---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG  DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Date of hearing: 22 May 2017

Date of judgment :12 June 2017

 Case number 2845 / 201 7

In the matter between:                                                         

GERTRUIDA MAGDALENA MOOLMAN                                                                     Applicant

and

LIJANI BOERDERY (PTY) LTD                                                                               First Respondent

JAN ALEXANDER MOKKEN                                                                          Second Respondent

JUDGMENT

BRENNER, AJ:

1.    In this opposed application for summary judgment, Gertruida Magdalena Moolman ("Moolman"), qua applicant, claims monetary payment from  Lijani Boerdery (Pty) Ltd ("Lijani") and Jan Alexander Mokken ("Mokken"), qua second respondent, for plants sold and delivered.

2.    At all material times hereto, Moolman, and her late husband before her, conducted the business of germinating and selling plants,  as  sole  proprietors, under the name and style of Danman Boerdery. Danman Boerdery would take orders for certain plants to be germinated into seedlings,   whereafter,   they   would   be   harvested   and   delivered   to   or collected by, purchasers. The plants in question included varieties of cabbage and lettuce.

3.    The claims comprise three components, which include mora interest and costs, namely:

a.   Claim one: payment of the sum of R2 000   000,00;

b.   Claim two: payment of the sum of R1 203 155,   58;

c.    Claim three: payment of the sum of R624 913,00  .

4.    At inception of the hearing, Counsel for Moolman stated that she did not persist in summary judgment on claim three, this because the claim was  for unliquidated damages.

5.    Claim one is founded on a settlement agreement evidenced by a written offer made in a letter dated 29 May 2015 from  Lijani's  attorneys  to  Moolman's attorneys, and by the written acceptance thereof in a letter dated 17 September 2015 from Moolman 's attorneys to Lijani's attorneys.  I will refer to this below as " the settlement agreement".

6.    In essence, the settlement agreement dealt with historical  debt  owed  to Moolman's late husband. (Moolman's locus standi is traversed below). Th e material terms were:

a.    Lijani acknowledged that it was liable to the estate of the deceased for payment of the sum of R3 550 944,79, for plants sold and delivered to it;

b.    Lijani undertook to repay this amount over a period of 36 months, at the rate of R1  000 000,00 per annum.

7.    The above debt was originally owing to Moolman's late husband, Daniel Jacobus Moolman, trading as Danman Boerdery ("the deceased"). On 30 January 2015, following his death on 14 January 2015, Moolman was appointed as the executrix  in his estate.

8.    On 4 March 2015, all the right title and interest of the estate of  the  deceased in and to claims against debtors was ceded, in writing, to Moolman, for a price of R500 000,00. Moolman also took  over  the business of the deceased and continued  to  trade as Danman  Boerdery. The validity of this cession and the takeover of the business is  not disputed by the  respondents.

9.    The operati ve wording of the offer letter is quoted  below:

"4. Die bedrag wat aan die oorledene se boedel beskuldig is, is verskuldig deur Lijani Trust/ Boerdery Eiendoms Beperk.

5.   Die totale  bedrag  verskuldig  volgens  ans klient  beloop R3 550  944, 79.

6.     Tydens u klient se laaste besoek aan ons klient het hyo ns klient meegedeel dat daar geen rente betaalbaar is nie.

7.    Ons klient bied derhalwe aan om uitstaande bedrag oar 36 maande die boedel terug te betaal met  die verstandh ouding da tons klient ten minste  'n bedrag van R1 000  000  per jaar sal betaal.”

10.  The operative wording of the acceptance letter is quoted  below:

" Ons rig ans skrywe aan u in ooreenstemming met ons  instruksies.

Ons klient is bereid om u klient se aanbod te aanvaar ter  betaling van   R3550 944, 79 oar 'n tydperk  van 36  maande met  ten minste  die bedrag  van  R1  000  000.00 betaalbaar  per jaar/12  maande siklus.”

11. The settlement agreement did not contain a term which dealt with the commencement  date  of  the  payments  offered  by  Lijani.  Nor  does  the agreement contain an acceleration clause. However, at worst, and by necessary implication, the first instalment was due, owing and payable by  17 September 2016. Summons was served on 3 February 2017, post this date.

