IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 1314/16
In the matter between:
FARM CHEMICALS LIMITED
AND
SOKHULU PARTNERS INVESTMENT (PTY) Ltd
AND 2 OTHERS
Neutral citation: Farm Chemicals Limited v Sokhulu Partners Investments (Pty) Ltd & 2 Others [1314/16] [2018] SZHC 42 (21st March, 2018)
Coram: FAKUDZE, J
Heard: 6th February, 2018
Delivered: 21st March, 2018
Summary: Civil Procedure – Application for Summary Judgment – Plaintiff claims payment of certain sums of money resulting from the delivery and supply of goods at the Defendant’s instance and request – Defendant failing to pay and summons issued – Defendant opposes and Plaintiff applies for Summary Judgment –Defendant resists same alleging that no cause of action exists as all moneys owed were settled – triable issues also exist particularly the non disclosure by the Plaintiff in the combined summons of certain amounts :- Court fails to find triable issues – Plaintiff entitled to Summary Judgment.
JUDGEMENT
BACKGROUND
[1] On or about 1st October, 2015, at Malkerns, the Plaintiff entered into a written credit agreement with the 1st Defendant. The 1st Defendant was at all material times represented by the 3rd Defendant. The Plaintiff was represented by its Financial Manager.
[2] The terms and conditions of the agreement were as follows:
2.1. The customer shall take the delivery of the goods at the company’s premises;
2.2. The company shall be entitled to effect partial delivery of goods from time to time, and the customer shall be obliged to accept such partial delivery of the whole order placed;
2.3. Ownership of the goods will only pass to the customer against payment of the whole of the contract price;
2.4. The goods shall be at the risk of the customer as soon as they leave the company premises, if the customer contracts his own transporter to effect delivery to the required site;
2.5. Should the customer refuse delivery of goods so ordered to be delivered by the company’s cartage contractor, the customer shall be responsible for any transport costs incurred for the said goods in addiction to the purchase price;
2.6 The contract price shall be paid to the customer free of exchange at the company’s address within thirty (30) days after the date of the company’s monthly statement;
2.7. In the event that the contract price is not paid within the thirty (30) days then the contract price in arrears of thirty (30) days from the date of the statement shall bear interest at the rate of 2% per month;
2.8. In the event of it being necessary for the company to instruct attorneys to recover the contract price, or any portion thereof or any other monies due in the terms and conditions of the contract, then the customer shall pay the full attorney/client costs thereof incurred including collection commission at the maximum rates allowed by the Law Society of Swaziland.
Plaintiff’s Case
[3] The Plaintiff tabulates the transactions resulting from the delivery of goods after the credit facility had been entered into as follows:-
Document Number
Document Date
Due Date
Amount
Invoice 172882
22 December, 2015
27/01/16
E210,095.00
Invoice 173358
20/12/2015
29/01/16
E268,439.50
Invoice 173364
29/12/2015
29/01/16
E223,591.00
Invoice 174863
18/01/2016
18/02/16
E 30,180.00
Invoice 174895
18/01/2016
18/02/16
E 41,600.00
Invoice 174925
18/01/2016
18/02/16
E 41,600.00
Invoice 178984
27/01/2016
27/02/16
E 32,760.00
Document Number
Document Date
Due Date
Amount
Invoice 178982
27/02/2016
27/03/16
E 41,600.00
Invoice 178983
27/02/2016
27/03/16
E 41,600.00
Interest
30/06/2016
30/06/2016
E 38,499.40
Travel/Telephone
30/06/2016
30/06/2016
E 3,050.00
[4] The total amount that the Defendant is being called upon to pay is Nine Hundred and Seventy Three Thousand and Fourteen Emalangeni Ninety Cents (E973.014.90). This amount is inclusive of the interest and travel/telephone costs. The Plaintiff is alleging that the 1st Defendant is refusing and/or failing to pay the aforesaid amount. This has resulted in the Plaintiff issuing out Combined Summons claiming this amount. The Plaintiff is further claiming interest at 9% per annum a tempore morae. A claim for costs of suit at attorney and client scale including collection commission is also being claimed.
[5] The 1st Defendant has filed the Notice of Intention to Defend the proceedings. The Plaintiff has filed an application for Summary Judgment.
Summary Judgment Application
[6] Following the filing of the Notice of Intention to Defend, the Plaintiff filed an application for Summary Judgment. The Plaintiff alleges that the 1st Defendant has filed the Notice to Defend to delay the payment. The Plaintiff alleges that the Defendant’s purported defence is not sustainable in law and in fact for the following reasons:-
ad cause of action
6.1 The first delivery occurred on the 2nd November, 2015. By that time, the 1st Defendant had paid an amount of Three Hundred and Five Thousand Emalangeni (E305,000.00) to the Plaintiff. The mind boggling question is why was this payment done when there were no goods delivered. It is submitted on behalf of the Plaintiff that this payment was directed towards previous transactions of the parties and not the current claim. For the Defendants to rely on payment of previous transactions goes to show that their defence is in bad faith.
