DSV South Africa (Pty) Ltd v Phoenix Noemed (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Manoim J
• Judgment Date: 13 September 2023
• Citation: 2023 JDR 3441 (GJ)
• Hearing Date: 07 August 2023
• Docket Number: 2022-011215
• Court: Gauteng Local Division, Johannesburg

Manoim J:

[1]

This is an application for summary judgment in terms of which the plaintiff seeks payment of the sum of R3 754 387-50, together with interest thereon and costs on the attorney and client scale.

[2]

The plaintiff is a logistics company. It provided the defendant, with what are referred to as clearing, forwarding and export/import services. What this meant in this case is that the plaintiff would be responsible for receiving the defendant’s goods at the port of entry, offloading them, clearing them with customs, warehousing them and then delivering them to the defendant. The defendant is a company that imports specialised medical equipment for customers in the health care industry. The plaintiff rendered its services to the defendant in terms of a written agreement concluded in November 2020.

[3]

The arrangement between the parties was that the plaintiff would render services from time to time for the defendant and then invoice it. The sum outstanding represents the total amount of several invoices for services rendered between December 2021 and June 2022 which despite demand remain unpaid.

[4]

The defendant filed a plea in which it raised the following defences. The agreement was admitted but the defendant alleged it was subject to an implied or tacit term that the defendant would only have to make payment if it was paid by the Department of Health. There is also a bare denial that the services were rendered by the plaintiff for the amounts claimed in the invoices.

2023 JDR 3441 p3

Manoim J

[5]

The defendant also complained that the copy of the contract attached to the summons was illegible and hence it was impossible to admit or deny the terms.

[6]

Nevertheless, on the basis of the rendition of some of the terms in the contract set out in the particulars of claim the defendant pleaded that one of the clauses which obliged the defendant to pay the amount invoiced notwithstanding they may be disputed and only thereafter might the right to dispute arise, was contrary to the Constitution and public policy. [1]

[7]

The plaintiff then brought an application for summary judgment. Here the plaintiff acknowledged that there had been another payment of R 600 00 made by the defendant since the summons was issued. Together with a consequent customs VAT reversal of R 35 921,55, the original claim of R4 390 309,05 was thus reduced to a claim for 3,754,387.50.

[8]

In the affidavit resisting summary judgment the defendant raised a further defence that the plaintiff had caused some of the equipment intended for use in the ICU’s of a hospital to become damaged whilst being warehoused and hence were no longer fit for purpose. In the affidavit the defendant puts this amount as approximately R 1,675,506.06. [2]

[9]

The defendant filed this answering affidavit five days late. The plaintiff required the defendant to file an application for condonation which it duly did. It explained that

2023 JDR 3441 p4

Manoim J

shortly before the affidavit needed to be filed the directors were overseas on business and hence the delay which was not excessive. The upshot was that the defendant was five days late with filing. Whilst it did not account for the full period of delay, (the period extended over the December/ January period and the application was initially set down for the unopposed roll on 8 February) its explanation was limited to the five day period. Nevertheless, the defendant tendered costs of the wasted costs for removing the matter from the roll. The matter was removed from the roll, but the plaintiff’s attorneys were still insistent in opposing condonation. I heard this application when I heard the merits and granted condonation.

[10]

The short time period of delay coupled with an explanation for the delay that was not unreasonable in the circumstances justified condonation. This is the type of opposition that is unnecessary and was so trivial and a waste of valuable court time.

Defences raised by the defendant.

[11]

In resisting summary judgment, the defendant must raise a bona fide defence. [3] Although two are intertwined the defendant has raised several defences each of which it alleges is a self-standing basis to constitute a bona fide defence to summary judgment being granted. I deal with each separately.

2023 JDR 3441 p5

Manoim J

a. The illegible contract.

[12]

The defendant complains that the copy of the contract annexed to the summons was illegible. Since it was illegible it was non-compliant with the rules and summary judgment should be refused. But for all the reliance on cases dealing with formalities required of a plaintiff in summary judgment proceedings this complaint is wrong on the facts. The contract attached to the summons is in typed form. Whilst on CaseLines it is small, and a challenging read, it is certainly not illegible.

[13]

But if this was a basis that prevented the defendant from pleading it could have raised several provisions in the Rules...