Globe Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Tebbutt J
• Court: Cape Provincial Division
• Hearing Date: 22 October 1982

Tebbutt J:

Plaintiff in its summons claims payment of the B amount of R26 225,

"being in respect of services rendered by plaintiff to defendant and goods sold and delivered by plaintiff to defendant at the latter's own special instance and request in the period 14 December 1981 to 29 December 1981";

C together with interest and costs. On this it claims summary judgment. Defendant opposes the granting of summary judgment and has filed an affidavit by one of its directors, Mr Jorge de Costa de Ornelas (De Ornelas), in which he denies that defendant owes plaintiff anything. He admits that plaintiff rendered certain services to defendant and supplied certain D goods but says that defendant is excused from paying and has a bona fide defence to plaintiff's claim because of the following facts.

He says that during or about November 1981 a vessel named the St Enogat collided with a vessel of the defendant, the Alleluia, at a point on the latter vessel approximately between bulkheads 13 and 18. Because of this, repairs had to be E effected to the Alleluia which plaintiff agreed to effect at an agreed price of R26 255. It was, said defendant, an express or alternatively an implied term of the agreement that the plaintiff would effect the repairs in a proper and workmanlike manner. It was in the contemplation of the parties that plaintiff would be liable for direct and consequential damages which defendant might suffer arising out of bad or faulty F workmanship by plaintiff in carrying out such repairs and more particularly, loss of profits arising from the fact that the vessel might be laid up for further repairs. De Ornelas went on to say that after plaintiff had finalised the repairs to the Alleluia it was sold to a Portuguese company, Aubacora Compania. On 27 September 1982 Aubacora Compania sent a telex G to defendant reading as follows:

"We bring to your attention that the double-bottom diesel tank (below the fish-hold) between bulkhead 13 and 18 of the fishing vessel Alleluia purchased by us from yourselves is leaking and as a result has contaminated some fish, which had to be dumped. Furthermore, we inform you that the vessel had to put to port (Funchal) earlier due to this situation and has been portbound for the past two weeks to effect repairs. Further detailed H particulars together with an independent marine surveyor's report, as well as the step we intend taking concerning this state of affairs, is being posted to you shortly."

De Ornelas went on to say that since receiving the telex defendant had been advised that Aubacora Compania had had the necessary repairs effected to the vessel and that a claim arising therefrom would be submitted to the defendant in due course, including a claim for loss of profits. He went on to say that the Alleluia was en route to Cape Town and defendant did not have full particulars of the claim but -

Tebbutt J

".... I can say that the amount of Aubacora Compania's claim against defendant will be far in excess of the amounts claimed by plaintiff from defendant. At a conservative estimation I would say that during the two weeks which the Alleluia was in port, the loss of income alone would be approximately R20 000. In addition the bill for repairs and the fish that had to be discarded would probably be in excess of R17 000."

A Defendant accordingly averred that plaintiff had failed to carry out its obligations under the agreement and that it was not obliged to pay plaintiff for the repairs or, alternatively, that it had a counterclaim against plaintiff for damages which are claimed against defendant by Aubacora Compania in excess of plaintiff's claim.

B The question I am asked to decide is whether the facts set out by defendant are sufficient to defeat an order for summary judgment. The plaintiff has contended that they are not.

Before turning to a consideration of that question, I must first deal with a point taken in limine by defendant which, it says, prevents the plaintiff from being granted summary C judgment. It is this. Mr Van Reenen, for the defendant, contended that there is no averment in the summons that the amount claimed by the plaintiff is due and payable. This, he submitted, was fatal to a claim for summary judgment for without it there was no cause of action disclosed. Unless that defect was remedied in the verifying affidavit, so his D submission continued, summary judgment had to be refused. In the present case the verifying affidavit made on behalf of the plaintiff by its financial director, Mr J D Bryce, did not do so, Mr Bryce simply stating that -

"I hereby verify that defendant is indebted to plaintiff in the sum of R26 225 on the grounds set out in the summons...".

There was, therefore, said Mr Van Reenen, not a sufficient E compliance with the requirements of Rule 32 by the plaintiff to entitle the Court to grant summary judgment in its favour.

It has been repeatedly held that the remedy of summary judgment is an extraordinary and stringent one closing, as it does, the doors of the Court to the defendant. There must, therefore, F apart from any other considerations, be a compliance with the requirements of Rule 32. Rule 32 (2) provides for the filing of an affidavit by a person who can swear positively to the facts "verifying the cause of action". The "cause of action" must therefore appear ex facie the summons, or, it would seem, if the summons does not sufficiently disclose one, then the verifying affidavit can amplify what is stated in the summons G to show a complete cause of action (see Caltex Oil (SA) Ltd v Crescent Express (Pty) Ltd and Others 1967 (1) SA 466 (D) at 469D; Dowson & Dobson Industrial Ltd v Van der Werf and Others 1981 (4) SA 417 (C) at 426F - 427C). If a cause of action does not appear sufficiently from the summons then the usual formula in the verifying affidavit that the deponent "verifies the H cause of action stated in the summons and the amount claimed therein" would not be adequate (see Dowson & Dobson Industrial Ltd v Van der Werf and Others (supra at 427C)).

What have we in the present case? The summons does not set out specifically that the amount claimed is due and payable. Nor does Mr Bryce say so specifically in his affidavit. But must the summons contain such an averment and, if it should but does not, does Mr Bryce's affidavit cure the defect?

Tebbutt J

Rule 17 of the Uniform Rules of Court is the Rule dealing with a summons. It provides, other than in the case of a combined summons under Rule 17 (2) which is required where the claim is not for a debt or liquidated demand, that every person making a A claim against another may, through the office of the Registrar, sue out a summons as near as may be in accordance with Form 9 of the First Schedule to the Rules. Form 9, which is the requisite one for a claim in respect of a debt or liquidated demand, commands the sheriff or his deputy to inform the defendant that the plaintiff institutes action against him

B "in which action the plaintiff claims (here set out in concise terms the plantiff's cause of action)".

It is essential therefore that plaintiff must set out a cause of action, but he can do so "in concise terms". It has been laid down on many occasions that the requirement that a cause of action must be set out in a summons does not mean that it C must be done with the...