6.2 The payment of the Three Hundred and Five Thousand Emalangeni (E305,000.00) goes against the import of the credit facility Agreement Clauses 3 and 5 which states that the contract shall be paid by the customer free of exchange at the company’s address within 30 days after the date of the company’s monthly instalment. Ownership of the goods will only pass to the customer against payment of the whole of the contract price.
[7] The Plaintiff alleges that the above clauses show that the goods were to be delivered before payment. Thereafter, the Plaintiff was to issue an invoice/ statement for payment. The 1st Defendant was to thereafter attend to payment within 30 days. It is therefore clear that the present claim is predicated upon a credit transaction. In a credit transaction you receive the goods before you attend to payment.
Prior engagement
[8] The Plaintiff further alleges that the parties have been previously doing business with each other before the transaction which forms part of the present claim. This is buttressed by Receipt No. 31234 dated 3rd December, 2013 for the amount of Ninety Thousand Emalangeni (E90,000.00). All previous invoices amount to one million Five Hundred and Thirty Five Thousand Seven Hundred Emalangeni (E1,535,700.00). The 1st Defendant has made payment of One Million Four Hundred and Four Thousand Six Hundred and Six Emalangeni (E1,404,606.00) as shown in the 1st Defendant’s Defence. If the 1st Defendant is to be believed for a moment then the Defendant ought to have raised a counter claim.
[9] The Plaintiff finally avers that the bona fides of the Defendants are questionable. This arises from the failure of the Defendants to state previous transactions when there has been admission of the terms and conditions of the contract, invoices and delivery of the goods. The Defendants have also flatly refused to come forth and have made a bare denial that they do not owe the Plaintiff. They have failed to state the material facts upon which their defence is based. Since the Defendant has failed to put forth a bona fide defence to the particulars of claim as the defence lacks the necessary averments to avoid summary judgment, the Plaintiff is entitled to summary judgment.
The Defendant’s case
[10] The 1st Defendant states that the total invoices as per the Plaintiff’s claim in the summary amount to one Million and Sixty Two Thousand and Ninety Eight Emalangeni Fifty Cents (1,062,098.50) less the amount of One Hundred and Thirty Thousand Six Hundred and Thirty Three Emalangeni (E130,633.00) which the Plaintiff acknowledges was paid by the 1st Defendant as per paragraph 18 of the Combined Summons. This then brings the balance to Nine Hundred and Thirty One Thousand Four Hundred and Sixty Five Emalangeni (E931,465.00)
[11] The 1st Defendant further alleges that proof of payment has also been attached which is Annexure “C1 to C4.” (See pages from 61 to 65 of the Book of Pleadings). A summary of the payments is annexure “B” at page 60. The 1st Defendant has therefore to date ever since the credit agreement paid a total of Nine Hundred and Sixty Nine Thousand Nine Hundred and Eighty Two Emalangeni (E969,982.00) including all interest due. It is therefore the 1st Defendant’s case that there is no cause of action arising from the Plaintiff’s summons. There is therefore no debt that is due, owing and payable to the Plaintiff.
[12] On the issue of the payment of the principal debt the 1st Defendant states that it is the principle of our law that suretyship can only exist as an accessory to a principal. Since there is no obligation by the principal debtor, being the 1st Defendant, the 2nd and 3rd Defendants cannot be obligated and ought not to be cited in these proceedings.
[13] The 1st Defendant further states that the Plaintiff wants to make its case in the summons and also in the Replying Affidavit. In pages 80 to 110 of the Book of Pleadings the Plaintiff purports to show quotations and/or Tax invoices. In all these annexures, there is nowhere wherein the 2nd Defendant signs for the goods as delivered to the Defendant.
[14] The 1st Defendant reiterates that the payments as per annexure “C1 to C4” were payments made in terms of credit agreement. Annexure “D” was for those amounts totalling Three Hundred and Forty Five Thousand Six Hundred and Six Emalangeni (345.606.00) which were made prior to the credit agreement. The Application for Summary Judgment should therefore be dismissed, so prays the 1st Defendant.
The Applicable Law
[15] The rule relating to summary judgment is ably described by Mamba J. in Sinkhwa SemaSwati Ltd t/a Mister Bread v P.S.B. Enterprises Civil Case No. 3839/09 at page 8 where the Learned Judge says:-
“The rule relating to summary judgment………. has been designed to prevent a plaintiff’s claim based upon certain causes of action from being delayed by what amounts to an abuse of the process of the court. In certain circumstances therefore, the law allows the plaintiff after the defendant has entered appearance, to apply to court for judgment to be entered summarily against the defendant, thus disposing of the matter without putting the plaintiff to the expense of trial. The procedure is not intended to shut out a defendant who can show that there is a triable issue applicable to the claim as a whole, from laying his defence before the court.”
