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[2015] ZAWCHC 169
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Bester N.O and Others v Richter, Niewoudt, Malherbe, Geldenhuys, Conradie, Kellerman, Conradie, Visser, Horn, Visser (7596/2015, 11901/2015, 11210/2015, 11321/2015, 11229/2015, 11209/2015, 11233/2015, 11208/2015, 11641/2015, 11211/2015) [2015] ZAWCHC 169 (6 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Reportable
DATE: 06 NOVEMBER 2015
In the matter between:
LAMBERTUS VON WIELLIGH BESTER
N.O
.............................................................
First
Plaintiff
RYNETTE PIETERS
N.O
.............................................................................................
Second
Plaintiff
BAREND PETERSEN
N.O
..............................................................................................
Third
Plaintiff
And
ABRAHAM JACOBUS STEPHANUS
RICHTER
..............................................................
Defendant
(Case no.: 7596/2015)
MARLENE
NIEWOUDT
........................................................................................................
Defendant
(Case no.: 11901/2015)
GABRIËL ROSSOUW
MALHERBE
....................................................................................
Defendant
(Case no.: 11210/2015)
JACOBUS FREDERICK
GELDENHUYS
...........................................................................
Defendant
(Case no.: 11321/2015)
JACOBUS WILHELMUS
CONRADIE
................................................................................
Defendant
(Case no.: 11229/2015)
FRANS ALBERTUS
KELLERMAN
.....................................................................................
Defendant
(Case no.: 11209/2015)
ROSALIE
CONRADIE
...........................................................................................................
Defendant
(Case no.: 11233/2015)
HENDRIK JOHANNES
VISSER
...........................................................................................
Defendant
(Case no.: 11208/2015)
GERTRUIDA JOHANNA
HORN
..........................................................................................
Defendant
(Case no.: 11641/2015)
GESINA MARIA
VISSER
.......................................................................................................
Defendant
(Case no.: 11211/2015)
JUDGMENT: 06 November 2015
DAVIS J
Introduction
[1] Plaintiffs have applied in ten
separate cases for summary judgment against the defendants
respectively. Each is based on an
identical cause of action.
Briefly, plaintiffs are the joint trustees of a sequestrated estate
of the RVAF Trust (“the Trust”).
The trust was
established on 6 March 2004 by agreement between a donor Matt
Securities represented by Mr Hermanus Pretorius (“Pretorius”)
and the first trustees being Pretorius and Eduard Brand (“Brand”)
in terms of a written Trust Deed which was signed
by the parties on
26 March 2004. Clause 7.2 of the Trust Deed provided that there
shall always be three trustees. Notwithstanding
this provision, on
1 April 2004 the Master appointed Pretorius and Brand as the only
trustees of the trust and no further trustees
were appointed.
[2] It appears in terms of the
particulars of claim that Pretorius controlled all the affairs of the
trust, apparently at his sole
discretion. The Trust was
provisionally sequestrated on 1 August 2012 and the order was made
final in the Western Cape High Court
on 3 September 2012.
[3] The amounts claimed by plaintiff in
each case is the sum representing a difference between the amounts
paid by each of the defendant
of the trust and the amounts paid by
the trust to the defendant in each of the cases. Defendants have
resisted summary judgment
on grounds which are set out in their
opposing affidavits. Again the opposing affidavits raise the same
grounds. It was for this
reason that it was agreed that the ten
cases be heard simultaneously.
Plaintiffs’ causes of action
[4] In the period 8 April 2010 to 18
January 2012 each of the defendants received a sum from the bank
account of the Trust in
excess of the sums which had been paid by
that defendant to the trust. For example, in the case of defendant
Richter, he received
an amount of R 1 382.862 00 in excess of the
amounts which he had paid to the trust.
[5] Plaintiffs now claim this amount on
the basis of an enrichment action based on the condictio sine causa.
Several grounds in
justification of the condictio are pleaded; in
particular that the trust lacked authority to make the payments when
they were made
because there were not three trustees as provided for
in the trust deed, that Pretorius had acted unilaterally as the
controlling
mind of the trust and to the exclusion of Brand, that the
trustees had failed to exercise their powers in accordance with the
trust
deed and that the trust was used by Pretorius as a vehicle
through which an unlawful Pyramid or Ponzi type investment scheme was
operated.
