Gold Reef City Mint (Pty) Limited and Another v Bruni and Another (A5030/2020) [2021] ZAGPJHC 33 (26 March 2021)

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[2021] ZAGPJHC 33
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Gold Reef City Mint (Pty) Limited and Another v Bruni and Another (A5030/2020) [2021] ZAGPJHC 33 (26 March 2021)

SAFLII
Note
:
Certain personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
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THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A5030/2020
COURT
A QUO
CASE NO
:
8255/2019
DATE
:
26
th
march 2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:
YES
REVISED
Date:
26 March 2021
In
the matter between:
GOLD
REEF CITY MINT (PTY) LIMITED
First Appellant
SCHOEMAN
,
GLEN
Second Appellant
and
BRUNI
,
DAVID JOHN
First Respondent
McLAREN
,
IAN
ROBERT
Second Respondent
Coram:
Molahlehi, Adams JJ
et
Noko AJ
Heard
:
24 February 2021 – The ‘virtual hearing’ of
the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
26 March 2021 – This judgment was handed down
electronically by circulation to the parties' representatives
via
email, by being uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 11H00 on 26 March 2021.
Summary:
Application for summary judgment – defence being a denial
of particular averment in annexure to the particulars of plaintiff’s

claim – no denial of averment in the particulars of claim
implicating the first defendant – requirements for summary

judgment and for defence based on denial of certain facts alleged by
plaintiff  – the statement of material facts in
affidavit
resisting summary judgment required to be sufficiently full to
constitute a defence to plaintiff’s claim –
presenting as
narrow a front as possible and a blurred one suggests that the
defendant dishonestly sought to avoid the dangers
inherent in
presenting a clearer version of the defence –
Breitenbach v
Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) applied  –
summary judgment granted.
ORDER
On
appeal from:
The
Gauteng Local Division of the High Court, Johannesburg (Skibi AJ
sitting as Court of first instance):
(1)
Save to the extent set out in paragraph 2
below, the first appellant’s appeal against the order of the
court
a quo
is dismissed with costs.
(2)
Paragraphs [40.1.1] and [40.1.3] of the
order of the court below are amended to read as follows:
‘
[40.1.1]
Payment of the sum of R650 000, together with interest thereon
a
tempore morae
at the applicable legal
rate of interest of 9% per annum from 5 August 2014 to date of final
payment
… … …
[40.1.3]
The first defendant shall pay the plaintiffs’ costs of suit on
the party and party
scale.’
(3)
The first appellant shall pay the first and
second respondents’ costs of the appeal, including the costs of
the application
for leave to appeal.
(4)
The second appellant’s appeal against
the costs order granted against him by the court
a
quo
succeeds and is upheld.
(5)
The order of the court
a
quo
relative to the second appellant –
paragraph [4.1.2] of the order of the court
a
quo
– is amended and replaced
with an order, which reads as follows:
‘
[4.1.2]
The second defendant is granted leave to defend, and the costs of the
plaintiffs’
application for summary judgment against him shall
be in the cause and costs in the main action.’
(6)
Each party shall bear his own costs of the
second appellant’s appeal.
JUDGMENT
Adams
J (Molahlehi J concurring):
[1]
The first and second
respondents are the joint provisional liquidators of the Small and
Medium Enterprises Bank Limited ('the SME
Bank’), a registered
bank in the Republic of Namibia, which was finally liquidated by
order of the Namibian High Court on
29 November 2017. The final
liquidation order was preceded by a provisional liquidation order,
which was granted by the High Court
of Namibia on 11 July 2017, on
which date the respondents were also issued with letters of
appointment as provisional liquidators
by the Master of the High
Court in Namibia. In their official capacities as joint provisional
liquidators of the SME Bank, the
respondents sued Gold Reef City Mint
(Pty) Limited (‘Gold Reef City Mint’), as the first
defendant, and Mr Glen Schoeman
(‘Mr Schoeman’), as the
second defendant, for repayment of an amount of R650 000 on the basis
of fraud and unjust enrichment.
Mr Schoeman is the sole director of
Gold Reef City Mint. To avoid confusion, I shall refer to the parties
as referred to in the
action in the High Court.
[2]
The first and second
plaintiffs are cited in the summons and the plaintiffs’
particulars of claim as having the power to litigate
in Namibia and
South-Africa, which powers they derive from their letters of
appointment and an Order of this Court dated 13 June
2018 under case
number 19193/2018, which order duly recognizes the plaintiffs as the
joint provisional liquidators of the SME Bank.
[3]
The plaintiffs
applied for summary judgment against the first and second defendants.
This was opposed by the defendants on the basis
of a number of points
in limine
and on the ground that in their particulars of claim, the plaintiffs
failed to make out a case against the defendants or, for that
matter,
against either one of the two defendants. The High Court (Skibi AJ)
agreed with the defendants that, as regards the second
defendant (Mr
Schoeman), the plaintiffs did not make out a case for summary
judgment against him. However, as regards the first
defendant, the
Judge rejected the defendants’ main defence as well as all of
the legal defences raised by them in their opposition
to the
application for summary judgment. The Judge held that the first
defendant had not established a
bona
fide
defence to the plaintiffs’ claim, and granted summary judgment
against it.
[4]
In sum, the court
a
quo
held
that the defendants’ affidavit opposing summary judgment, in
relation to the first defendant, was not comprehensive
enough and
fell short of establishing a
bona
fide
defence to the plaintiff’s claim based on the averment that an
amount of R650 000 was erroneously paid into the bank account
of the
first defendant. All of the preliminary legal points raised by the
defendants in their resisting affidavit were also dismissed
by the
court
a
quo
.
Summary judgment was accordingly granted against the first defendant
and the second defendant was granted leave to defend the
main action.
Curiously, the court
a
quo
, as
part of its summary judgment against the first defendant, ordered
‘the defendants’ to pay the ‘plaintiffs’

costs of suit for one Counsel’.
[5]
The first defendant
appeals against the summary judgment granted against it by the court
a quo
and the second defendant appeals against the ‘costs of suit’
order seemingly granted against him as part of the costs
order
granted against the first defendant. This appeal is with the leave of
the High Court, which was granted by Skibi AJ on 12
March 2020.
[6]
The material facts
and the issues to be decided in this appeal are as set out in the
paragraphs which follow.
[7]
On 5 August 2014 an
amount of R650 000 was electronically transferred by the SME Bank
into account number 504 4007 3810. The name
of the beneficiary, as
purportedly ‘described in Finance’, was ‘Mamepe
Capital Asset Managers’, and the
actual bank account holder was
reported to be ‘Gold Reef Limited’. Although the reason
for the transfer, presumably
as per the accounting records of the SME
Bank, purported to be in respect of an ‘Investment –
Mamepe Capital Asset
Managers’, the payment of the said sum
into the aforesaid bank account number 504 4007 3810 was in fact a
fraud perpetrated
on the SME Bank and was not for any lawful or valid
reason.
[8]
In their particulars
of claim, the first and second plaintiffs allege that the aforesaid
sum of R650 000 was ‘paid over into
the defendants’ bank
accounts on the date in question’. The plaintiffs also aver
that the said sum was paid by the
SME Bank ‘in the
bona
fide
and
reasonable, but mistaken belief that the amount was indeed due, owing
and payable to the [above] beneficiary account number
504 4007 3810’.
Furthermore, so the particulars of claim conclude, the amount of
‘R650 000 was paid to the Defendants
on behalf of the SME Bank
in 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’
.
(Emphasis added)
[9]
Later on in the
particulars of claim the further allegation is made that, when the
payment was effected, the SME Bank was defrauded.
The electronic
funds transfer of the amount of R650 000 was processed and the
payment ‘
effected
to the defendants
’
as a fraud perpetrated on the SME Bank. (Emphasis added).
[10]
On a number of
occasions, the allegation is made by the plaintiffs that the payment
of the said sum was received by the defendants.
So, for example, the
following averment is made in the particulars of claim:
‘
In
receiving and appropriating the amount [of R650 000], the defendants
acted wrongfully and negligently for the reasons set out
herein.’
[11]
Also, as part of the
plaintiffs’ cause of action based on the Financial Intelligence
Centre Act (‘FICA’), the
plaintiff avers that ‘the
transfer of the monies
to
the defendants
had no apparent lawful purpose’. (Again, emphasis added).
[12]
In sum, the facts are
that an amount of R650 000 was fraudulently paid on behalf of the SME
Bank into account number […].
The only issue in dispute is
whether that account number belongs to the first defendant. Put
another way, the only question to
be asked in the application for
summary judgment was whether that amount was received by the first
defendant.
[13]
The first and second
defendants entered appearance to defend and the plaintiffs then
applied for summary judgment against them.
It is interesting and
instructive to note how the second defendant in the defendants’
affidavit opposing summary judgment
deals with the averments in the
particulars of claim that the R650 000 was received by the
‘defendants’ and appropriated
by them. In fact, a more
accurate and apt way of putting it is that it is instructive that the
defendants do not, in their affidavit
resisting summary judgment,
deal with these incriminating averments unequivocally implicating
them in the misappropriation of the
R650 000. I will revert to this
aspect of the merits of the application for summary judgment later on
in the judgment. Suffice
at this point to say that the closest the
defendants come to denying that they – both or either one of
them – received
the R650 000, is the following averments in the
affidavit resisting summary judgment:
‘
30
In paragraph 11 of the particulars of claim, the plaintiffs allege
that the payment instruction recorded that
payment had to be made to
“the beneficiary as indicated in column 3 of POC1 for the
reason indicated in column 5 of POC1".
Only one beneficiary is
identified.
31
The beneficiary identified in column 3 of annexure "POC1"
is not either of the defendants.
It is "Gold Reef Limited".
The purpose identified in column 5 of annexure "POC1" is
"investment, Mamepe
Capital Asset Managers". That is also
not one of the defendants. Moreover, it is an apparent reason for the
payment which
the plaintiffs have not denied and which would
eliminate the possibility of the payment having been made
indebiti
.’
[14]
The defendants go to
great lengths to explain in their answering affidavit that neither
one of them – Gold Reef City Mint
(Pty) Limited or Mr Schoeman
– is the beneficiary mentioned in the payment instruction,
annexed to the particulars of claim
as annexure ‘PoC1’,
that being ‘Gold Reef Limited’. However, what the
defendants conveniently lose sight
of is the express allegation made
in the particulars of plaintiffs’ claim on more than one
occasion that the payment supposedly
made to ‘Gold Reef
Limited’ was in fact made to ‘the defendants’.
Moreover, neither the first defendant
nor the second defendant deny
that they received the payment and appropriated it. Neither do either
of them deny that they are
the holder of FNB account number […].
This, in my view, is fatal to the cause of the defendants. The real
point made and
the simple issue raised in the particulars of
plaintiffs’ claim and verified on affidavit in their
application for summary
judgment is that the first and second
defendants – both or either one of them – received the
R650 000, when they had
no entitlement to the said amount. This crisp
issue the defendants conveniently do not deal with in any way
whatsoever –
what they do is to dance around it in a very
fanciful and whimsical fashion.
[15]
Incidentally, in
their particulars of claim, the plaintiffs on no less than ten
occasions make the allegation that the amount of
R650 000 was paid to
and received by the defendants. This allegation is coached in
different ways, including as an averment that
‘[the defendants]
received the proceeds of unlawful activities’. The defendants’
riposte to all of these allegations
is a deafening silence. Nowhere
in their affidavit resisting summary judgment do the defendants even
begin to deny that they –
both the defendants or either one of
them – received the R650 000, as clearly and unequivocally
averred by the plaintiffs
in their particulars of claim, and by
implication in their application for summary judgment. There is not
even a general denial
of the contents of the paragraphs which contain
these allegations. One would at the very least have expected a denial
of these
paragraphs and a response thereto as per the retort by Mr
Schoeman to some of the allegations by the plaintiffs relating to
the
lex aquilae.
The response in that regard by the defendants – quite
emphatically and unequivocally – was the following: ‘Save

