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[2019] ZAGPJHC 431
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Bruni NO and Another v Gold Reef City Mint (Pty) Ltd and Another (8255/19) [2019] ZAGPJHC 431 (31 October 2019)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
CASE
NUMBER: 8255/19
In the
matter between:
DAVID
JOHN BRUNI
N.O
First
Plaintiff
IAN
ROBERT
MCLAREN
Second
Plaintiff
and
GOLD
REEF CITY MINT (PTY)
LTD
First
Defendant
GLEN
SCHOEMAN
Second
Defendant
J U D G M E N T
SKIBI
AJ
[1]. This is an
application by the plaintiffs for summary judgment against the
defendants. The plaintiffs seek an order in
the following
terms:
a.
that
summary judgment be granted against the first and second defendant
jointly and severally, the one paying the other to be absolved,
for
payment in the amount of R650, 000.00;
b.
interest
on the amount mentioned in prayer 1 above a tempore morae at the rate
of 20% per annum from 5 August 2014 until the date
of final payment
c.
costs
of suit
[2]
The first plaintiff is David John Bruni, an adult male person with
full legal capacity, a proprietor of Bruni & McLaren
with offices
at First Floor, Hidas Centre, Klein Windhoek, Windhoek and with the
power to litigate in Namibia and South Africa.
The second
plaintiff is Ian McLaren, an adult male person with full capacity, a
proprietor of Bruni & McLaren with offices
situated at First
Floor, Hidas Centre, Klein Windhoek, Windhoek and with power to
litigate in Namibia and South Africa.
[3] The first defendant
is Gold Reef City Mint (Pty) Ltd (registration Number:
2016/358706/07), a private company with limited liability
duly
registered under registration number in terms of the applicable
company laws of the Republic of South Africa with its address
at Rand
Refinery Complex, 1 Rand Refinery Road, Germiston, Gauteng. The
second defendant is Glen Schoeman, an adult male
businessman with
residential address at [...], Glenvista, Gauteng Province.
[4] In
their particulars of claim the plaintiffs base their case on
condictio indebiti
and on the
lex aquilia
.
The plaintiffs allege that on 5 August 2014 an amount of R650, 000.00
was paid to the defendants on behalf of the Small
and Medium
Enterprises (hereinafter referred as “SME”) Bank Limited,
in Windhoek, Namibia on the
bona fide
and reasonable, but mistaken belief that the amount was due, owing
and payable to the defendants, while it was in fact not the
case and
the defendants nevertheless appropriated the monies.
[5]
The plaintiffs aver that the defendants were money remitters as
envisaged in the Financial Intelligence Centre Act
[1]
(FICA) and owed the SME bank a duty of care to report the payments
made into their bank account directly from SME bank’s
account.
It is alleged further that the defendants unlawfully and in breach of
sections 21, 21A 21B and 21C of FICA, failed
to report receipt of the
money from the SME bank as required in terms of FICA and that had the
defendants exercised their reasonable
care, they would have foreseen
the risk of harm to the SME bank and taken steps to guard against
that harm.
[7] On
11 July 2017, SME bank was placed under provisional liquidation by
the order of the Namibia High Court. Both plaintiffs
were duly
appointed as provisional liquidators by virtue of the letters of
appointment number W19/2017 which was issued under the
signature of
the Master of the High Court in Namibia. By virtue of the order
granted by this court on 16 June 2018 under
case number 19193/218,
both first and second plaintiffs were duly recognised as joint
provisional liquidator of the SME bank.
On 6 March 2019 summons
was served on the first and the second defendant. On 19 March
2019, the defendants filed notice of
intention to defend. On 9
April 2019, the plaintiffs instituted this application for summary
judgment.
[8]
Miss Tania Pearson, Legal Advisor at SME bank deposed to an affidavit
in support of this application. She avers that she was
mandated by
the first and second plaintiff to have access to all the records and
information whether electronic or hard copies
within the SME bank.
She avers further that she can swear positively and verify the causes
of action together with the amounts
claimed in the particulars of
claim and that she is of the opinion that the defendants do not have
a
bona fide
defence and have entered an appearance to defend solely for the
purpose of delay.