[6] A Ponzi scheme is one which was
named after Charles Ponzi who became notorious for developing a
particular fraudulent structure
in 1920 namely, that he paid returns
to investors from new capital paid to him by further investors rather
than from the profits
that had been earned from the capital which had
been invested in terms of the scheme. The whole idea of the Ponzi
scheme is to
entice new investors by offering higher returns than may
be earned in other investments. As the “return” to the
initial investors is paid out of the investments of new entrants
rather than profits, inevitably the scheme collapses.
[7] In the alternative to the
enrichment claim ,plaintiffs’ claim relief in respect of
payments made in terms of
s 26
and
32
of the
Insolvency Act of 1936
in that plaintiffs allege that the amounts which the trust paid to
defendants was depositions made by the trust without value
when its
liabilities exceeded its assets. This alternative claim was not
pursued by plaintiffs.
The verifying affidavit
[8] Second plaintiff deposed to a
verifying affidavit in each of these applications. She states that
she is an insolvency practitioner
and practices as a director at
Independent Advisory. She states that she is a trustee of the trust
and primarily, at present,
the deals with a day-to-day administration
of the insolvent trust. In this capacity, she has in her possession
and under her control
various documents, including bank statements
used by the trust since its inception, the files of numerous
investors such as those
of defendants and other relevant documentary
records of the trust.
[9] She states that she is duly
authorised to depose to an affidavit on behalf of the plaintiffs’
and that, given her appointment
to this position, and the documents
to which she has recourse, she has sufficient personal knowledge of
the facts referred to in
plaintiff’s particulars of claim. She
swears positively to the facts and verifies the cause of action as
well as the amounts
of the claims as set out in the summons.
Accordingly, she makes a standard averment that defendants have in
her opinion no bona
fide defence to the action and that the notice of
intention to defend has been delivered solely to the purpose of
delay.
Defendants’ opposition
[10] Defendants’ claim that
second plaintiff, as deponent to the affidavit applying for summary
judgment has no direct knowledge
of the transactions which form the
subject matter of plaintiffs’ claim, the circumstances under
which the initial investments
were made by the trust and/or other
entities and to whom they were paid. Further second plaintiff has no
knowledge of the entity
which received the monies invested, where the
monies which were paid were further invested, the circumstances under
which these
investments were realised, the return on these
investments, to which entity these funds, that is the realised
investments, were
paid, and the circumstances under which these
realised investments or portion thereof after the deduction of fees
were repaid to
the trust. Further she has no personal knowledge of
the manner in which these funds were repaid to the original
investors, including
defendants, the contractual relationship between
the trust and the other entities in the Pretorius group, the
agreements between
these entities and the role they played.
Accordingly, defendants claimed that second plaintiff is not in a
position to “swear
positively” to all the facts
underlying the plaintiff’s cause of action the amounts that
were paid in excess of the
investment and whether the amounts were
impeachable transactions in terms of the
Insolvency Act.
[11
] Regarding the question of
impeachable dispositions defendant makes the following case:
‘The issue is dependent inter
alia on whether:
1. Each one of the dispositions (each
one of the separate payments made by the trust) were not made for
value;
2. Given that such disposition was made
by the insolvent within two years of the sequestration of its estate
(as is being claimed
here with regards to
s 26
(1)(b)) whether
immediately after each of the dispositions in question were made,
this assets of the insolvent exceeded his liabilities;
3. If it is proved that the liabilities
of the insolvent at any time after the making of the disposition
exceeded its assets by
less than the value of the property disposed
of, the disposition should be set aside only to the extent of each
excess
These issues are not, I am advised,
simply a matter for calculation.’
Defendants also raised the following
defence, as reflected in the affidavit of defendant Richter
‘I was and remain of the view
that my money was placed in bona fide investments managed by
Pretorius and his employees. The
trust was one of the entities in
his group of businesses through which the investments were made or
channelled or administered.