for the aforegoing, I deny the allegations in paragraphs 19, 20 and
21’. And also: ‘I have no knowledge of the allegations
in
paragraphs 22 and 23 of the particulars of claim and do not admit
them’. As indicated, I shall revert to this issue in
due
course.
[16]
In his affidavit
opposing summary judgment on behalf of both himself and the first
defendant, the second defendant states the following:
‘
3.3
Ms Pearson is not a person contemplated in Rule 32(2) "who can
swear positively to the facts verifying the
cause of action and the
amount, if any, claimed";
3.4
plaintiffs do not disclose any
locus standi
to launch the
action herein;
3.5
the particulars of claim do not disclose a cause of action against
either the first defendant or me;
3.6
Ms Pearson's affidavit is, in any event, inadmissible because it was
signed in Namibia and has not been authenticated
in terms of Rule 63;
3.7
the application has been brought in bad faith by
peregrini
of
the Republic of South Africa in the face of a demand by the first
defendant and me that, before they proceed further in this
matter,
they establish security for our costs.’
[17]
The defendants
therefore raised a number of legal points
in
limine
,
all of which the court
a
quo
found
to be without merit and rejected. During the hearing of the summary
judgment application in the High Court, the point relating
to the
furnishing of security and the claim that the plaintiffs, by
proceeding with the application for summary judgment, was abusing
the
court processes, were not pursued by the defendants. Before us, Ms
Cirone, Counsel for the defendants, advised the court that
they were
not persisting with the objection to the competence of the
Commissioner of Oaths and the regularity of the administration
of the
oath. The defendants therefore accept, in my view, correctly so, that
the commissioning of the plaintiffs’ affidavit
in support of
the application for summary judgment
falls within the
provisions of the
caveat
created by Uniform Rule of Court 63(1) and that it was properly
commissioned.
[18]
That then leaves
the
following legal points: (1) whether the deponent to the plaintiffs’
affidavit in support of their application for summary
judgment had
the requisite knowledge to depose to that affidavit; and (2) the
locus
standi in iudicio
of the first and second plaintiffs in their capacities as joint
liquidators of the SME Bank. Thirdly, the defendants also contend

that the plaintiffs’ particulars of claim are vague and
embarrassing and do not disclose a cause of action and are therefore

excipiable. I now turn my attention to these issues.
[19]
It is the case of the
defendants that Ms Pearson, who is the legal advisor of the SME Bank
(in liquidation), does not have the requisite
knowledge of the
matters in issue, despite her say-so to the contrary, and therefore
she is not, so the defendants contend, a person
as contemplated in
Rule 32(2) as she cannot ‘swear positively to the facts
verifying the cause of action and the amount,
if any, claimed’.
The defendants also contend that Ms Pearson is not authorised by the
plaintiffs to depose to the affidavit.
[20]
The starting point as
regards this issue is the fact that Ms Pearson, under oath, confirms
that she has the necessary knowledge
of the issues in this matter.
She swears positively to the facts and verify the causes of action of
the plaintiffs. In addition,
she confirms that she had been mandated
by the plaintiffs to depose to the affidavit in support of the
application for summary
judgment. She corroborates the aforegoing by
her statement that she joined the SME Bank on 10 September 2012
before its liquidation.
When the bank was placed under provisional
liquidation and upon the joint liquidators being appointed, her
services were retained.
[21]
The defendants, as I
indicated, dispute that Ms Pearson is a person with the necessary
knowledge of the facts in issue in this matter.
Mr Schoeman states
the obvious that he had never met Ms Pearson and that he had never
heard of her before the application for summary
judgment. Secondly,
the second defendant states that there were a number of persons,
identified by the plaintiffs who were employed
by the SME Bank at the
time of the transactions in question who were allegedly involved in
the transactions, who would have knowledge
(or better knowledge) of
the facts in the matter and who could have deposed to the affidavit
in support of the application for
summary judgment.
[22]
Moreover, so the
second defendant avers in his affidavit, the transaction in question
is one which, in the normal course, would
have involved a paper trail
and a series of persons involved. No part of the paper trail is
attached to the particulars of claim
and no one involved has deposed
to an affidavit in support of the allegations therein. Mr Schoeman
therefore submits that the application
for summary judgment should be
dismissed on the basis that Ms Pearson has no knowledge of the facts
in question. There are other
people available to the plaintiffs who
do have such knowledge, so Mr Schoeman avers, and accordingly the
application has not been
properly verified as required in terms of
Rule 32(2).
[23]
The
facts in this case are not dissimilar to the facts in
Kurz
v Ainhirn
[1]
,
in which a liquidator made application for summary judgment for
repayment of monies that had been misappropriated from a company
some
two years before his appointment as liquidator. The sole point in the
opposing affidavit was that the liquidator could not
have knowledge
of the facts in question. I can do no better than to quote from the
judgment in which Howard JP held as follows:
‘
In
his opposing affidavit the defendant takes one point only: that
inasmuch 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 “who can
swear positively to the facts” 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 indeed he makes no attempt to do so. He
does not even deny the allegation that he misappropriated and
stole
the amount of R440 000.
...
… …
I
have to be satisfied that the plaintiff can and does swear positively
to the material facts, not that he has complied with a given
formula.
In this case he not only asserts that he can swear positively to the
facts, he does so and indicates the reason why he
is able to do so,
namely that he is a liquidator of the close corporation, having been
duly appointed as such some nine months
ago. As such he clearly had
both the opportunity and the duty to obtain knowledge of the relevant
facts from,
inter alia
, the documentary records of the close
corporation and interrogation of the defendant. It is inconceivable
that the plaintiff, who
is an officer of the Court, would have
instituted this action, based on serious allegations of
misappropriation and theft of moneys,
without establishing the facts
through examination of the documentary records under his control and
exercising his statutory power
to interrogate the defendant and
others involved in the transactions in question. Evidence of this
nature would be admissible against
the defendant and the plaintiff
would obviously be able to swear positively to the facts thus
established. There are accordingly
good grounds for believing that
the plaintiff can swear positively to the relevant facts and fully
appreciated the meaning of his
assertion to that effect in the
verifying affidavit.
In
his opposing affidavit the defendant states the obvious, that the
plaintiff was not a witness to transactions involving the close

corporation before liquidation, and draws from that fact alone the
inference that the plaintiff cannot swear positively to the
relevant
facts. He thus excludes one possible source of knowledge which was
never open to the plaintiff anyway, but does not even
mention, let
alone attempt to exclude, the obvious sources 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.
I
accordingly grant summary judgment against the defendant ...’
[24]
On the basis of this
authority, with which I agree, the defendants’ first
preliminary point stands to be rejected. The point
is that
in
casu
Ms
Pearson not only asserts that she can swear positively to the facts,
but also does so and indicates the reason why she is able
to do so,
namely that she has been the legal advisor of the SME Bank even
before it was placed in liquidation. In fact, the plaintiffs’

case in this matter is stronger than the plaintiff’s case in
Kurz
– Ms Person was involved in the SME Bank even before the
liquidators were appointed.
[25]
I
also agree with the submissions made by Mr Cooke, who appeared on
behalf the plaintiffs, that the defendants’ reliance on
the
decision in
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 Cc and Another
[2]
is
misplaced. In
Shackleton
the deponent to the summary judgment affidavit was the applicant’s
attorney of record, whereas in this matter it is a longstanding

employee who was involved in the day to day affairs of the SME Bank
when the illicit payment was made. The fact that she has all
of the
relevant documents in her possession doesn’t detract from her
institutional knowledge, but only adds to it.
[26]
Therefore, the first
legal point raised by the first and second defendants is devoid of
any merit and was rightly rejected by the
court
a
quo
.
[27]
The next point
in
limine
relates to the
locus
standi
of
the plaintiffs. Again, the starting point is the fact that Ms Pearson
verifies the plaintiffs’ causes of action, and,
by implication,
she verifies the contents of the particulars of plaintiff’s
claim in which the following allegations are
made expressly, clearly
and unequivocally: (1) the first and second plaintiffs are the joint
provisional liquidators of the SME
Bank and both of them have the
power to
litigate on behalf of the insolvent company in Namibia and
South-Africa
;
and (2) on
16
June 2018 the Johannesburg High Court under case number 19193/2018
issued an order recognizing the first and second plaintiffs
as the
joint provisional liquidators of the SME Bank.
[28]
These averments are
not disputed by the defendants. That, in my judgment, is the end of
the defendants’ case on this point.
What the defendants do say
in their affidavit resisting summary judgment is that t
he
plaintiffs have not attached to their particulars of claim the
following documents: The Namibian High Court Order liquidating
the
SME Bank; their letters of appointment by the Master of the Namibian
High Court; or the Johannesburg High Court's Order recognising
them
in South Africa as the joint provisional liquidators of the SME Bank.
So what, it can be asked rhetorically.
[29]
On the one hand, we
have the statement under oath by Ms Pearson that the plaintiffs are
the joint liquidators of the SME Bank and
that their appointments are
recognised by the Johannesburg High Court. These unequivocal
assertions on behalf of the plaintiffs
are not gainsaid in any way,
shape or form by the defendants and they have to be accepted as fact.
If it was not so, it would have
been the easiest of exercises for the
defendants to firstly deny those facts and secondly to disprove them
by reference to public
documentation, including the Johannesburg High
Court Order dated 16 June 2018, which would have been accessible and
available,
as a public document, to the defendants on 7 May 2019,
when the second defendant deposed to the affidavit opposing the
application
for summary judgment. The simple, undisputed and
unchallenged fact of the matter is that the first and second
plaintiffs are the
joint provisional liquidators of the SME Bank,
with the power and authority to litigate in South Africa on behalf of
the insolvent
Namibian company.
[30]
Faced with the clear
and unambiguous averments, confirming the
locus
standi
of the plaintiffs, it is wholly inadequate for the second defendant
to give a generic answer that he has no knowledge of the liquidation

