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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