Khukhanya (Pty) Ltd v Pots Construction and Technical Services (1815/16) [2018] SZHC 7 (09 February 2018);

 

 

IN THE HIGH COURT OF SWAZILAND

JUDGMENT

HELD IN MBABANE                                                            CASE NO. 1815/16

In the matter between:

KUKHANYA (PTY) LTD t/a KUKHANYA

CIVIL ENGINEERING CONTRACTORS                            PLAINTIFF

And

POTS CONSTRUCTION AND TECHNICAL

SERVICES                                                                                 DEFENDANT

Neutral Citation   : Khukhanya (Pty) Ltd t/s Kukhanya Civil Engineering                                          Contractors and Pots Construction and Technical                                                        Services [1815/16] [2018] SZHC 7 (9 February 2018)

Coram                :  M. LANGWENYA

Heard                   :   15 December 2017

Delivered             :    9 February 2018

Summary            :        Civil Procedure-application for summary judgment-                                             plaintiff claiming a specific amount of money based                                             on a contract whose terms are not specified in plaintiff’s                                                particulars of the claim; relies on document in which                                            defendant acknowledges being indebted to Kukhanya                                           /Gabriel Couto JV and not to the plaintiff-plaintiff fails to                                    give prima facie evidence Kukhanya/Gabriel Couto JV is                                             the same legal entity as Kukhanya (Pty) t/a Kukhanya                                               Civil Engineering-Defendant’s         defence is good in law                                          summary judgment refused.                                

                                          

JUDGEMENT

LANGWENYA J

[1]     This is an opposed application for summary judgment.

          The plaintiff is a limited liability company duly incorporated in terms of the           company laws of Swaziland. Its principal place of business is situated at           496 Inyoni Park Moneni MR3 Road, Manzini.

 

[2]     The defendant is a company registered in accordance with the company laws    of Swaziland.  Its principal place of business is at plot No. 409, Somhlolo   Road, Queensgate, Mbabane.

 

[3]     The plaintiff instituted action against the defendant for payment of the sum of           E287 309.46 (Two hundred and Eighty Seven Thousand Three Hundred and Nine Emalangeni Forty Six Cents) together with interest and costs. When        the defendant entered an appearance to defend, the plaintiff brought an       application for summary judgment.

 

[4]     According to plaintiff’s particulars of claim, during the years 2012 and 2013,   the plaintiff       and the defendant entered into a written sub-contract ‘which written contract is no longer in the possession of the plaintiff’. Absent the      contract and an explanation of its content in    plaintiff’s particulars of claim it       is not possible to decide some of the lingering questions, like its purpose and       terms- with reference to this matter.

 

[5]     It is stated in the particulars of claim that ‘on the strength of the subcontract           agreement, the plaintiff issued a demand for the payment of the sum of E287    309, 46 (twenty-eight thousand three hundred and nine emalangeni forty six    cents[1]’. It is unclear when the demand for payment was issued by the plaintiff   and to whom. There is a letter marked annexture ‘K1’which is addressed to    the defendant and is signed by a representative of Kukhanya/Gabriel Couto.       What is clear is that annexture ‘K1’ is a letter written and signed by a representative of Kukhanya/Gabriel Couto and not by a representative of the      plaintiff.  It is clear also that by virtue of annexture ‘K1’ the defendant    admitted being indebted to Kukhanya/Gabriel Couto JV and not the plaintiff.           Nowhere in the plaintiff’s particulars of claim is the relationship, if any   between Kukhanya/Gabriel Couto JV and the plaintiff explained and/or       clarified. In so far as the above issues are unclear and difficult to decipher    from the plaintiff’s particulars of claim, the plaintiff’s papers were inelegantly       drafted.  I capture hereunder, the contents of annexture ‘K1’

          Re: Tender No. 180 of 2012/2013: Subcontract Works for the     Construction of Bulk Earthworks          Between KM 10+000 to KM 24+000-       FINAL ACCOUNT

          Dear Sir,

          Kindly find attached final account payment Certificate for your attention.

