IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

E R PERRINS BUILDING CONTRACTORS CC Plaintiff/ Respondent (Registration No. 1995/008056/23)

And

DRUK- MY- NIET WINE ESTATE (PTY) LTD Defendant/ Applicant

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: 13954/2009

In the matter between:

E R PERRINS BUILDING CONTRACTORS CC Plaintiff/ Respondent (Registration No. 1995/008056/23)

And

DRUK- MY- NIET WINE ESTATE (PTY) LTD Defendant/ Applicant

JUDGMENT: 23 AUGUST 2010

MEER, J
1.	Applicant seeks an order rescinding and setting aside a final judgment in provisional sentence proceedings which became effective on 9 November 2009 in terms of Rule 8 (11) and directing Respondent to reinstate the security furnished by it to Applicant. In the alternative Applicant seeks an order condoning its non compliance with the provisions of Rule 8 (11) and declaring the results of such non compliance to be cancelled.
2.	The final judgment was granted as a result of Applicant's failure to deliver its plea and counterclaim timeously in terms of Rule 8(11). Respondent as Plaintiff issued a provisional sentence summons against Applicant as Defendant during July 2009 claiming the sum of R270 467,45 from Applicant on the strength of an interim payment certificate dated 17 December 2008, for building work to Applicant's wine cellar undertaken in terms of a JBCC Series 2000 Principal Building Agreement. The contract in respect of the wine cellar was one of four contracts entered into between the parties in respect of building projects to be undertaken by Respondent on Applicant's wine estate.
3.	On 22 July 2009 Applicant entered an appearance to defend the provisional sentence summons. There followed settlement negotiations as a result of which the provisional sentence proceedings were postponed to 14 September 2009 to enable Applicant's architect and the principal agent in terms of the building contracts, a Mr Malherbe, to assess the building projects undertaken by Respondent.
4.	Pursuant thereto Applicant's architect prepared a report which was sent under cover of a letter to Respondent's attorney on 11 September 2009. The report, based on findings on a site inspection held on 10 September 2009, lists work which Applicants alleged to be incomplete or defective and the repair costs thereof. The letter stated on the basis of the report, that Applicant had a bona fide and legitimate counterclaim against Plaintiff in the amount of approximately R520 000,00. Respondent was invited to withdraw the provisional sentence summons against Applicant and it was suggested that the entire dispute, being a building matter requiring expert evidence, be referred to arbitration for determination. Respondent did not
agree. Applicant then elected to enter into the principal case after paying the amount in the provisional sentence summons to Respondent.

8.      Mr Fourie for Respondent took issue with Applicant's explanation for its default, pointing out that no account was given of action taken between the period of delivery of the notice to enter into the principal case and the granting of provisional sentence. This criticism would be relevant had the evidence indicated that Applicant's legal team was aware that they were obliged to act in terms of rule 8(11) and deliver a plea within ten days of delivering its notice.

11.1 He questioned whether this Court was the proper forum for the dispute, given that Clause 40.3 of the JBCC contract applicable to the building works provided for all disputes to be referred to arbitration. He was however mindful during argument that the schedule to the contract provided for dispute resolution by litigation.
11.2.	He contended that the grounds upon which Applicants based three of their four counterclaims were incorrectly set out in the founding affidavit. Applicant had conceded, he indicated, on receipt of Respondent's answering affidavit that all four contracts were governed by the JBCC agreement.
11.3.	He questioned whether in terms of the pool house contract Applicant could hold Respondent responsible for patent defects.
11.4.	He took issue with Applicant's failure to deal with Respondent's counterclaim of R519 064.90 other than by way of a bare denial. He took issue further with Applicant's reconciliation of the retention amount of R61 208,25 with his counterclaim, only in its replying affidavit.
11.5.	Applicant's failure to annex to its founding papers an affidavit by architect Malherbe confirming the contents of his report on which the counterclaims were based, and the belated handing in of such affidavit only at the hearing of this application, was a further ground for exception.

threshold of a bona fide defence , which, prima facie, carries some prospect of success.

Costs

See also Stocks &Stocks Properties (Pty)Ltd v City of Cape Town 2003 (5) SA 140 (C) pararaph 27 at 147

1.	Applicant's/Defendant' non- compliance with the provisions of Rule 8 (11) is condoned;
2.	The results of such failure to comply with the aforesaid Rule are cancelled;
3.	Applicant/Defendant is directed to file its plea and counterclaim within 5 days of the date of this order;
4.	

Meer, J