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[2019] ZAGPJHC 301
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Valumax Projects (Pty) Ltd v Toproot Property Management (RF) (Pty) Ltd (3242/2019) [2019] ZAGPJHC 301 (16 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 3242/2019
In
the matter between:
VALUMAX
PROJECTS (PTY) LTD
(REGISTRAION
NO:
2003/010184/07) APPLICANT
AND
TOPROOT
PROPERTY MANAGEMENT (RF)
(PTY)
LTD REGISTRATION NO:
2011/010184/07) RESPONDENT
JUDGMENT
TWALA
J
[1]
In this opposed summary judgment application, the applicant seeks an
order against the respondent for payment of the sum of
R412 008.90,
interest on the said sum of R412 008.90 of 10.25% per annum a
tempore morae until date of final payment
and costs of suit on an
attorney and client scale.
[2]
It is common cause that on the 5
th
of December 2018 the respondent signed an acknowledgment of debt
acknowledging his indebtedness to the applicant in the sum of
R1 020 000 together with interest on the said sum
calculated at the rate of 10.25% per annum from the 8
th
of November 2017 to the final date of payment. It is not in dispute
that the respondent paid a total sum of R700 000 towards
liquidating his indebtedness to the applicant and that the capital
balance outstanding is the sum of R320 000 excluding the
interest.
[3]
The respondent make issue with the applicant in that the applicant is
in breach of a mentorship agreement between the parties
as a result
whereof the respondent has suffered damages. The respondent contended
further that as a result of this breach of the
mentorship agreement,
the respondent has a counter claim against the applicant which is
substantial and in excess of the claim
of the applicant. The
applicant, so it was contended, did not disclose to the respondent
when it bought the land for the Riverlea
development project that the
community living in the area was against the development of any
further social housing thereon and
that the applicant had given its
undertaking to the community that the remaining portion of the land,
which portion was purchased
by the respondent, would be developed for
commercial use.
[4]
It was contended further by counsel for the respondent that, although
the respondent bought the land from Landpower cc, it is
an associate
company of the applicant and binds the applicant according to the
terms of the mentorship agreement.
[5]
Counsel for the applicant submitted that the cause of action in this
case is an acknowledgment of debt signed by the respondent
in favour
of the applicant. The applicant acted as a financier between the
purchaser and the seller which was Landpower cc and
the respondent
and if the respondent has a claim in this case, it is against
Landpower who sold them the property or land and not
the applicant.
[6]
To put matters in the correct perspective, I find it necessary to
enlist clause 5 of the mentorship agreement between the parties
which
provides as follows:
“
5 ROLES
OF VALUMAX
Valumax will
primarily be responsible and do what is necessary to be done:
5.1 to identify
potential projects,
5.2 to make land
available for purposes of executing a Project and undertraining to do
what is necessary and required to be done
to provide serviced and
cause the Stands to be or become registerable stands.
5.3 to negotiate
market related land prices with Toproot for the acquisition of the
Stands.
5.4 to generally
participate in the Project to the extent required from Valumax as a
land developer.
5.5 Provide
mentorship and support to ensure the projects are implemented
according to specification and in budget.”
[7]
It is trite that for a defendant to succeed in resisting an
application for summary judgment, it must show that it has a bona
fide defence to the action of the plaintiff. Although the defendant
does not have to establish such a defence as it would normally
in a
plea, but it must place certain facts before the Court which show
that such defence may succeed in the trial that might ensue.
[8]
In the case of
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA)
, the
Court stated the following:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out. In the Maharaj
case at 425 G-426E,
Corbett JA, was keen to ensure first, an examination of whether there
has been sufficient disclosure by the
defendant of the nature and
grounds of his defence and the facts upon which it is founded. The
second consideration is that the
defence so disclosed must be both
bona fide and good in law. A court which is satisfied that this
threshold has been crossed is
then bound to refuse summary judgment.
Corbett JA also warned against requiring of the defendant the
precision apposite to pleadings.
However, the learned judge was
equally astute to ensure that recalcitrant debtors pay what is due to
a creditor.”
[9]
I do not understand the applicant to be disputing that it concluded a
mentorship agreement with the respondent. The applicant
only state
that the sale of the land in question was between the respondent and
Landpower and that, if the respondent has any claim
with regard to
the land, it lies with Landpower which is a different company from
the applicant. I do not agree with this contention
of the applicant.
In terms of clause 5.3 of the mentorship agreement the applicant’s
role was to negotiate market related
land prices with the respondent
for the acquisition of Stands, which is land in essence.
[10]
It is incomprehensible why the applicant, knowing that there are
problems with this particular land, would not inform the respondent
and advise it of its failures in an attempt to develop the same land.
It is further not clear why the applicant signed a mentorship
agreement with these provisions knowing that the development is bound
to fail due to its undertakings to the community of the area.
I hold
the view therefore that there is a triable issue between the parties
that need to be ventilated at the trial. I am therefore
inclined not
to shut the door on the respondent and therefore grant leave to
defend.
[11]
In the circumstances, I make the following order:
1. the application
for summary judgment is dismissed;
2. costs to be costs
in the cause.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 6
th
August 2019
Date
of Judgment: 16
th
August 2019
For
the Applicant: Adv H Dicks
Instructed
by: Barnard’s Incorporate Attdorneys
Tel:
011 795 2667
For
the Respondents: Adv. H J Fischer
Instructed
by: DMS Attorneys
Tel:
011 783 1623