[9] The payment process
at SME bank as set out in brief below has never been placed in
dispute:
[9.1]
all preparation for payment would go through the Finance
department;
[9.2]
once the Finance Department has checked, verified and authorised
the CEO must approve the payment;
[9.3]
once the CEO has approved the payment a document called a “Payment
Instruction”” will be forwarded to the
Treasury Back
Office to effect payment;
[9.4] At the Treasury
Back Office, the payment instruction will be dealt with by three
persons, namely:
[9.4.1]
the Treasury Inputter-being the person who
physically
loads the payment onto the system for
payment
to be effected;
[9.4.2]
the Treasury Verifier- being the person who checks
whether
sufficient funds are available in the SME
bank’s
bank account to meet the payment; and
[9.4.3]
the Treasury Authoriser- the person who physically
makes
the payment by pressing of a button on the
system
to effect the actual payment (“the Authorizer”)
[9.5] the person
operating in the Treasury Department will only receive a payment
instruction indicating only to whom the payment
must be made, the
bank account number of the payee, the reason for the payment, all of
which is confirmed by the signature of the
CEO of the SME bank on in
his absence the acting CEO.
[10]
The main issue is whether the plaintiffs succeeded to establish the
essential elements for granting summary judgment as set
out in Rule
32. The defendants have raised a number of technical
objections, namely the admissibility of the plaintiffs’
affidavit, deposed to by Miss Tania Pearson, whether or not the
deponent to the summary judgment has personal knowledge of the
facts;
the plaintiffs’
locus standi
as appointed liquidators of the SME bank; whether or not the
particulars of claim lack a cause of action and are excipiable.
[11]
As pointed out by the author, Erasmus: Superior Court Practice,
Uniform Rule of Court 32(3)(b) requires the defendants to satisfy
the
court by affidavit that they have a
bona fide
defence to the
plaintiff’s claim. ‘
Satisfy’
does not mean
‘
prove’
. What the rule requires is that the
defendants set out in their affidavit facts which, if proved at the
trial, will constitute
an answer to the plaintiff’s claim. If
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff
in his summons are disputed or new facts are
alleged constituting a defence, the court does not attempt to decide
these issues
or to determine whether or not there is a balance of
probabilities in favour of the one party or the other.
[12]
While it is not incumbent upon the defendants to formulate their
opposition to the summary judgment application with the precision
that would be required in a plea, none the less when they advance
their contentions in resistance to the plaintiffs claim they
must do
so with a sufficient degree of clarity to enable the court to
ascertain whether they have deposed to a defence which, if
proved at
the trial, would constitute a good defence to the action. Affidavits
in summary judgment proceedings are customarily
treated with a
certain degree of indulgence, and even a tersely stated defence may
be a sufficient indication of a
bona fide
defence for the
purpose of the rule. If, however, the defence is averred in a manner
which appears in all the circumstances to
be needlessly bald, vague
or sketchy, that will constitute material for the court to consider
in relation to the requirement of
bona fides
.
[13]
If the affidavit lacks particularity regarding the material facts
relied upon and falls short of the requirements of the subrule,
the
court may not be able to assess the defendants
bona fides
but
it may still, in an appropriate case, exercise its discretion in
favour of the defendant if there is doubt whether the plaintiff’s
case is unanswerable.
[14]
All that the court enquires, in deciding whether the defendants have
set out a
bona fide
defence, is: (a) whether the defendants
have disclosed the nature and grounds of their defence; and (b)
whether on the facts so
disclosed by the defendants appear to have,
as to either the whole or part of the claim, a defence which is
bona
fide
and good in law.
[15]
The defendants are not at this stage required to persuade the court
of the correctness of the facts stated by it or, where
the facts are
disputed, that there is a preponderance of probabilities in their
favour, nor does the court at this stage endeavour
to weigh or decide
disputed factual issues or to determine whether or not there is a
balance of probabilities in favour of the
one party or another. The
court merely considers whether the facts alleged by the defendants
constitute a good defence in law and
whether that defence appears to
be
bona fide
. In order to enable the court to do this, the
court must be apprised of the facts upon which the defendants rely
with sufficient
particularity and completeness as to be able to hold
that if these statements of fact are found at the trial to be
correct, judgment
should be given for the defendant.
[16]
In terms of subrule (5): ‘
The court may enter summary
judgment.’
