judgment - swazilii
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IN THE HIGH COURT OF SWAZILAND
HELD IN MBABANE Case No. 865/2017
In the matter between:
RECESS (PROPRIETARY LIMITED t/a
RECESS PLANT HIRE Plaintiff
And
TUGELA DISTRIBUTORS (PTY) LTD Defendant
JUDGMENT
Neutral Citation: Neutral Citation: Recess Proprietary Limited t/a Recess Plant
Hire vs Tugela Distributors (PTY) Ltd (865/17) [2017] SZSC 252 (24 November
2017)
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Coram : M. LANGWENYA J
Heard : 06 October, 2017
Delivered : 24 November, 2017
Summary
Summary Judgment application-plaintiff claiming money due for hiring of bobcat skid
loader and a JCB EDX TLB back-hoe loader-defendant not denying that it hired the said
machinery-defendant disputing amounts claimed for dates predating agreements which
are a subject of this application-this a triable issue-defendant does not dispute he has
not discharged its obligation in terms of the oral agreements to the extent that the
amount being claimed of E208 080.00 and interest thereon is due and owing-
defendant’s argument that oral agreement was cancelled at its instance has no
substance-summary judgment granted in favour of invoices that the defendant signed-a
bald and bare denial to pay by the defendant is both bad in law and not a bona fide
defence.
LANGWENYA J
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[1] On 20 June 2017, the plaintiff issued summons in terms of rule 17 (1) against the
defendant under case number 865/2017 claiming inter alia payment of the sum of
E247 650.00 being money due and owing to the plaintiff in terms of a plant hire
oral agreement between the parties in March 2017. The sum of E247 650.00 was
later reduced to E208 080.00 by the plaintiff in its heads of argument.
Upon being served with the summons the defendant duly entered appearance to
defend.
[2] In response to the notice of intention to defend, the plaintiff filed an application for
summary judgment. The plaintiff alleged that the appearance to defend was filed
by the defendant solely for purposes of delaying the action as the defendant did
not have a bona fide defence to plaintiff’s claim.
[3] On 26 July 2017 the defendant filed an affidavit resisting summary judgment
where it did not deny that:-
i) The parties entered into an oral agreement in respect of a plant
(bobcat loader) hire to the defendant at E12000.00 per month for
the duration of the hire;
ii) The parties also entered into another oral agreement where the
plaintiff would hire a TLB plant machinery for a period of three
months at E300 per hour;
iii) That the terms of the oral agreements captured in paragraphs 4
and 5 of the plaintiff’s declaration are binding on the parties; and
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iv) That the defendant has not discharged its obligation in terms of the
oral agreements to the extent that the amount being claimed of
E208 080.00 and interest thereon is due and owing. Put differently,
the defendant does not in its affidavit resisting summary judgment
and its heads of argument deny liability to pay the amount being
claimed but instead it chose to explain why it has not paid the
amount still outstanding.
[5] It is in these circumstances that the plaintiff argued that the defendant’s affidavit
resisting summary judgment has been filed to simply delay the inevitable.
[6] In opposing the application for summary judgment, the defendant contended that
it had called the plaintiff to cancel the oral agreement in respect of the bobcat
loader on 31 March 2017. According to the defendant, the reason it cancelled the
oral agreement of the hired bobcat loader was because it was small and slow in
the performance of the duties for which it was hired. The plaintiff disputes this
fact and argues that the defendant was not entitled to unilaterally change the
terms of the contract.
[7] The defendant states that it duly paid E12 000 to the plaintiff on 6 April 2017. In
countering this assertion, plaintiff states that the amount of E28 000.00
represented in ‘T1’ was in relation to another claim and not the claim before the
court.
[8] The defendant argues that after ‘cancelling’ the agreement, it requested the
plaintiff to collect the bobcat loader which was now kept at defendant’s premises
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without being used. According to the defendant, the plaintiff only showed up two
months after the contract had been ‘cancelled’ to collect the bobcat loader. For
this reason, so defendant’s argument goes, it is not indebted to the plaintiff
because the bobcat attracted no charges as it was not used following
‘cancellation’ of the contract. On the contrary, so defendant argues, the plaintiff
owes the defendant for the storage of its bobcat after the ‘cancellation’ of the
contract.
[9] The defendant says it communicated with the plaintiff and ‘cancelled’ the
agreement of hiring the bobcat loader1. The defendant does not specify the
person through whom he communicated the cancellation of the contract. The
defendant also fails to explain with whom, on the plaintiff’s side he spoke
regarding the ‘cancellation’ of the contract.
[10] When the contracts (the subject of claim A and claim B) were sealed the parties
representing both the plaintiff and the defendant are spelt out. Curiously, and if
defendant’s version is to be believed, when the oral hire agreement of the bobcat
loader is cancelled the party to whom the ‘cancellation’ of the agreement was
addressed is not stated. This omission can only lead to one inescapable
conclusion-that the contract was not in law terminated.
