Diesel Power Plant Hire CC v Master Diggers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Zulman J
• Judgment Date: 27 January 1992
• Citation: 1992 (2) SA 295 (W)
• Hearing Date: 27 January 1992
• Court: Witwatersrand Local Division

Zulman J:

In this matter the plaintiff claims summary judgment against the defendant, basing itself upon the following allegations in its summons:

B 'Payment of the sum of R204 155 in respect of equipment hired by the plaintiff to the defendant at the latter's special instance and request during 1991. The amount of R204 155 represents an agreed amount, alternatively plaintiff's usual charge, further alternatively a fair and reasonable charge for the equipment hired by the plaintiff to the defendant. R142 940 of the aforesaid sum became payable on 25 C September 1991 and R61 215 of the aforesaid sum became payable on 25 October 1991. Notwithstanding demand, the defendant fails, refuses and/or neglects to pay the sum of R204 155 to the plaintiff, or any part thereof.'

The cause of action therein set out is verified in an affidavit filed D by the plaintiff and deposed to by a Mr Watson, who describes himself as the sole member of the plaintiff, and who states that he has personal knowledge of the matter, and he verifies in para 3 of the affidavit the cause of action in these terms:

'I verify that the defendant is indebted to the plaintiff on the E grounds and in the amounts stated in the summons.'

The defendant has filed an affidavit resisting summary judgment, and is represented before me by Mr Steyn. Mr Steyn raised, on behalf of the defendant, a point in limine. The substance of this point is that, inasmuch as the cause of action is framed in the alternative, it was not possible in law or in terms of the Rules relating to summary judgment, F for the deponent to the plaintiff's affidavit to have verified an alternative cause of action. Furthermore, that portion of the cause of action relied upon in the summons and the averment therein relating to the payment of a fair and reasonable charge was excipiable in that an agreement to pay such a charge was not a maintainable cause of action in a contract for letting and hiring.

G In support of the first portion of the proposition reliance was placed on the case of Threeball Construction (Pty) Ltd v Lipschitz 1987 (2) SA 633 (W), a judgment of Stegmann J in this Court. The material portion of that judgment, insofar as is here relevant, is to be found at 634D-H, and reads as follows:

H 'Mr Mendelowitz, on behalf of the defendant, argued what is essentially a point in limine. He pointed out that the plaintiff's claim contained alternative allegations as to the prices. The plaintiff's first allegation (made in para 6.2) was that the agreed prices for the said extras were as follows: there was then set out a list of the extras and the allegedly agreed prices.

In the next paragraph the following allegation was made:

"6.3

I Alternatively to para 6.2 above, if no price was agreed for the said extras, the plaintiff states that:

6.3.1

it was an implied term of the agreement regarding each one of the said variations and extras that the defendant would pay...