of the SME Bank, the appointment of the plaintiffs as provisional
liquidators thereof, the terms upon which they were appointed
or of
their recognition by the High Court. The defendants are simply
blowing hot air.
[31]
I
find support for this conclusion in
Eskom
v Soweto City Council
[3]
,
in
which Flemming DJP, where an interlocutory application had been
delivered under the name and signature of the respondent's attorney,

held that, if the attorney had been authorised to bring the
application on the respondent's behalf, then the application was that

of the respondent, irrespective of whether the deponent to the
supporting affidavit had also been authorised 'to bring this
application'.
The Court held, further, that the deponent's evidence
could not be ignored because he had not been 'authorised': if the
attorney
had authority to act on the respondent's behalf, then the
attorney was entitled to use any witness who, in his opinion, would
advance
the respondent's case – a witness may testify even if
(s)he has no authority to bring, withdraw or otherwise deal with the

application itself.
[32]
With reference to the
denial of authority to act, as
in
casu
,
Flemming DJP had this to say:
‘
It
was argued that the respondent's claim that the matter be referred to
arbitration depends upon a litigious step (the present
interlocutory
application) taken by the deponent, Rossouw, whose authority to
institute the legal proceedings is not proved. Rossouw
states that he
was duly authorised 'to make this affidavit'. Counsel argued that
that is different from authority 'to bring this
application'.
Furthermore, there is no resolution in proof of his authority.
I
find the regularity of arguments about the authority of a deponent
unnecessary and wasteful.
…
… …
The
care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he
was party to
litigation carried on in his name. His signature to the process, or
when that does not eventuate, formal proof of
authority would avoid
undue risk to the opposite party, to the administration of justice
and sometimes even to his own attorney.
(Compare
Viljoen v
Federated Trust Ltd
1971 (1) SA 750
(O) at 752D-F and the
authorities there quoted.)
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level. If the attorney is

authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There is
no need
that any other person, whether he be a witness or someone who becomes
involved especially in the context of authority,
should additionally
be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority.’
As
to when and how the attorney's authority should be proved, the
Rule-maker made a policy decision. Perhaps because the risk is

minimal that an attorney will act for a person without authority to
do so, proof is dispensed with except only if the other party

challenges the authority. See Rule 7(1). Courts should honour that
approach. Properly applied, that should lead to the elimination
of
the many pages of resolutions, delegations and substitutions still
attached to applications by some litigants, especially certain

financial institutions.’ (My underlining and emphasis).
[33]
In the present case
the application for summary judgment was delivered under the name and
signature of the plaintiffs’ attorneys,
who purportedly did so
on behalf of the plaintiffs. If they were authorised to do that, the
defendants are bound to accept the
application as the application of
the plaintiffs. That remains so irrespective of whether the deponent,
Ms Pearson, was also authorised
to bring the summary judgment
application. There is no logical need to insist on proof that the
plaintiffs were authorised to institute
the proceedings in question.
[34]
In
sum, the point about the
locus
standi
of the plaintiffs is that there is no prescribed mode of proof. It is
a factual question whether a particular person holds a specific

authority. It may be proved in the same way as any other fact.
Adjudication involves consideration of what the credible evidence

means and the extent of, quality of and sometimes the absence of
contradiction or other reason to remain unconvinced. There are

several decisions wherein this approach is evident. Compare
Mall
(Cape) (Pty) Ltd v Merino Ko-Operasie Bpk
[4]
.
[35]
The affidavit of Ms
Pearson sets out the appropriate facts – by reference to the
particulars of claim – and the plaintiff’s
entitlement to
summary judgment against the defendants. That evidence is express and
uncontradicted – she is authorised to
make the affidavit making
the claim that the plaintiffs are the joint liquidators of the SME
Bank and have the power to litigate
in South Africa on behalf of the
liquidated company.
[36]
As I indicated, that
is the end of the matter. On the basis of the averments made in the
application for summary judgment, the plaintiffs
have
locus
standi
to
launch the action as well as the application for summary judgment.
The defendants’ objection to the
locus
standi
therefore should fail and the Honourable Judge
a
quo
was
correct in dismissing that legal point.
[37]
The last legal point
raised by the defendants is that the particulars of claim are
excipiable, because: (1) no cause of action is
disclosed; and (2) the
particulars of claim are vague and embarrassing.
[38]
The defendants have a
number of complaints against all of the plaintiffs’ causes of
action. I do not however believe it necessary
to deal with all the
grounds of exception. Suffice to say that, in applying the legal
principles applicable to exceptions and the
excipiability of
pleadings, I find that there is no merit in any of the grounds of
exception raised by the defendants in respect
of any of the
plaintiffs’ causes of action – this is what the court
a
quo
found,
rightly so, in my view.
[39]
I am of the view that
the plaintiffs should succeed if they are able to prove the
sustainability of one cause of action only. And
that cause is the
plaintiffs’ main claim based on the
condictio
indebiti
and fraud. In sum, the plaintiffs plead that the SME Bank paid the
amount of R650 000 in the
bona
fide
and
reasonable, but mistaken belief that the amount was indeed due, owing
and payable to the beneficiary account number […].
Payment of
the said sum into this account number, so the plaintiffs allege, was
in fact a payment to the defendants on behalf of
the SME Bank in 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. Furthermore, so
the plaintiffs averred, this payment of R650 000
to the defendants
was a fraud perpetrated on the SME Bank.
[40]
The defendants
contend that the plaintiffs’ claim, based on the
condictio
indebiti
,
as pleaded, fails to disclose a cause of action. The essential
allegations to be made in a claim based on the
condictio
indebiti
are that: (1) the plaintiffs have been impoverished; (2) the
defendants have been enriched; and (3) the defendants’
enrichment
must have been at the expense of the plaintiffs.
[41]
The defendants submit
that none of these allegations are made by the plaintiffs in their
particulars of claim. Therefore, so the
defendants contend, there is
simply no cause of action established under the
condictio
indebiti
,
which means that the particulars of claim are excipiable in that they
fail to disclose a cause of action against either defendant.
[42]
A brief overview of
the applicable general principles relating to exceptions may be
apposite at this juncture. These general principles,
as gleaned from
the case law, can be summarised as follows.
[43]
An excipient who
alleges that a pleading does not disclose a cause of action or a
defence must establish that, upon any construction
of the pleading,
no cause of action or defence is disclosed. An over-technical
approach should be avoided because it destroys the
usefulness of the
exception procedure, which is to weed out cases without legal merit.
Pleadings must be read as a whole and an
exception cannot be taken to
a paragraph or a part of a pleading that is not self-contained. Minor
blemishes and insignificant
embarrassments caused by a pleading can
and should be cured by further particulars.
[44]
Exceptions are to be
dealt with sensibly since they provide a useful mechanism to weed out
cases without legal merit. As already
indicated, an over-technical
approach destroys their utility and insofar as interpretational
issues may arise, the mere notional
possibility that evidence of
surrounding circumstances may influence the issue should not
necessarily operate to debar the Court
from deciding an issue on
exception.
[45]
Where, however, an
exception is based upon the fact that a pleading is vague and
embarrassing, the ‘every reasonable interpretation’

approach highlighted above does not apply, and an exception may be
taken to protect one's self against embarrassment. It is however

trite that an exception taken on the basis that the pleading is vague
and embarrassing will only be upheld if the excipient alleges
and
proves that he will be prejudiced by the vague and embarrassing
manner in which the other side has pleaded.
[46]
With this overview in
mind, I now turn to deal with the way in which the plaintiffs plead
their cause based on the
condictio
indebiti
.
The relevant paragraphs of the particulars of claim read as follow:
’
15
At all
relevant times hereto the Authorizer paid the amount in the
bona
fide
and
reasonable, but mistaken belief that the amount was indeed due, owing
and payable to the beneficiary account number as indicated
in column
9 and for the
reasons
as indicated in column 5 of POC1.
16
Accordingly,
the amount of R650 000 was paid to the defendants on behalf of the
SME Bank in 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.
17
Furthermore and at all relevant times when the Authorizer effected
payment, she was defrauded by the
two top officials of the SME Bank
and other employees in the Finance Department, who either
participated in or instructed the Financial
Department to prepare the
payment instructions in the manner as set out above, in order for the
payment to be effected to the Defendants.
18
The two top officials were: Joseph Banda, the Finance Manager who
fraudulently authorised all payments,
Tawanda Mumvuma, the CEO, who
approved all payments and other employees in the Finance Department
who participated in the preparation
of the fraudulent payment
instructions which ended up at Treasury Back Office, causing the
Authorizer to effect payment.’
[47]
No more than a
superficial reading of these paragraphs is required to confirm that
the plaintiffs have made all the essential allegations
necessary to
sustain a cause of action based on the
condictio
indebiti
.
Firstly, it is
alleged that the SME Bank paid the amount of R650 000, therefore, the
plaintiffs, in their capacities as the joint
provisional liquidators
of the insolvent company, have been impoverished. Secondly, the
monies were paid into the account of the
defendants – this
implies that they have been enriched. And lastly, following from the
aforegoing, the enrichment of the
defendants (the value of whose
estate had been increased by the said sum), was at the expense of the
SME Bank, whose estate was
diminished by R650 000.
[48]
There
can therefore be no doubt that the plaintiffs’ particulars of
claim do make out a case based on the
condictio
indebiti.
As
rightly submitted by Mr Cooke, it is illogical to require the
plaintiffs to specifically use the words ‘impoverishment’

