IN THE HIGH COURT OF SWAZILAND
HELD IN MBABANE CASE NO. 1815/16
In the matter between:
KUKHANYA (PTY) LTD t/a KUKHANYA
CIVIL ENGINEERING CONTRACTORS PLAINTIFF
POTS CONSTRUCTION AND TECHNICAL
Neutral Citation : Khukhanya (Pty) Ltd t/s Kukhanya Civil Engineering Contractors and Pots Construction and Technical Services [1815/16]  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.
 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.
 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.
 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.
 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.
 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’. 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
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’.
 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.
 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.
 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.
 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.
 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 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”.
 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.
 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.
 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. 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.
 In Joob v Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 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”.
 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.
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.
JUDGE OF THE HIGH COURT
For Plaintiff: Mr. F. Tengbeh
For Defendant: Mr. N. Manzini
 Paragraph 5 of the plaintiff’s particulars of claim.
 1982-1986 SLR 406 (HC) at 407.
 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.
 Maharaj v Barclays National Bank 1976 (1) SA 418(A) at 426B-D.
 2009 (5) SA (1) SCA