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De Jay Hiring v Kusasa Commodities (12813/08) [2008] ZAGPHC 241 (6 June 2008)

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KUSASA COMMODITIES RESPONDENT

JUDGMENT

TLHAPI V, AJ

[1] This is an opposed application for summary judgment. It arises out of an action brought by the applicant ("the plaintiff") against the respondent ("the defendant").

[2] The action was instituted by way of simple summons alleging that function and catering equipment were hired to the defendant during February 2008 and that an amount of R129,487.91 plus interest at the rate of 15.5% was due and payable.

[3] Bona Fide Defence

The defendant averred that it promoted various music events and was not involved in hospitality and catering. It had subcontracted the hospitality tents and all function and catering to Adrian Vantage Consultants CC, who were responsible for functions for their own account. It also averred that it had never contracted with the defendant, that no invoice for the services as alleged in the summons were sent to it. The defendant averred that plaintiff had instituted action against Adrian Vantage Consultants CC, that payment in the amount of R180000.00 had been effected by it and that there was a dispute relating to the outstanding balance. In this regard copies of the proceedings in the Durban and Coast Local Division, case number 3358/08 and letter of demand sent on behalf of the plaintiff to Adrian Vantage Consultants CC were annexed to the defendant's heads of argument handed in on the date of hearing.

[4] Submissions:

For the Plaintiff:

It was submitted on behalf of the plaintiff that it was trite that a subcontractor could not "sue or be sued by the party with whom the main contractor had contracted" and that the particulars of claim were not excipiable because they conveyed the nature of plaintiffs claim, that is. they disclosed a cause of action.

For the Defendant:

It is submitted that the defence was bona fide and that the application for summary judgment should never have been launched, that it was ill conceived and vexatious because the plaintiff had at all times been aware of the pending

litigation in the Durban and Coast Local Division. Further, that except for the amount, the cause of action was the same.

[5] The Law:

1. It is trite that this is an extraordinary and stringent procedure which places great limitations on the defendant in that it allows the court to give a final judgment without going to trial. In order to avoid judgment, the bona fide defence of the defendant should be a triable and an arguable one. Visser v Incorporated General Insurances Ltd 1994 (1) SA 472 (T) at 478 H; Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426 B.

2. The submission by the plaintiff relating to the limitations placed on it to sue a subcontractor who had contracted with the main contractor, is not supported by the following grounds of defence:

1. though it had subcontracted the hospitality and catering services to Adrian Vantage Consultant's CC, it had never contracted with the plaintiff with regard to the subject matter of the claim:

2. it identified Adrian Vantage Consultant's CC as being the party with whom the plaintiff had contracted regarding the hospitality and

catering equipment during the same period and for its own account.

(my underlining); proof to such effect was provided;

3. except for the difference in amounts claimed, the cause of action in the Durban and Coast Local Division and before this court were similar in many respects;

I am satisfied that these explanations are bona fide and good at law.

[6] The defendant was entitled to raise the plea of lis pendens even though he was not a party to the proceedings in the Durban and Coast Local Division; Cook and Others v Muller (N) 1973 (2) SA 247 at 245 E. It is submitted on behalf of the defendant that punitive costs on an attorney and client scale be warded against the defendant because of its knowledge of the pending litigation which made the launching of this application vexatious and unnecessary. It is my view however, that it is not apposite during this application to consider the issue of costs of this nature because not all the facts are before me and, the trial court would be best suited to do so.

[7] In the result, I make the following order:

1. Summary judgment is refused.

2. Leave is granted to the defendant to defend the action.

3. The costs of the application for summary judgment are reserved for determination by the trial court hearing the action.

TLHAPI V,

(ACTING JUDGE OF THE HIGH COURT)

DATE OF HEARING: 23 MAY 2008

JUDGMENT HANDED DOWN ON : 6 JUNE 2008

ATTORNEYS FOR THE PLAINTIFF: ANDREW DE JOHNGH ATTORNEYS;

ADVOCATE FOR THE PLAINTIFF: J HERSHENSOHN

ATTORNEY FOR THE DEFENDANT: JACOBSON AND LEVY INC.

ADVOCATE FOR THE DEFENDANT: C WOODROW