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NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1592/10

In the matter between:

PBD BOEREDIENSTE ….....................................................................................PLAINTIFF

and

HENDRIK GIDOEN VISSER ….........................................................................DEFENDANT

DATE OF HEARING : 24 FEBRUARY 2011

DATE OF JUDGMENT : 10 MARCH 2011

FOR THE PLAINTIFF : ADV M HITGE

FOR THE DEFENDANT : ADV C ZWIEGELAAR

JUDGMENT

MATLAPENG AJ:

[1] The plaintiff sued out a summons against the defendant for payment in the amount of R132 714.71 being in respect of fertilizer sold to the defendant as well as for payment of interest on the amount at the prescribed rate from 01 January 2010 until the date of final payment.

[2] The defendant entered an appearance to defend the action and plaintiff launched an application for summary judgment wherein it claims that the defendant does not have a bona fide defence to the claim and appearance has been entered solely for the purpose of delaying the claim. Pieter Janeke, the Managing Director of the plaintiff deposed to an affidavit to this effect and verified the cause of action after stating that the facts he is deposing to are within his own personal knowledge.

[3] The defendant is opposing the application. He submits the following in his contention that he has a bona fide defence:

3.1 that he was acting as an agent for an undertaking called Farm Secure Capital (Pty) Ltd (Farmsecure) and any action done was on behalf and for Farmsecure. To this end, he has attached two agreements that he had entered into with Farmsecure namely a contract of lease and a production agreement and relies on certain clauses thereof;

3.2 as the particulars of claim refer to an oral agreement between, the plaintiff represented by, A E Smit (an employee of the plaintiff) and the defendant, Janeke cannot claim to have personal knowledge of the facts of the matter; and

3.3 the plaintiff does not state why it is claiming interest from 1 January 2010 and does not mention the rate of interest. Thus the prayer for such interest is invalid.

[4] For the defendant to successfully resist an application for summary judgment, he may by affidavit satisfy the court that he has a bona fide defence to the claim. This defence must be a defence in law and the facts set out in the affidavit must support the defence. This presupposes that the affidavit must fully disclose the nature and grounds of such a defence and the material fact relied upon. See Central News Agency Ltd v Celliers 1971 (4) SA 351 (NC), Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).

[5] The defendant’s opposition is dichotomic, comprising a defence on the merits on the one hand and two technical objections on the other. The technical objections are (1) whether Janeke has personal knowledge of the facts he is alleging; this will be so as according to the allegations in the summons, an oral agreement came into being as a result of a telephone discussion between Smit, an employee of the plaintiff and the defendant and (2) plaintiff claims interest at prescribed rate and fails to state the rate at which such interest should be calculated.

[6] Rule 32(2) of the Uniform Rules of Court provides that the plaintiff’s notice of application for summary judgment shall be accompanied by an “affidavit made by himself or by any other person who can swear positively to the facts, verify a cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that the notice of intention to defend has been delivered solely for the purpose of delay.”

[7] The rule indeed on the first part requires that the affidavit if not made by the plaintiff should be made by a person who can swear positively to the facts. In Maharaj v Barclays National Bank Ltd above the Court at 423A–B explained this requirement thus:

“. . . I would point out that it contemplates the affidavit being made by the plaintiff himself or some other person, “who can swear positively by the facts”. In the latter event, such other person’s ability to swear positively to the facts is essential to the effectiveness of the affidavit as a basis for summary judgment; and the Court entertaining the application therefor must be satisfied, prima facie, that the deponent is such a person. Generally speaking, before a person can swear positively to facts in legal proceedings they must be within his personal knowledge.”

[8] In Barclays National Bank Ltd v Love 1975 (2) SA 514 (D) at 516A–B the Court stated that ‘although it is not necessary for the deponent to state reasons in his affidavit for his assertion that the facts are within his own knowledge, he should where he is not the plaintiff himself at least give some indication of his office or capacity which would show an opportunity to have acquired person knowledge of the facts to which he deposes.’

[9] Janeke is the Managing Director of the plaintiff. The nature of his position in the company is such that it cannot be doubted when he claims to know the affairs of the company as is expected of any Managing Director of the company. See Conradie v Landro en Van der Hoff Edms Bpk 1965 (2) SA 304 (GW). In this respect, the defendant has not gainsaid what Janeke as the Managing Director has said namely that he knows from personal knowledge that the defendant is indebted to the plaintiff. It is axiomatic that such information should fall within the knowledge of a Managing Director of a company. I therefore find that there is no merit in the submission by the defendant and it has to be rejected.

[10] The second technical objection relates to the issue of interest. The defendant states that because the plaintiff does not mention the interest rate on which it basis its claim but only claims interest at the prescribed rate; this invalidates the claim for interest. Furthermore the plaintiff is claiming interest as from 1 January 2010 and no explanation is given for this.

[11] The uncontested averments in the summons which were verified by an affidavit in support of summary judgment, is that the debt was due and payable by the defendant by no later than December 2009. Upon failure by the defendant to pay on the due date, he fell in mora. The provisions of The Prescribed Rate of Interest Act 55 of 1975 (the Act) are applicable to mora interest. See s 1(1) of the Act and Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A).

[12] In terms of s 1(2) of the Act, the Minister of Justice, may from time to time prescribe different rates of interest. As at December 2009, the rate of interest, prescribed by the Minister stood at 15.5% per annum. This will constitute the prescribed rate of interest applicable to this claim. As the defendant fell in mora in December 2009, it was only apposite for the plaintiff to claim mora interest as from I January 2010 at the prescribed rate. In terms of the Act, a Court may only deviate from the method of calculation on account of special circumstances relating to the debt. It is not the plaintiff’s case that the Court ought to deviate from the prescribed method of calculation. In the circumstances, I am of the view that the defendant has to fail on this aspect.