[11] The defendant asserts further that the plaintiff was asked to collect the bobcat
loader from defendant’s premises to which plaintiff agreed and undertook to
collect the bobcat loader at a later date. This assertion suffers from the same
1 Refer to paragraph 5 of Defendant’s affidavit resisting summary judgment where it is stated ‘On or about 31st March, 2017, the defendant communicated with the plaintiff that he was cancelling the verbal lease agreement in respect of the bobcat loader…’
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impediment as the above. The party representing the plaintiff to whom the
defendant communicated the ‘cancellation’ of the contract is not stated. This
omission can only lead to one inescapable conclusion-that no such
communication was made to the plaintiff.
[12] Following the conclusion of the agreement concerning the hiring of the bobcat
loader, the plaintiff submitted invoices to the defendant for payment for use of the
machinery. The invoices referred to hereunder were submitted:-
Invoice number 165 in the amount of E12000.00 (RPH1) dated 25/2/17
Invoice number 154 in the amount of E12000.00 (RPH2) dated 8/2/17
[13] On 6 April 2017, the defendant paid a total of E28000.00 through annexture ‘T1’.
According to the plaintiff, this payment was for a claim that is unrelated to the
claims which are a subject of this application. On the contrary, the defendant
posits that ‘[T]he plaintiff thereafter dully (sic) represented its invoice for E12
000.00…which was paid on 6th April, 2017. See annexure “T12”.
[14] There is no dispute that the defendant paid an amount of E28000.00 on April 6
2017. The dispute is on what defendant was paying for. ‘T1’ reflects payment of
E28000.00 which was done in two parts-first, was the payment of E18000 and
second, the payment of E10000.00. The plaintiff argues that the E28000.00 was
payment for the TLB hire3. Defendant argues that he paid E12000.00 for the
2 See Paragraph 5 of Defendant’s affidavit resisting summary judgment. 3 See Paragraph 4.1.2 of Plaintiff’s Heads of argument.
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services of the bobcat loader. This matter is best left to trial to ascertain what the
payment was for.
Claim B
[15] On or about March 2017 the parties entered into an oral plant hire agreement in
respect of plaintiff’s JCB 3DX TLB back-hoe loader (hereinafter referred to as the
TLB). The salient terms and conditions of the agreement were:-
i) That the defendant would hire the plaintiff’s TLB at a dry rate
(defendant to supply fuel) of E300.00 per hour;
ii) The agreement commenced on 1 March 2017 to 31 May 2017;
iii) The plaintiff would submit invoices at the end of each calendar
month in respect of hours worked by the TLB;
iv) The defendant confirmed the oral agreement through a proposal
and presented it to the plaintiff. The proposal is marked as
annexture ‘RPH3’;
[16] Following the conclusion of the hire of the TLB agreement, the plaintiff issued the
following invoices:-
Invoice number 191 in the amount of E76 200.00 (RPH4) dated 31
May 2017
Invoice number 161 in the amount of E18 000.00 (RPH5) dated 14
February 2017
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Invoice number 167 in the amount of E18 000 (RPH6) dated 28
February 2017
Invoice number 179 in the amount of E65 100 (RPH7) dated 2 May
2017.
Invoice number 174 in the amount of E66 780 (RPH8) dated 31
March 2017
Invoice number 174 initially reflected an amount of E76 350.00 as
owing by the defendant. This amount was reduced to E66 780.00
after a sum of E6 500; E2 600 and E470 were deducted as these
were expenses incurred by the defendant when he replaced a tyre
for the bobcat loader; hired a breakdown and bought diesel
respectively in attending to the bobcat loader. These expenses, it
was agreed would be deducted from the payments that the
defendant had to make for service rendered.
Notably invoice numbers 179 and 174 were signed by the
defendant (RPH 7 & RPH8 respectively).
[17] The defendant refutes invoice number 161 and 167 (dated 14 February 2017 and
28 February 2017 respectively) and argues that invoices predating 1 March
2017, the date the TLB contract was concluded- are unknown to it. I am inclined
to agree with the defendant in this respect. It is mischievous of the plaintiff to
have included invoices that were the subject of claims that are unrelated to this
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application. Summary judgment cannot be granted for the payment of invoices
that are not the subject of the claims of this application.
[18] Invoice number 191 although disputed by the defendant clearly reflects the
service rendered by the plaintiff’s TLB for the month of May 2017. Except for a
bald and bare denial of invoice number 191 the defendant does not proffer a
defence which is both bona fide and good in law. Unsubstantiated averments by
any stretch of imagination do not amount to a bona fide defence. The failure to
set out fully all the averments the defendant relies on goes against the grain of
the legal requirements in an application for summary judgment.