The business affairs of the trust, to
the best of my knowledge, were conducted not only by Pretorius but
also by one Eduard Brandt,
who I understand was also a trustee of the
trust. The plaintiffs will need to prove to this Honourable Court
that the trustees
of the trust were not properly authorised to do
that which they did. I point out that the trust deed annexed to the
particulars
of claim has a provision (clause 7.5.4) which provides
that the trustees of the trust may delegate any of their powers to
“committees”
consisting of one or more trustees of the
trust. Whether this was done or not is something which would need to
be determined at
the trial.’
[12] Two aspects of the defence need to
be qualified in terms of submissions made by plaintiff. In the first
place it appears that
plaintiffs are not pursuing the alternative
claimed on the basis of
s 26
of the
Insolvency Act. Secondly
plaintiffs note that in terms of pre summons affidavits which were
annexed to the opposing affidavits, the correctness of the amounts
claimed, that is the amounts in access of the investment, were not
disputed by the defendants. Accordingly, the quantification
of
claims has been admitted and is therefore beyond dispute.
[13] I turn to deal with the verifying
affidavit and the question of whether it passes legal muster in terms
of
Rule 32.
The implications of
Rule 32
[14] Rule 32 of the Uniform Rules of
the High Court, to the extent relevant, provides thus:
‘The whole procedure of summary
judgment was created to benefit plaintiffs. At the very least,
therefore, it is expected
of a plaintiff in presenting his case, to
place himself squarely within the four corners of the remedy. Any
defects in the presentation
of his case which are not merely
technical and, for that reason, cannot be condoned, will have as
their consequence a refusal of
summary judgment, even if no bona fide
defence has been disclosed by the defendant. A court will not assist
a plaintiff by breathing
life into a poorly presented case – on
the contrary the court will consider itself bound to the terms in
which the plaintiff
has elected to formulate his claim. Should it
appear that the plaintiff does have a claim, but not that presented
as the cause
of action in the summons, the court will refuse summary
judgment as it cannot be granted on a cause of action other than that
pleaded…’
[15] The meaning and scope of this rule
has been the subject of a considerable amount of judicial attention.
The leading case
remains Maharaj v Barclays Bank Limited
1976 (1) SA
418
(A), where Corbett JA (as he then was) said at 423 A-C the
following:
‘[The Rule} contemplates the
affidavit being made by the plaintiff himself or some other person
who can swear positively to
the facts. In the latter event, such
other person’s ability to swear positively to the facts is
essential to the effectiveness
of the affidavit as a basis for
summary judgment; and the court entertaining the application
therefore must be satisfied, prima
facie, that the deponent is such a
person.
Generally speaking, before a person can
swear positively to facts in legal proceedings they must be within
his personal knowledge.
For this reason the practice has been
adopted, both in regard to the present Rule 32 and in regard to some
of its provincial predecessors
(and the similar rule in the
magistrates’ courts), of requiring that a deponent to an
affidavit in support of summary judgment,
other than the plaintiff
himself, should state, at least, that the facts are within his
personal knowledge (or make some averment
to that effect), unless
such direct knowledge appears from other facts stated.’
[16] Corbett JA went on to deal with an
affidavit deposed to by the branch manager’s assistant of the
relevant branch of the
bank which was the plaintiff in this case.
In finding that the affidavit complied with the legal standard,
Corbett JA cited with
approval a dictum of Miller J (as he then was)
in Barclays National Bank v Love
1975 (2) SA 514
(D) at 516 –
517 cited at 424 C to the following effect:
‘The nature of the deponent’s
office in itself suggest very strongly that he would in the ordinary
of his duties acquire
personal knowledge of the defendant’s
financial standing with the bank. This is not to suggest that he
would have personal
knowledge of every withdrawal of money made by
the defendant or that the personally would have made every entry in
the bank’s
ledgers or statements of account: indeed, if that
were the degree of personal knowledge required it is difficult to
conceive
of circumstances in which a bank could ever obtain summary
judgment. It goes without saying that a manager of a bank who
claims
to have personal knowledge of the extent to which a client has
overdrawn his account needs rely upon the bank records which show
the
amounts paid into the account and the amounts withdrawn by the
client.’
