IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASENO. 280/2010
In the matter between:
EUREKA DIY SOLUTIONS (PTY) LIMITED PLAINTIFF
TEE AND JAY WOODWORK 1ST DEFENDANT
THEMBINKOSI SHAKA MNDZEBELE 2ND DEFENDANT
Coram Ota J.
For Plaintiff Mr. K. Motsa
For Defendants Mr. S.P. Mamba
This is a summary judgment application in which the Plaintiff claims against the 1st and 2nd Defendants, jointly and severally, inter alia the following reliefs:-
Payment of the sum of E87,960-12
Interest thereon at the prime lending rate from time to time, calculated from the due date of payment to date of final payment
Costs of suit on the scale as between attorney and client
Further and /or alternative relief.
The facts upon which the Plaintiff contends this application are as appear in it’s particulars of claim depicted on pages 4 to 11 of the book of pleadings. These facts are as follows:-
That on or about the 11th of September 2008, the 1st Defendant completed and signed an application for credit facility from the Plaintiff as per annexure E1. That once the application was faxed to the Plaintiff, an original agreement was formed between the parties. That all goods sold and delivered by the Plaintiff to the first defendant were subject to the Plaintiff’s Standard Trading Terms and conditions (STC), which forms part of the agreement, to which the first Defendant agreed to be bound. That the parties commenced Trading in accordance with the agreement. That during or about the period September 2008, the Plaintiff sold and delivered goods to the first Defendant, totaling the amount of E87,960-12 as is shown in annexure E2. That not withstanding, demand and notice, the first Defendant failed to pay the said sum of E87,960-12 as shown in annexure E3. That on or about the 9th of September 2008, the 2nd Defendant bound himself jointly and severally as surety and co-principal debtor in solidium, for the due fullfulment of the first Defendant, of all its obligations to the Plaintiff of whatsoever nature or howsoever arising, and whether already incurred or which may from time to time be incurred, as evidenced by annexure E1. It is in consequence of the above facts and circumstances, that the Plaintiff instituted action against the Defendants claiming the reliefs which I have hereinbefore set forth.
Now, it is on record that even though the Defendants filed an Affidavit Resisting this application, wherein they denied owing the sums claimed, they however subsequently conceded that they are liable for the sum of E68,719-62. The Defendants communicated this fact via a letter dated the 24th of March 2011, written by Defendant’s Attorneys S.P Mamba Attorneys, to Plaintiff’s firm of Attorneys, Robinson Bertram, which is annexed to the Plaintiff’s supplementary heads of argument. For avoidance of doubts, I deem it expedient to reproduce this letter in extensor. It states as follows:-
24th March 2011
P. O. Box 24
RE: EUREKA DIY SOLUTIONS/TEE AND JAY WOODWORK
The above matter refers
We confirm that the sum of E68,719-62 is acknowledged and that the outstanding issue is the sales tax of E19, 241-10
S P MAMBA ATTORNEYS
It is an obvious fact from the record that the Plaintiff accepts this sum conceded as settlement of part of the original claim for E87, 960-12. This fact is clearly evident from the supplementary heads of argument filed of record and from the oral representations, of Plaintiff’s counsel, Mr Motsa in Court.
The parties are therefore ad idem that the only issue left for determination is the question of the outstanding balance of E19, 241-10, which the Plaintiff claims for Sales Tax.
The Plaintiff’s case on this question, as can be deciphered from the papers filed of record, is that the 1st Defendant elected to purchase priced goods from the Plaintiff, and that this fact does not remove the 1st Defendant’s obligation to pay general sales tax, in terms of the laws of both Swaziland and the Republic of South Africa. That the Plaintiff is prohibited to charge the applicable sales tax (14% value Added Tax) of the Republic of South Africa. That upon practice the Plaintiff is obliged to pay GST at the border. That it is the Plaintiff’s general business practice that the GST due, owing and paid for by the Plaintiff is for the account of the Plaintiff’s customer. That the GST payable to the Plaintiff is paid to Plaintiff’s driver on the date of delivery, failure of which, the GST is added to the customer’s account. That since the 1st Defendant failed to make payment of the GST paid by the Plaintiff on the date of delivery, that the GST was accordingly charged to the 1st Defendant’s account. That the 1st Defendant is and /or ought to be aware of it’s GST obligations. That the 1st Defendant is thus liable to pay the Plaintiff for the GST already paid by the Plaintiff.
It is on record that the Defendants filed an affidavit in answer to this summary judgment application as I have hereinbefore demonstrated. Before dabbling into the said affidavit, it is convenient for me at this juncture to re-state the trite principles of law that must guide the Court, in dealing with summary judgment applications.
