IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO: 27759/21
In the matter between:
MAR INTERNATIONAL TRADE (PTY) LTD Applicant
And
COUNTER POINT TRADING 156 CC First Respondent
KRISHNA CHETTY Second Respondent
JUDGMENT
FERREIRA AJ:
1. This is an application whereby the applicant seeks payment of invoices outstanding and allegedly due.
2. The applicant is a wholesaler and importer of various items. The first respondent is a retailer of a diverse range of goods.
3. During April 2020, the first respondent contacted the applicant and requested it to source 3-ply masks which were in a shortage due to the outbreak of the Covid-19 pandemic. A telephonic agreement was received between the parties that the applicant would supply the first respondent with such masks. A price was agreed between the parties.
4. The masks were delivered and the invoice for the masks were paid. No objections were raised regarding the quality of the masks. Subsequent orders were placed and intermitted payments were made.
5. The applicant now seeks payment of outstanding debts in the amount of R2 million.
6. The application was opposed by the respondents on the basis that the masks did not meet the minimum standards for sale to the medical profession and that it was an implied or tacit term of the agreement that the masks would be fit for such purpose. According to the applicant, no agreement was reached in respect of any further specifications and quality of the masks, and no quantity was agreed upon. Specifically, the Applicant denied that it was informed that the masks were intended for medical purposes or to persons or entities rendering medical services.
The striking out application
7. The respondents relied on test reports in support of their claim that the masks did not meet the minimum standard as prescribed by legislation. The applicant argued that such test reports constituted inadmissible hearsay evidence and, accordingly, applied to strike out the reports and the paragraphs in the answering affidavit, dealing therewith.
8. In my opinion, the probative value of the test reports is of little consequence, and it is, therefore, not necessary for me to rule on the striking out application.
Dispute of fact
9. The respondents alleged that there was a foreseeable dispute of fact, and that the application must be dismissed on that basis.
10. The case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd1 is the locus classicus on when a dispute of fact would arise. In Hyprop Investments Ltd and Another v NCS Carriers and Forwarding CC and another2 the Full Bench of broadly summarised the principal ways in which a dispute of fact arises as enunciated in Room Hire as follows: -
“(a) Where the respondent denies all material allegations ‘and produces or will produce, positive evidence by deponents or witnesses to the contrary’;
(b) Although admitting the applicant’s evidence, the respondent may allege other facts which the former disputes;
(c) Where the respondent claims lack of knowledge and puts the applicant to the proof, but produces evidence, or indicate that he intends leading evidence to demonstrate the unreliability of the applicant’s averments and that certain essential facts are untrue.”
11. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd3 the then Appellate Division considered the circumstances where a dispute would not be considered bona fide: -
“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163-5; Da Matta v Otto N.O. 1972 (3) SA 858 (A) at 882D - H). If in such a case the respondent has not availed himself of his right to apply for the deponent’s concern to be called for cross-examination under rule 6(5)(g) of the Uniform Rules of Court (cf. Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see example Rikhoto v East Rand Administration Board and Another 1983 (4) SA [....] (W) at 283E - H). Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of Botha AJA in the Associated South African Bakeries case, supra at 924A).”
12. In Soffianti v Mould4 the following was stated:
“It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem.”
13. Applying these principles to the answering affidavit, I find that the respondents have failed to establish a real, genuine and bona fide factual dispute. This finding is based on:
13.1. The evidence placed before the court must be admissible evidence before it may be accepted by a court;
13.2. The allegations or denials of the respondent are far-fetched and clearly untenable and, the court is justified in rejecting them merely on papers;5
13.3. The respondent’s counsel have availed itself of the opportunity that the applicant's witnesses be cross-examined in terms of Rule 6(5)(g), it failed to do so, and this court proceeded on the correctness of the facts as set out by the applicant.6
14. It is trite that a party, to be successful in a claim for payment must prove the terms of the agreement and non-compliance. The Applicant must thus prove:
14.1. An agreement to buy and sell;
14.2. The goods to be sold;
14.3. The price.7
15. There is no dispute in respect of the first and third requirements.
16. The dispute lies with the quality and purpose of the goods to be sold.
17. The respondents allege that the applicant was informed that the masks were to be resold to medical professionals and hospitals during the Covid 19 pandemic and that the surgical masks purchased would need to be of the quality and standard a medical professional would expect to use on a daily basis during the pandemic.8
18. The respondents further alleged that it was an implied or tacit term of the agreement between the parties that the masks would be free from defects and fit for the purpose for which they were intended, being for medical use during the pandemic.9
19. In respect of the agreement between the parties, the following is not in dispute:
19.1. The fact that masks were sold;
19.2. The fact that neither applicant nor first respondent was registered with the South African Health Product Regulatory Authority ("SAHPRA") to enable it to validly sell the masks, specifically for medical use as claimed by respondents; and
19.3. The purchase price.
20. In dispute remain the two issues listed above in respect of the quality and purpose of the masks, and the implied or tacit term that the masks were to be sold for medical purposes. Applicant denies that the implied or tacit terms can be inferred as well as the fact that the masks do not meet the quality standards.
21. The implied or tacit term is denied by applicant for the following reasons:
21.1. The test reports relied upon by respondents are not in evidence before court;
21.2. An implied term is implied by law and cannot be implied if neither the parties were registered at the South African Health Products Regulatory Authority (“SAHPRA") to sell the masks for medical purposes; and
21.3. When reliance is placed on a tacit term, the surrounding facts must be set out and it can only be a tacit term if the tens can be legally agreed upon between the parties.
22. Respondents claim that the sale agreement included a tacit term that the masks would be fit for medical use during the pandemic. No facts are however set out why such a term is to be inferred.
23. The defects were only claimed after numerous requests for payment and reneging on the undertakings to make payment of the outstanding amount. The only issue raised at that time was that the masks are not selling well.
24. This is evident from the respondents' payment history set out in paragraph 4.20 and paragraph 4.23 of the applicant’s founding affidavit.10 No payment was ever made after the 17th of September 2020.
Conclusion
25. Consequently, the first respondent is indeed indebted to the applicant for the outstanding invoices. In my view, no case has been made out for relief against the second respondent.
26. In the circumstances the following order is issued:
26.1. The first respondent is ordered to pay the amount of R2 000 000 to the applicant;
26.2. The first respondent is to pay interest on the amount of R2 000 000 at a rate of 7.25% per annum from 6 January 2021;
26.3. The first respondent is to pay the applicant’s costs of this application.
__________________
EJ FERREIRA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 7 November 2022
Date of judgment: 25 May 2023
APPEARANCES:
On behalf of applicant: Adv M Snyman SC
Cell: 082 571 2797
Instructed by: Nadia Peera Attorneys
Tel: 081 729 0651
On behalf of respondents: Adv GJ Scheepers SC
Cell: 082 575 3614
Instructed by: Heckroodt & Associates
Tel: 012 – 940 3555
1 1949 (3) SA 1155 (T)
2 2013 (4) SA 607 (GSJ)
3 1984 (3) SA 623 (A).
4 1956 (4) SA 150 (EDLD)
5 Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at p 924A.
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Limited 1984 (3) SA 623 (A) at 634H - 635C.
7 LTC Hams, Amler's Precedents of Pleadings, 7th ed, p346.
8 Answering Affidavit par 3.2, p007 – 4.
9 Answering Affidavit par 3.7, p007 – 5.
10 Founding affidavit, paragraph 4.20, p007 and answering affidavit paragraph p007 – 14.