and ‘enrichment’. To insist on the use of precise
terminology is artificial and elevates form above substance.
The
point is that at first blush the allegations made by the plaintiffs
in their particulars of claim disclose a cause of action.
How then
can it ever be suggested that no cause of action is disclosed ‘upon
any construction of the particulars of claim’,
which is the
test on exception based on the fact that no cause of action is
disclosed
[5]
.
[49]
This ground of
exception is therefore stillborn.
[50]
The defendants
also allege that the plaintiffs’ particulars of claim are vague
and embarrassing in that, for example, the
plaintiffs allege at some
point that a single payment was made to one beneficiary only and
later on reference is made to payments
(plural) having been made to
the defendants. It is also alleged, so the defendants submit, that
the defendants (plural) owed duties
of care, which were breached by
the defendants (plural). This, according to the defendants, make the
particulars of claim vague
and embarrassing. The defendants make two
points in that regard: (1) the plaintiff’s particulars of claim
contain material
contradictory averments – on the one hand a
payment was made to the one bank account and, on the other hand, more
than one
payment is made to the defendants; and (2) the defendants
ask rhetorically, how is it possible for payment of one amount to be
made to two recipients?
[51]
As for the
first ground of objection, my view is that the defendants are
adopting an over-technical approach towards the pleadings.
There can,
in my view, be no better example of a pleading containing ‘minor
blemishes and insignificant embarrassments’,
which can and
should be cured by further particulars. However, more importantly,
and also relevant to the second point, is the
fact that it cannot
possibly be said that the particulars of claim are so vague and so
embarrassing that the defendants would have
been prejudiced by such
vagueness and embarrassment.
[52]
The aforegoing
conclusion follows, in my view, from the fact that the particulars of
plaintiffs’ claim can and should be read
as alleging that the
R650 000 was paid to the first defendant, alternatively, to the
second defendant, further alternatively, to
both of them. This would
address the supposed vagueness and embarrassment complained of by the
defendants. This interpretation
is supported by the fact that the
plaintiffs, in their particulars of claim, as well as in their
application for summary judgment,
request judgment against the first
and second defendants, jointly and severally. I am therefore of the
view that the particulars
of claim are not vague and embarrassing.
This is what the court
a
quo
found,
and I agree.
[53]
The
effect and the sum total of all of the aforegoing is that, in my
view, the case of the plaintiffs, as pleaded in the application
for
summary judgment, was unimpeachable and called for an answer from the
defendants. In that regard, it was argued on behalf of
the first
defendant, relying on inter alia
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
[6]
,
that
the validity of the plaintiffs’ application for summary
judgment is open to attack, implying that, even in the absence
of the
defendants demonstrating that they have a
bona
fide
defence, they were entitled to leave to defend. It is reasonably
possible that the said application, so the defendants contended,
is
defective and they said so on the basis of all the points alluded to
in the aforegoing paragraphs, which entitled them to leave
to defend.
As I have already indicated, I disagree.
[54]
That then
brings me to the main issue in the application for summary judgment
and the question whether the first defendant, in opposing
the said
application had demonstrated a
bona
fide
defence to the plaintiffs’ claim.
[55]
Earlier on in
this judgment, I dealt in a fair amount of detail with the defence
raised by the defendants in opposition to the application
for summary
judgment. I have already indicated that the case made out on behalf
of the first and second plaintiffs is that R650
000 was erroneously
paid to the defendants, who misappropriated the said amount. The
defendants do not deny this. Instead, they
prevaricate around the
issue, splitting hairs in the process.
[56]
Mr Cooke
submitted that
it
is evident that the SME Bank's money was mistakenly paid into account
number […] and appropriated by Gold Reef City Mint
without
cause or reason.
A
simple and complete defence to these allegations, so the argument on
behalf of the plaintiffs continues, would have been that
Gold Reef
City Mint is not the holder of account number […] and
therefore never received the SME Bank’s money.
[57]
I find myself
in agreement with these submissions. The point is that, faced with
the clear and unambiguous allegations that Gold
Reef City Mint and Mr
Schoeman (‘the defendants’) received and appropriated the
SME Bank’s R650 000, one
would have expected Mr Schoeman
to unequivocally and in no uncertain terms deny that they received
the money. When a person is
accused of having stolen money, it is not
unreasonable to expect of him to vehemently and vociferously deny
same so as to leave
no doubt that he does not accept any part of the
accusation against him. If one does not, the ineluctable inference to
be drawn
is that he did in fact receive the money.
[58]
As recorded earlier, the reliance by the
first defendant on the defence raised in the sketchy affidavit as a
defence to avoid summary
judgment did not succeed in the High Court.
It did, however, succeed as a defence on behalf of the second
defendant and the High
Court refused summary judgment and gave the
second defendant leave to defend the action. The summary judgment
granted against the
first defendant is the subject of the present
appeal.
[59]
The
remedy of summary judgment has for many years been regarded as an
extraordinary and stringent one in that it closes the doors
of the
court to the defendant and permits a judgement to be given without a
trial. However, in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[7]
, Navsa JA, in holding that
the time has perhaps come to discard labels such as ‘extraordinary’
and ‘drastic’,
stated:
‘
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 425G-426E, Corbett JA was keen to ensure, first, an
examination of whether there has been sufficient disclosure by a
defendant
of the nature and grounds of his defence and the facts on
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 a 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.
Having
regard to its purpose and its proper application, 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 rather on the proper application
of
the rule, as set out with customary clarity and elegance by Corbett
JA in the
Maharaj
case at 425G-426E.’
[60]
One
of the ways in which a defendant can avoid summary judgment, is to
satisfy the court by affidavit that he or she has a
bona
fide
defence to the claim on which summary judgment is being applied for.
The word ‘satisfy’ does not mean ‘prove’.

What the rule requires is that the defendant must set out in his or
her affidavit facts which, if proved at the trial, will constitute
an
answer to the plaintiff’s claim. The classic and much-quoted
formulation of the approach to an affidavit opposing summary
judgment
is that set out by Corbett JA in the
Maharaj
v Barclays National Bank
[8]
as
follows:
‘
Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the Court
by affidavit that he
has a
bona fide
defence to the claim. Where the defence is based upon facts, in the
sense that material facts alleged by the plaintiff in his summons,
or
combined 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. All that the Court
enquires
into is: (a) whether the defendant has “fully” disclosed
the nature and ground of his defence 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 the
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 … At the same time the defendant is not expected to
formulate his opposition to the claim with the precision that
would
be required of a plea; nor does the Court examine it by the standards
of pleading.’
[61]
As is evident
from the extract from second defendant’s affidavit set out
above, the defendants’ defence to the plaintiffs’
claim
for a refund of the amount stolen from the SME Bank is a narrow one.
The defence takes issue with one single allegation made
by the
plaintiffs in the particulars of claim, that being that the R650 000
was paid into a bank account supposedly in the name
of an entity with
a name different from that of either one of the two defendants. The
defence as set out in the resisting affidavit
completely ignores the
other allegations to the effect that the monies were paid to the
first and second defendants or that the
R650 000 was misappropriated
by them.
[62]
It is clear
that the second defendant’s affidavit opposing summary judgment
has not disclosed a
bona
fide
defence on behalf of the first defendant. In the said affidavit, the
defendants did not, in my view, ‘fully’ disclose
the
nature and ground of their defence and the material facts upon which
it is founded, as they were required to do by the AD in
Maharaj
(supra).
[63]
In
my view, the affidavit resisting summary judgment on behalf of the
first defendant fell into that category of affidavits, which
the
Court in
Breitenbach
v Fiat SA (Edms) Bpk
[9]
lamented
as being the affidavit of ‘[a] dishonest deponent, [who], if he
is wise, will present as narrow a front as possible,
and (if it is
practicable) a blurred one’. The following conclusion reached
by the Full Court in
Breitenbach
is also apt and finds application
in
casu
:
‘
That,
in my judgment, is far less than can be expected from a defendant in
summary judgment proceedings. It lacks the forthrightness,
as well as
the particularity, that a candid disclosure of a defence should
embody. The impression which one receives is rather
that the
defendant was being deliberately vague, and was leaving it open to
himself to say later, if necessary or convenient, that
although he
had paid only R7 000, that was all that he had owed. He might, if
necessary, have sought to justify that by alleging
that the terms of
the contract were not as alleged by the plaintiff, or that one or
both of the contracts had been cancelled, or
that the rent had been
reduced by agreement, or that the vehicles were defective, and the
plaintiff therefore not entitled to the
full contractual rental.
Other possible justifications or purported justifications of the
defendant's vague averment can be imagined;
but there is no point in
multiplying instances. Clearly Rule 32 (3) (b) was not complied
with.’
[64]
This is
exactly how I would describe the defence raised on behalf of the
first defendant in the affidavit opposing summary judgment
–
the impression created is that the second defendant, on behalf of the
first defendant, was being deliberately vague and
the affidavit
lacked the forthrightness, as well as the particularity, that a
candid disclosure of a defence should embody.
[65]
The court
a
quo
was
therefore correct in its finding that the first defendant has failed
to demonstrate that it has a
bona
fide
defence to the claim of the plaintiffs.
[66]
The remaining
issues relate to (1) the
mora
interest payable by the first defendant on the capital amount due;
and (2) the costs order granted against the second defendant
as part
of the summary judgment granted against the first defendant. Clearly,
both the orders granted by the court
a
quo
in
relation to these issues were granted in error. I therefore turn to
deal briefly with these issues.
[67]
It is trite
that a debtor, who owes to his creditor a liquidated debt –
like the first defendant
in
casu
–
is liable for
mora
interest on the liquidated amount of the debt from the date on which
the debt becomes due and payable. In this case that date is
the 5
th
of August 2014, that is the date on which the amount of R650 000 was
fraudulently paid into the bank account of the first defendant
and
misappropriated by it. The rate at which the
mora
interest is to be charged is determined in accordance with section
1(2) of the Prescribed Rate of Interest Act, Act 55 of 1975,
read
with the regulations promulgated in terms thereof. Section 1 (1) of
the said Act provides as follows:
‘
1
Rate at which interest on debt is
calculated in certain circumstances
(1)
If a debt
bears interest and the rate at which the interest is to be calculated
is not governed by any other law or by an agreement
or a trade custom
or in any other manner, such interest shall be calculated at the rate
contemplated in subsection (2) (a) as at
the time when such interest
begins to run, unless a court of law, on the ground of special
circumstances relating to that debt,
orders otherwise.
[68]
As and at 5
August 2014 the applicable rate of interest as determined in
accordance with s 1(2)(a) and (b) of the said Act was 9%
per annum.
The
mora
interest payable by the first defendant to the plaintiffs should
therefore be 9% per annum, and the court
a
quo’s
judgment providing for a rate of 20% is therefore patently wrong and
should be corrected. I intend granting an order to that effect.
[69]
As for the
costs order granted against the second defendant by the court
a
quo
, same
is also clearly wrong. The plaintiffs recognised this. Therefore, on
the 2
nd
of April 2020 they caused to be delivered a notice of ‘Abandonment
of Judgment in terms of Rule 41(2)’. In this notice
the
plaintiffs formally abandoned that portion of the order ‘requiring
the second defendant to pay the plaintiffs’
costs of their
application for summary judgment’. The plaintiffs also formally
tendered in the said notice that the costs
of the summary judgment
application against the second defendant as costs in the cause.
[70]
The second
defendant accepted the plaintiffs’ abandonment of the costs
order against them, but was insistent on the plaintiffs
tendering his
costs of the summary judgment application. In my judgment, the
correct costs order would be one in terms of which
costs shall be in
the cause and costs in the main action. I say so for the following
reasons. Firstly, as argued on behalf of the
plaintiffs, the trial
court will probably be in the best position to decide on the
advisability of the plaintiffs having instituted
the summary judgment
proceedings against the second defendant. Secondly, the same critique
levelled against the affidavit resisting
summary judgment against the
first defendant applies equally vis-à-vis the defence raised
in that affidavit on behalf of
the second defendant. The second
defendant himself does not deny that he was the owner of the bank
account into which the monies
was paid, despite the fact the
plaintiffs make that averment in their particulars of claim.
[71]
The court
a
quo
would,
in my view, have been justified in granting summary judgment also
against the second defendant, because he did not deny
that he
received and misappropriated the said sum. I understand though why
the Judge did not grant such judgment – there
may very well
have been a hint of a
bona
fide
defence in that the name of the entity in whose name the bank account
was, bore no resemblance to the name of the second defendant.