The word ‘
may’
in this
subrule confers a discretion on the court, so that even if the
defendant’s affidavit does not measure up fully to
the
requirements of subrule (3)(b), the court may nevertheless refuse to
grant summary judgment if it thinks fit. The discretion,
clearly, is
not to be exercised capriciously, so as to deprive a plaintiff of
summary judgment when he ought to have that relief.
[17]
Applying these principles
in casu
,
I am not satisfied that in its resisting affidavit the first
defendant has demonstrated a
bona fide
defence on the merits of the plaintiff’s claim. The
defendants all what they raised is a myriad of technical objections
they do not deny that money was transferred from SME bank to the
first defendant’s account where the second defendant is
the
director. I deem it necessary to deal with each of these technical
objections raised by the defendants in turns below.
[18]
The first defence raised by the defendants was that the affidavit of
Miss Pearson was taken in a foreign nation and it was
not
authenticated in terms of Rule 63 of the Uniform Rules of Court and
therefore is inadmissible. Section 8 of the Justices
of the
Peace Act and Commissioners of Oaths Act
[2]
provides for the powers of oaths outside the Republic
[3]
.
[18.1] The Namibian
Justice of the Peace and the Commissioners of Oaths, which
states that:
“
Justices
of the Peace and Commissioners of Oaths Act
[4]
(RSA GG 456) brought into force in South Africa on 1 December 1964 by
RSA Proclamation R.316/1964 (RSA) 958); came into force in
West
Africa on 21 July 1972 when the amendments made by Act 55 of 1970,
including the insertion of section 11A, came into force
APPLICABILITY
TO SOUTH WEST AFRICA: Section 1, as amended by section 55 of 1970,
defines
“
Republic””
to include the “territory of South West Africa
”
.
[18.2]
The Government Gazette 1872 of 12 September 1980 states that : “
by
virtue of the powers vested in me by section 8(1) (a) of the Justices
of the Peace and Commissioners of Oaths Act, 1963…any
person
who exercises in a state to which independent has been granted by law
a legal profession equivalent to that of an attorney,
notary or
conveyancer in the Republic. This notice is issued with the consent
of the Administrator General for the Territory of
South West-West
Africa and shall also apply in the Territory.
Article
140 (The Law in Force at the Date of Independence) of the
Constitution of the Republic of Namibia
[5]
.
Based on the above I find that there is no merit on this objection
raised.
[19]
The second objection raised by the defendants is the lack of personal
of the knowledge of the deponent (Miss Pearson) who deposed
to an
affidavit in support of the application for summary judgment.
This is based on two grounds, namely that Miss Pearson
didn’t
make payment and she can’t have personal knowledge to verify
the facts supporting cause of action
[6]
and that the second defendant never met Miss Pearson. Miss
Pearson confirms that she has been an employee of SME bank since
2012
[7]
, she had the electronic
documents relating to SME bank. Her knowledge that payment was
made from the SME bank is as a result
of her having had access to the
documents. Miss Pearson’s knowledge from the documents
she had militates against the
first defendant that it received the
money.
[20]
The case of
Kurz
v Ainhirn
[8]
is the case where Howard JP articulated the way to deal with the
allegation similar to the one by the defendants in the instant
case
where the remarks as follows:
“
In
his opposing affidavit the deponent takes one point only: that as
much as the alleged causes of action arose out of events which
occurred during the period 1990-1991 and the plaintiff had nothing to
do with the affairs of the close corporation prior to his
appointment
as liquidator on 12 January 1994, he is not a person as required by
Rule 32 (2). He says that under these circumstances
he is not
obliged to satisfy the court that he has a bona fide defence to the
action, and he indeed makes no attempt to do so.
He does not
deny the allegation that he misappropriated and stole the amount of
R440,000.00
…
In
his opposing affidavit the defendant states that the obvious, that
the plaintiff was not a witness to transactions involving
the close
corporation before liquidation, and draws from the fact alone the
inference that the plaintiff cannot swear positively
to the relevant
facts. He thus excludes the possible source of knowledge which
was never open to the plaintiff anyway, but
does not even mention,
let alone attempt to exclude, the obvious source from which the
plaintiff as liquidator could acquire sufficient
knowledge to enable
him to swear positively to the facts. This disingenuous
affidavit does not serve to cast doubt on the
plaintiff’s
averment that he can swear positively to the facts or his opinion
that there is no bona fide defence”.