Now, I count it judicially settled, that summary judgment is an extraordinary and stringent remedy which has the tendency to close the door of justice in the face of a Defendant who may otherwise have a bona fide defence to the claim, thus preventing him from proceeding with his defence. Because of this peculiar and extreme character of summary judgment, Courts have been warned over the decades, to approach the grant of this remedy with trepidation, in order not to accasion a miscarriage of Justice.
Thus in the case of Zanele Zwane V Lewis Stores (Pty) Ltd t/a Best Electric, Civil Appeal No. 22/2007, Ramodibedi JA (as he then was) sounded this caution in the following language:
‘‘ It is well-recognised that summary judgment is an extra ordingary remedy. It is a very stringent one for that matter. This is because it closes the door to the Defendant without trial. It has the potential to become a weapon of injustice unless properly handled. It is for these reason that the Courts have over the years stressed that the remedy must be confined to the clearest of cases where the Defendant has no bonafide defence and where the appearance to defend has been made solely for the purposes of delay. The true import of the remedy lies in the fact that it is designed to provide a speedy and in expensive enforcement of a Plaintiff’s claim against a Defendant to which there is clearly no valid defence-------’’
Similarly, in Erasmus – Superior Court Practice B1 – 206, this caution was propounded in the following words:-
‘‘ The remedy – is an extra ordinary and a very stringent one in that it permits a judgment to be given without a trial. It closes the door of the Court to the Defendant. Consequently it should be resorted to and accorded where the Plaintiff can establish his claim clearly and the Defendant fails to set up a bonafide defence. While on the one hand the Court wishes to assist a Plaintiff whose right to relief is being balked by the delaying tacties of a Defendant who has no defence, on the other hand it is reluctant to deprive the defendant of his normal right to defend except in a clear case’’.
It is to aid this need for caution which I have elucidated ante, that Rule 32 (4) of the rules of the High Court, enjoins a Defendant who wishes to resist summary judgment to file an affidavit opposing same. The Defendant is required by the rule, to satisfy the Court through his affidavit, that he has a good defence to the action on the merits, by disclosing such facts as may be deemed sufficient to enable him defend generally. In the case of Maharaj V Barclays Bank Ltd 1976 (1) SA 418 AD 236, Corbert CJ, demonstrated this responsibility imposed on a Defendant opposing summary judgment as follows:-
‘‘ --------the Court does not attempt to decide the issues or to determine whether or not there is a balance of probabilities in favour of one party or the other. All that the Court enquires into is (a) whether the Defendant has fully disclosed the nature and grounds of his defence and (b) whether on the facts so disclosed the Defendant appears to have, as to either the whole or part of the claim, a defence which is both bonafide and good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be’’.
Now, when this matter served before me for argument on the 29th of March 2011, Mr Motsa appeared for the Plantiff. Mr S P Mamba who is attorney of record for the Defendant failed to attend Court. Mr Motsa however informed the Court that, Defence Counsel had telephoned him that morning asking for a postponement of the matter to enable them file supplementary heads of argument. Mr Motsa informed the Court that he was opposed to a postponement, on the grounds that the Defendants had ample time to file supplementary heads of argument but failed to do so.
I refused to postpone this matter because I saw no valid reason for the postponement sought. On the 2nd of February 2011, Mr Motsa appeared for the Plaintiff in this case and the matter was set down for hearing on the 29th of March 2011. There is a notice of set down filed of record showing that defence counsel was duly served with notice of this hearing on the 3rd of February 2011. I refused the postponement sought and proceeded with the hearing of this matter in the absence of defence counsel. Since I hold the view from the totality of the facts in this case that the defence counsel had ample opportunity to file the said heads of argument but failed to do so. Since the Defendants filed papers herein, I will consider all the papers filed of record by the Defendants, as well as the law in reaching a decision.
Now the Defendant’s Affidavit Resisting Summary judgment appears on pages 35 to 39 of the book of pleadings. In paragraph 7.2 of the said affidavit as appears on page 38 of the book, the Defendants resisted the claim for sales tax with the following averment.
‘‘ 7.2 The Plaintiff would supply the goods with the price tags already marked in them thus 1st Defendant was always regulated to sell at a certain price and at a particular mark up. This was an arrangement that worked well for the parties. It was until October 2009 where the Plaintiff charged 1st Defendant tax to the sum of E19,241-10 (Nineteen Thousand Two Hundred and Forty One Emalangeni Ten Cents) which is reflected on the statement. The 1st Defendant disputed to the sales tax on the ground that this was not the earlier arrangement. Secondly the goods have already been priced thus the 1st Defendant will not be in a position to charge extra mark up in order to recover for tax. I indicated to Plaintiff that I cannot proceed with the arrangement of paying the tax. It was better they cancel the tax amount of E19, 241-10 (Nineteen Thousand Two Hundred and Forty One Emalangeni Ten Cents) or they take their stock back’’.