[16] The Learned Judge further observed that:-
“The remedy provided by the rule is extra ordinary and a very stringent one in that it permits a judgment to be given without trial. It closes the door of the court to the defendant. Consequently, it should be resorted to and accorded only where the plaintiff can establish his claim clearly and the defendant fails to set up a bona fide defence. While on the one hand the court wishes to assist a plaintiff whose right to relief is being balked by the delaying tactics of a defendant who has no bona fide defence on the other hand it is reluctant to deprive the defendant of his normal right to defend except in a clear case.”
[17] In C.S. Group of Companies v Construction Associates (Pty) Ltd Civil Case No. 41/2008, the Learned Chief Justice Banda as He then was, equally observed at page 14 that:-
“It has also been held that courts should be slow to close the door to the defendant if a reasonable possibility of a defence exists to avoid an injustice.”
[18] In the Supreme Case of Musa Sifundza v Swaziland Development and Savings Bank, Civil Case No. 67/12 at paragraph [8] it was held that:-
“[8] It is well recognised that summary judgment is an extra- ordinary 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 reasons that the courts have over the years stressed that the remedy must be confined to the clearest of cases where the defendant has no bona fide defence and where the appearance to defend has been made solely for the purpose of delay.”
Court’s observation and conclusion
[19] The 1st Defendant alleges that the moneys owed to the Plaintiff were paid in full under the credit agreement. Annexures C1 to C4 have been used as a basis for this assertion. Annexure D shows the payments that were allegedly effected before the credit agreement was entered into. Annexures C1 to C4 are proof of payment which took place after the agreement had been entered into. The Agreement was entered into on the 1st October, 2015 and the payment dates are after the date of the signing of the agreement.
[20] The Plaintiff counters this argument by first and foremost attaching invoices in the Founding Affidavit that show that the transactions relate to deliveries that took place between 22nd December, 2015 and 27th February, 2016. This excludes the issue of the interest and the Travel/Telephone charge. The delivery notes have also been attached. The Plaintiff has gone further to relate each of the payments to a particular invoice with respect to past transactions. Annexures C1 to C 32 of the Replying Affidavit show that. I must point out that in some instances the Plaintiff has duplicated the invoices. Invoice C1 and 3 are the same; the same applies to invoices C11, 13, 15, 17 and 18. Likewise, C16, 19 and 21 have been duplicated. The same applies to C2 and C4 and C10 and C14. Notwithstanding these duplications, the Plaintiff has pointed out how each payment that was made by the Defendant as shown in the Affidavit resisting summary judgment was appropriated. A statement on each transaction has also been attached.
[21] What is also worth noting is that the Defendant tried to supplement its defence by raising the issue of non delivery of certain goods the Defendant allegedly ordered from the Plaintiff. This was by way of a Supplementary Affidavit. The Plaintiff opposed the filing of the Supplementary Affidavit. I also take the position that the Supplementary Affidavit by the Respondent is not per se supplementing what is already in the Defendant’s Affidavit resisting summary judgment but is introducing a new defence. It ought therefore to be rejected and it is accordingly rejected.
[22] It is trite that it is not sufficient merely to give conclusions and inferences from the given facts. It is the primary facts from which those conclusions and inferences can be drawn which should be set out in the affidavit. If, therefore, sufficient primary facts and particulars are given from which, if true would give rise to a defence then there is a triable issue and the application for summary judgment should be denied. In the case of Mater Dolorosa High School v R.M.J. Stationery (Pty) LTD Appeal Case No. 3/2005 the test to apply in determining whether summary judgment should be granted was formulated as follows:-
“That it would be more accurate to say that a court will not “merely” be slow to close the door to a defendant, but will infact 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 of having such an issue tried.”
[23] The papers filed by the parties indicate that the Plaintiff has ably presented its case for Summary Judgment to be granted in its favour. The Defendant has failed to establish a bona fide defence. It is this court’s humble view that the Defendant has failed to establish triable issues.
[24] Having considered all the issues above, I hereby make the following orders:
(a) Summary Judgment is entered against the Defendants for the payment of the sum of Nine Hundred and Seventy Three Thousand and Fourteen Emalangeni Ninety Cents (E973,014.90);
(b) Interest on the aforesaid amount at 9% per annum a temporae morae is also entered;
(c) Costs of suit at Attorney and Client scale including collection commission are also granted.
FOR PLAINTIFF: W. MASEKO
FOR DEFENDANTS: B. MDLULI