[21]
From the facts of the instant case Miss Pearson was an employee of
SME bank about five years before SME bank was placed under
provisional liquidation and she had access to all the information in
her disposal. There is no substance on this technical
objection
as well.
[22]
The defendants other technical objection is the alleged lack of
locus
standi
in that the plaintiffs have failed to produce document in the summons
from Namibia to show that SME bank was indeed liquidated,
or an order
liquidating SME bank and/or letters of their appointments as such
from Namibia and South Africa or the Court Order
recognising them as
provisional liquidators and or that they have the powers to litigate
in South Africa
[9]
.
[22.1]
The plaintiffs aver that, after SME bank was provisionally liquidated
on 11 July 2017 they were appointed as provisionally
liquidators
pursuant to the Court order granted by Namibian High Court which was
confirmed by Namibia High Court on 29 November
2017
[10]
;
the appointment of the plaintiffs as liquidators and their capacity
to litigate was recognised by this Court through an order
granted on
16 June 2018 under case number 19193/2018
[11]
and this order was made final by Dipenaar J on 4 February 2019.
The defendants contention was that the plaintiffs failed
to attach
the court orders or letters of appointments in the particulars of
claim.
[22.2]
The defendants contention is that in the absence of the letters of
appointment as provisional liquidators there must be doubt
that SME
bank was liquidated. They also contend that even if one accepts
that they are provisional liquidators but still
they do not have
locus to litigate on behalf of SME bank. They rely on the
decision of
Rossouw
v FirstRand Bank Ltd
[12]
where it was held that there is absolute prohibition to the admission
of further evidence and plaintiff must stand or fall
by the verifying
affidavit delivered in terms of rule 32(2). I disagree with the
contention by the defendants. The defendants
have failed to
request to inspect the respective Namibian and South African Court
judgment in terms of rule 35(12) & (14).
See also
Shell
Zimbabwe (Pty) Ltd v Webb
[13]
.
[23]
The production of the court order in judgment is not a new evidence.
In
Rossouw case
SCA
held that it was impermissible to produce supporting documents at the
hearing of summary judgment where proof of service of
notices were
produced at the hearing and the SCA held that it was inadmissible.
In the instant case, the defendants were
informed in the affidavit in
support of summary judgment application that the court orders
recognising the plaintiffs in South
Africa will be produced at the
hearing. I disagree with the submission by the defendants that
there was no obligation in
their part to utilise Rules 35(12) and
(14). Therefore, the defendants’ objection on this ground
also fails.
[24] The defendants also
raised a defence that each of the causes of action are excipiable and
they are vague and embarrassing.
In the particulars of claim
the plaintiffs set out the facts, which lead to the conclusion based
on the facts as to whether the
cause of action
condictio indebiti
&
lex aquilia.
[25]
The defendants allege that plaintiff’s failed to prove the
cause of action on the
condictio
indebiti
[14]
.
The
defendants’ contention is that the plaintiffs failed to prove
three essential requirements of
condictio
indebiti
,
namely that the plaintiffs have been impoverished
[15]
;
the defendants were enriched
[16]
and the defendants’ enrichment was at the expense of the
plaintiff
[17]
. The
defendants overlook the fact that the plaintiffs claim is one for
payment of money allegedly unduly paid to the first
defendant.
The plaintiffs allege in their particulars of claim that:
[25.1]
an amount of R650, 000.00 was paid to the first defendant
[18]
;
[25.2]
the payment was made from the SME bank’s account
[19]
;
[25.3]
the payment was made
bona
fide
and reasonable but mistaken belief that the amount was owing
[20]
;
[25.4]
the payment was in fact, not owing and payable to the defendants
[21]
;
[25.5]
the defendants appropriated the money.
[26] From the facts set
out above which are undisputed lead to one conclusion that
the
first defendant was enriched, the plaintiffs were impoverished; the
first defendant’s enrichment was at the expense of
the
plaintiffs and such enrichment is
sine
causa
and unjustified. The defendants contention that the essential
elements of the cause of action based on a
condictio
indebiti
is rejected and there is no substance on the argument that no cause
of action was established under the
condictio
indebiti
.
The first defendant has not denied the allegations set out above.
