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

• Jurisdiction: South Africa
• Citation: 1983 (2) SA 95 (C)

Globe Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd
1983 (2) SA 95 (C)

1983 (2) SA p95

Citation	1983 (2) SA 95 (C)
Court	Cape Provincial Division
Judge	Tebbutt J
Heard	October 22, 1982
Judgment	December 8 ,1982

Flynote : Sleutelwoorde

Practice — Judgments and orders — Summary judgment — When to be granted — Summons for an amount in respect of goods sold and delivered and services rendered not averring the amount is due and payable — Summons not deficient — When B verifying affidavit required by Rule of Court 32 needs to amplify the averments in the summons — Such amplification not required where there is no averment that price of goods sold and delivered is due and payable — But such amplification required in respect of claim for services rendered — Summary judgment accordingly refused.

C Practice — Summons — Claim for an amount for goods sold and delivered and services rendered — Summons not deficient by reason of lack of averment that amount due and payable.

Headnote : Kopnota

A summons for payment for "goods sold and delivered" is, for the purpose of granting summary judgment, not deficient if it D does not contain an averment that such payment is due and payable. In a claim for services rendered, too, a summons which did not set out that the amount in respect thereof is due and payable would not be rendered defective.

South African Permanent Building and Investment Society v Gornitzka 1939 TPD 385 approved and applied.

Landman Implemente (Edms) Bpk v Leliehoek Motors (Edms) Bpk E 1975 (3) SA 347 (O) not approved and not followed.

It is sufficient for the deponent of the verifying affidavit required in applications for summary judgment by Rule of Court 32 to verify the cause of action if it is adequately set out in the summons and only where it can be said that the summons does not contain all the elements to constitute a complete cause of action need the verifying affidavit amplify what is set out in the summons.

F Because a sale is presumed to be for cash unless an agreement to give credit is averred and proved by the person who alleges that the sale is one on credit, and because in a cash sale delivery of the goods and payment of the price are concurrent conditions and such payment becomes due at the time of delivery, an allegation in the summons that the claim is for goods sold and delivered would be sufficient to render payment due. No further allegation in this regard would be necessary in the verifying affidavit.

G In a claim for services rendered, however, payment in respect of such services becomes due, in the absence of a specific agreement in regard thereto, within a reasonable time of the rendering of the services. While in a summons it may not be necessary to state that the amount is due and payable, in order to have a complete cause of action upon which summary judgment can be granted it is necessary for the plaintiff or other H deponent to the verifying affidavit to state either that the amount is due and payable or that a reasonable time has elapsed entitling the plaintiff to payment.

Accordingly, the Court refused an application for summary judgment in an action in which the summons claimed payment of an amount "in respect of services rendered... and goods sold and delivered...", the summons not having separated out what portion was claimed for the services rendered and what portion for the goods sold and delivered, and no allegation that the amount was due and payable being contained in either the summons or the verifying affidavit.

1983 (2) SA p96

Case Information

Application for summary judgment. The facts appear from the reasons for judgment.

R S van Riet for the plaintiff.

D van Reenen for the defendant.

Cur adv vult. A

Postea (December 8).

Judgment

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 -

1983 (2) SA p97

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...