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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTEND DIVISION, JOHANNESBURG

CASE NO:  5955/2018

In the matter between:

HILLBERT PLANT HIRE CC                                                                       Applicant/Plaintiff

and

BRI CORP (PTY) LTD                                                                       Respondent/Defendant

 

J U D G M E N T

 

MODIBA, J:

[1] This is an opposed application for summary judgment for the payment of an amount of R987 490.00 plus interest at 10.5%, calculated from 31 October 2017 to date of final payment, as well as the costs of the application on the attorney and client scale.

[2] The Applicant relies on an oral agreement between the parties represented by their respective duly authorised representatives, concluded during June 2017 in Johannesburg. In terms of the said agreement, the Applicant alleges that it hired tipper trucks with operators to the Respondent at a site in Mpumalanga, on the following material express, alternatively implied, further alternatively tacit terms:

2.1 the rate for a tipper truck is R180.00 per hour, excluding fuel and VAT;

2.2 the Applicant would hire the tipper trucks, with operators, to the Respondent as and when requested by the Respondent, from time to time.  The Applicant would charge the Respondent for the hiring out of the tipper trucks, at the applicable hourly and unit rate, for a minimum of 12 hours per day;

2.3 payment becomes due and payable thirty days from date of presentation of an invoice;

2.4 payment is to be made to the Applicant in Johannesburg;

2.5 the Respondent shall pay legal costs on the scale as between attorney and own client, in the event that the Applicant instructs its attorneys to take measures to enforce any of its rights under the agreement.

[3] The Applicant further alleges that it performed in terms of the agreement by delivering the tipper trucks to the Respondent, as and when requested, and more specifically, for the period June 2017 up to and including August 2017.  The Respondent failed to make payment of the tax invoices identified in a schedule attached to the particulars of claim. During September 2017, it presented the Respondent with the relevant tax invoices for payment of an aggregate amount of R987 490.80.  This amount became due and payable to the Applicant thirty days later, which payment remains outstanding.

[4] The Respondent has entered an appearance to defend the Applicant’s action. This resulted in the Applicant bringing this application as it believes that the Respondent lacks a bona fide defence to its claim.

[5] In an affidavit resisting summary judgment, the Respondent pleads for leave to defend the Applicant’s action.  It raises only one point in limine namely, the Applicant’s lack of locus standi.

[6] In her heads of argument, counsel for the Respondent raised the following further points in limine:

6.1 the deponent to the Applicant’s affidavit in support of summary judgment lacks personal knowledge of the facts set out therein;

6.2 in its particulars of claim, the Applicant fails to identify the person who represented it when the alleged contract was concluded, as required by Rule 18(6);

6.3 the said deponent lacks the authority to depose to an affidavit on behalf of the Applicant;

6.4 the Applicant has pleaded evidence in respect of the facts, contrary to Rule 18(4);

6.5 by failing to comply with Rules 18(6) and 18(4) as aforesaid, the Applicant has taken an irregular step.

[7] The Respondent also contends that it has the following bona fide defence to the Applicant’s claim:

7.1 It disputes the terms of the agreement as alleged by the Applicant.  It contends that the following terms were agreed upon between the parties:

7.1.1 the agreement is a brokerage agreement, in terms of which the Respondent would act as a broker for the Applicant;

7.1.2 the Respondent would invoice its clients, and would then upon receipt of payment, deduct its commission before paying the Applicant’s tariffs;

7.1.3 the accepted rate within the industry of 9 hours per day is applicable; and

7.1.4 the Applicant would be entitled to payment only once the Respondent has received payment from its clients.

[8] The Respondent further alleges that it has not received any payments from its clients. Therefore the amount claimed by the Applicant was at the time of institution of these proceedings, not due and payable.  Therefore, the Applicant did not have a complete cause of action.  Further, contrary to the terms of the agreement, the Applicant levied tariffs for a minimum of 12 hours a day.  As a result, the amounts owing on the invoices are disputed.

[9] Lastly, the Respondent disputes that the parties agreed to legal costs on the attorney and client scale as they are lay persons.

[10] The Respondent pleads with the court to find that the Applicant’s case is unanswerable and that the defence relied upon by the Respondent will, if proved at the trial, lead to the dismissal of the Applicant’s action. Therefore the court should grant it leave to defend.