Additionally, there was evidently only one payment made and it stands
to reason that only one of the defendants could have received
the
said amount and the first defendant seem the mostly likely of the two
defendants to have received the payment.
[72]
Therefore, in
my judgment, the correct costs order would have been an order
granting the second defendant leave to defend, with
the costs of the
application for summary judgment against the second defendant to be
in the cause and in the main action.
Costs
of Appeal
[73]
The
general rule in matters of costs is that the successful party should
be given his costs, and this rule should not be departed
from except
where there are good grounds for doing so. See:
Myers
v Abramson
[10]
.
[74]
In the appeal by the first defendant
against the summary judgment granted against it, I can think of no
reason why I should deviate
from this general rule. The first
defendant should therefore pay the first and second plaintiffs’
costs of the appeal.
[75]
As for the second defendant’s
appeal, whilst he was successful, there was a ‘with prejudice’
tender made during
April 2020 that the costs of the application for
summary judgment against him be in the cause and in the main action.
That tender,
which was rejected by the second defendant, has not been
beaten in that, in this appeal, we intend substituting the court
a
quo’s
order with such an order.
[76]
That means that the second defendant
is entitled to his costs of the appeal up to the 2
nd
of April 2020. Conversely, the second defendant is liable for the
plaintiffs’ appeal costs subsequent to the aforesaid date.

These two costs orders would, in my view, more or less cancel out
each other. Therefore, in the exercise of my discretion, I would

order each of the parties in the second defendant’s appeal to
pay their own costs.
Order
[77]
In the result, the following order
is made: -
(1)
Save to the extent set out in paragraph 2
below, the first appellant’s appeal against the order of the
court
a quo
is dismissed with costs.
(2)
Paragraphs [40.1.1] and [40.1.3] of the
order of the court below are amended to read as follows:
‘
[40.1.1]
Payment of the sum of R650 000, together with interest thereon
a
tempore morae
at the applicable legal
rate of interest of 9% per annum from 5 August 2014 to date of final
payment
… … …
[40.1.3]
The first defendant shall pay the plaintiffs’ costs of suit on
the party and party
scale.’
(3)
The first appellant shall pay the first and
second respondents’ costs of the appeal, including the costs of
the application
for leave to appeal.
(4)
The second appellant’s appeal against
the costs order granted against him by the court
a
quo
succeeds and is upheld.
(5)
The order of the court
a
quo
relative to the second appellant –
paragraph [4.1.2] of the order of the court a quo – is amended
and replaced with
an order, which reads as follows:
‘
[4.1.2]
The second defendant is granted leave to defend, and the costs of the
plaintiffs’
application for summary judgment against him shall
be in the cause and costs in the main action.’
(6)
Each party shall bear his own costs of the
second appellant’s appeal.
________________________________
L
R ADAMS
Judge
of the High Court
Gauteng Local
Division, Johannesburg
I agree, and it is so
ordered
__________________________
E
M MOLAHLEHI
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Noko
AJ (Dissenting):
[78]
I have had the benefit of reading
the judgment of my colleague, Adams J, in which he gives an overview
of the circumstances in which
the respondents’ claim in this
case arose. He also sets out the issues in this appeal, which were
debated before us by Counsel
on behalf of the parties. I agree that a
costs order should not have been granted against the second
appellant, Mr Schoeman, by
the court
a
quo
and that his appeal against the
said order should be upheld. Consequently, I am in agreement with the
order proposed by Adams J
in relation to the second defendant. I
agree too with his reasoning for arriving at the conclusion that the
appeal by Mr Schoeman
should succeed with no order as to costs.
[79]
However, I disagree with Adams J on the
outcome of the appeal in relation to the first appellant, Gold Reef
City Mint. My reasons
for differing from the majority is that, on the
pleaded facts, it is clear that the application for summary judgment
against Gold
Reef City Mint should have been refused and that it
should have been granted leave to defend. I also deal with why I
disagree with
the reasoning of Adams J. In support of my view I set
out in this judgment the pleaded facts, which in my opinion clearly
show
that the application for summary judgment against Gold Reef City
Mint should have been refused and that it should have been granted

leave to defend.
[80]
Th
is
is an appeal against the judgment and order of Skibi AJ in terms of
which summary judgment in the sum of R650 000 plus costs
was granted
in favour of the respondents against the first appellant. The second
appellant was granted leave to defend and he was
ordered to pay the
costs. The appeal is with the leave from court
a
quo
.
[81]
It is common cause that the respondents
(plaintiffs in the court
a quo
)
sued out papers in the High Court for payment of the amount of R650
000, which is alleged to have been paid through fraudulent
means into
the bank account of the appellants (the defendants
a
quo
). In this judgment, the parties
shall be referred to as they were cited in the court
a
quo
.
[82]
The plaintiffs allege that the Small and
Medium Enterprises Bank Limited (‘SME Bank’) was
provisionally liquidated on
11 July 2017 by the High Court in Namibia
and the plaintiffs were appointed as provisional liquidators. The
order of liquidation
was confirmed on 29 November 2017. The
plaintiffs further allege that this court granted them an order under
case number 19193/2018
in terms of which the plaintiffs are
recognised as provisional liquidators of the SME Bank.
[83]
The plaintiffs’ claim is based
on the
condictio indebiti
and the
lex aquilae
.
The first defendant is Gold Reef City Mint (Pty) Ltd, a private
company incorporated in the Republic of South Africa, and the
second
defendant is the director of the first defendant. The order prayed
for by the plaintiffs in their particulars of claim was
that the
first and second defendants should pay the aforesaid sum jointly and
severally, the one paying the other one to be absolved.
[84]
The defendants entered appearance to defend
on 29 March 2019. The plaintiffs thereafter filed an application for
summary judgment
on 9 April 2019. The defendants delivered an
affidavit resisting summary judgment and set out therein several
defences which were
found wanting by the court
a
quo.
It was for this reason that
summary judgment was granted in favour of the plaintiffs against the
first defendant. The second defendant
was granted leave to defend and
was also, rather curiously, ordered to pay the plaintiffs’
costs.
[85]
In this appeal, the defendants contend that
the court
a quo
erred in dismissing their defences and predicate their appeal on the
basis of the following defences: (1) that the plaintiffs do
not have
locus standi
,
(2) the verifying affidavit by Ms Pearson was not in accordance with
Rule 32 of the Uniform Rules, (3) that the commissioner of
oath,
before whom the deponent to the affidavit in support of the
applicants’ application for summary judgment signed the

affidavit, is not qualified as such in terms of the laws of the
Republic of South Africa, (4) that the particulars of claim are
vague
and embarrassing and do not disclose a cause of action, and (5) that
the costs order was erroneously granted against the
second defendant.
In addition, so Counsel for the defendants submitted, the court
a
quo
erred in refusing leave to defend
by the first defendant whereas the second defendant was granted
leave, with both having raised
the same defences.
[86]
Prior to the adjudication of the appeal,
the plaintiffs abandoned the judgment relating to the costs granted
against the second
defendant and tendered that the costs be costs in
the cause. The second defendant rejected the tender for costs.
Uniform Rule of
Court 41(1)(c) provides that once an order is
abandoned, but no offer is made to pay the legal costs, the opponent
shall be entitled
to approach the court on notice for an order as to
costs. The first defendant in these papers has rejected the tender on
costs
and is therefore entitled to approach the court in terms of the
rules for a costs order.
[87]
It is common cause that the defendants did
not prosecute the appeal timeously in accordance with the Uniform
Rules of Court. For
this reason, they filed an application for
condonation, which was not opposed by the plaintiffs.
Accordingly, the condonation
for the delay in prosecuting the appeal
was granted during the hearing of the appeal before us.
[88]
The contentions raised by the defendants
will be dealt with
ad seriatim
as set out below.
[89]
Summary judgments are intended to afford a
litigant redress without having to await a normal court process in
instances where a
clear case has been presented and there are no
bona
fide
defences raised by the defendant.
Once the summary judgment application has been brought, the defendant
may either furnish security
for the sum claimed, alternatively, file
an affidavit setting out a
bona fide
defence to the claim levelled against such a defendant.
[90]
If a defendant elects to file an affidavit,
such a defendant should clearly set out facts upon which the court
would discern that
there is a triable issue, failing which the court
may grant the summary judgment. The defendant is not necessarily
obliged to set
out a defence and is entitled to attack the summons
and annexures thereto. However, such a defendant may not have a
second bite
at the proverbial cherry in the event that such attacks
are not sustained. The defendant should not argue technicalities and
obvious
errors which may not necessarily be prejudicial to the
defendant. The court should be able to make an assessment that there
is
a case to answer. It is not expected that the presentation of the
defendant’s defence should be with military precision, but
must
assist the court to conclude that there is indeed a
bona
fide
defence.
[91]
In the adjudication of a summary judgment
application, the court will consider whether the claim by the
plaintiff is unimpeachable
and thereafter proceed to assess whether
there is a
bona fide
defence as set out in the defendant’s affidavit. Corbett JA
stated in
Maharaj v Barclays National
Bank Ltd
1976 (1) SA 418
9AD) at 423E-H
that:
‘
[T]he
grant of the remedy is based upon the supposition that the
plaintiff’s claim is unimpeachable and the defendant’s

