Sunlyn (Pty) Ltd and others v Smart Drawn Projects (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Petersen ADJP
• Judgment Date: 17 August 2023
• Citation: 2023 JDR 3138 (NWM)
• Hearing Date: 27 July 2023
• Docket Number: 1937/2022
• Court: North West Division, Mahikeng

Petersen ADJP:

Introduction

[1]

This is an opposed application for summary judgment in terms of Rule 32 of the Uniform Rules of Court. The plaintiffs’ seek an order for payment of an amount of R91 586.18 (together with interest and costs) from the first, second and third defendants’, jointly and severally.

[2]

In terms of Rule 32 of the Uniform Rules of the High Court:

“32

Summary judgment

(1)

The plaintiff may, after the defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only—

. . .;

(b)

for a liquidated amount in money;

. . .

together with any claim for interest and costs.

(1)

(a)

Within 15 days after the date of delivery of the plea, the plaintiff shall deliver a notice of application for summary judgment, together with an affidavit made by the plaintiff or by any other person who can swear positively to the facts.

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(b)

The plaintiff shall, in the affidavit referred to in subrule (2)(a), verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.

. . .

(3)

The defendant may—

. . .

(b)

satisfy the court by affidavit (which shall be delivered five days before the day on which the application is to be heard), or with the leave of the court by oral evidence of such defendant or of any other person who can swear positively to the fact that the defendant has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

(4)

No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2), nor may either party cross-examine any person who gives evidence orally or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it considers may elucidate the matter.

(5)

If the defendant does not find security or satisfy the court as provided in paragraph (b) of subrule (3), the court may enter summary judgment for the plaintiff. . .”

Background

[3]

The first plaintiff (‘Sunlyn’) duly represented by an authorized representative and the first defendant (‘Smart Drawn Projects’) duly represented by the second defendant, concluded a written rental agreement, the Master Agreement of Hire, together with a Schedule to the Master Agreement of Hire (‘the Agreement’) on or about

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12 February 2018 at or near Waverley, Johannesburg, Gauteng Province. In terms of the Agreement Sunlyn rented to Smart Drawn Projects a Konica Minolta Bizhub C227 printer with serial number A798021100505 (‘the goods’) for a monthly rental of R2192.90 (inclusive of VAT) per month, for a minimum period of sixty (60) months.

[4]

The second and third defendants further signed a Written Guarantee binding themselves as guarantors and co-principal debtors, jointly and severally, with Smart Drawn Projects.

[5]

In terms of an agreement concluded between Sunlyn and the second plaintiff as financier of the goods (‘Sasfin’) on 29 March 2006, the Agreement was ceded by Sunlyn to Sasfin. On 17 April 2018, Sasfin entered into a sale transfer agreement with the third plaintiff (‘SASP’), in terms of which Sasfin sold to SASP all Sasfin’s rights, entitlement and interest in and to specified equipment leases, which included the lease agreement with Smart Drawn Projects.

The defences

[6]

The defendants’ raise two defences to the application for summary judgment. Firstly, they contend that they contracted with Konica Minolta and not Sunlyn; and secondly, that Sunlyn failed to deliver to Smart Drawn Projects, the correct printer identified as the goods in the Master Agreement of Hire and Schedule to Master Agreement of Hire.

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[7]

The defendants’ take no issue with the citation of all the parties, the jurisdiction of this Honourable Court, that Smart Drawn Projects concluded the Master Agreement of Hire and Schedule to Master Agreement of Hire, inclusive of the terms contained therein, save to allege that they entered into such agreement with Konica Minolta and not Sunlyn. The defendants’ further take no issue with the cession agreement between Sunlyn and Sasfin and the sale transfer agreement between Sasfin and SASP, of which they have no knowledge.

[8]

The defendants’ opposition to the plaintiffs’ claim is based on the legal principle of iustus error. In relying on iustus error, the defendants’ first defence is that the agreement was concluded and signed under the pretext that they were contracting with Konica Minolta. As such they contend that they do not have any knowledge of an agreement, alternatively any contractual relationship with the plaintiffs’. The defendants’ elaborate on the aforesaid contention by contending that the documentary evidence, at first blush, would clearly establish a reasonable impression with any reasonable person called upon to inspect the documents, that the agreement was concluded between Konica Minolta and Smart Drawn Projects.

[9]

The defendants’ provide the following background to the conclusion of the Agreement in putting forward this defence. According to the defendants’, representatives of Konica Minolta approached them at the premises of Smart Drawn Projects, to demonstrate their products. As Smart Drawn Projects is a construction company, which also offers architectural services and requires certain equipment, the representatives of Konica Minolta presented to the

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defendants’ a printer identified as an “A1” printer and specifically suggested it as an appropriate printer for the scope and nature of the business conducted by the defendants’. The defendants’ accepted the proposed printer upon conclusion of the presentation.

[10]

The duly authorized representatives of Sunlyn informed the defendants’ that the “A1” printer would be ordered and installed upon conclusion of the necessary paperwork between the relevant parties. Whilst awaiting the arrival of the “A1” printer, an “A3” printer was installed on as a temporary solution at the premises of Smart Drawn Projects. According to the defendants’, the “A1” printer was never delivered nor installed by Konica Minolta as per the Agreement. They allege that the...