The requirements for
condictio
indebiti
as was set out in the Supreme Court of Appeal case of
Absa
Bank Ltd v Leech
[22]
have been proven by the plaintiffs.
[27]
The defendants aver that the claim based on
lex
acquilia
is bad in law. The defendants contend that
lex
acquilia
was
not relied upon by the plaintiffs as an alternative to
condictio
indebiti
and by doing so the plaintiffs rely on two different causes of
action. They contend that the other problem with this cause
of
action is a delictual claim which cannot form the basis of a summary
judgment application
[23]
.
[28]
The contention by the defendants is incorrect in law as the cause of
action has no bearing on the liquidity of the amount claimed.
In the decision by this Division in the case of
Colrod
Motors (Pty) Ltd v Bhula
[24]
is a case where an amount of money was stolen from the plaintiff.
The defendant resisting the application for summary judgment
raised a
defence that the amount was a damages claim and it was not
liquidated. Eloff J referring to the dictum in the case
of
Kleynhans
v Van Der Merwe, N.O
[25]
“
In
my opinion the present claim has been formulated as a liquidated
one. It is for a specific amount allegedly taken from
the
plaintiff… If A hands B R100 as a loan and B refuses to repay
it, A’s claim for repayment would be liquidated,
but if B
snatches R100 from A and refuses to hand it back, A’s claim
would be unliquidated. I think the opposition to the
claim fails”
.
[29]
The plaintiffs found the basis of their claim on
lex
aquilia
on the provisions of the Financial Intelligence Centre Act
[26]
(FICA) in that the defendants were money remitters and they owed SME
bank a duty of care in that they were supposed to report payments
into their bank accounts directly from the SME bank’s account.
The defendants contend that this is absurd to expect
that they report
this transaction to SME bank
[27]
.
Although FICA does not define a money remitter but it has a deeming
provision in the form of Item 19 of Schedule 1 which
deems “
a person who carries on the business of a money remitter” as an
accountable institution in terms of the Act.
However, this
ground has not been persisted with during the argument I will reserve
expressing my opinion about it.
[30]
In addition to the defendants’ grounds of objection or
opposition of granting summary judgment contend that the plaintiffs’
particulars of claim lack cause of action and argue that the
particulars of claim are excipiable. The defendants contend that the
plaintiffs lack the knowledge as to which defendant did what.
They advance their argument that the plaintiffs’ particulars
of
claim refer to generic word “defendants”, in that
paragraph 14 of the particulars of claim allege that an amount
of
R650, 000.00 was paid into the account of defendants
[28]
.
The defendants also contend that the document relied upon as proof of
the trail of the movement of the money from SME bank
account ie
document marked “POC1” makes no reference to
Gold
Reef City
Mint
(Pty)
Ltd
,
first defendant or Glen Schoeman, the second defendant, instead the
name of the beneficiary recorded as “
Mamempe
Capital Asset Managers”
and “
Gold
Reef Limited”
is record in the column with the name of the “Actual Bank
Account Holder”. The contention by the defendants is
that
neither of the defendants is the account holder of the account
mentioned in the transaction.
[31]
A
more pertinent decision is that of
Standard
Bank of South Africa Ltd v Roestof
[29]
,
where Blieden J dealt with an affidavit couched in the plural in a
case where there was only one defendant. The learned judge
held that
a reading of the summons and mortgage bond, together with the
affidavit (he did not mention the notice of motion in the
application
for summary judgment), left no doubt that what was being verified was
a cause of action against the defendant alone.
[31]
The defendants contend that it is trite that if the identity of the
defendant is uncertain, for example in cases where there
is more than
one defendant and the plaintiff does not know which one concluded a
certain contract with, that uncertainty would
operate to defeat the
plaintiff’s right to sue any particular one of them for summary
judgment. The court is referred
to the Western Cape Division
case of
Cape
Business Bureau (Pty) Ltd v Van Wyk and another
[30]
.
I agree with the defendants that the legal position as set out in
Van
Wyk case
is well-recognised one. However, in the instant case there is
no uncertainty as to which company received the money.
The
defendants are creating some doubt by relying on the multiplicity of
the companies in Johannesburg whose trading names have
Gold Reef.
The plaintiffs show the flow of money from SME bank to Gold Reef
Limited who is the account holder. The
worse for the first
defendants it never denied that the account where money was paid was
not the first defendant’s
account.