defence is bogus or bad in law.’
[92]
It therefore follows that once the case is
impeachable, summary judgment cannot be granted. It was stated in
Gulf Steel Pty Ltd v Rack-Rite Bop (Pty)
Ltd and Another
1998 (1) SA 679
(OPD)
at 683H-684B that there are two requirements, namely that a claim
should be clearly established and pleadings should also
be
technically correct before the court. Once the plaintiff fails to
meet these thresholds the application for summary judgment
would not
be granted even if the defendant fails to put up a defence or a
defence which fails to meet the standard required.
[93]
The defendants’ Counsel contended
that the deponent to the affidavit on behalf of the SME Bank (Ms
Pearson) failed to state
that she has personal knowledge of the claim
against the defendants and to this end the affidavit fell short of
what is required
for a summary judgment application. The said
deponent only stated that she has personal knowledge of the contents
of the affidavit,
but not of the claim against the defendants. It is
expected of the deponent to verify the plaintiffs’ cause of
action, according
to her knowledge, and further to swear positively
regarding the said cause of action. It should be noted that the use
of the words
‘personal knowledge’ is not a
sine
qua non
for the court to make a
negative conclusion. ‘[A]n allegation by the deponent that he
does have personal knowledge is, therefore,
as dispensable as it is
always sufficient, because either personal knowledge may be revealed
by other facts asserted, or those
facts may rebut the allegation of
personal knowledge.’ See:
Sekretaris
van Landboukrediet en Grondbesit v Loots
1973(3) SA NC 297H. It is to be noted that blind and strict
application of the rules may render court proceeding, like a summary

judgment application, a farce – also referred to as substance
over form reasoning.
[94]
Counsel for the plaintiffs retorted that
the Ms Pearson was a legal advisor in the employ of the SME Bank –
even before its
liquidation – and, so he submitted is obviously
closer to the issues.
[95]
Plaintiffs’ counsel referred us to
Kurz v Ainhirn
1995 (2) SA 408
D. In that case it was held that, although one need
not comply with a specific formula, the deponent nevertheless need
not only
to assert that he can swear positively to the facts, but
should also indicate the reasons why he is able to do so. The
liquidator
in that case, so the court held, was appointed some nine
months before and ‘… had both the opportunity and the
duty
to obtain knowledge of the relevant facts from,
inter
alia
, the documentary records of the
close corporation and the interrogation of the defendant’.
[96]
With reference to
Kurz
,
plaintiffs’ Counsel contended that, if the court could accept
an affidavit by the liquidators who were not even working
for the
company in liquidation, the court should readily accept an affidavit
from a deponent who was in the employ of the company
in liquidation.
[97]
Defendants’ counsel on the other hand
referred to the judgment from the same division decided fifteen years
later, of Wallis
J in
Shackleton Credit
Management (Pty) Ltd v Microzone Trading 88 CC and Another
2010 (5) SA 115
(KZP), where the court held that the assertion by an
attorney on behalf of Absa that he has personal knowledge acquired
pursuant
to having inspected the source documents, computer generated
data, memoranda and correspondence contained in the file and having

personally investigated the indebtedness of the defendant, is
primarily hearsay and cannot be accepted. The deponent, so the Court

held, should not have claimed personal knowledge but only that ‘…
according to the documents from Absa bank, the claims
in the present
case are well founded’. The court held that it would have been
persuasive if the deponent was an employee
of the bank who could
claim knowledge acquired in the course of their duties. Such an
employee may have had access to and needed
to work with the records
of the business. In the circumstances, Counsel for the defendants
contended that Ms Pearson failed to
demonstrate the basis on which
she could verify the claim and in fact she did not even state that
she has read the documents that
were in possession of the
liquidators.
[98]
Eberson AJ, on the other hand, in
FirstRand
Bank Limited v Beyer
2011 (1) SA 196
(GNP), held that it would not be sufficient for an employee of the
bank to state that he acquired knowledge just from the records

without specifying which records he had access to and whether such
records were complete or not. The learned judge stated that
the
provisions of the rule require that:
‘…
the
person who deposed to the affidavit was able to swear positively to
the facts alleged in the summons and annexures thereto and
be able to
verify the cause of action and the amount claimed’.
[99]
The court further held that:
‘…
the
deponent on behalf of such a company or legal personae has to state
unequivocally that the facts were within his personal knowledge
and
furnish particulars as to how the knowledge was acquired by him so as
to enable the court to assess the evidence put before
it, and to
enable it to make a factual finding regarding the acceptability of
the supporting affidavit for summary judgment purposes’.
[100]
To this end, Counsel for the defendants
submitted that Ms Pearson failed to furnish detailed particulars of
how the knowledge was
acquired and the court is therefore unable to
assess the evidence before it. The court
a
quo
having only stated, so the counsel
went on, that ‘… Ms Pearson was an employee of SME Bank
… and she had access
to all the information at her disposal’.
[101]
It is clear from the judgments above that
the employee should not only state that she had access to records,
but must also detail
what records she had access to, so that I can
formulate a view as to whether the deponent has a basis to allege
knowledge of the
facts. Ms Pearson was the legal advisor and without
more cannot claim that she had access to records in the financial
department
as part of her daily job. But it is possible that she may
well have personal knowledge by examining relevant records. However,
she needed to specify this to enable me to determine whether she had
access to relevant evidence to enable her to formulate an informed

view. Mere allegations without details are therefore not sufficient.
[102]
In the premises, I conclude that there is
merit in this legal point raised on behalf of the defendants.
[103]
The plaintiffs allege in the particulars of
claim that ‘by virtue of a court order issued by this court
under case number
19193/2018 they are recognised as joint provisional
liquidators of SME Bank’. The defendants’ Counsel
contended that
the plaintiffs, in their capacity as provisional
liquidators, do not have
locus standi
to prosecute civil claims in terms of South African legal system.
Reference was made to the Companies Act which sets out what the

provisional liquidators are empowered to do. The plaintiffs’
Counsel confirmed in the heads of argument that the order of

provisional liquidation, which was made on 11 July 2017, was
confirmed by the High Court of Namibia on 29 November 2017.
Notwithstanding
the said confirmation, the plaintiffs approached the
Gauteng High Court, two years later, in 2019 to commence a civil suit
in their
capacities
as provisional
liquidators
(underlining added). In
contrast, the court order of this court in 2018 under case number
19193/2018 (‘the 2018 order’)
refers to the plaintiffs as
joint liquidators and not as provisional liquidators.
[104]
I do not intend pronouncing on whether the
order under case number 19193/2018 was properly handed up at the
hearing of the application
for summary judgment. I nevertheless note
that the said order refers in para 1.3. to an annexure ‘A’,
which purportedly
outlines the powers granted to the plaintiffs.
Annexure ‘A’ is however not attached to the order, which
was handed
up to the court
a quo
and therefore does not form part of the evidence which was before the
court
a quo
.
The said powers have been recognised and extended in terms of para
1.6 of the order to apply to the joint liquidators relative
to the
institution of legal proceedings in the High Court of South Africa or
any other competent jurisdiction in the Republic of
South Africa as
the plaintiffs may deem necessary.
[105]
It therefore follows that the
liquidators were at least granted powers to institute civil
proceedings on behalf of the SME Bank
in the Republic of South
Africa. Therefore, the point raised by the defendants that the
plaintiffs have no
locus standi
is, subject to what is set out below, unsustainable. I reiterate
however that I make no pronouncement on whether or not the powers
and
rights contained in the annexure ‘A’ would have an impact
on the rights accorded by this court. This appeal court,
like the
court
a quo
,
was not privy to contents of annexure ‘A’.
[106]
The 2018 court order was handed up at the
hearing of the application for summary judgment and defendants’
Counsel contended
that Uniform Rule 32(4) prohibits any other
evidence being submitted at the hearing of the application for
summary judgment. Defendants’
Counsel contended that the court
a quo
erred by holding that the plaintiffs’ affidavit mentioned that
the order will be handed up at the hearing and this was not
correct
since the said affidavit made no reference to the court order and it
was mentioned only in the plaintiffs’ heads
of argument. In
addition, the court
a quo
held that the defendants had the opportunity of accessing such order
in terms of rule 35(12) and 35(14).
[107]
The court
a
quo
referred to the judgment of
Shell
Zimbabwe (Pty) Ltd v Webb
1981 (4) SA
752
(Z) relative to the admission of documents at the hearing of the
application for summary judgment. At the hearing of the appeal,

