residential plots at the proposed Township. The contractual
agreement is said to be partly oral and partly written.
much is evidenced by a letter from the chairman of the board of
Umbane "Limited" (not "Propriety Limited" as per
its citation), dated the 11th
November 2005. Its instructions to the Plaintiff were that it was to
proceed with the property access issues and indication of such on
the map. Meantime, Umbane would be "processing the consents
issues for the property access with property Leasee" (sic).
Plaintiff was to add Gul de Sac's where missing and to arrange for
separation of the canal and residential plots to be "in
accordance with H.S.A proposal/suggestion". Existing beacons
would have to be moved to accommodate changes.
Plaintiff was requested to submit a breakdown of its costing for
approval, otherwise to go ahead with whatever could be done in the
time being. These instructions are contained in a letter under the
caption of: "Approval of Umbane Township".
Plaintiff duly submitted its quotation dated the 2nd
January 2006, under the heading of: "Umbane Township-amendments
and access road". Under the description of "Cadastral
survey", the following is itemised: Access servitude;
pre-calculation of new beacons; placing new beacons, (80% changed);
changes to general plan and cal (calculations); and submission.
 The fee
is stated to be based on inter
the Plaintiff"... require(s) a written instruction to commence
with this work. Please remember that the consent from H.S.A [the
Human Settlements Authority] will expire again
and we do not want to leave this to the last minute" (emphasis
Thereafter the Plaintiff submitted the General Plan to the
Surveyor-General for approval, seemingly in the form of a second
edition, as reflected in its invoice. As underscored in the previous
paragraph, it is reasonable to accept that this was not the first
dealings between the parties. Apparently the Plaintiff had
previously faced the problem of an expired Human Settlement
Authority consent and emphasised that it should not recur. Also, its
quotation refers to re-calculations and placing of new beacons and
changes to an existing general plan. The identity of the author of
the original plan is not relevant at present.
crux of the dispute seems to be based on events which transpired at
the Surveyor-General, and is more specifically focussed on the
required consent certificate.
Defendant has it that payment became due once the Surveyor General
approves the Township plan whereas the Plaintiff claims it to be due
when submitted to the Surveyor General for examination.
order to decide whether this is a dispute which has to be ventilated
in the course of a trial or whether the matter should be concluded
at this stage by way of summary judgment, the focus of attention
falls onto the defence which the Respondent raises. Sub-rule 32 (4)
(a) states the position to be that a Defendant must "...
Satisfy the court with respect to the claim that there is an issue
or question which ought to be tried or that there ought for some
other reason to be a trial of the claim...".
quite correctly referred this court to the commentary in Herbstein
and van Winsen "The Civil Practise of the Superior Courts in
South Africa", 3rd
Edition at page 32, as to the aim and purpose of this remedy.
judgment procedure is designed to enable a Plaintiff whose claim
falls within certain defined classes of claims to obtain judgment
without the necessity of going to trial, in spite of the fact that
the Defendant has intimated by delivering notice of intention to
defend that he intends raising a defence. By means of this procedure
a defence of no substance can be disposed of without putting the
Plaintiff to the expense of a trial. The procedure is modelled upon
the rules of the English
Court and on the magistrate's court rules, and now prevails
throughout South Africa. This procedure formerly existed in the Cape
Province and since 1957 in the Transvaal. The procedure provided by
the rules has always been regarded as one with limited objective,
viz to enable the Plaintiff with a clear case to obtain the swift
enforcement of his claim against the Defendant who has no real
defence to that claim."
passage accurately states the position, but whether the Plaintiff is
also correct to say that it is faced with a defence of no substance
is quite a different matter. Presently, it does not need to go as
far as to say that undoubtedly, the Plaintiff has an unanswerable
case. What really needs to be done is to look at the issue raised by
the Defendant in its resisting affidavit and its relevance to the
validity of the claim. Otherwise put, has a triable issue been
raised, or not.
 As was
held in Mater Delarosa High School v RMJ Stationary (Pty) Ltd,
unreported Appeal Case No. 3/2005:
it would be more accurate to say that a court will not merely "be
slow" to close the door to a Defendant, but will in fact refuse
to do so, if a reasonable possibility exists that an injustice may
be done if judgment is summarily granted. If the Defendant raises an
issue that is relevant to the validity of the whole or part of the
Plaintiff's claim, the court cannot deny him the opportunity to have
such an issued tried."