[19] It is my considered view that the defendant has no bona fide defence to the
payment of the following invoices:-
Invoice number 191 (RPH4) amounting to E76 200.00
Invoice number 179 (RPH7) amounting to E65 100.00
Invoice number 174 (RPH8) amounting to E66 780.00
Total E208 080.00
[20] The summary judgment procedure is set out in Rule 32 of the High Court Rules.
The rule states as follows:-
32 (1) Where in an action to which this rule applies and a combined
summons has been served on a defendant or a declaration has
been delivered to him and that defendant has delivered notice of
intention to defend, the plaintiff may, on the ground that the
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defendant has no defence to a claim included in the summons, or
to a particular part of such a claim, apply to the court for summary
judgment against that defendant.
(2) This rule applies to such claims in the summons as is only-
(a) On a liquid document;
(b) For a liquidated amount in money;
(c) …
(d) …
(3) (a) An application under sub-rule (1) shall be made on notice to
the defendant accompanied by an affidavit verifying the facts on
which the claim, or the part of the claim, to which the application
relates is based and stating that in the deponent’s belief there is no
defence to that claim or part, as the case may be, and such affidavit
may in addition set out any evidence material to the claim.
The procedure is a drastic remedy given to a plaintiff who believes
that his case is unanswerable and the defendant has no bona fide
defence to the claim4.
The approach in summary judgment applications has been
described in varying terms by the High court but all in an effort to
4 See Zanele Zwane v Lewis Store (Pty) Ltd, t/a Best Electric, Civil appeal Number 22/2001; Swaziland Development and Financial Corporation v Vermark Stephanus High Court Civil case Number 4021/2007.
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make it clear that such a remedy should be availed where the
defendant has no bona fide defence and that his appearance to
defend has been entered to delay the inevitable.
[21] The quintessence of the remedy of summary judgment is to grant immediate
relief-without the expense and delay of a trial- to a plaintiff who believes that the
defendant’s defence is not bona fide and is entered only for dilatory purposes.
Put differently, summary judgment is one sure way by which unscrupulous
litigants who seek to delay a just claim by defending the indefensible are
frustrated.
In the case of Crede v Standard Bank of South Africa5, Kannemeyer J remarked:
‘One must bear in mind that the granting of summary judgment is
an extraordinary and drastic remedy based upon the supposition
that the plaintiff’s claim is unimpeachable and that the defendant’s
defence is bogus or bad in law’
[22] In order to defeat an application for summary judgment the defendant is required
to show that his appearance to defend is not aimed at delaying the matter but
that he has a bona fide defence to the claim. In order to do so, the defendant
must allege facts that disclose a defence and that are sufficient to establish that
defence. It follows therefore that bald assertions or vague generalisations would
not suffice.
5 1988 (4) SA 786 at 789 (E).
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[23] The onus is on the defendant to show that he has a bona fide defence to the
action. In order to succeed in having an application for summary judgment
dismissed, the defendant must establish that ‘there is a mere possibility of his
success6’; that ‘he has a plausible case’; that ‘there is a triable issue7’ or ‘that
there is a reasonable possibility that an injustice may be done if summary
judgment is granted8’
[24] The issue is thus whether the defendant has discharged the onus on it. Has the
defendant deposed to a defence which, if proved at trial would constitute a good
defence to the plaintiff’s claim? I have examined the defence raised by the
defendant in regard to both plaintiff’s claims. I have found that the defendant’s
bald assertion of no indebtedness when the facts and evidence dictate otherwise;
coupled with his bare denial of indebtedness concerning invoices that he has
signed acknowledging the debt speaks volumes about its inability to raise a bona
fide defence. In my view this is a classical case where a notice of intention to
defend and an affidavit resisting summary judgment were filed with one objective
and one objective only-being that of frustrating the plaintiff’s valid and legal claim.
This type of conduct cannot be allowed to prevail in this court.
Order
[25] Accordingly, I grant summary judgment to the plaintiff in the following terms:-
6 Mater Dolorosa High School v R.J.M Stationery (Pty) Ltd Appeal Case Number 3/2000. 7 Sinkhwa SemaSwati Ltd t/a Mister Bread Bakery and Confectionary V.P.S.B. Enterprises (Pty) Ltd Case Number 3839/2009. 8 Mfaniseni Lyford Mkhaliphi v Somageba Investments (Pty) Ltd Case Number 1044/2011.
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1. Payment of the sum of E208 080.00 (Two hundred and eight
thousand and eighty Emalangeni only).
2. Interest thereon at the rate of 9% per annum a temporae
morae
3. The defendant is granted leave to defend the balance of the
claim of E39 570.00 (Thirty nine thousand, five hundred and
seventy Emalangeni)
4. Costs on the ordinary scale.
For the Plaintiff Mr B. Magagula
For the Defendant Ms Mabila