Counsel for the plaintiffs referred us to
Boyce
NO v Bloem and Others
1960 (3) SA 55
(T), in which it was held that a court is entitled to take judicial
notice of another decision of that court. In that case, Roberts
AJ
stated that ‘every judgment is, therefore, conclusive evidence
for or against all persons (whether parties, privies or
strangers) of
its own existence, date and legal effect’. However, even if it
were to be admitted as and accepted as evidence,
the said orders
refer to the powers annexed to the draft orders which were not
availed to the trial court.
[108]
Defendants’ Counsel argued that the
principle of judicial notice was misconstrued. The court orders were
in this instance
submitted to prove that the plaintiffs had
locus
standi
. The court should therefore not
have accepted same.
[109]
In turn, Counsel for the plaintiffs argued
that the court order referred to in the particulars of claim –
in terms of which
the plaintiffs were duly recognized – was
good authority to find the basis for
locus
standi
, despite the fact that the said
order was not attached to the summons. In any event there is no rule
which compels the respondent
to attach such court orders. The orders
are not evidence and just orders of the court. Counsel for the
plaintiffs further submitted
that in any event the issue of
locus
standi
is primarily a matter of law and
therefore one would not need to provide for such in the particulars
of claim.
[110]
The question which needs to be addressed is
whether the court orders in this instance were admitted as evidence
or not. Plaintiffs’
Counsel submitted that any and/or all
allegations made by a party in his or her pleading should be accepted
and construed as persuasive
proof that there is evidence in support
of that allegation before the court. If the court should have taken
judicial notice of
the existence of the orders, then there was no
need to submit the order at the hearing of the application for
summary judgment
and the court could and should have been able to
decide without those orders.
[111]
My perspective is at variance with this
submission. There is no basis for me to assume that an allegation
that the Plaintiffs have
locus standi
in accordance with orders made under a certain case number when the
said orders are not even attached to the papers. I see no reason

either that I should go out to search for the orders so that I should
satisfy myself that indeed the plaintiffs have
locus
standi
. The handing up of the court
order at the hearing of the application for summary judgment was
critical as evidence to support the
allegations that the plaintiff
had
locus standi
.
Uniform Rule of Court 34(4) provides that no further document shall
be admitted besides what is before the court. Counsel for
the
defendants referred to
Rossouw and
Another v FirstRand Bank Ltd
2010 (6)
SA 439
(SCA) which emphasised at p451 para B that ‘[R]ule 34(4)
limits plaintiff’s evidence in summary judgment proceedings
to
the affidavit supporting the notice of application.’
[112]
Judicial notice refers to ‘…[a]
court’s acceptance, for purposes of convenience and without
requiring a party’s
proof, of a well-known and indisputable
fact.’  It is envisaged that the court will have to accept
without the court
order being provided that they exist and should
therefore conclude that the allegations as stated are correct. The
authors of
Schwikkard and Van der Merwe:
Principles of Evidence
(2009) at
p481-482 state that judicial notice may be taken in two instances,
viz: (1) ‘where facts are so well known as not
to be subject of
reasonable dispute (that is, general knowledge which requires no
external evidence), or (2) where facts can readily
be ascertainable
by accurate sources so that evidence to prove them would be
completely unnecessary (or even absurd)’.
[113]
The learned authors then go on to say:
‘…
in
some instances, a court may take judicial notice of some facts
without any enquiry, that is, without consulting any specific
source,
whereas in other instances judicial notice may only take place with
reference to a source of indisputable authority. The
distinction
between the two is that in the former instance, evidence may
generally not be led to refute the facts which have been
properly
noticed, while in the second instance, evidence may generally be led
concerning the disputability or indisputability of
the source.’
[114]
The question becomes whether I, as a
sitting judge, need to satisfy myself that, based on the reference to
the case number in the
particulars of claim, can conclude that there
indeed is a court order and the contents thereof are as stated in the
particulars
of claim. If I cannot, then the plaintiffs need to avail
the orders to me. As is the case in this matter, the court order
refers
to an annexure ‘A’ which has not been attached.
[115]
The question before the court
a
quo
was whether it was satisfied, based
on the reference to the 2018 court order and the case number in the
particulars of claim, that
there was indeed such a court order, which
provided as claimed by the plaintiffs in their particulars of claim.
If not, then the
question was whether the plaintiffs were required to
place the orders before the court
a quo
.
As it were,
in
casu
matters are complicated by the fact that the 2018 court order refers
to an annexure ‘A’, which was not attached to
the said
order.
[116]
Reyneke AJ, when considering pleadings in
terms of rule 18, stated in
Inzinger v
Hofmeyer
, a reportable judgement dated
4 November 2010, under case number 7575/2010 that:
‘
[By]
the same token, the demands of lucidity and clarity would not permit
references to or reliance on documents or pleadings in
other
proceedings that are not attached to the pleading, even if such
documents and their contents are within the knowledge of
the other
party. The pleadings also serve to inform the court of the issues.’
[117]
It follows ordinarily that the orders
should have been attached and the argument that the contents thereof
are matters of public
knowledge is over-stretched. The contents of
the order need not be proved but should form the basis or evidence of
the allegations
set out in the particulars of claim.
Erasmus:
Superior Court Practice
at B1-229
referred to section 5(1) and (2) of the Civil Proceedings Evidence
Act 25 of 1965 and state, with reference to any document
and/or
letter, except a liquid document, provided for in the rule, the court
‘… take judicial notice of any Government
Notice, or any
other matter which has been published in the Government gazette.’
[118]
Accordingly, I am of the view that the
legal point raised by the defendants in this regard has merit.
[119]
The defendants contend that it is strange
that the court
a quo
granted judgment against the first defendant and leave to defend in
respect of the second defendant in an instance where the same
defence
has been raised by both defendants.
[120]
The argument is that the plaintiffs have
not provided proof that indeed the defendants have received monies
alleged in the particulars
of claim. In fact, the particulars of
claim clearly state that the payments were made into the account
number appearing in column
9 of annexure PoC1. The said PoC1
identified ‘Mamepe – Capital Asset Investment’ as
the ultimate beneficiary.
There is also reference in PoC1 under
column 4 to ‘Gold Reef Limited’ as the actual account
holder and this is not
the first defendant. In principle, so it was
submitted on behalf the first defendant, it need not even have raised
any defence
as there is no case put up against it. The payment was
made to a third party and not to the defendants.
[121]
In contrast, Counsel for the plaintiffs
retorted that the least the defendants could have done was to deny
that the amount was paid
to them and further to state that the
account does not belong to them. In addition, the defendants could
have approached the bank
and obtained a certificate confirming that
the bank account which is reflected in the particulars of claim is
not theirs. Failure
to deny, so the plaintiffs contended, was
critical to the defendants’ defence and their attempt to deal
with this issue in
the heads of argument cannot avail the defendants.
[122]
The plaintiffs’ Counsel further
argued that the plaintiffs made allegations against the defendants
and in accordance with
Maharaj
(supra), the onus shifts to the defendants to disprove the said
allegation. Counsel for defendants disputed this submission and

contended that the onus still remained with the plaintiffs to prove
that the payment was made to the defendants and not only to
allege
so.
[123]
Counsel for the plaintiffs further
contended that there was fraud committed against the SME Bank on a
high scale of funds in excess
of R250 million and the fraudsters
would try their best to confuse the tracing of funds. To this end,
the entities like Mamepe
Capital Investment was just a fictitious
name. Strangely the court order obtained in 2018 by the plaintiffs
was to be served on
Mamepe Capital Investment at its business address
in Sandton. When asked whether there is evidence linking the
defendants to the
account numbers, Counsel answered in the
affirmative, indicating that proof thereof was not attached and that
it was at the attorneys’
offices. Also, so plaintiffs’
Counsel advised us, the fraud committed related to huge sums of
monies and that it would have
been difficult to attach such proof. It
is incumbent on the plaintiffs to present evidence to support any
allegation made before
the court. The plaintiff alleged that payment
was made into the account numbers mentioned. There is no allegation
that the account
number belongs to the defendants and as such there
is no case to be answered by the defendants relative hereto. For some
inexplicable
or unacceptable reason, the evidence to support
allegations that the payment was in actual fact made in favour of the
defendant
was not placed before the court
a
quo
. This, in my view, meant that the
argument that evidence is available from the bar is not sufficient to
persuade me that such evidence
indeed exists. To this end, the
plaintiffs shot themselves in the foot.
[124]
Defendants’ Counsel’s further
argument is that the particulars of claim were also vague and
embarrassing. In this regard
reference was made by the defendants’
Counsel to the fact that the particulars of claim referred to
payments (plural) whereas
at the same time there is only one payment
made. Similarly, there is reference to payments to defendants’
accounts, but there
is only one account referred to in annexure PoC1.
There is reference to two defendants, but there is no allegation as
to which
of the two received payment and also there is no indication
as to the basis why the second defendant is cited in the suit. In
addition,
the plaintiffs allege in one part that the payment was made
in error and later stated that it was done fraudulently.
[125]
Ordinarily the director of a company can be
joined for a variety of reasons including but not limited to
allegations that the director
used the company for fraudulent
activities. The particulars of claim do not set out the reason for
having joined the second defendant
in this
lis
.
The fact that it was mentioned in the prayers that the defendants are
held liable jointly and severally does not excuse the lack
of an
allegation in the particulars of plaintiffs’ claim as to why
the second defendant is cited in the papers. There is
also no
allegation in the particulars of claim for the court
a
quo
to state that the second defendant
was joined by virtue of being a director. Besides the fact that this
is not alleged anywhere
in the papers is still crucial for the
particulars of claim to provide the basis why a director should be
joined as a defendant
for the liability of a company which has
limited liability. Notwithstanding the ruling of the court
a
quo
, it proceeded to state that there
are no reasons why second defendant can be found personally liable
for the moneys paid to the
first defendant.
[126]
The second reason for the court
a
quo
to have granted the second
defendant leave to defend was that the second defendant’s name
does not appear on the PoC1, which
was relied on by the plaintiffs.
In contrast, the same reasoning did not hold for the court
a
quo
as the name of the first defendant
also does not appear on annexure PoC1. It must be deduced that the
court
a quo
concluded that the name of the first defendant appears on PoC1. The
court
a quo
however seemed to be indifferent about the difference between names,
as the name of the first defendant as it appears in the particulars

of claim differs remarkably from the name of Gold Reef Ltd as it
appears on annexure PoC1. The confusion can be gleaned from the

judgment of the court
a quo
– in para 31 it is stated that money flows from the SME Bank to
Gold Reef Limited,
who is the
account holder
and in contrast at para 34 the court refers to Gold Reef City Limited
(emphasis added). Both names refer to a public company whereas
the
first defendant is a private company. The court
a
quo
cannot
be heard to approbate and reprobate and should have clearly concluded
that payment was made in favour of Gold Reef Limited
as it appears
from annexure PoC1 and not the first defendant as there is no
evidence brought forward which draws the link between
the first
defendant and payment or PoC1.
[127]
During arguments, Counsel for the
plaintiffs submitted that indeed there is proof that the account
number into which payment was
effected is that of the defendants and
the said proof is at the offices of the plaintiffs’ attorneys.
The question then becomes
on what basis should the court decide when
an important document is not presented to court.
[128]
Defendants’ Counsel persisted with
the argument that the particulars of claim disclose no cause of
action. Though there is
reference by the plaintiffs to the
condictio
indebiti
, so the defendants contended,
they failed to make fundamental allegations to satisfy the elements
of the claim under
condictio indebiti
.
The court
a quo
dismissed this argument, because the allegations relative to the
elements of
condictio indebiti
need not appear verbatim as the plaintiffs may have wished for, but
can clearly be inferred from the allegations made by the plaintiffs.