12. The second claim is based on two documents: a written order dated 13 August 2015, signed by Mokken on behalf of Lijani, and a document styled "Agreement between G Moolman Boerdery T/A Danman Boerdery and purchaser", again signed by Mokken on behalf of Lijani, on  5  October 2016. Both such documents contained terms of  sale.

13. The transaction report of Moolman evidencing the calculation of the claim covers invoices raised from 13 June 2016 to 23 November 2016. It is plain that the written order dated 13 August 2015 covers orders placed until the written Agreement" document dated 5 October 2016 which, in my view, substituted the order document. Accordingly, the latter Agreement covers orders placed from 15 October 2016 and thereafter.

14. It is the terms of the Agreement which would apply to the order placed by Lijani in November 2016 which gave rise to its allegation that Moolman repudiated her obligations, and that Lijani suffered damages. Of which, more later.

15. In both documents, there is a suretyship provision. Mokken signed both document s. In the order document, immediately under  Mokken's signature, it states that he binds himself in his personal capacity as surety and co-principal debtor for the liability of Lijani to Dan Man Boerdery. Immediately above his signature in the " Agreement " document, it states that the signatory binds himself as surety and co-principal debtor for the obligations of purchaser Lijani. In both documents,  resort  to  litigation  would result in a claim to payment of attorney and own client    costs.

16. Clause 2 of the  order document provides that the purchaser  shall pay for  all plants ordered, including seedlings planted but not collected, within 14 days from the date of delivery. In terms of clause 3, the  purchaser  is obliged to  collect the  plants on the date agreed for  delivery, failing   which, the seller may charge a 5% increase per week  on  the  price and reserves the right to sell the plants after two weeks from  the  agreed  date  of  delivery. Clause 5 of the order document provides that, unless otherwise agreed in writing, the full purchase price is payable COD  (Cash  on delivery). In terms of  clause 9,  the  liability  of the seller  for  any damages  or loss of whatsoever nature suffered by the purchaser would at  all  times  be limited to the sale price of the plants  delivered,  the purchase price  of  the seed excluded.

17. Clause 7 of the Agreement document provides that the purchase price is due and payable on the collection date or delivery date (whichever is applicable) in respect of all plants ordered irrespective of whether such plants were in fact collected or delivery thereof accepted. At clause 17 there is a limitation of liability clause which states that the liability of the seller for any damages or loss of whatsoever nature suffered by the purchaser shall in any event at all times be limited to the purchase price paid for the goods.

18. In the particulars of claim, Moolman asserts that, between 13 June 2016 to 23 November 2016, invoices were raised for orders placed by Lijani. A resultant balance of R1 203 155,58 became owing. This balance takes account of a credit of R20 823,01 at 1 June 2016 and sporadic payments made by Lijani over the same period, totalling R310 296,84 in the aggregate.

19. In the affidavit opposing summary judgment,  concerning  claim  one, Mokken avers on behalf of  Lijani:

"It is admitted that the First Defendant was indebted  to  Mr  Moolman  in  the amount of R3 550 944. 79 as at 29 May 2015 as was recorded in Annexure "MO2" to the Plaintiff's Particulars of Claim".

20.Annexure " MO2" is the offer letter dated 29 May 2015 from Lijani's attorneys, which was accepted by Moolman's attorneys on 17 September 2015.

21. Concerning claim two, Lijani agrees having concluded an agreement with Moolman on 5 October 2016. No mention is made of the signed order document  which preceded it.

22. Mokken asserts that his attention was never drawn to the suretyship provisions in the document, on the basis of which Moolman seeks to hold him personally liable for the debt. He asserts that he would never have  signed same had this occurred . He does not assert that either document would not have been signed had it excluded the suretyship provision.

23. Significantly, however, Mokken does not deny that the sum of R1 203 155,58 is due, owing and payable by Lijani to Moolman. Nor is this claim denied in the letters generated by Lijani 's attorney, which are attached to the papers in the application.

24. ln terms of the Agreement, so it is alleged by  Mokken,  an  order  was  placed with Moolman in November 2016, which contained no provision entitling Moolman to withhold supply of the seedlings if payment  was tendered  on delivery.

25. According to Mokken, during November 2016, Moolman refused to supply further seedlings. In   a   letter  dated   23  November   2016  from  Lijani 's attorneys to Moolman's attorneys, demand is made for delivery of certain seedlings, which should have occurred by 21 November  2016. The letter  goes on to  say:

"My klient tender hiermee betaling van die volle verskuldigde bedrag van die gemelde groenteplantjies wat us moes aflewer op Maandag 21 November 2016, soos reeds hierbo gemeld verskyn dit teenoor week 47.

