Bluebird Logistics (Pty) Ltd v Zululand Bus Services CC and Another (7328/2021P) [2022] ZAKZPHC 55 (21 September 2022)

Key Facts

Issues

• Respondents contended this relief falls outside uniform rule 32(1), while the applicant cited Nedperm Bank Ltd v Verbri Projects CC to argue it is ancillary relief. The court expressed uncertainty about its competence in summary proceedings.
• Respondents alleged misrepresentation by Applicant regarding their liability for Jubane's debt, claiming a counterclaim for the R1 million payment. The court found these issues complex and potentially triable, warranting leave to defend.
• Respondents argued the debt to Jubane was extinguished by payment in business rescue and liquidation, with an ongoing action against Second Respondent. The court noted these as triable issues requiring discovery and trial.
• The court considered whether the deponent to the affidavit needed personal authorization to bring the application, referencing the case of Ganes and Another v Telecom Namibia Ltd which held that the attorney's authorization is sufficient.
• The deponent failed to specify each cause of action in the affidavit, but the court found that referring to the amended declaration was sufficient, noting that the use of 'cause of action' instead of 'causes of action' was not determinative.
• Respondents argued the deponent's knowledge was derived from documents rather than direct involvement, but the court cited Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC to confirm that perusal of documents suffices for personal knowledge.
• Respondents claimed the acknowledgment was signed under duress due to threats of fuel supply termination. The court found this allegation insufficient to disclose a defense but acknowledged the complexity of related business rescue and liquidation claims.

Holdings

• Costs are reserved, indicating the court will determine cost implications at a later stage.
• Respondents are granted leave to defend the matter, allowing them to proceed with their opposition to the application.
• Summary judgment is refused in the circumstances, as the court found that there may possibly be defences that may be proved at trial despite the applicant's claims.

Remedies

• Costs are reserved.
• Summary judgment is refused.
• Respondents are granted leave to defend the matter.

Legal Principles

• The court applied principles regarding the burden of proof in summary judgment, emphasizing that a defendant need not prove their defense but must set it out honestly with sufficient factual grounds. The court also addressed the discretion in granting summary judgment under Rule 32(b) of the Uniform Rules.
• The court considered whether the acknowledgment of debt was signed under duress, as the respondent was told they had to sign to continue receiving fuel. However, the court held this alone was insufficient to prevent summary judgment, though other complex issues were noted.

Precedent Name

• Marsh and Another v Standard Bank of South Africa Ltd
• Nedperm Bank Ltd v Verbri Projects CC
• Breitenbach v Fiat South Africa Eds Bpk
• Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another
• Ganes and Another v Telecom Namibia Ltd
• Soorju v Pillay
• Independent Electoral Commission v Krans Onspannings
• JoobJoob Investments v Stocks Mafundla (ZEK)

Cited Statute

Judge Name

Passage Text

• The deponent had to verify each and every amount that may be claimed in the summons and particulars of claim. There are at least four causes of action set out and the failure of the deponent to verify each and every cause of action renders the application fatally defective. In paragraphs 9 and 10 of the affidavit in support of the application for summary judgment the deponent confirms the cause of action as in the amended declaration. It refers to the particulars of claim as amended and to the claim as set out therein. It is accordingly sufficient to establish exactly what the causes of action are and that the fact the affidavit of the deponent merely states cause of action and not causes of action does not take the matter any further.
• It was submitted on behalf of Respondents that there are common directors between Jubane, Applicant and Petro Fuel. Applicant must therefore have been aware of the adoption of the business rescue plan and the payment thereunder. It was furthercontended that the acknowledgment of debt was taken over by Petro Fuel and that Applicant has no locus standi to institute the action. This interaction is not dealt with by Applicant and is an issue which needs to be addressed by discovery and at trial.
• Accordingly the following order is made: 1. Summary judgment is refused. 2. Respondents are granted leave to defend the matter. 3. Costs are reserved.