[11] It therefore follows that the issues to be decided are:

11.1 the Respondent’s point in limine; and

11.2 whether the respondent has a bona fide defence.

 

Lack of personal knowledge of facts

[12] This point is not raised in the affidavit resisting summary judgment where factual averments to be relied on by the Respondent ought to be set out. Counsel for the Respondent may not make factual submissions from the bar in support of this point. Therefore the point in limine stands to be dismissed.

 

Lack of locus standi

[13] This point in limine is bad in law as the deponent to the Applicant’s affidavit in support of summary judgment does not require locus standi to depose to such in affidavit. He is not a party to these proceedings.[1]

 

Lack of authority to depose to an affidavit

[14] A deponent to an affidavit does not require authority to do so.[2] It suffices that he has personal knowledge of the facts. He states so in his affidavit.  The Respondent fails to dispute this in its affidavit resisting summary judgment. Therefore this point in limine stands to fail.

 

Irregular steps

[15] The manner in which the Applicant seeks to complain about the irregular steps purportedly taken by the Applicant is improper.  The procedure for raising such a complaint is set out in Rule 30 and Rule 30A.  It clearly not only failed to follow the prescribed procedure, it is also precluded from raising the complaint as it does, in its counsel’s heads of argument, as it took further steps towards prosecuting the matter by filing an affidavit resisting summary judgment.[3]

 

Failure to attach a liquid document

[16] The Applicant’s claim is not a liquid one as it relies on a liquidated amount. Such a claim for summary judgment is competent in terms of Rule 32 (1)(b).  Therefore, it need not attach a liquid document to its particulars of claim. In Botha, the court per Cobbett J, as he then was, held that a claim cannot be regarded as one for a liquidated amount of money unless it is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a mere matter of calculation.[4] Therefore, what renders an amount of money liquidated, is when it is agreed between the parties, or is capable of speedy or prompt ascertainment. The Applicant’s claim falls in the latter category. It served the respondent with invoices set out in the schedule attached to its particulars of claim as far back as September 2017.  The respondent never disputed the amounts set out there.

[17] Therefore this point of limine stands to be dismissed.

 

BONA FIDE DEFENCE

[18] To meet the bona fide defence requirement, the Respondent contends that a brokerage agreement was concluded between it and the Applicant, in terms of which it would offer the Applicants good for hiring, to third parties at “a rate” including its’s commission.  The Respondent would then invoice its clients and receive payment. Upon receipt of payment, it would first deduct its commission and settle the Applicant’s invoices. The Applicant would only become entitled to payment when the end user pays the Respondent.  

[19] The Applicant denies that such a term was agreed.  It contends that such term makes no commercial sense, as it will expose it as the purported lessor to the whim of a disassociated third-party, against whom it would have no right of recourse, as an agreement between the lessee and its client is res inter alios acta, vis-à-vis the lessor.  It would under such circumstances, have no control over parties to whom the Respondent as the purported lessee sublets its equipment, being able to manage, assess or limit its risk, both in respect of the preservation of goods and enforcement of payment.

[20] Further, the Applicant contends that the Respondent holds itself out to the public, as a hirer of plant equipment which hires out its own equipment.  To that extent, it is its competitor.  

[21] Under these circumstances, I find that the agreement as alleged by the Respondent is so far-fetched that it is improbable that the Applicant would have agreed to its purported terms.[5] Therefore, if granted leave to defend, the Respondent is unlikely to prove the existence of such an agreement at the trial.

 

COSTS

[22] I find that the respondent disputes an agreement as to legal costs as alleged by the Applicant on bald and spurious grounds, as nothing precludes an oral agreement on attorney and client’s costs. Therefore, the application stands to be granted on an attorney and client’s costs as agreed to between the parties, according to the Applicant. 

[23] In the premises, the following order is made:

 

ORDER

Summary judgment is granted against the Respondent for:

1. Payment of R987 490.80;

2. Interest on the above amount, at a rate of 10.50% per annum from 31 October 2017 to date of final payment;

3. Costs of suit on the attorney and client scale.

 

__________________________

MADAM JUSTICE L T MODIBA

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

 

 

APPEARANCES

Applicant’s counsel: Mr C Van der Merwe

Instructed by: Senekal Simmonds Inc

Respondent’s counsel: Ms J Cordier

Instructed by: Parson Attorneys

Date of hearing: 28 May 2019

Date of judgment: 30 August 2019

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