Since the decision in Maharaj and, in
particular, in recent times there had been a series of cases. See
for example, FirstRand
Bank Limited v Huganel Trust
2012 (3) SA 167
(WCC) at 178 and the contrary position as set out in Absa Bank v Le
Roux
2014 (1) SA 475
(WCC) at 481 – 482.
[17] In the light of these and other
decisions cited in both Huganel and Le Roux, supra it is prudent to
adhere to a salutary judicial
practice and resist the temptation to
enter into an academic exposition of each of these cases rather than
concentrate on the latest
offering by the Supreme Court of Appeal of
the present legal position in Reese v Investec Bank Limited
2014 (4)
SA 220
(SCA) at para 13 – 14.
[18] In that case a claim for
indebtedness arose from one or more loan agreements entered into
between the respondent and the principal
debtor secured by a mortgage
bond. The appellant and the trust who were alleged to be sureties
for the indebtedness of the principal
debtor in each of the claims.
After the appellants gave notice of an intention to defend,
respondent launched a summary judgment
proceedings against the
appellants. The application for summary judgment was supported by an
affidavit of a recoveries officer
of the bank. The primary
contention in resisting summary judgment was that the recovery
officer was not a person who could “swear
positively to the
facts” as envisaged in Rule 32 (2). After setting out the
principles in Maharaj, supra, Saldulker JA
at para 13-14 said the
following:
‘Here Investec had issued a
combined summons annexed to which was a comprehensive particulars of
claim setting out the cause
of action against the appellants,
supported by written agreements concluded with the principal debtors
in each instance and suretyship
agreements concluded with sureties on
the terms set out in the agreements. Investec thus had either
obtained judgment against the
principal debtor or the principal
debtor had been wound up at the instance of Mr Rees. Those
occurrences operated as the trigger
for Investec to proceed on the
suretyship agreements against the appellants. Moreover, the
suretyships provided for a certificate
of balance to be issued by the
relevant bank manager of Investec, which would either serve as a
liquid document or constitute prima
facie proof of the sureties’
indebtedness. It is against that backdrop that Ms Ackermann’s
affidavit must be viewed.
Ms Ackermann relied on the information
at her disposal which she obtained in the course of her duties as the
bank’s recoveries
officer, to swear positively to the contents
of her affidavit. It is not in dispute that in the discharge of her
duties as such
she would have had access to the documents in question
and upon a perusal of those documents she would acquire the necessary
knowledge
of the facts to which she deposed in her affidavit on
behalf of Investec. Prior to the institution of the action Ms
Ackermann
had been corresponding with the appellants’ attorney
in regard to the principal debtors’ delinquent accounts and had
also addressed letters of demand to them, receiving letters in
response which canvassed the appellants’ defences. She could
thus ‘swear positively to the facts’, ‘verify the
cause of action and the amount claimed’ and assert that
in her
opinion the appellants did ‘not have a bona fide defence to the
action’ and had entered an appearance to defend
‘solely
for the purposes of delay’. These factors show that the
requirements set out in Maharaj are met.’
[19] This approach appeared to follow
that of Corbett JA in Maharaj, namely that excessive formalism in
procedural matters should
be eschewed (Maharaj at 423 E-F). Hence,
whatever defect may arise in the affidavit, it can be cured by
reference to other documents
relating to the proceedings and which
are properly before the court; that is the court examines all the
documents that are properly
before it. (Maharaj at 423 H)
[20] On this basis it appears that the
following guidelines can be set out with some confidence;
1. It is not strictly necessary that
the deponent’s personal knowledge should be direct or
immediate, in the sense that the
deponent to the affidavit has
personal involvement in the various transactions underlying the cause
of action. Documents and other
evidence which might be under the
deponent’s control may, depending on the nature thereof and the
context of the transaction,
be sufficient to establish personal
knowledge as required by Rule 32 (3).
2. The court should examine the
relevant material, as set out above and which is placed before it
properly in terms of the relevant
summary judgment application,
including the issues which have been raised by the defendants in
their opposing affidavits, which
relate to the merits of the
opposition, to assess whether summary judgment should be granted.
