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[2011] ZAGPPHC 107
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De Beer v De Beer NO and Others (12749/09) [2011] ZAGPPHC 107 (5 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(IN
THE NORTH GAUTENG HIGH COURT. PRETORIA)
Case
No: 12749/09
DATE:05/05/2011
In
the matter between:
MlLANDA
DE BEER
…............................................................................................
APPLICANT
And
LE
ROUX DE BEER
N.O.
.............................................................................
1st
RESPONDENT
(in
his capacity as trustee of
Renandi
Investment Trust. IT 6864/01 IT)
MILANDA
DE BEER
N.O.
...........................................................................
2nd RESPONDENT
in
his capacity as trustee of
Renandi
Investment Trust, IT 6864/01 IT)
JACQUEE
JANSE VAN VUUREN
N.O.
.......................................................
3rd RESPONDENT
in
his capacity as trustee of
Renandi
Investment Trust, IT 6864/01 IT)
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
respondents in their capacity as trustees of the Renandi Investments.
The applicant's claim, with ancillary relief, arises from a verbal
agreement in terms of which the plaintiff lent and advanced
to the
trust an amount of R1, 090 000, 00.
[2]
The plaintiff alleges in the particulars of claims that the aforesaid
amount was payable on demand. She further alleged that
demand was
done on the 20 February 2009. In this regard she has attached
annexure "A1" and "A2".
[3]
It is trite that in summary judgments the defendant must by way of an
affidavit or by way of oral evidence satisfy the court
that he has a
bona fide defence to the action. In his affidavit or oral evidence he
must disclose fully the nature and the grounds
of his defence and the
material facts upon which he relies. Vide Maharaj v Barclays National
Bank Ltd
1
where Corbett JA said that:
"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 vide 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 or the other party. All the Court
enquires into is: (a) whether the defendant has 'fully' disclosed the
nature and grounds
of his defence and the material facts upon which
it is founded, (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 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 . . . 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. (See generally, Herb Dyers (Pty) Ltd v
Mahommed & another
1965
(1) SA 31 (T); Caltex Oil (SA) Ltd v Webb & another 1965 (2) SA
914 (N); Arend and another v Astra Furnishers (Pty) Ltd
[1974 (1) SA
289 (C)] at 303^t; Shepstone v Shepstone 1974 (2) SA 462 (N) at
467E-H.) At the same time defendant is not required
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
(see Estate Potgier v Elliot 1948 (1) SA 1084; Herb Dyers case supra
at 32)" (vide also Tesven CC
& another v South African Bank
of Athens 2000 (1) SA 268 (SCA) at 275H-276D).
[4]
In the matter of Evelyn Haddon & Co Ltd v Leojanko (Pty) Ltd
2
the court cited with approval the matter of Mowschenson &
Mowschenson v Mercantile Acceptance Corporation of SA Ltd
3
where Marias J said that:
"The
proper approach appears to me to be one which keeps important fact in
view that the remedy for summary judgment is an
extraordinary remedy,
and a very stringent one, in that it permits a judgment to be given
without trial. It closes the doors of
the Court to the defendant (see
the case of Symon & Co, supra). That can only be done if there is
no doubt but that the plaintiff
has an unanswerable case."
[5]
The defendants had already filed their plea. In opposing the summary
judgment, the second respondent filed an opposing affidavit,
which
the third respondent confirms the averments therein. The second
respondent refers to the plea filed and request that the
contents
therein be incorporated in his affidavit by reference. He denies that
there was any money lent and advanced to the trust.
In the plea,
inter alia, it is denied that the second defendant is a trustee of
the trust. He further denied that the trust does
not have a bona fide
defence to the action.
[6]
The second respondent further avers that he was the owner of certain
immovable property situated at Nelspruit. At the time he
was married
to the plaintiff. On legal advise, he registered the immovable
property in the name of the plaintiff. It is further
averred that at
the time of registration of the property in the name of the
plaintiff, she knew that she has in no way contributed
financially
towards the purchase of the said immovable property, notwithstanding
the registration thereof in her name, there were
no rights accruing
to her. According to the second respondent, during April /May 2005,
in his personal capacity, he sold the relevant
property for an amount
of R1, 090 000, 00, which he lent to the trust for it to purchase
shares in a Stampvrug Investments (Pty)
Ltd.
[7]
In the matter of Breitenach v Fiat SA (Edms) Bpk
4
the Court referred to the matter of Mowschenson as well as Shepstone
v Shepstone
5
.
In the Shepstone case
6
Miller J said that: 'But even if there is substance in the contention
that the applicant's affidavit is incomplete, it does not
follow that
her opposition must necessarily fail. While there is a great deal to
be said for the view that the word 'fully' in
the context of Rule
32(3)(b) should not be given its strictly literal meaning and that it
is not required of the defendant to give
a complete or exhaustive
account of the facts, in the sense of giving a preview of all the
evidence, it is clear, I think there
ought to be a sufficient
disclosure of material facts to enable the court to decide whether
the defendant, if those facts are true,
would have a defence to the
claim', And at 467E-H Miller J said that:
'The
Court will not be disposed to grant summary judgment where, giving
due consideration to the information before it, it is not
persuaded
that the plaintiff has an unanswerable case'
[8]
In the matter of Breitenbach v Fiat SA (Adms) Bpk
7
Colman J commenting about Rule 32(3)(b) said: "It must be
accepted that the sub-rule was not intended to demand the impossible.
It cannot, therefore, be given its literal meaning when it require
the defendant to satisfy the Court of the bona fides of his
defence.
It will suffice, it seems to me, if the defendant swears to a
defence, valid in law, in a manner which is not inherently
and
seriously unconvincing."
[9]
The grant of summary judgment is a matter of the discretion of the
court, which must be exercised judicially. The version of
the second
respondent is confirmed by the third respondent. At trial, the
respective parties would be subjected to cross examination.
At this
stage, I need not interrogate the probabilities and improbabilities
in the respective versions of the parties. If I am
of the view that
the applicant does not have an unassailable case, as I am, then, I
must not close the door of the court in the
face of the respondents
and grant the summary judgment. I should however lean towards the
respondents and refuse the application
for summary judgment.
[10]
The matter of costs is generally governed by the principle that they
follow the event. In casu, the parties would have a second
bite of
the cherry when they lock horns in the main trial. I am of the view
that the costs of this application can be determined
at the end of
the main trial, where the defences of the applicants would be
exhaustively canvassed. In the premises I shall refrain
from
disposing of the costs aspect and defer it to the main trial.
[11]
In the result I make the following order:
1.
The summary judgment is dismissed;
2.
That leave to defend is granted;
3.
That the costs of this application are reserved for determination at
the main trial.
N.M.MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 05/05/2011
APPLICANT'S
ATT : KRUGER MOELETSI INC
APPICANTSADV
: ADV J S STONE
RESPONDANTS"
ATT : COUZYN, HERTZOG & HORAK
RESPONDANTS
ADV: ADV M M SNYMAN
1
1976 (1) SA 418 (A) where at 426A-C.
2
1967 (1) SA 662 (O) at 666A.
3
1959 (3) SA 362 (W) at 366.
4
1976
(2) SA 226 at 229.
5
1974
(2) SA 462 (N) at 467E-H.
6
Supra
at 466H-467A.
7
1976
(2) SA 226 (T), at 228B-C.