                The attached certificate shows a negative amount of E287 309,46 (Two Hundred and Eighty Seven Thousand         Three Hundred and nine Emalangeni and Forty Six cents) which is an amount that you are indebted to   Kukhanya/Gabriel Couto JV.  This certificate includes all deductions and retentions due to your company in     the Subcontract agreement.

                By signing this letter you hereby acknowledge that you are indebted to Kukhanya/Gabriel Couto JV the      above mentioned amount.

                We hope you find the above in order.

          Annexture ‘K1’ is signed by a representative of Kukhanya/Gabriel Couto JV    and a        representative of the defendant. There is no signature of the plaintiff’s           representative in annexture ‘K1’.

          On 12 June 2015 the defendant acknowledges its indebtedness to the plaintiff           through annexture ‘K2’ in the following terms:

          ‘We acknowledge receipt of your letter dated the 5th June 2015 with regards to settlement of an amount       of  E287 309-46 owed to yourselves. We                confirm the amount as per the joint agreement and therefore   request to (sic) owner the debt as soon as funds are available.

                We are currently experiencing cash flow problems as most of our jobs are government jobs hence payments are more often delayed.

                We thank you in advance for your understanding’.

 

[6]     The letter of 5 June 2015 was not attached to the plaintiff’s papers. The           attachment of the letter of 5 June 2015 would help clarify whether the     defendant is admitting being indebted      to Kukhanya/Gabriel Couto JV or    Kukhanya (Pty) t/a Kukhanya Civil Engineering Contractors.

 

[7]     In the affidavit resisting summary judgment, the deponent denies that the           defendant is          indebted to the plaintiff in the amount claimed in the summons.           The defendant denies that it entered into any written subcontract    agreement with the plaintiff but admits entering into a subcontract       agreement with Kukhanya/Gabriel Couto Joint Venture. The admission          accords with the provisions of annexture ‘K1’-a letter written on behalf of     Kukhanya/Gabriel Couto JV and referred to in plaintiff’s particulars of claim.

 

[8]     It is my view that plaintiff’s assertion that the defendant acknowledged being           indebted to the plaintiff in the letter of 28 May 2015 (annexture ‘K1’) is at       best misguided and at worst disingenuous. This, I say for the following reasons: first the letter is written on Kukhanya/Gabriel Couto’s letter heads.   Second, the letter is signed by a representative of Kukhanya/Gabriel Couto          JV. There is no reference to the Kukhanya Civil Engineering Contractors-  the plaintiff in the letter of 28 May 2015 (marked ‘K1’) and addressed to the defendant.

 

[9]     Quite astonishingly, the plaintiff notes and does not deny defendant’s denial     of indebtedness to the plaintiff as well as the defendant’s admission to being         a party to a        subcontract with Kukhanya/Gabriel Couto JV in its replying          affidavit. This, in my respectful view does not help the case for the plaintiff,          instead it lends credence and supports defendant’s defence that the amount   claimed is owed to Kukhanya/Gabriel Couto JV and not to the plaintiff.  The     plaintiff has not explained the legal position of Kukhanya/Gabriel Couto     JV nor has it set out what the relationship between      Kukhanya/Gabriel Couto        JV is with the plaintiff.

 

[10]   Dunn AJ (as he then was) in the case of the Bank of Credit and Commerce           International (Swaziland) Ltd v Swaziland Consolidated Investment           Corporation Ltd and Another[2] had this to say:

                    “It is not enough for a defendant simply to allege that he has a bona fide defence to the plaintiff’s                                                action.  He must allege the facts upon which                he relies to establish his defence. When this has been                                 done, it is for the court to decide whether such facts, if proved would in law constitute a defence to                                the claim and also whether they satisfy the court that the defendant is alleging such facts to acting                                                bona fide”.

