THE HIGH COURT OF SWAZILAND
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SWAZILAND NATIONAL PROVIDENT FUNDBOARD
! Plaintiff
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EAGLE WATCH SECURITY SERVICES (PTY) LIMITED
! Defendant
S.B. MAPHALALA-J MISS L. KUNENE MR. J. MAVUSO
Civil Case No. 2388/2004
Coram
For the Plaintiff For the Defendant
JUDGMENT (24/03/2005)
[1] Before court is an opposed application for summary judgment for payment of the sum of E8, 293-50 together with interest on the aforesaid amount at the rate of 9% per annum a tempora morae to date of final payment and costs of suit. The amount
sought is in respect of pen::hies for late payment of contributions for the period from
January 2001 to Novemb2001, May 2002 to December 2002, and May 2003 to
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January 2004, which amou-u the Defendant has failed and/or refused and/or neglected lo make payment of the al'^csaid sum despite demand.
[2] The Plaintiff is a L ,!y corporate, duly established in terms of Section 4 of the Swaziland National Provi lent Fund Order of 1974 having its principal place of business at Lidlelantfom/ ni! Building.cnr Ngwane and Martin Streets, Manzini district of Manzini, Swa/i nd. The Plaintiff is empowered by the provisions of the said Order to collect con! -billions from employers as prescribed by Section 14 (3) read with Section 21 (2) oi :!ie said Order.
[3] The Defendant is :.u employer required to make such contributions for its eligible employees and is ■ company duly registered and incorporated in accordarfce with the company laws o; die Kingdom of Swaziland having its principal place of business at Malkenis, Tin; ;mkhu Farm, Stall Market, MaJkerns, district of Manzini, Swaziland.
[-1] It is common cau.w ihat the Defendant is a contributing employer in terms of
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the provisions of the Rej ; ;tration of Contributing Employer's Order of 1975. In
terms of the Order, the i ntributing employer is obliged to pay into the Plaintiff
within twenty-one (21) d.ivs after the end of the month in which the last day of the
relevant contribution pcrkd falls. The Order further stipulates that every statutory
contribution due to the B.^rd and in the event a contributing employer defaults in
making timeous payment'; of the statutory contribution, a penalty of 7.5% of the
amount unpaid shall be acUed to the contribution for each month or part of a month
during which the contribulions remains unpaid after the date in which payment was
due. ;
[5] The Plaintiff avers in paragraph 7 of its declaration thereof that the Defendant is in default as it has not forwarded timeously the statutory payment to the Plaintiff for a period between January 2001 to November 2001, May 2002 to December 2002, May 2003 and January 200-1. j As a result of the Defendant's conduct, it is liable for penalties amounting to H8, 293-50 which amount is computed as it appears on the invoices annexed marked .mnexure "SNPF3". The Plaintiff demanded payments of
these invoices by presenter' them to the Defendant.
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[6] The Defendant in i ; affidavit resisting summary judgment in paragraph 5 and 8 thereof states thai it has < bona fide defence as follows:
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a) The Plaintiff has ;'.;iled to identify the eligible employees whose contribution is alleged to
have not been p:-.'u\ limeously by the contributing employer. There is no link between
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Plaintiffs annex!■:;• "SNPF3" and the monthly contribution lists forwarded under cover
of Plaintiff s reply to further particulars requested by the Defendant in a letter dated the
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9"' September 2004 addressed to Plaintiffs attorneys.
b) The Plaintiff has failed to stipulate the months in which the Defendant is alleged to have
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failed to pay its contribution timeously (which is denied)
c) The Plaintiff has i'.si! :d to show how it arrives at the claimed amount of E8, 293-50, in the
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present case why this'amount is said to be due from the Defendant who denies having made any late pa/aunt of contributions.
[7] In argument Miss Kmiene for the Plaintiff submitted that the above defence is not based on material fac<:; ithe allegation of the cause of action being the statutory penalty. The only defer . available in a claim of this nature other than technical
defences which do not ad :. . e the matter further are:
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i) Defendant had pa' > Uq statutory contributions in question;
ii) That the said employee's are no longer in its employment;
iii) That there has been a miscalculation of the penalty due.
