Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

		CASE NO: 25277/09

In the matter between: 

and

BINNS-WARD J:

[1] The plaintiff has applied for summary judgment in respect of its claim of R336 938,34, allegedly due and payable by the defendant in respect of services rendered. It appears from the papers that the plaintiff is a transport company and that the defendant operates a courier business.

[2]     The defendant opposed the application on the basis contemplated in rule
32(3)(b) of the Uniform Rules of Court. In doing so it was required to set out in
an opposing affidavit the nature and grounds of its defence and to state the

What is required of a defendant to comply with the sub-rule has been

[4] Before dealing with the grounds of defence, properly so-called, upon which the defendant relies, it is convenient first to deal with an argument raised by the defendant's counsel which was not adumbrated in the opposing affidavits. It was to the effect that the particulars of claim were vague and embarrassing. The submission, as I understood it, was to the effect that the nature of a particular internal contradiction or inconsistency in the pleading fatally subverted the allegedly liquidated nature of the claim and also the reliability of the supporting affidavit in the summary judgment application Counsel submitted in the latter respect that the deponent to supporting affidavit either could not have read the summons properly, or that he had falsely purported to confirm a claim in circumstances which the internal inconsistency in the pleading contradicted
[5] The problem raised by the defendant's counsel arose out of paragraphs 3 and 4 of the plaintiff's particulars of claim read with the relevant annexures. Paragraphs 3 and 4 contained the following allegations:

3. Defendant is indebted to the Plaintiff in the amount of R336.938.34 (THREE HUNDRED AND THIRTY SIX THOUSAND NINE HUNDRED AND THIRTY EIGHT RAND AND THIRTY FOUR CENTS}, in respect of transport servicesrendered by the Plaintiff to Defendant at the Defendant s special instance and request during October 2008 to June 2009, as reflected in the enclosed statements marked "POC1".

The relevant annexure reflected certain rates that had allegedly been agreed between the parties and recorded in somewhat cryptic terms in an email sent by a representative of the defendant to a person in the plaintiffs employ on 12 June 2008. Contrary to what has been alleged in paragraph 4 of the pleading, the content of the email correspondence annexed as annexure POC 2 does not purport to record a generally applicable agreement on rates, but rather pertains to the resolution of a query on identified invoices raised by the defendant on 17 July 2008.

It has been stated, clearly and often, that an exception that a pleading is vague or embarrassing ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged

save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he should be allowed to succeed'.

[11] In the current case, for the reasons already discussed earlier in this judgment, the ineptness of the pleading has evidently not been seriouslyprejudicial to the defendant Moreover, the defendant has seen fit to have already pleaded to the particulars of claim and thus its opportunity to take exception to the summons on the grounds that the particulars of claim are vague and embarrassing has passed.

[12] Moving on then to examine the defence which the deponent to the opposing affidavits sought to make out. The points made may be summarised as follows (I deal with only with those that the defendant's counsel persisted with in argument, but have "considered the grounds of opposition set out in the opposing affidavits in their totality):

2. The plaintiff would charge more than the agreed rates. In this respect the deponent relied on the rates reflected in annexure POC 2 and, with reference to the reconciliation undertaken by the defendant in annexure RP 2 to the opposing affidavit, gave numerous instances in which, for example say R10 500 would be charged for a load instead of the apparently agreed R9 500

4. The defendant has a liquidated claim against the plaintiff in the sum of R34 818.50, which falls to be set off against the plaintiffs claim.

[16] The defendant's contention that its claim of R34 818.50 falls to be set off against the plaintiffs claim is curious in the context of the assertion that the plaintiff does not have a liquidated claim. In any event the nature and basis of the defendant's alleged claim is described in the most inadequate terms in the second opposing affidavit. The deponent treats of the alleged claim as follows:

The annexed invoice, dated 29 May 2009, and which refers to seven items each related to a date during the period 30 April 2009 to 19 May 2009 might be meaningful to someone acquainted with the codes and cryptic descriptions reflected in the body of the document, but it is completely meaningless to the court. There is furthermore no explanation of why this alleged counter-claim was not identified or raised earlier. The purported reliance on the claim described in the invoice thus certainly does not comply with the particularity required of a defendant in terms of rule 32(3)(b).

[18] I propose to grant summary judgment in the amount in which the defendant calculated that it was liable to the plaintiff on the running account. As that amount falls within the jurisdiction of the magistrates' court, it is desirable that the issue of costs be stood over for determination by the court which determines the action for payment of the balance of the plaintiff's claim. If the plaintiff does not succeed in obtaining judgment in an amount which in total exceeds the magistrates' court jurisdiction that would have an effect on the scale on which the costs of the summary judgment proceedings should be awarded.

[19] The defendant failed to comply with the practice note requirements regarding the filing of heads of argument. I granted the application for condonation in this respect, but the defendant must pay the costs occasioned by the application.

[20]   In the circumstances the following orders are made:
(a) Summary judgment is granted in favour of the plaintiff in the sum of R71 271.34.
(b) Summary judgment is refused in respect of the balance of the plaintiffs claim and to that extent the defendant is granted leave to defend the action.

(d)	The defendant is directed to pay the plaintiff's costs incurred in respect of the defendant's application for condonation for the late filing of its heads of argument.

Judge of the High Court

i