[32]
The defendants managed to get a Johannesburg telephone directory and
found out that about six companies trading under the precursor
name
of Gold Reef City. Their contention is that their name is Gold
Reef City Mint (Pty) Ltd, a private company, not a public
company not
Gold Reef City which is alleged to have been unduly paid by SME
bank
[31]
. The
defendants contend further that the second defendant, Glen Schoeman,
does not feature anywhere in the documents
marked annexure “POC1”
where the money the money flow is shown. In the particulars of
claim the plaintiffs pray
for an order against both defendants,
jointly and severally, the one paying the other to be absolved in the
amount of R650, 000.00
[32]
.
In the affidavit resisting summary judgment the second defendant says
the following:
“
37.
“The first defendant is a trader in coins.
I
am the director
of
the first defendant. The first defendant trades from
Johannesburg
[33]
…”
(my
underlining).
[33]
The first defendant is hiding behind the ambiguity or multiplicity of
names similar to the one of the first defendant and what
it does not
disclose is essential issue that it did not receive money.
[34] From the passage
quoted above it is clear that the defendants were sued jointly
and severally one paying
the other to be absolved. The second defendant by virtue of
being a director of the first defendant,
has been cited on that
basis.
However,
I am unable to grant summary judgment against the second defendant as
that would be tantamount to finding the second defendant
personal
liable for company’s (first defendant’s) keeping of the
money under
vindictio
indebiti
.
There is no authority presented by the plaintiffs for me to make such
an order. The second defendant’s name
does not appear on
the document (POC1) relied upon by the plaintiffs. There is only one
transaction which is reflected on the document
(POC1) relied upon by
the plaintiffs ie
Gold
Reef City Limited
.
If the plaintiffs were to proceed against the second defendant based
on
lex
aquilia
,
still I am reluctant to grant summary judgment as he may raise a
legal defence in the main action. I am inclined to grant
the
second defendant leave to defend the action. The first
defendant failed to do a simple thing, ie denial of receipt of
the
money from SME bank into its account and making a full disclosure of
its banking books to refute any allegation that it received
payment
which was not due to it. There is not a single paragraph where
it denies receipt of payment. The first defendant
failed to
meet the test or the legal principle set out by Corbett JA, as he
then was, in the case of
Maharaj
v Barclays National Bank
[34]
where the following was held
:
“
All
that the Court enquires into is : (a) whether the defendant has
‘fully’ disclosed the nature and grounds of his
degree
and the material facts upon which it is founded, and (b) whether on
the facts so disclosed the defendant appears to have,
as to either
the whole or part of the claim, a defence which is both bona fide and
good in law. If satisfied on these matters
the Court must
refuse summary judgment, either wholly or in part as the case may
be. The word, ’fully’, as used
in the context of
the Rule (and its predecessors), has been the cause of some Judicial
controversy in the past. It connotes,
in my view, that, while
the defendant need not deal exhaustively with the facts and the
evidence relied upon to substantiate them,
he
must at least disclose his defence and material facts upon which it
is based
with
sufficient particularity
and
completeness to enable the Court to decide whether the affidavit
discloses a bona fide defence.” (my
underlining
)
[35]
In
Breitenbatch
v Fiat SA (Edms) Bpk
[35]
Mr Justice Colman issued a warning to defendants in a summary
judgment application where he made the following remark:
“…
no
more is called for than this: that the statement of material facts be
sufficiently full to persuade the Court that what the defendant
has
alleged, if it is proved at the trial, will constitute a defence to
the plaintiff’s claim. What I would add, however,
is that
the defence is averred in a manner, which appears in all the
circumstances to be needlessly bald, vague or sketchy, that
will
constitute material for the Court to consider in relation to the
requirement of bona fides…
A
dishonest deponent, if he is wise, will present as narrow a front as
possible, and (if it is practicable) a blurred one.
What I have
set out in that regard is not a demand for, or encouragement to
present, lengthy and prolix affidavits in summary judgment
cases.
All that is required is that the defendant’s defence be not set
out baldly, vaguely or laconically that the
Court, with due regard to
all the circumstances, receives the impression that the defendant
has, or may have, dishonestly sought
to avoid the dangers in inherent
in the presentation of a fuller or clearer version of the defence
which he claims to have”.
