JSH Engineering Solutions CC v Leon Oosthuizen t/a One Way Diesel Stop

• Jurisdiction: South Africa
• Judge: Jansen J
• Judgment Date: 27 February 2009
• Docket Number: 2719/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 27 February 2009
• Citation: 2009 JDR 0142 (SE)

Jones J:

[1] The applicant seeks an order for summary judgment in the sum of R171 732-64, being the purchase price of goods sold and delivered to the respondent at his special instance and request during September 2008 to November 2008, together with interest and costs. The application is opposed on two grounds – (a) that the summary judgment application is defective because the deponent to the rule 32(2) affidavit seeking summary judgment was not authorized to sign it or to represent the applicant closed corporation in these proceedings, and (b), on the merits, because the transaction was not a sale but a joint venture agreement which has been breached by the applicant, and because the respondent has a counterclaim which exceeds the applicant's claim.

[2] There is no merit in the suggestion that the applicant's summary judgment application is defective for want of the deponent's authority. Rule 32(2) requires

2009 JDR 0142 p2

Jones J

an affidavit by the plaintiff or any other person who can swear positively to the facts verifying the cause of action and the amount, in any, claimed, and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been given solely for the purpose of delay. The deponent to the affidavit has made these allegations. In doing so he described himself as 'the member of the plaintiff' (a closed corporation), that he was 'duly authorized to make this affidavit', that the facts deposed to were within his personal knowledge, and that he is able to swear positively to them. The respondent was not able to allege facts to dispute any of these allegations. He suggested, however, that because his investigations revealed that there were two members of the closed corporation, the applicant should have alleged that he was authorized to act on behalf of the closed corporation in this application (and not merely that he was authorized to make the affidavit) and he should have annexed a resolution to that effect. This is particularly so, so the defence argument went, because the allegation that he was 'the member' of the plaintiff implies that he was sole member, which is contrary to a document annexed to a supplementary affidavit in opposition which shows that there were two members. There is nothing on record, the defendant argued, to show that both members authorized the proceedings. None of these suggestions go so far as to contradict the allegation, made on oath, that...