Application of these principles to
the present dispute
[21] Mr Stelzner, who appeared together
with Mr Rabie on behalf of the defendants, submitted that most of the
cases which engaged
with the principles of Rule 32 dealt with
situations where bank managers and other officials, who were in
control of records of
the bank, deposed to affidavits in support of
the summary judgment relying on these official records and by way of
explaining their
reliance thereon. By contrast, second plaintiff was
not a bank manager nor an official of a bank nor did she rely on the
type
of records banks generally keep, the accuracy of which can
generally be accepted. She was a trustee of an insolvent business
trust
which was formed for the very purpose of eliciting investments
from members of the public in exchange, promising returns on their
investments. It has been claimed that the former trustee conducted
a multi-million rand business over many years extensively
without
having authority to do so. She was appointed as a trustee long
after the various acts which are the subject matter of
the claims
before this Court had been performed. She clearly had no personal
knowledge of the circumstances surrounding the conduct
of the trust
business or of payment by the then trustees of returns on investments
which had been made and which were placed either
with the trust or
through the agency of the trust.
[22] In short, Mr Stelzner contended
that the intrinsic nature of this dispute and, in particular, the
claims and the defences were
such that the plaintiffs, and second
plaintiff in particular, could not have personal knowledge thereof.
Others such as Brand,
the fellow trustee, the Master of the High
Court who issued the letters of authority, the relevant FNB bank
manager or some other
official who opened the trust bank accounts and
permitted Pretorius to operate these had direct knowledge of what had
transpired
and clearly their evidence could well be material to the
disposition of the case. See in this regard Mowschens and Mowschens
v Mercantile Acceptance Corporation of SA Limited
1959 (3) SA 326
(W)
where the uncontroverted affidavit of the defendant company showed
that the plaintiff’s attorney who deposed to an affidavit
in
support of summary judgment had no dealings with the defendants
company in regard to the transactions upon which the claim was
based.
Accordingly his verification of the claim could only be hearsay.
[23] In this case Marais J based his
finding in the premise that summary judgment is an extraordinary
remedy as well as a very stringent
one. This approach was rejected
by Navsa JA in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek
Joint Venture
2009 (5) SA 1
(SCA) at para 32-33.
[24] In a case decided after Joob Joob,
supra, namely Absa Bank Limited v Le Roux
2014 (1) SA 475
(WCC) at
10, it was held that none of the cases went so far as to say that a
deponent to an affidavit in support of an application
for summary
judgment could claim to have personal knowledge of the matter when
they relied exclusively on the perusal of the available
records and
documents in order to verify the cause of action.
[25] By contrast, Mr Van der Merwe, who
appeared on behalf of the plaintiffs, submitted that reports of the
joint trustees of the
insolvent estate, which were annexed to
defendants’ affidavits, and which constituted material which
was properly before
the court, showed that detailed investigations
had been conducted by the joint trustees, including second plaintiff,
and an examination
of these documents revealed the extent of her
knowledge of the affairs of the trust at various stages of the
litigation. For this
reason, second plaintiff in this case had
acquired an extensive personal knowledge of the affairs of the trust,
given the investigations
of which she was a part.
Evaluation
[26] Correctly, Mr Stelzner pointed to
the particulars of claim which were central to plaintiff’s case
to justify the enrichment
action, namely that in clause 7.2 of the
trust deed it was provided that there shall always be three trustees
who shall exercise
control jointly. When the relevant payments were
made, Pretorius and Brand were the only trustees of the trust. It
was averred
that Pretorius acted unilaterally as the controlling mind
and performed as a trustee to the exclusion of Brand in making the
relevant
payments. The trust was operated by Pretorius as part of
an unlawful fraudulent Ponzi type investment scheme. As Mr Stelzner
noted, the key question was whether all these elements were in the
personal knowledge of second plaintiff so that she could justify
her
conclusion that there was no bona fide defence.
[27] It was common cause that on 1
April 2004 the Master of the High Court issued letters of authority
in terms of s 6 (1) of the
Trust Property Control Act 57 of 1988 and
certified that Pretorius and Brand were authorised to act as trustees
of the trust.
Unquestionably this letter of authority runs contrary
to clause 7.2.1 of the Trust Deed.