 It is
not only a possible injustice and relevance to a claim which
militate against situ-situ
of summary judgement. What a Defendant is required to do, without
having to meet the detailed exposition of setting out precisely what
the defence is as would be required in a plea, is to persuade the
court that if what he has set out in his affidavit is proved at a
subsequent trial, it will constitute a valid defence. If he does not
do that, he can hardly satisfy the court that he has a defence. See
Breitenbach v Fiat SA 1976 (2) SA 226 (T) for a comprehensive
exposition of the summary judgment procedure and requirements.
 At the
present stage, the Defendant says that it is not yet liable to pay
the Plaintiff for its professional services. It places this defence
on the shoulders of a contention that approval by the
Surveyor-General is the catalyst, the determinative issue at stake,
as to when payment becomes due. If that is indeed the case, and I do
not hold it to be so, then it may constitute a valid defence.
 In its
replying affidavit, quite a different picture is painted insofar as
the time for liability of payment is concerned. The Plaintiff has it
that it was due to be paid once the Surveyor General was presented
with acceptable plans and whether or not it was formally approved
does not matter insofar as payment is concerned. I have reservations
concerning the Defendant's version insofar as it is held out to be a
defence to the claim.
Plaintiff clearly endorsed its quotation to the effect that the
Human Settlements Authority consent certificate should not again
expire or delay/derail the process of approval. It also explicitly
stated that the Defendant was to obtain the required consent. The
Surveyor General says that belatedly, the consent was impugned. It
seems to me that the Environmental Authority interceded at the
eleventh hour, presumably with the Human Settlements Authority, with
the result that the consent certificate was put on hold. Despite the
fact that the Surveyor General apparently had no qualms with the
work done by the Plaintiff and presented to him, he could not
approve it in the absence of the pre-requisite consent. The consent,
it seems to me, had to be obtained and presented by the Defendant,
but ultimately, it proved to be futile.
But there is
more to this. The Human Settlements Authority has not been cited.
Its reasons for withholding of consent, or withdrawal of it, have
not been fathomed. The Environmental Authority has likewise not
stated the reason for their intervention, if they indeed did so.
Whether initial approval for a cadastral survey has been granted is
equally unknown. What does seem to be suspect, at face value and
according to the Plaintiff, is the accusation that its work was
"unworkmanlike." Exception is taken against that opinion.
Also, whether a further Town Planner in fact had to "redo"
the work done by the Plaintiff and if so, to what extent and why.
As I write
this ruling, the media has published ongoing reports about
objections raised against the proposed township and the issue of a
consent certificate still remains a moot point. It is also unsure
whether the plans which the Defendant placed before court are indeed
these which pertain to a cadastral survey, or whether it is a
"proposed layout", as it is titled, with a superimposed
plan of the layout, new canals, etcetera. At present, it is unknown
what the reasons for non issue of a consent certificate are. Also,
whether the Plaintiff could be blamed for non-approval of plans by
the Surveyor-General, or whether the Defendant is the author of its
own misfortunes. These are issues that need to be decided in the
course of a trial and not ignored by the granting of summary
things came to be considered into the equation, I am loathe to hold
that indeed there is no defence, which it proven at a trial, cannot
word off the claim. By so saying, there is no implication that
indeed it is such a defence. However, it is my considered view that
it would not only be premature to reject the intended defence but
also that if may very well cause an injustice to the matter.
Plaintiff took issue with the ability of the deponent to the
resisting affidavit to not only oppose the application for summary
judgment, based on alleged absence of locus
also as to his qualifications to express the views contained in it.
In considering the raised defence, I do not rely on his opinion so
unqualifiedly as to blindly accept it. As stated above, some aspects
might require a pinch of salt before being swallowed and some
aspects might even be objectionable. What he does manage to do is to
indicate on behalf of the Defendant that there is a triable issue,
namely the stage at which payment becomes due — on
presentation to the
General, or upon approval by him, as well as why it was not
as his legal standing is concerned, the Plaintiff is correct to
argue that he has not shown himself to be duly authorised to act on
behalf of the Defendant by way of a company resolution or suchlike
manner. Nevertheless, a proper notice of intention to defend has
been filed by the attorneys acting for the Defendant. The affidavit
to resist the application for summary judgement was deposed to by a
consultant of the Defendant, and by all probability, at its request
and on its behalf. Despite the attack on his legal standing in
without going into detailed reasons, it would be absurd to disregard
the affidavit resisting summary judgment on this basis and to grant
the application as if unopposed. To do so would most certainly
prejudice the Defendant and result in an injustice.
 It is
for these reasons, despite the impeccable and very well prepared
argument of Mr. Jele on behalf of the Plaintiff, that by necessity
the application for summary judgment stands to be dismissed, and it
is so ordered. Costs of the application are
be costs in the cause.
THE HIGH COURT