Wonder Flooring v Northwest Development Corporation Ltd

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 04 April 1996
• Citation: 1997 (1) SA 476 (B)
• Docket Number: 68/96
• Hearing Date: 28 March 1996
• Counsel: LG Lever for the plaintiff L C J Maree SC for the defendant
• Court: Bophuthatswana Supreme Court

Comrie J:

This is an opposed application for summary judgment in terms of Rule 32. I

Before dealing with the merits of the matter, I mention a procedural difficulty. The deponent to the plaintiff's affidavit for summary judgment states at para 5:

'I verily believe that the defendant/respondent does not have a bona fide defence. . . .'

Comrie J

Rule 32(2), however, required the deponent to state that 'in his opinion A there is no bona fide defence to the action'. Though the point was not taken in the defendant's opposing affidavit, I raised it mero motu with counsel and drew their attention to the very recent decision of Nepgen J in AFCOL Manufacturing Ltd v Pillay; AFCOL Manufacturing Ltd v Buo 1996 (1) Butterworths All SA 426 (SE), in which the case law is B collected and discussed. The learned Judge held at 432c

'that there is a conceptual difference between believing that a certain state of affairs exists and being of the opinion that such a state of affairs exists. It is undoubtedly so that in certain circumstances a belief in something will include an opinion that it is so, and vice versa, but this is not always the case.' C

After illustrating the distinction, Nepgen J continued at 432d:

'Once this is accepted, it cannot be said, for purposes of Rule 32(2), that there is no distinction between saying "I verily believe" and "in my opinion".'

After referring to the unreported decision in Verwey v Du Toit the learned Judge concluded that 'verily believe' was not sufficient, and that strict D adherence to the wording of the Rule was required.

With due respect to Nepgen J, I consider that the subtle difference between 'I verily believe' and 'in my opinion' is overly technical, even in the context of the rule governing summary judgment, where it is well settled that strict compliance by the plaintiff is required. The decision in AFCOL (supra), in my opinion and in my belief, unnecessarily promotes E form at the expense of substance. Provided it is the deponent's opinion or belief (compare Group Areas Development Board v Hassim and Others 1964 (2) SA 327 (T)), either expression in my view suffices. Having said that, it is nonetheless a mystery to me why some practitioners, when drafting affidavits in support of summary judgment, fail to follow the F simple and long standing language of the Rule. On this preliminary point I hold in favour of the plaintiff.

I turn to the merits. The plaintiff issued a combined summons for payment of the sum of R99 700,68 with interest and costs. The particulars of claim set forth three alternative causes of action. They are variations on a theme. In claim A the plaintiff relies on a purchase order, G No 101309, issued by the defendant's predecessor (the BNDC) in favour of the plaintiff. That, it is alleged, gave rise to an agreement, partly written and partly oral, for the purchase by the BNDC of R100 000 worth of carpets from the plaintiff. The carpets were to be chosen by one Mkansi and delivered to him or his agent. Carpets to the value of H R99 700,68 were so chosen and delivered, but the amount remains unpaid. Detailed delivery notes are annexed from which it appears that the carpets were delivered to one Swanepoel on 8 December 1993. A copy of the purchase order is not annexed.

In alternative claim B the plaintiff relies on a letter of guarantee, dated 7 December 1993, written by the BNDC to the plaintiff. It reads: I

'Re: Mr P R Mkansi

This letter confirms our telecommunication of today 07/12/93. Mr Mkansi is our client and has arranged that we guarantee the following orders for R100 000's worth of carpets as described in your invoice numbers:

1.

18100/18101

2.

18402 J

Comrie J

3.

18144 A

4.

18143

5.

18805

6.

18806

7.

18807

These goods are for export to Zambia and qualify for the export incentive under GEIS.

The guarantee is subject to the provision of the following: B

(1)

original invoices, ie proof of delivery;

(2)

bill of entry/export (not ex warehouse) form DA 550; and

(3)

RSA Exchange Control Declaration, ie F178.

This guarantee is valid until January 07, 1994.

Yours faithfully

B S Molebatsi

General Manager:

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