IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Case No. 74/2012
In the matter between
PROTRONICS NETWORKING CORPORATION 1st Appellant
SANDILE DLAMINI 2nd Appellant
and
SWAZI WIRE INDUSTRIES (PTY) LTD Respondent
Neutral citation: Protronics Networking Corporation & Ano. v Swazi Wire Industries (Pty) Ltd (74/2012) [2013] SZSC 43 (31 May 2013)
Coram: RAMODIBEDI CJ, DR. TWUM JA and MCB MAPHALALA JA.
Heard: 21 May 2013
Delivered: 31 May 2013
Summary: Sale of goods on credit; execution of credit sale agreement; suretyship agreement signed by Managing Director of defendant company; default in payment for goods supplied and delivered; application for summary judgment; no bona fide defence filed; summary judgment entered; appeal to this Court; various procedural irregularities in appeal process; no application for condonation; technical defence repeated in appeal hearing; appeal dismissed with punitive costs to respondent.
JUDGMENT
DR. TWUM J.A.
[1] This appeal arises from the summary judgment which the learned trial judge M. Dlamini J. sitting at Mbabane entered in favour of the respondent herein on 14th September 2012. The appellant has appealed to this Court against the judgment upon grounds which are set out hereafter.
[2] The facts which spawned this litigation are simple. The respondent is a private limited liability company which carries on business in Manzini. The respondent’s business is the manufacture and supplying of nails, fencing material, concrete and allied steel products, among others.
[3] The first appellant is a private limited liability company. The nature of its businesses is plant hire, construction and management consultants.
[4] The second appellant is the Managing Director of the first appellant company.
[5] In or about 17th July 2007, the first appellant and the respondent entered into a credit facility agreement whereby the respondent agreed to give credit facility to the first appellant to purchase the respondent’s products at the usual selling price. The second appellant represented the first appellant in those negotiations and a credit facility agreement was duly executed binding the parties to its terms. The second appellant, as the Managing Director of the first appellant signed the Credit Facility agreement for and on behalf of the first appellant.
[6] For the avoidance of doubt, in paragraph 18.1.4 of the Credit Facility agreement, the second appellant confirmed that he was duly authorized to represent and to act for and bind the first appellant. The first appellant’s official rubber stamp was then affixed to the agreement below the second appellant’s signature and designation as its Managing Director.
[7] The second appellant also signed a Deed of Suretyship whereby he bound himself jointly and severally as surety and principal debtor in solida to and in favour of the respondent (the creditor) for the payment on demand of all sums which may thereafter become due to the creditor for whatever cause arising, together with interest and or any charges.
[8] In due course orders for steel products were placed by the appellants and were supplied and delivered to the first appellant at its place of work between August 2007 and June 2008. However, the appellants, jointly or severally, failed to pay for those orders.
[9] The record showed that the total value of goods unpaid for was E75 215.79. Additionally, interest in the sum of E10,434.35 had accumulated, making the total amount due, owing and payable by the appellants to be E85 650.14.
[10] Despite repeated demands by the respondent, the appellants failed or wilfully refused to pay the sum of E85 650.14 to the respondent.
[11] On 10th May 2011 the appellant issued a combined summons against the first and second appellants claiming the sums set out in paragraphs 9 and 10 hereof, plus interest at the rate of 9.5% per annum a tempore morae.
[12] On 24th May 2011 the appellants filed Notice of Intention to Defend. On 16th June 2011, the respondent filed Application for Summary Judgment claiming from the appellants the sum of E85650.14; interest at 9% a temporae morae; costs of suit and further or other relief. The affidavit in support of the Summary Judgment had annexed to it documentary evidence of the Credit Facility agreement (“A”); Suretyship agreement signed by 2nd appellant, (“B”) and copies of the invoices evidencing the cost of goods as delivered.
[13] In paragraph 3.2 of the affidavit in support of the Summary Judgment, Quinton Ndzinisa, the Credit Controller of the respondent company, deposed that in his belief the appellants had no bona fide defence to the respondent’s claim and that the appellants were resisting the claim solely for the purposes of delaying the action.
[14] Sandile Dlamini, the Managing Director of the first appellant filed an affidavit resisting summary judgment.
