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[2023] ZAGPPHC 44
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Stratlaw (Pty) Ltd v Van Hoven N.O and Another (2809/2021) [2023] ZAGPPHC 44 (1 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2809/2021
(1)REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:
1/2/2023
SIGNATURE:
In
the matter between:
STRATLAW
(PTY)
LTD
Applicant
and
WOUTER
VAN
HOVEN
N.O.
First
Respondent
SUZANNE
VAN
HOVEN
N.O.
Second
Respondent
JUDGMENT
DELIVERED
ON
1 FEBRUARY
2023
CP
WESLEY AJ
1.
The applicant
seeks an order against the respondents,
as trustees of
the Wouter and Suzanne van Hoven Trust, for payment of R262 163.20
together with interest and costs. The basis for
the applicant's claim
is an oral contract that the applicant alleges was concluded during
2020 between the parties, in terms of
which the foresaid trust would
compensate the applicant for improvements made by the applicant to a
property that the applicant
leased from the trust, which it was about
to vacate. There is conflicting evidence on the papers as to the
exact date on which
the oral contract was purportedly concluded
.
2.
In their
defence the respondents deny that the oral contract was concluded at
all.
3.
At the outset
of the hearing the applicant sought the court's condonation for the
filing of a supplementary founding affidavit.
The supplementary
founding affidavit addressed the date on which the oral contract
would have been concluded. The application was
made by way of a
written interlocutory application, together with the intended
supplementary founding affidavit. The respondents
opposed the
interlocutory application, and filed an opposing affidavit. In the
opposing affidavit the respondents addressed the
substantive issues
and facts raised in the applicant's interlocutory application and in
the intended supplementary founding affidavit.
I
permitted
argument
to
be
made
on
the
basis
that
both
the
supplementary
founding
affidavit
and the
opposing
affidavit
were
provisionally before the court in evidence.
4.
In the
exercise of my discretion
I grant
condonation for the filing of the applicant's supplementary
founding
affidavit, and I accept the respondents' opposing affidavit into
evidence as their substantive response thereto. The reason
for
applicant's supplementary founding affidavit was satisfactorily
explained and the respondents suffer no real prejudice if the
affidavit is accepted into evidence. Ultimately, these extra
affidavits do not take the case for either party much further.
5.
There
is, in the circumstances, a dispute of fact on the papers concerning
whether or not the oral contract on which the applicant
relies was
concluded between the parties. The dispute of fact is, in my view,
genuine and the resolution thereof is material to
the determination
of the application.
[1]
6.
I am unable to
resolve this dispute of fact on the papers. I am also not inclined to
dismiss the application by reason of the dispute
of fact,
notwithstanding that the applicant
is persisting
with the application in the face of the dispute of fact.
7.
In my view,
having regard to Uniform Rule 6(5)(g), the application falls to be
referred
to
oral evidence
with a view
to resolving
the dispute
of fact
whether
or not the
oral contract on which the applicant relies was concluded between the
parties. Upon making that determination the court
that is seized with
the matter will decide the outcome of the application.
8.
In the result
I make the following order:
8.1
The
application is postponed to a date to be determined by the Registrar
of the Gauteng Division, Pretoria, for the hearing of oral
evidence
in terms of Uniform Rule 6(5)(g) on the issue that is set out in
paragraph 8.2
below
.
8.2
The issue upon
which oral evidence is to be led at the aforesaid
hearing is
whether or not the oral contract on which the applicant relies was
concluded between the parties, as alleged by the applicant
in its
founding papers.
8.3
Oral evidence
shall be admitted from any person who has already deposed to an
affidavit concerning the merits of the application.
8.4
Nothing in
this order shall preclude the Court that hears the oral evidence from
permitting, on such terms as to it seems meet,
the evidence of any
other witness to be admitted.
8.5
The costs of
the application are reserved for determination by the Court that
hears the postponed application upon the issuing of
a final order.
CP
WESLEY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearances
Counsel
for applicant: Adv B H Steyn
Attorney
for applicant: Deneys
Zeederberg Attorneys
Counsel
for respondents:
Adv M J Kleyn
Attorney
for respondents:
Cavanagh &
Ritchards Attorneys
Date
heard:
26 January 2023
Date
of Judgment: 1 February 2023
[1]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at para 235.