[28] However, the fact that there is
such an authorisation by the Master compounds the difficulties raised
in this case. In Land
and Agricultural Bank of South Africa v Parker
and others
2005 (2) SA 77
SCA at paras 10 ff Cameron JA (as he then
was) dealt with the question of a subminimum of trustees and whether
they could bind
the trust. In particular, he held:
‘It follows that a provision
requiring that a specified minimum number of trustees must hold
office is a capacity-defining
condition. It lays down a prerequisite
that must be fulfilled before the trust estate can be bound. When
fewer trustees than
the number specified are in office the trust
suffers from an incapacity that precludes action on its behalf.’
para 11
[29] But critically the learned judge
of appeal went on to say the following:
‘This is not to say that the
trust ceases to exist. Nor is it to say that the trust obligation
falls away. Counsel for the
bank cited passages from Honoré
establishing that a trust will not be allowed to fail for want of a
trustee, and that the
administration of a trust proceeds even when
not all the trustees can be appointed in the precise manner envisaged
in the trust
deed. This is to confuse the existence of the rights
and obligations that constitute the trust estate with the question
whether
and in what manner the trust estate can be bound. It is
axiomatic that the trust obligation exists even when there is no
trustee
to carry it out. The Court or the Master will where
necessary appoint a trustee to perform the trust. But it does not
follow
that a sub-minimum of trustees can bind a trust.’ (at
para 12)
[30] A further question arose in Parker
as to whether a third party is entitled to assume that the
formalities relating to the trust
were observed on the basis of a
principle which has long been part of company law, and was initially
formulated in Royal British
Bank v Turquand
[1856] EngR 470
;
(1856) 119 ER 886
(Exch).
Cameron JA noted that, in an earlier decision of Nieuwoudt and
another NNV v Vrystaat Mielies (Edms) Bpk
2004 (3) SA 486
(SCA) at
para 9, the court had left open the question whether and in what
circumstances the Turquand rule could be applied to a
trust,
notwithstanding that the judgment had pointed to certain difficulties
in the application thereof. Cameron JA then said:
‘Within its scope the rule may
well in suitable cases have a useful role to play in securing the
position of outsiders who
deal in good faith with trusts that
conclude business transactions. This case does not provide the
opportunity for considering
its application, however since the bank’s
case was never that it thought or was entitled to think that the
Parker’s
were authorised by the son to conclude the last loan
agreement.’ (para 18)
[31] Mr Van der Merwe sought to resist
the argument of a potential application of the Turquand rule by
reference to a number of
case. He cited, for example, the judgment in
Lupacchini NO v Minister of Safety and Security
2010 (6) SA 457
(SCA). In this case, Nugent JA was concerned with trustees who had
not been authorised by the Master of the High Court to act
as such in
terms of s 6 (1) of the Trust Property Control Act. Accordingly,
Nugent JA noted:
‘I regret that I can find no
indications that legal proceedings commenced by unauthorised trustees
were intended to be valid.
On the contrary the indications seem to me
all to point the other way. Unless it were to be the case that all
transactions performed
in conflict with the section are to be treated
as valid – which clearly cannot be the case, because otherwise
the Act would
be all together ineffective – then I find nothing
to distinguish its effect on legal proceedings.’ (para 22)
[32] Mr Van der Merwe also referred to
Van der Merwe v Hydraberg Hydraulics
2010 (5) SA 555
(WCC) para 16
and paras 27-31. In this case, Binns-Ward J canvassed the question of
whether the Turquand rule applies to a trust.
The learned judge
stated at paras 27-28:
‘I have some difficulty with the
proposition in the absence of evidence of actual constructive
knowledge by the third party
of whether the provisions of the trust
instrument. In MAN Truck, Buys J proceeded on the understanding
that, when a third party
deals with a trust, it is deemed to be aware
of the content of the instrument. I am not aware of any such legal
fiction and counsel
did not refer to any reasoned authority which
might support it. There is no public record identifying at which of
the several
officers of the Master throughout the country a
particular trust instrument is lodged and even then the Master must
decide whether
any person seeking access to it should be permitted to
inspect it.