[13] Lastly the defendant claims that he is not the debtor as the correct debtor is Farmsecure. Pivotal to his claim are clauses 7.4 and 7.5 of the Production Agreement which read as follows:

“7.4 In afwagting op die lewering van die gewaarborgde oesopbrengs sal die prinsipaal voorskotte ten opsigte van sy vergoeding aan die kontrakteur maak deur die loop van die ooreenkoms soos volg, mits die totaal van die gewaarborgde oesopbrengs, verminigvuldig met die gekontrakteerde prys, verskans is:

7.4.1 ‘n bedrag gelyk aan 60% (SESTIG PERSENT) van die kontrakwaarde binne 48 (AGT EN VEERTIG) uur na ondertekening van hierdie produksiekontrak en mits die prinsipaal ook in besit is van die GPS gekarteerde plaaskaarte, goedkeuring van die LGGO en die versekeringskontrak van die oesversekeraar. Met dien verstande verder dat uit hierdie fondse die administrasiefooi en ander uitgawes van die prinsipaal wat aangegaan word om die oes te verbou (byvoorbeeld finansieringskoste wat die prinsipaal op hulle beurt aan hulle finansier moet betaal), terug gehou word en die premies vir die Multi-risiko Versekering en verskansingskoste direk namens die kontrakteur betaal word;

7.4.2 ‘n bedrag gelyk aan 30% (DERTIG PERSENT) van die kontrakwaarde na ontvangs van die getekende en geverifieerde plant- en opkomsverslag deur die prinsipaal, met dien verstande dat die prinsipaal geregtig is om die heffing ten opsigte van potensiële surplus produksie en as vergoeding vir die toekenning daarvan aan die kontrakteur, uit hierdie bedrag te verhaal en soos uiteengesit in Aanhangsels “PK2” en “PK5”. Hierdie heffing sal bereken en gehef word op die verskil in tonnemaat tussen die LGGO en die gelykbreek tonnemaat;

7.4.2 10% (TIEN PERSENT) van die kontrakwaarde na ontvangs van die getekende en geverifieerde oesskattingsverslag deur die prinsipaal.

7.5 Die voorskotte soos na verwys in subparagraaf 7.4 hierbo sal deur die prinsipaal uitbetaal word direk aan die kontrakteur se verskaffers en teen voorlegging van afskrifte van die tersaaklike fakture tensy uitdruklik anders ooreengekom is deur die partye.”

[14] In contradistinction to the above, the plaintiff has referred to clauses 3.3, 8.3 and 25 of the very same Production Agreement which are to the effect:

“3.3 Geen diensverhouding, vennootskap of aanstelling van die kontrakteur as agent kom tot stand deur hierdie ooreenkoms nie. (My own emphasis)

8.3 Die kontrakteur sal op sy eie koste verantwoordelik wees vir die verskaffing en voorsiening van alle arbeid, trekkers, implemente, masjinerie en toerusting, brandstof, kunsmis en ander grondstowwe, saad en plaagbeheermiddels om die gewas te plant, te onderhou, te oes en te lewer en ook vir die berging van die grondstowwe, die onderhoud en beskerming van die toerusting wat gebruik word in die boerdery aktiwiteite, vir welke koste die kontrakteur die ooreengekome vergoeding ontvang. (My own emphasis)

25 Die kontrakteur vrywaar en stel die prinsipaal skadeloos vir enige eis, skade en/of aanspreeklikheid wat mag voortvloei uit die transaksies ingevolge hierdie ooreenkoms.” (My own emphasis)

[15] It seems clear to me that by clause 3.3 of the Production Agreement, the parties unequivocally set out what relationships will not be created. Agency is specifically designated as one of the relationships that will not come into being as a result of the agreement between the parties. The claim by the defendant that he was acting as an agent on behalf of Farmsecure is not supported by the very Production Agreement the he is relying on.

[16] In terms of clause 8.3 the defendant is responsible at own costs for the provision of amongst others of fertilizers and which will be repaid the agreed costs. The provisions of this clause unambiguously belie the assertion by the defendant as to the responsible party for the costs of the fertilizers.

[17] The defendant submits that in terms of clause 7.4 and 7.5 he is entitled to receive advances from Farmsecure and that Farmsecure may pay the said advances directly to the suppliers. Thus it was incumbent upon Farmsecure to pay the debt owing. However, what this submission fails to take into account is that in order for Farmsecure to make direct payments, to the suppliers, copies of the relevant invoices have to be submitted unless otherwise agreed by the parties.

[18] As I understand the defendant’s case, he does not state that he submitted copies of invoices to Farmsecure for payment. He also does not say that the parties had agreed that Farmsecure may pay suppliers directly without copies of invoices being submitted. Had that been the case, surely the defendant would have stated this as a fact in his affidavit. At any rate, the Production Agreement between the parties contains a non variation clause. Any variation to the agreement will have no force unless such a variation is reduced to writing and agreed by the parties.

[19] The defendant in terms of clause 25 of the Production Agreement has indemnified Farmsecure against all claims, damages and or liability that may emanate out of the agreement. This claim directly flows from the agreement and the defendant instead of facing the claim is attempting to shift his responsibilities by clutching at straws.

[20] I am satisfied that on the facts placed before me, the defence proffered by the defendant is not a valid defence in law as it is not supported by the facts.

[21] In the circumstances I make the following order:

1. Summary judgment is granted in the amount of R132 714.47.

2. Interest thereon at the rate of 15.5% per annum from 1 January 2010 until the date of final payment.

3. Cost of suit.

D I MATLAPENG

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : CHRIS MARITZ ATTORNEY

FOR THE DEFENDANT : VAN ROOYEN TLAPI & WESSELS

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