 

[11]   That the defendant states that it owes Kukhanya/Gabriel Couto JV and not the           plaintiff the          amount claimed in the summons is, in my view a bona fide           defence.  This is not just a bald         and vague allegation unsubstantiated by the           facts.  The defendant’s defence is supported by a letter marked ‘K1’ which       was filed by the plaintiff.  I am mindful of the fact that I do not have to adjudicate the correctness of the defence, but to consider whether on the      facts placed before me, that would still need to be proven at trial stage, the    defendant has a defence that is good in law and made in good faith.

 

[12]   The plaintiff is reflected as Kukhanya (Pty) t/a Kukhanya Civil Engineering           Contractors and not Kukhanya/Gabriel Couto JV. The plaintiff has not placed any evidence-not even a phantom of it-before the Court tending to show that           Kukhanya/Gabriel Couto JV is the plaintiff. In the absence of prima facie           evidence that Kukhanya/Gabriel Couto JV and Kukhanya (Pty) t/a Kukhanya           Civil Engineering Contractors is one legal entity it would be remiss of this           Court to assume they are one legal entity.

 

[13]   It is not necessary for me to delve into the numerous legal principles        which           have been established by courts in our jurisdiction over the years when    deciding cases of summary judgment. For purposes of this judgment it         suffices to state that a defendant is only required to place enough evidence     before a court to persuade the court that it has a genuine desire and intention    of adducing evidence at the trial, which, if found to be true, would constitute     a valid defence to the plaintiff’s claim[3].  A defendant is not required to deal    exhaustively with the facts and evidence relied upon to substantiate its           defence, it must at least disclose its defence and the material facts upon which   it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence[4].

 

[14]   In Joob v Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint          Venture[5] the Court provides a clear and useful analysis of summary judgment        applications and states at paragraph 32 the following:

          “[T]he rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive              a defendant with a triable or a sustainable defence of his/her day in court. After almost a century of successful             application in our courts, summary judgment proceedings can hardly continue to be described as            extraordinary. Our courts both of first instance and at the appellate level have during that time rightly               been entrusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj case at 425G-              426E, Corbett JA, was keen to ensure first, an examination of whether there has been sufficient              disclosure by a defendant of the nature and grounds of his defence and the facts upon which it is                 founded.                The second consideration is that the defence so disclosed must be both bona fide and good in law.  A court                 which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings.  However, the learned              judge was equally astute to ensure that recalcitrant debtors pay what is               due to a creditor”.

 

[15]   In light of the above, I am of the view that the defendant has set out its defence           with sufficient particularity and completeness in order to comply with the           provisions of the Rules of this Court on summary judgment. The defendant      has not made a bald if laconic denial of plaintiff’s claim, it has stated that it   owes Kukhanya/Gabriel Couto JV the amount cited in plaintiff’s particulars    of claim. The position would have been quite different if the defendant merely     alleged that it owed someone or a certain company the said amount without        so much as stating whom precisely it owed. In such an instance, one would be     justified in concluding that the allegations are vague and laconic. In the     present instance, I consider that the defendant has gone far enough to show   that it has evidence which, if established at trial, will constitute a valid defence        to the plaintiff’s claim. In all circumstances, I am satisfied that the defendant          has raised a triable issue and should not be shut out at this stage.

          Order

          In the result, I make the following order:

          a) The application for summary judgment is refused;

          b) The defendant is granted leave to defend the action;

 

 

 

          c) The costs of the application including the costs of the opposed hearing are         reserved for decision by the trial court.

 

 

 

                                      ________________________

M. LANGWENYA

JUDGE OF THE HIGH COURT

 

For Plaintiff:            Mr. F. Tengbeh

For Defendant:        Mr. N. Manzini

 

[1] Paragraph 5 of the plaintiff’s particulars of claim.

[2] 1982-1986 SLR 406 (HC) at 407.

[3] Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 229D-F; Citibank NA, South Africa Branch v Paul NO & Another 2003 (4) SA 180 (T) at 201C-H; Nau v Chandler 2007 (1) SA 44 (T) at 46G-I.

[4] Maharaj v Barclays National Bank 1976 (1) SA 418(A) at 426B-D.

[5] 2009 (5) SA (1) SCA