U moet die ooreenkoms hoeveelheid aan my klient lewer voor sluit van besigheid op Donderdag 24 November  2016,  by  gebreke waaraan my klient sal aanvaar dat  u  die  ooreenkoms  tussen uself en my klient verbreek het en sal my klient  dan  sy  regs  opsies  hierin  oorweeg."

26. In a further letter dated  25 November  2016, Lijani's  attorneys   stat e:

"Geliewe kennis te neem dat geen plantjies afgelewer is by ons klient nie, en neem ons dus aan dat u die kontrak repudieer. Gevolglik tot die bogenoemde, repudieer ans klient die tender ten opsigte  van betaling. Neem asseblief verder kennis da tons klient se regte uitdruk lik hier in voorbehou word, veral temn opsigte van 'n skadevergoeding eis. "

27. A reply attached to the particulars of claim dated 25 November 2016 from Moolman's attorneys to Lijani's attorneys demands payment  of  the amount of R3 550 944,79 and R1 203 155,58 and states, inter alia, the following:

"10. Your client continues to take delivery and notwithstanding various promises for payment fails and/or neglects to either make payment of the million rand due in terms of the old debt or of the monies due in terms of the new plants supplied, resulting in an additional R1 203 155,58  becoming due and payable.

11. Notwithstanding its failure to pay any of the aforesaid,  your client  in last week advises our client that it has insufficient means to pay against the new payment date ( being the date that it would be entitled to take delivery of the new batch of plants).”

28.  Mokken does not attach any answer to the above letter. He notes in his affidavit, however, that Moolman never terminated the agreement to supply the seedlings on the ground of nonpayment and avers that she breached the agreement despite the fact that Lijani tendered to  pay for the seedlings required in November 2016. He appears to brazenly ignore the historical debt for which Lijani was liable and which was substantial.

29.  Mokken baldly avers that Lijani could not obtain the seedlings from any other supplier and was unable to plant the lettuce and cabbage seedlings .

30. In the result, Lijani allegedly suffered a loss of profit in the sum of R6 550 620,00, com prising R3 231 100,00  arising from its inability  to  plant and  sell lettuce, and R3 319 520,00 arising from its inability to plant and sell cabbage. A two page schedule is attached which  computes  the  loss  of profit claimed by  Lijani.  Mokken proceeds  to aver:

“Considering the amount owed by the First Defendant to the plaintiff and the aforesaid counterclaim, it is the Plaintiff that is indebted to the First Defendant in the amount of R2 999 675,21.”

31. It is clear from the above concession that Lijani admits liability for  payment of the sum of R3 550 944,79 but inexplicably disregards the claim for R1 203 155,58. These two amounts total R4 754 100,37. If one deducts the total debt to Moolman of R4 754 100,37  from  the counterclaim of R6 550 620,00, the balance is R1 796 519,63, and not the amount of R2 999 675,21 as alleged by Mokken.

32. Rule 32(3)(b) of the Uniform Rules obliges a respondent in summary judgment proceedings  to adduce a bona fide defence to the  action by way  of an affidavit which discloses fully the nature and grounds of the defence  and the material  facts relied upon   therefor.

33.  At page Bl-223 of Erasmus, Superior Court Practice, the  author   states:

"If, however, the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the court to consider in relation to the requirement of bona fides. "

34. This much was stated in the case of Breitenbach v Fiat SA (Edms) Bpk 1976 (2)  SA 226  (T). At p228 the Court held as  follows:

"It must be accepted that the subrule was not intended to demand the impossible. It cannot, therefore, be given its literal meaning when it requires the defendant to satisfy the Court of the bona fides of his defence. It will suffice......if the defendant swears to a defence, valid in law, in a manner which is not inherently and seriously unconvincing."