Let me say it straight away here that the Defendant has failed to disclose any bonafide defence or triable issue by the foregoing averment. I say this because the allegation that 1st Defendant disputed to the claim for sales tax, because this was not the earlier arrangement, is too bare, general and speculative. It discloses no triable issues. This is because such an averment ought to have been accompanied by a clear cut allegation of the material facts of what then was the arrangement, to enable the Court anticipate a triable issue. As the case lies, this speculative defence, is in my view, insufficient to defeat this summary judgment application. As Megary V C stated in the case of Lady Anne Tennant V Associated Newspaper Group Ltd 1970 FSR, 298
‘‘ A desire to investigate alleged obscurities and a hope that something will turn up in the investigation cannot separately or together amount to sufficient reasons refusing to enter judgment for the Plaintiff. You do not get leave to defend by putting forward a case that is all surmise and mucaw – berisim’’
Similarly, I hold the opinion, that the defence that the defendants seek to set up by the allegation that the goods had already been priced, thereby giving the 1st Defendant no leeway to charge an extra mark up in order to recover the sales tax, cannot avail the Defendants. This is because the uncontroverted evidence before the Court is that it was the 1st Defendant which of its own volition opted to purchase prized goods from the Plaintiff.
There is no allegation of fact deposed to in this case to demonstrate that the mere fact that the 1st Defendant purchased prized goods from the Plaintiff relieved it of the legal obligation to pay sales tax on the goods purchased from the Plaintiff. I say this because the law puts the obligation to pay Sales Tax (or General Sales Tax) (GST) on the importer of goods into the Kingdom, in terms of Section 11 (b) of the Sales Tax Act No 12 of 1983. Section 2 (1) of the said Act defines importer as ‘‘ any person who at the time of importation:-
Owns any goods imported.
Carries the risk of any goods imported
Represents that or acts as if he is the importer or owner of any goods imported
Actually brings any goods into Swaziland
Is beneficially interested in any way whatsoever in any goods imported or
Acts on behalf of any person referred to in paragraph (a) (b) or (c) ’’.
In casu, it is beyond dispute from the facts stated, that the 1st Defendant which has its address in the Kingdom and conducts it business herein, purchased the goods in question from the Plaintiff, which carries on its business in The Republic of South Africa, and brought the said goods into the Kingdom of Swaziland. It cannot also be disputed that the 1st Defendant is beneficially interested in the goods imported. These facts put the 1st Defendant firmly in the position of an importer within the meaning of the law. See the South African case of EBN Trading (Pty) Ltd V Commissioner of Customs and Excise and Another 2001 (2) SA 1210 (SCA) page 1213. In that case the Courts in South Africa interpreted and applied section 1 of that country’s Customs and Excise Act of 1964, a legislation which is in pari materia with Section 2 (1) of our Sales Tax Act. The Court held that in terms of both the South African Customs and Excise Act, as well as the Value Added Tax Act (VAT), the importer is liable for both customs and VAT. See also Triptomania Twee (Pty) Ltd and Others V Connolly and Another (2003) All SA 374 ( c ) at page 379.
It is thus beyond controversy, that the 1st Defendant being the importer of the goods, is obliged by law to pay Sales Tax on the said goods. Since the amount of E19, 241-10 claimed for the Sales Tax is not disputed, the 1st Defendant is thus liable to pay the said amount and I so hold.
It is also an obvious fact from annexure E1, that the 2nd Defendant bound himself jointly and severally as surety and co-principal debtor in solidium for the due fulfillment of the 1st Defendant of all its obligation to the Plaintiff. Annexure E1 also demonstrates that the Defendants agreed to pay costs on the scale as between Attorney and own client, in the event of litigation
In the light of the totality of the foregoing, this application has merits. It succeeds. I hereby make the following orders.
Judgment is hereby entered against the 1st and 2nd Defendants, jointly and severally, the one paying the other to be absolved, as follows:-
Payment of the sum of E87, 960-12.
Interest thereon at the prime lending rate from time to time calculated from the due date of payment to the date of final payment.
Costs of suit on a scale as between attorney and client.
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE ………………………………DAY OF …………..2011
JUDGE OF THE HIGH COURT