Smith v Opperman (5446/2008) [2008] ZAGPHC 312 (19 May 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No: 5446/2008

Date: 19/05/2008

UNREPORTABLE

In the matter between:

MIEMIE ELIZABETH

ADRIANE SMITH PLAINTIFF

And

HENDRIK CHRISTOFFEL

OPPERMAN DEFENDANT

JUDGMENT

PHATUDI (AJ)

[1] This is an application for summary judgment instituted by the Plaintiff against the Defendants for;

[1.1] Payment of the sum of R172 531.55 together with

[1.2] Interest on the aforesaid sum calculated at the rate of 15.5% per annum a tempore morae to date of the final payment; and

[1.3] cost of suit.

[2] The Defendant applied for condonation for the late filing of the answering affidavit. The said application was granted.

[3] The Counsel for the Plaintiff, Mr Vorster, submitted that this is an application for summary judgment on the basis that the claim in the summons is based on a liquid document annexed to the summons, marked “A”. He handed in the original of the document headed “AFBETAALINGS OOREENKOMS”. He further submitted that the Defendant acknowledged to have been indebted to the Plaintiff in the sum of R335 391.78. He further submitted that subsequent thereto, the Defendant advanced payment in the sum of R162 860.23 and of which R172 531.55 remained unpaid. He finally submitted that the defendant entered appearance to defend solely for the purpose of delay and lastly submitted that Summary Judgment be granted as prayed for in the application.

[4] Counsel for the Defendant, submitted that the Defendant has a bona fide defence to the Plaintiff’s claim and denied that Defendant entered appearance to defend the action for the purpose of dallying

the action. He submitted that the document purporting to be an acknowledgement of debt is not a liquid document in that it does not disclose the amount due and payable. He quoted on extract from the document marked Annexure “A” in support to his submissions being;

"Indien daar enige verandering in die uitstaande balance moet gebring word, word daar ondemeem om hierdie verandering ook diensooreenkoms aan te bring vvor die sperdatum waarop die betaling van die balans moet gebeur."

[5] He, however, conceded that the defendant did in fact make payment to the Plaintiff in the sum of R162 860.23 in good faith. On perusal of the acknowledgement of debt annexed to the Particulars of Claim, I noted that the Defendant undertook (onderneem) to pay to the Plaintiff an amount of R335 391.78.

[6] It is trite that the Plaintiff may apply for summary judgment where the Defendant has delivered notice of intention to defend if the claim in the summons is, among others, based on a liquid document.

[7] It is common cause that acknowledgement of debt are classified as liquid documents for the purpose of Rule 32(1) (a) of the Uniform Rules of Court. The Defendant does not attack the validity of the documents but the performance of the Plaintiff towards the execution of her mandates as an agent\manager.

[8] He further conceded, as already indicated above, that the Defendant did advance some payment totalling an amount of R162 860.23 in good faith. In my view, the Defendant does not have the bona fide defence to the Plaintiff's claim and thus make the following order.

[9.1] Judgment is granted against the defendant in the sum of R172 531.55;

[9.2] Interest on the aforesaid sum calculated at the rate of 15,5% per annum from 9 May 2008 , to date of final payment;

[9.3] Costs on Party and Party scale.

AML Phatudi