35.A further inciteful case is that of Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA), at paragraph 31:

''The summary judgment procedure was not intended to  "shut a defendant out from defending' unless  it  was very  clear  indeed that  he had no  case  in the action. It was  intended  to  prevent  sham  defences  from  defeating the rights of the  parties by  delay, and at  the same time causing  great loss to plaintiffs who were endeavouring  to  enforce  their  rights. The  rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue  or  a  sustainable  defence of her/his day  in  court. "

36. Counsel for Moolman drew my attention to the case of  South  African Land Arrangements  CC  and  two  others  v  Nedbank  Limited 2015   ZASCA 88  dated  29 May 2015 in which, at paragraph 15, the SCA  said:

"Where a counterclaim is put up as a defence, a full  disclosure  of  the nature and grounds of the counterclaim as well as the material facts upon which a defendant relies must be made in order for it to be successful in a defence."

37. Reverting to the facts in casu, in regard to claim one, the sum of R1 000 000,00 of the total of R3 550 944,79 is, by necessary implication, at least due, owing and payable.

38. Regarding claim two, there is no dispute that the further liability, incurred post the death of the deceased and the takeover of Danman Boerdery by Moolman, of R1  203 155,58 is due, owing and payable.

39. Mokken has raised a bona fide and triable dispute based on iustus error concerning the claim which relies on the personal suretyships signed by him, and accordingly, summary judgment cannot be granted against  him  in his personal capacity.

40.The purported counterclaim fails to provide sufficient material facts to  justify its constituting a bona fide and genuine defence to the claims by Moolman. It  is bald, vague and sketchy.

41. Based on the factual matrix, and the Agreement which  prevailed  at  the time Mokken placed the November 2016 order, it would have been absurd  to expect Moolman to continue supplying seedlings at risk, in the light of a litany of broken promises to  pay, and the  historical  track  record of  Lijani in regard to  non-payment.

42. Albeit that a large portion was not yet due and payable, the total quantum  of the debt owed by Lijani to Moolman as at November 2016 was substantial:  R4 754 100,17.

43. Based on this fact, and, as mentioned above,  an established track record  of broken promises to  pay existing debt,  Moolman was entitled to   harbour the reasonable apprehension that Lijani would not honour its promise to pay for the batch of seedlings ordered in November 2016. This is fortified by the fact that Lijani's attorney makes no mention in the correspondence of how the payment would be made to Moolman against delivery of the seedlings ordered circa November 2016.

44. Moolman's conduct in declining to deliver further plants until Lijani had taken steps to pay historical debt did not constitute a breach of the agreement creating a basis for Lijani to claim damages from Moolman.

45. On the contrary, it was Lijani's numerous breaches and failure to pay substantial amounts for which it was liable which created the state of affairs which permitted Moolman to hold back collection or delivery of further seedlings to Lijani. In any event, even assuming its sustainability, which was not proved in the opposing affidavit, the counterclaim constitutes a claim for unliquidated damages.

46. Lijani was unable to prove a bona fide, genuine, prima facie defence on  the merits in regard to the claims adumbrated  below.

47. Based  on  the  order  document  and  the   Agreement  mentioned   above,  there is justification for costs on the attorney and client scale but not on the attorney and own client scale. The latter order is one which has the potential for undue prejudice to the affected party and is not warranted in casu.

48.The following order is granted, namely:

a.    Summary judgment is granted in favour of the plaintiff against the first defendant for payment of the sum of R1  000,000,00,  plus  mora interest thereon at 10, 25% per annum to date of final payment, and costs of suit on the attorney and client scale to  date;

b.    Summary judgment is granted in favour of the plaintiff against the first  defendant  for  payment  of  the  sum  of  R1   203  155,58,  plus mora interest thereon at 10,25% per annum to date  of  final payment and costs of suit on the attorney and client scale to date;

c.    Regarding the balance of claim one, in the amount of R1 000 000,00, leave to defend is granted to the first  defendant;

d.   Regarding claim three, leave to defend is granted to the first defendant;

e.    Regarding the total amounts of claims one, two and three, insofar  as they pertain to claims against the second defendant, personally, in terms of the suretyships contended for by the plaintiff, leave to defend is granted to the second defendant;

f.     To  the  extent  to  which  leave  to  defend  has  been  granted,  costs  shalI be costs in the  cause of the  main action.

___________________________

T BRENNER

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG  DIVISION,  JOHANNESBURG

12  June 2017

 

Appearances

Counsel for the Applicant:                       Advocate FW Botes

Instructed by:                                         Attorneys  Langenhoven  Pistorius & Prtnrs

 

Counsel for the Respondents:                Advocate van der Merwe

Instructed by:                                         Wynand du Plessis Attorneys

---