[36]
In
Joob
Joob Investment (Pty) Ltd v Stocks Mvunda Zek Venture
[36]
the Supreme Court of Appeal held that... “
summary
judgment proceedings only hold terrors and are “drastic”
for a defendant who has no defence. Perhaps the
time has come
to disregard these labels and to concentrate rather on the proper
application of the Rule, as set out with customary
clarity and
elegance by Colbert JA in the Maharaj case at 425G-426E”.
[37]
In the absence of a denial of receiving the payment from SME bank
coupled with their non-disclosure of a
bona
fide
defence lead to the irresistible
conclusion that the first defendant entered an appearance to defend
for the purpose of delay.
In the circumstances, there is no
reason why summary should cannot be granted.
[38]
Counsel for the plaintiffs’ indicated that the interest of 20%
as set out in the summons was incorrectly recorded and
at the time
the interest rates was at 15.5% and in the event summary judgment
being granted he ask the court to grant summary judgment
for the
amount claimed at 15.5% instead.
[39]
The plaintiffs are therefore entitled to summary judgment.
[40]
Accordingly, I make the following order:
[40.1] Summary Judgment
is granted in favour of the plaintiffs against the first defendant
for:
[40.1.1]
Payment of R650, 000.00 together with interest thereon a
tempora
morae
at the rate of 15.5% per annum
from 5 August 2014 until the final date of payment;
[40.1.2]
The second defendant is granted leave to defend the action.
[40.1.3]
the defendants are to pay the plaintiffs’ costs of suit for
one counsel.
_____________________
N. SKIBI
Acting Judge of the
High Court,
Gauteng Local
Division,
Johannesburg
HEARD ON
: 17 October
2019
JUDGMENT ON
: 31
October 2019
FOR THE PLAINTIFF
: Adv. Cooke
INSTRUCTED BY
: Webber
Wentezel Attorneys
011 530
5352
Ref:
T. Verveld/D Wright/K van Vuurent
3025501
COUNSEL FOR THE
DEFENDANTS: P. Cirone
L.
Cirrone Attorney at Law
011 375
0958
Ref:
L. CIRONE
[1]
30 of 2001
[2]
16
of 1963
[3]
“
(1)(a)
The
Minister may, by notice in the Gazette, declare that the holder of
any office in
any
country
outside
the Republic
shall
in the country in which or
at
the place
at
which he holds such office, have the powers conferred by section
seven upon a commissioner of oaths, and may in like manner
withdraw
or amend such notice
.”
[4]
16 of 1963
[5]
Subject
to the provisions of this Constitution, all laws which were in
force immediately before the
date of independence
shall remain in force until repealed or amended by Act of Parliament
or until they are declared unconstitutional
by a competent Court.
[6]
Affidavit
resisting summary judgment page 31 para 6
[7]
Affidavit resisting summary judgment page 4 par 2
[8]
1995 (2) SA 408 (D)
[9]
Resisting
affidavit par 8 and 9
[10]
Page 10 par 3
[11]
Page
10 par 5
[12]
2010 (6) SA 439
(SCA at 451A-453B
[13]
1981 (4) SA 752H-753A
[14]
Affidavit
resisting summary judgment page 36 par 21
[15]
Affidavit
resisting summary judgment page 36 par 21.1
[16]
Affidavit
resisting summary judgment page 36 par 21.2
[17]
Affidavit
resisting summary judgment page 37 par 21.3
[18]
PoC
page 13 par 13
[19]
PoC
page 14 para 12
[20]
PoC
page 14 par 16
[21]
PoC
page 14
[22]
2001(4) SA 132 (SCA)
[23]
Affidavit
resisting summary judgment page 41 par 34
[24]
1976
(3) SA 836 (W)
[25]
1970(1)
565 (O) at page 565 (O)
[26]
[27]
Affidavit
resisting summary judgment page 42 par 36
[28]
Page
14 par 14
[29]
2004 (2) SA 492 (W)
[30]
1981
(4) SA 433
(C) at 439
[31]
Affidavit
resisting summary judgment page 40 par 32 & 33
[32]
PoC
page 17
[33]
Affidavit
resisting summary judgment
[34]
1976 (1) SA 418 (A)
[35]
1976 (2) SA 226 (T)
[36]
2009 (3) SA 409
(SCA) at 228G-229A