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[8] In support of the ;U;ve argument the court was referred to what was said by Coman J in Rreitenbach > v Fiat S.A. (EDMS) BPK1976 (2) at 226-228 as follows:
"What he has really i!-.ne is to state the nature of his defence, but not the facts relied upon in
support of it, which were presumably a series of payments by him. The Defendant does not even allege
that he had paid all rent which according to the Plaintiffs Particulars of Claim, became payable to it
..."That in my judgment, is 1 : less than can be expected from the Defendant in summary judgment
proceedings. It lacks the foahrigh'mess, as well as the particularity, that a candid disclosure of a
defence should embody". j
[9] The court was further referred to the cases of Crede vs Standard Bank of S.A. Ltd 1988 (4) S.A. 786 (E), Connolly and others NNO vs National Aviation Insurance Brokers (1983) (l'ty) Ltd 1990 (I) S.A. 904 (W); and that of Maharaj vs Barclays National Bank 1976 (1) S.A. 418 (A) on what qualifies as a bona fide
defence. j
[10] Mr. Mavuso argued per contra that the Defendant has fully disclosed the nature and grounds of its defence and the material facts relied upon in as much as it has shown ih.it the Plaintiff has failed to set out its cause of action in its declaration. In its replying affidavit, il has also failed to address the issue. Therefore as per the dicta in Arcnd and another vs Astra Furnitures (Pty)Ltd 1974 (1) S.A. 298 at page 305 "The court can only grant summary judgment if on Hie papers before it, it has no reasonable doubt that the Plaintiff is entitled to judgment and feels able to say that the Defendant has got no defence which may possibly succeed...". ' '
[11] The authority in Ilerbstein and Van Winsen, The Civil Practice of the Superior Court in South Africa, 3rd Ed at page 302 was further cited in support of the above proposition that it is only where there is no reasonable doubt about Plaintiff's claim that the application should be acceded to.
[12] Mr, Mavuso further applied for costs in the event the court rules in favour of the Defendant relying on the dicta in the case of Premier Finance Corporation Ltd vs Steenkcunp and others 1974 (3) S.A. page 141. The argument in this regard is that the Plaintiff acted at its peril in applying for summary judgment in this matter as it was, from the onset aware that the penally invoices do not in anyway relate to the eligible employees and have not been able to show how the amount of E8, 293-50 has been computed.
[ 13] Having considered the pros and cons of the present application I have come to the conclusion that what the Defendant has really done in the present case is to state the nature of its defence, but not the facts relied upon in support thereto. I agree with the submissions by Counsel for the Plaintiff that all that the Defendant has before court is a defence of a supposed failure on the part of (he Plaintiff to furnish contributions lists and months in which such default is alleged. The Defendant has a
duty to ke<~p records of the contribution lists and receipts of payments. It appears
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from the record that the Defendant was furnished with the required documents as seen
in pages 23 to 40 of the Book of Pleadings. Therefore on this basis the Defendant's
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defence has no foundation. I agree with the submissions by Miss Kunene that a
proper defence by the Defendant would have been one wherein the Defendant would
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have furnished the court with jproof of its timeous payments of contributions and its eligible employees which wojuld have gone to the core of the cause of action of statutory puiulty.
[14] Further, I agree with Plaintiffs Counsel that the Defendant's defence is not based on the material facts of the allegation of the cause of action being the statutory penalty. The only defence available in a claim of this nature other than technical defences which do not advance the matter further are: a) Defendant has paid the statutory contribution on the months in question; b) that the said employees are no*
longer in its employment; and c) that there has been a miscalculation of the penalty
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due. \
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[15] Furthermore, it would appear to me that the contention by the Defendant that there is no link between annexure "SNPF3" of pages 56 to 63 of the Book of
Pleadings has no foundation in fact. Annexure SNPF3" contains copies of invoices
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which depict payments made by the Defendant which clearly show how the penalty
has arisen on account of overdue payment in respect of the months in which the
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Plaintiff basis its claim of the! Defendant's default as well as the computation of the
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total penalty due. In this regard annexure "SNPF3" is directly linked with the contributing list as it contains 'a record of the number of the overdue months upon the Defendant having made lale payments and the penalty levied for such default.
[16] In casu it appears to me that the comments by Col man j in Breitenbach case (supra) are apposite that "what he [Defendant] has really done is to state the nature of his defence, but not the facts relied upon in support of it..."
[17] In the totality of what I have said above I find that in the present case the Defendant has not advanced a bona fide defence as required by the rule and I therefore grant the application for summary judgment with costs.