In my judgment the Turquand rule in any
event could not avail the applicants in the current matter. The trust
instrument does not
provide a power to the trustees to authorise one
or more of their number to make decisions on the trustees, behalf or
to act as
principals in respect of the Trust’s affairs,
otherwise than jointly with all the trustees. Even if it did, the
applicants
would not have been entitled to assume that such
authorisation had been granted.’
[33] In essence, the Turquand rule
provides that a person who contracts with a company and deals with it
in good faith may assume
that acts which fall within its
constitutional powers have been properly and legally performed and
the person is not bound to enquire
whether the acts of internal
management have been regular.
[34] How the Turquand rule applies to a
trust and whether that rule should be extended to take account of a
certificate provided
by the Master authorising the trustees to so act
has been left open by Cameron J in the Parker’s case. Even if
Binns-Ward
J is correct in his jurisprudential doubt about the
application of the Turquand rule to a trust in principle, his own
formulation
is relevant to the present case and is cited again for
emphasis, namely:
‘I have some difficulty with the
proposition in the absence of evidence of actual unconstructive
knowledge by the third party
with the provisions of the trust
instrument.’ para 27
Hence, the question arises as to
whether the defendants had any knowledge of the authority which the
Master had purported to give
Brand together with Pretorius. That is
not a matter that can be decided on these papers. Furthermore, it
may well be, after
a full conspectus of the evidence, that our law is
developed to ensure that the Turquand rule does apply in certain
circumstances
as to the conduct and acts of a trust and,
particularly, in this particular case depending on all the facts
which are revealed
at trial.
Furthermore, there does not seems to be
any suggestion that any of the defendants have acted mala fide and
that the payments which
they received were not in terms of an
investment contract into which they had entered. Accordingly, on
the argument before me
and in the papers presented to me I am not
entirely certain what form of condictio sine causa is being relied
upon by the plaintiff.
It appears that it is in a form of an action
for the recovery of what was paid without cause. The defendants
appear to contend
that there was payment in terms of a contract which
plaintiff submits is illegal and hence the payment was made without
cause.
For a discussion of this condictio see Visser Enrichment
Action (2008) at 486 ff.
[35] I do not wish to engage in a
comprehensive examination of the basis of this enrichment claim.
Suffice to say that again this
is an issue which cannot entirely be
decided upon these papers. I accept readily the description of
summary judgment provided
by Navsa JA in Joob Joob Investments v
Stocks Mavundla ZEK
2009 (5) SA 1
(SCA) at para 33 to which I have
made earlier reference that:
‘Summary judgment proceedings
only hold terrors and are “drastic” for a defendant who
has no defence. Perhaps
the time has come to discard these labels
and to concentrate on the proper application of the rule as set out
with customary clarity
and elegance by Corbett JA in the Maharaj
case.’
[36] In the final analysis, a court
however does hold an overriding discretion to refuse summary
judgment. Soil Fumigation Services
Lowveld CC v Chemfit Technical
Products (Pty) Ltd
2004 (6) SA 29
(SCA) at 34-35. In the present
case, there does appear, on defendant’s version, to be
sufficient of an issue raised to fall
within the ambit of a bona fide
defence and which justifies that the disputes ventilated in these
papers should be finally decided
by way of an action.
Costs
[37] Mr Stelzner contended that the
various summary judgment applications had been brought in order to
pressurise investors to settle
claims which had been made even after
the filing of the defendant’s extensive affidavit opposing
summary judgment. The
plaintiffs nevertheless continued with their
summary judgment applications and should be subject to an adverse
costs order.
[38] In my view, the trial judge will
be in a far better position to determine the issue of costs and I
prefer to exercise a discretion
to leave this issue over for decision
by the trial court.
Conclusion
[39] In the result the following order
is made:
1. The application for summary judgment
under case numbers
11229/2015,11901/2015,7596/2015,11641/2015,11208/2015,11211/2015,
11210/2015,
11233/2015, 11209/2015 and 11321/2015 are refused.
2. The defendants are granted leave to
defend the actions instituted against them under these case numbers.
3. The costs of the application for
summary judgment are left over for decision by the trial Court.
DAVIS J