case differs from the present case in the sense that Mr. Kertzer had specifically challenged the rate of interest charged, while in the present case, the defendant is challenging the general computation of the claim by disputing the veracity of all the figures presented in the plaintiff’s case. In normal circumstances, such a manner of disputing a claim in summary judgment proceedings may be regarded as not constituting a bona fide defence. After all, Rule 32(3)(b) provides that a defendant in such proceedings may satisfy the Court that he has a bona fide defence to the action, and in his affidavit he shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

[15] On the other hand, the procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of his day in court.[1] The remedy should be resorted to and accorded only where the plaintiff can establish his claim clearly and the defendant fails to set up a bona fide defence. In Gulf Steel (Pty) Ltd v Rack-Hire Bop (Pty) Ltd[2] it was held that, before even considering whether the defendant has established a bona fide defence, the court must be satisfied that the plaintiff’s claim has been established and that his pleadings are technically in order. A court must be careful to guard against injustice to the Defendant who is called upon at short notice and without the benefit of further particulars, discovery or cross examination to satisfy it that he has a bona fide defence[3].

[16] Applying these principles to the present case, it is appropriate to firstly consider whether the plaintiff’s claim has been clearly established. In this respect it is a matter of concern that the plaintiff had duplicated the amount of some R 80 000-00 in his summons, as discussed earlier herein. There is no explanation before me how this has happened. Nor is there any explanation by the plaintiff in his affidavit as to how the other duplications in his calculations had occurred. While it may be true that the claim could be susceptible to prompt and speedy ascertainment, these inaccuracies do not really help to inspire confidence in the total claim itself, as it was also found in the Kertzer-case supra.

[17] Moreover, the claim of the plaintiff mainly consists of “building penalties” in the large amount of R 847 560-00. In his answering affidavit, the defendant referred to these penalties and submitted that the plaintiff will have to show that the penalties were reasonably imposed. He therefore disputed the penalties although he only referred to the “veracity” of the claim in his Plea. It does not appear from the papers before me for what exactly the penalties were imposed or how they were computed or whether they were reasonably imposed. The defendant is certainly entitled to be informed of these aspects, and he will only be able to gain such information by way of a request for further particulars.

[18] The result of all these considerations is that it would not be appropriate to grant summary judgment to the plaintiff and to thereby deny the defendant his day in court where all the questions and issues can be properly ventilated.

[19] The following order is made:

1. The application for summary judgment is dismissed.

2. The Defendant is granted leave to defend the action.

3. The costs of the application stand over for determination at the hearing of the action.

_________________

P.J. LOUBSER, J

For the Applicant: Adv. J. G. Gilliland

Instructed by: Symington & De Kok Inc

Bloemfontein

For the Respondent: Adv. M.S. Mazibuko

Instructed by: Matee Attorneys

[1] Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at 11G – 12D

[2] 1998 (1) SA 679 (O) at 683 H – 684 B

[3] Marsh v Standard Bank of SA Ltd 2000 (4) SA 947 (W) at 950 A-B