New Zealand Construction (Pty) Ltd v Carpet Craft

• Jurisdiction: South Africa
• Judgment Date: 16 August 1974
• Citation: 1976 (1) SA 345 (N)

New Zealand Construction (Pty) Ltd v Carpet Craft
1976 (1) SA 345 (N)

1976 (1) SA p345

Citation	1976 (1) SA 345 (N)
Court	Natal Provincial Division
Judge	Leon J and Kriek J
Heard	August 5, 1974
Judgment	August 16, 1974

Flynote : Sleutelwoorde

Practice — Trial — Onus of proof — When discharged by a plaintiff — Factors to be taken into account — Approach by Court.

Headnote : Kopnota

The principle referred to in Goosen v. Stevenson, 1932 T.P.D. 223, and Union Government v. Sykes, 1913 AD 156 at p. 173, B that less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required, must be taken to be qualified by the modern approach to this subject. The Court must have regard to the totality of the evidence in deciding whether the plaintiff has discharged the onus which rests upon it. One of the factors to which regard may be had is that the defendant has not given evidence. C If the question in issue is a matter peculiarly within the knowledge of the defendant, that is another factor to which regard may be had. The inference to be drawn from a defendant's failure to give evidence where the case depends upon circumstantial evidence will depend upon all the circumstances of the case including the strength or weakness of the plaintiff's case and the ease with which the defendant could meet it. D

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

D. H. Bester, for the appellant.

J. N. S. Bristowe, for the respondent.

Cur. adv. vult. E

Postea (August 16).

Judgment

Leon, J.:

The appellant was the unsuccessful defendant in the court below in an action in which judgment in the sum of R1 000 F and costs was granted against it. It will be convenient to refer to the parties as the plaintiff and defendant respectively.

The plaintiff, a firm carrying on business as carpet sellers, claimed that it had done work and supplied materials to the defendant in the sum of R1 085,80. In order to bring its claim G within the jurisdiction of the magistrate's court it abandoned the sum of R85,80.

After the defendant had entered an appearance to defend the plaintiff, claiming that such appearance had been entered solely for the purpose of delay, made application for summary judgment. In opposition to that application an affidavit was H sworn by Vernon Douglas Constable, a director of the defendant, and duly authorised by the defendant to depose to such affidavit. It reads as follows:

'1. I am a director of the defendant and I am duly authorised to make this affidavit, the facts herein contained being within my own knowledge.

2. I deny that I have entered an appearance to defend solely for the purpose of delay.

3. I aver that I have a bona fide defence to the claim upon which summary judgment is being sought in that:

(a)

I sold a certain piece of land to one B. Bailey and thereafter entered into a contract to build a residence thereon;

1976 (1) SA p346

Leon J

(b)

in terms of the contract aforesaid, I was to supply certain carpeting.

(c)

The aforesaid contract was varied between Bailey and myself in that Bailey

(i)

indicated that he wished to arrange for carpeting himself;

(ii)

I repaid to him an amount of R600 in respect of that portion of the value of the carpeting which related to the question of carpeting.

(d)

A Bailey at all times dealt personally with the plaintiff and any contract entered into in respect of carpeting was a contract between the plaintiff and Bailey:

(e)

I have at no time entered into any contract or agreement with the plaintiff in respect of this present claim.

(f)

I have at no time in respect of this present claim had dealings with the plaintiff either personally or on behalf of Bailey.'

The effect of the defence raised in that affidavit was that the B plaintiff had entered into a contract not with the defendant but with one Bailey. Implicit in that defence is a complete denial that Constable or the defendant had any dealings with the plaintiff. It cannot be construed as raising the issue as to whether Constable had authority to act on behalf of the defendant (see Nyandeni v. Natal Motor Industries Ltd., 1974 (2) SA 274 (D) C , and the cases there cited at pp. 277-278).

The application for summary judgment was refused and thereafter the defendant requested certain further particulars. Among these was the following request:

'Was the agreement verbal or in writing. If in writing, a copy is required. If verbal, full details are required as D to where and when it was entered into, who represented the parties and the terms and conditions thereof. '

In reply to that request the plaintiff stated that the agreement was oral; was entered into by Meyers on behalf of the plaintiff and by V. D. Constable on behalf of the defendant on E 9 October 1972 at 1A Headingley Avenue, Westville. In terms of that agreement the plaintiff was to supply and fit certain carpeting at the premises situate at 1A Headingley Avenue, Westville, at certain agreed prices but that, if the account was paid in 'cash on completion', the defendant would be entitled to deduct 10 per cent of the agreed total price.

The defendant's plea reads as follows:

1.

F Save as is hereinafter admitted the defendant denies each and every allegation as contained in the particulars of claim as amplified by its further particulars.

2.

The defendant admits that the defendant is New Zealand Construction (Pty.) Ltd.

3.

G Save for the aforegoing the defendant denies the plaintiff's particulars of claim and specifically denies that:

(a)

it entered into an agreement whether written or verbal with the plaintiff;

(b)

that Mr. V. D. Constable acted on its behalf;

(c)

H that the plaintiff was requested to perform certain work and supply certain goods by or on behalf of the defendant;

(d)

that the plaintiff, in fact, supplied such goods or performed such work on behalf of the defendant.'

Mr. Bristowe, for the plaintiff, relying on Nyandeni's case, supra, contended that the defendant's plea had failed specifically to plead a denial of Constable's authority. As the plaintiff had proved all the essential allegations in its case and as the defendant had given no evidence the appeal fell to be dismissed on this simple ground. It is true that the plea would

1976 (1) SA p347

Leon J

appear to suggest that the real defence...