The allegations made by the plaintiffs are that the payment was made
from SME Bank’s account in error, into the defendants’

account and the latter is unjustly enriched. The court
a
quo
concluded that these allegations
clearly speak to all elements of the
condictio
indebiti
. The question remains whether
the mere allegations of those elements and without more
ipso
facto
justify the conclusion that a
case has been made.
[129]
The argument by the defendants that the
payments were not made in error cannot be sustained. The authoriser
would not have paid
had he known that the monies were not due. The
plaintiffs’ Counsel further contended that defendants did not
deny that they
received payment and did not disclose a
bona
fide
defence. I accept that the payment
in this instance, subject to what I say below, cannot be construed as
having been made intentionally.
Had the person who effected payment
known that the instructions to pay was laced with fraud, he would not
have paid. To this end
the submission by defendants’ Counsel
that payment was effected with forethought cannot be sustained.
[130]
Counsel for the plaintiffs contended
further that the SME Bank in liquidation was impoverished because of
the said payment and the
defendants were unduly enriched. Ordinarily
evidence of impoverishment would be supported by proof of payment. If
no proof of payment
is brought to court, then the plaintiffs would
have failed to discharge this requirement. Annexure PoC1 is a
document which demonstrates
the process to follow before any payment
could be effected. It does not present evidence that payment was
indeed effected. The
requirement of impoverishment in the claim based
on the
condictio indebiti
is concerned with whether the plaintiff suffered a loss in the act of
making the payment or performance giving rise to the condictio.

Counsel for the plaintiffs, when asked about the proof, stated that
same is at the attorneys’ offices of the plaintiffs and
it
would have been difficult to attach bulky documents as evidence
bearing in mind that there were many transactions involving
millions
of rand stolen. In this case there was only a once off payment of
R650 000 and would not have been cumbersome for such
evidence to be
attached to the particulars of claim. The plaintiffs’ counsel
quoted from the judgment of
African
Diamond Exporters (Pty) Ltd v Barclays Bank International
1978 (3) SA 699
(A) at 713H where the court held that:
‘…
where
a plaintiff has proved an overpayment recoverable by the
condictio
indebiti
, the onus rests on the
defendant to show that he was, in fact, not enriched at all or was
only enriched as to part of what was
received.’
[131]
The proof of payment is not brought before
court but is at the offices of the plaintiffs’ attorneys and
the court is invited
to exploit its wits in the realm of conjecture
to conclude that it is true that such proof exists even though it is
not presented
before court.
[132]
In the absence of proof of payment, it also
becomes difficult for the plaintiffs to provide evidence to prove the
allegation that
the defendants were enriched. The said proof would
have demonstrated that the money exchanged hands. Counsel for the
plaintiffs
further stated that the attorneys acting for the
plaintiffs have in their possession proof that the bank account
numbers into which
payment was effected is the bank account of the
defendants. The said proof, so went the counsel’s argument, is
not attached
to the papers because a party is not compelled by any
rules to have such documents attached. In the absence of the proof
that the
account belongs to the defendants, the allegation that the
defendant was enriched cannot be substantiated.
[133]
It is trite that once it is proven that the
defendants received money not owed, enrichment is presumed and the
defendants bore the
onus to plead and prove loss of enrichment. (See:
Yarona Healthcare Network v Medshield
2018 (1) SA 513
(SCA) at para 47).
Until such time that evidence of impoverishment is presented by the
plaintiffs, the onus is not shifted to the
defendants to prove
anything. It is not sufficient for the plaintiffs to allege that the
defendants should have just denied receipt
of the money or that the
account is not theirs or bring evidence from the bank to prove that
the account is not theirs. The plaintiffs’
case is that the
payment was effected into the account whose details are on annexure
PoC1. There is no allegation that the account
belongs to the
defendants. In fact, the court
a quo
held that the annexure clearly shows the account holder to be Gold
Reef Ltd. To the extent that the plaintiffs failed to provide
court
with proof of payment and documents substantiating the allegation
that payment was made to the defendant/s, impoverishment
has not been
proved. To this end, it does not matter whether the defendants have
clearly demonstrated that they have a
bona
fide
defence.
[134]
Although attention should be paid to
establish whether there is a defence, it is still critical that the
plaintiffs should present
an unimpeachable and an unanswerable case.
The plaintiffs’ papers appear to have been prepared in haste
and littered with
drafting errors. I say this being nevertheless
alive to the fact that technicalities should not compromise a just
outcome.
[135]
The case presented on behalf of the
plaintiffs is replete with lingering questions and the court
a
quo
was misdirected in deciding as he
did. It is noteworthy that all will not be lost for the plaintiffs if
their application for summary
judgement was dismissed, as the
plaintiffs would at trial stage be able to accurately describe the
defendants, clearly set out
the basis for joining the second
defendant and further bring proof to the trial court of payment and
proof that the account numbers
into which payment was effected is
that of the first defendant and not Gold Reef Limited as indicated in
the papers before me.
[136]
As regard excipiability of the particulars
of plaintiffs’ claim, it appears to me that the plaintiffs
claimed a refund of
the R650 000 on the basis of two causes of
action. The difficulty, however, is that the separate and distinct
causes of action
are not pleaded in the alternative. The plaintiffs’
case appears to be that moneys were paid to the first defendant
and/or
to the second defendant (evidence of which is left at the
attorney’s offices) and/or Gold Reef Ltd (as the court
a
quo
found to be the account holder).
These numerous seemingly mutually exclusive averments the defendants
are required to disprove
– this, in my judgment, certainly is
an anomaly.
[137]
Whilst there may be merit in the argument
that the defendants did not present an affidavit which demonstrated
that they have a
bona fide
defence to the plaintiffs’ claim – which I do not
pronounce on – what is clear to me is that the plaintiffs did

not present an unanswerable case. In which case, then
cadit
quaestio
.
[138]
It is trite that the appeal court should be
slow in interfering with the judgment of the court
a
quo
, except in instances where it
appears that there was a misdirection on the part of the court
a
quo
. From what is set out above,
interference with the judgment is warranted.
[139]
There can be little doubt that the court
a
quo
erred in granting interest at the
rate of 15,5% where the correct rate in the Republic of South Africa
at the time was 9%. Counsel
for the plaintiffs conceded that the
percentage claimed of 15.5% was made with the plaintiffs’ legal
representatives being
oblivious to the fact that the rate had been
changed to 9% and to this end agrees with the defendants’
Counsel that the court
had erred.
[140]
As regards the costs order granted rather
curiously against the second defendant, despite him having been
granted leave to defend
the action against him, Plaintiffs’
Counsel referred us to the official court order signed by the
registrar, which does not
provide for costs against the second
defendant. This is at variance with the order granted by Skibi AJ as
part of his judgment.
Plaintiffs’ Counsel nevertheless
contended that no appeal should have been lodged by the second
defendant because the court
order signed by the Registrar correctly
reflected the order that ought to have been granted. It is noted that
the judgment appears
to have ordered the second defendant to pay
costs, whereas the order from the registrar makes no such reference.
[141]
It is trite that an appeal lies only
against the order and not the reasoning of the court. In the event
that the appeal court was
not in favour of his argument, so
plaintiffs’ Counsel submitted, it should take cognisance of the
fact that the plaintiffs
have already abandoned the costs order
against the second defendant. In practice, so his submissions
continued, the costs in summary
judgment application are costs in the
cause. The court should have regard to the provisions of rule 32(9)
under which case an order
of costs would be made.
[142]
Defendants’ Counsel retorted that
this was simply an error on the part of the registrar as the order of
the court is clear
that the second defendant was ordered to pay the
costs. The counsel further undertook to approach the registrar to
make sure that
the order is rectified accordingly. The submission
that it is standard that cost orders are in the cause should not
apply and the
court is empowered to decide to award costs against the
losing party and in this instance the court
a
quo
should have ordered the respondent
to pay the legal costs.
[143]
As indicated above, I am of the view that
the second defendant’s appeal against the costs order granted
against him should
be upheld and, for the reasons mentioned by Adams
J, I am of the view that each party should bear their own costs in
relation to
second defendant’s appeal.
[144]
In the premises, I would have upheld both
the appeals by the first and the second defendants. The first
defendant’s appeal
I would have upheld with costs and the
second defendant’s appeal I would have upheld with no costs
order.
__________________________
M
V NOKO
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
24
th
February 2021 – in a ‘virtual hearing’ during a
videoconference on the
Microsoft Teams
digital platform.
JUDGMENT DATE:
26
th
March
2021 – judgment handed down electronically
FOR THE APPELLANTS:
Advocate Paolo Cirone
INSTRUCTED BY:
L Cirone Attorneys
FOR THE RESPONDENTS:
Advocate M J Cooke
INSTRUCTED BY:
Webber Wentzel
[1]
Kurz
v Ainhirn
1995
(2) SA 408
(D)
[2]
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 Cc and Another
2010 (5) SA 112
(KZP)
[3]
Eskom
v Soweto City Council
1992
(2) SA 703
(W)
[4]
Mall
(Cape) (Pty) Ltd v Merino Ko-Operasie Bpk
1957 (2) SA 347
(C) at 352G
[5]
Theunissen
en Andere v Transvaalse Lewendehawe Koöp Bpk
1988 (2) SA 493
(A) at 500E – F &
First
National Bank of Southern Africa Ltd v Perry NO
2001 (3) SA 960
(SCA) at 965C–D
[6]
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
1959 (3) SA 362
(W)
[7]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (3) All SA 407
(SCA) par 33
[8]
Maharaj
v Barclays National Bank
1976 (1) SA 418
(A)
[9]
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T)
[10]
Myers
v Abramson
,1951(3)
SA 438 (C) at 455