[15] Even though he denied that the appellants had no defence to respondent’s claim, there was no substance in the particulars of defence, which were vague and bereft of appropriate detail. He denied that the contract for sale of goods was between the respondent and the first appellant. In my view this was mere filibuster. The documents relied upon by the respondent were unequivocal. There was irrefutable evidence that the 2nd appellant had also signed a suretyship agreement whereby he bound himself to be answerable for the payment of the goods supplied to the first appellant if it defaulted in repayment. Finally, he deposed that the respondent failed to prove that the goods said to have been bought by the first appellant, were dispatched from the respondents premises and delivered to the first appellant.
The judgment
[16] The learned trial judge patiently and meticulously examined the so- called defence put up by the appellants to the respondent’s claim. She hit the nail on the head when she quoted authorities such as that of Tebbut J.A. in Shell Oil Swaziland (Pty) Ltd v Motor World Pty Ltd, and held that the so-called bona fide defence raised by the appellants was a mere technical objection which should not be allowed to frustrate expeditious, and inexpensive decision of cases on their real merits. She entered summary judgment for the respondent, as follows:
“1. Summary judgment application is granted.
2. The 1st Defendant is ordered to pay:
2.1 The sum of E75, 215.79
2.2 E10,434.35 as interest thereof.
3. 2nd Defendant is ordered to pay:
3.1 The sum of E40, 000.00
3.2 Interest at the rate of 2% per month.
4. 1st Defendant and 2nd Defendant are ordered to pay jointly and
severally, each party dissolving the other:
4.1 Costs of suit.
5. 2nd Defendant is ordered to pay the sums in under 3 hereof in the
event 1st Defendant fails to pay.”
Grounds of Appeal
[17] “1. The Court a quo erred in fact and in law in holding that the Appellants did not raise any defense on the merits of the claim.
2. The Court a quo erred in law in holding that the credit agreement does not offend against Section 3(1) (b) of The Money Lending and Credit Financing Act.
3. The Court a quo erred in fact and in law in directing that the 1st Appellant should pay E75 215.79 (Seventy Five Thousand Two Hundred and Fifteen Emalangeni Seventy Nine Cents) in respect of goods sold and delivered whereas the goods were not delivered to the Appellants.
[4] The Court a quo erred in fact and in law in directing that the 1st Appellant pays the sum of E10 434.35 (Ten Thousand Four Hundred and Thirty Four Emalangeni Thirty Five Cents) in respect of interest which sum it was not stated how it was arrived at or how it was calculated.
[5] The Court a quo erred in fact and in law in directing the 2nd Appellant to pay a sum of E40 000.00 (Forty Thousand Emalangeni) as a surety, yet the alleged principal debtor (1st Appellant) had been ordered to pay the full debt sued upon as it appears on paragraph 36 (2) of the judgment.”
[18] I have examined the grounds of appeal filed by the appellants which are merely a rehash of the defence put up when they sought to resist the summary judgment in the court a quo.
[19] At the hearing of the appeal in this Court, a number of irregularities were pointed out to us by the attorney for the respondent. In particular, he said the appellants filed their Heads of Argument out of time. The appellants had not applied for condonation and therefore the appeal should be deemed abandoned. He also made the valid and crucial point that the record had not been certified by the Registrar pursuant to Rule 30 (4) of the Court of Appeal Rules. He then submitted further that on that basis the appeal should be deemed to have been abandoned. What of the merits?
[20] The law on summary judgment is clear. It is not recondite. Where a claim is without any bona fide and good defence, the creditor suffers if the claim is allowed to fester for a very long period. There is no doubt in my mind, that the appellants are simply delaying the day of “final” judgment. This ploy, known as filibuster, is adopted in Parliament where long speeches are made in order to delay a vote. I am not prepared to allow the judicial system to be abused this way.
[21] As I pointed out above the judgment of the court a quo was impeccable. I am not about to re-invent the wheel. I say that with the irregularities noted above and the lack of any good defence raised against the respondents claim, this sordid saga should be given a descent burial.
[22] The appeal against the High Court judgment is hereby dismissed. The orders made by the judge a quo are confirmed save that in view of the levity and frivolity with which the appellants’ lame defence to the respondents valid claim was pressed, I order that costs should be on attorney and client basis.
Ordered accordingly.
_____________________
DR. SETH TWUM
JUSTICE OF APPEAL
I agree.
____________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I also agree.
____________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
COUNSEL:
For Appellant : Mr N. Manzini
For Respondent : Mr. W. Maseko
