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[2011] ZAECPEHC 30
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Mom Construction CC v Banzana and Another (3627/2010) [2011] ZAECPEHC 30 (10 May 2011)
1
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE
NO: 3627/2010
DATE
HEARD: 19 April 2011
DATE
DELIVERED: 10 May 2011
In the
matter between
MOM
CONSTRUCTION CC
…....................................................................................
Plaintiff
And
MR M
BANZANA
…....................................................................................................
Defendant
JUDGMENT
NEPGEN
J
[1] This is an application for summary judgment. It is opposed by the
defendant.
[2] The plaintiff’s claim is for payment of three amounts it
alleges it paid to the defendant pursuant to an agreement, in
each
instance, that it would lend the amount in question to the plaintiff;
that it was agreed that the plaintiff would transfer
the amount of
the loan to the account of the defendant; that the plaintiff
thereupon in fact transferred the amount into the account
of the
defendant; that the agreement was that the amount would be repayable
on demand; and that notwithstanding demand the defendant
failed to
repay the said amounts to the plaintiff. The amounts in question are,
firstly, an amount of R 775 912.29, which was allegedly
lent to the
defendant pursuant to an agreement concluded on 11 April 2008;
secondly, an amount of R 1 955 256.78, which it is alleged
was lent
to the defendant pursuant to an agreement concluded on 19 November
2008; and, thirdly, an amount of R 193 923.56, which
was allegedly
lent to the defendant pursuant to an agreement concluded on 24 March
2009.
[3] The plaintiff has annexed to its particulars of claim, allegedly
as “proof of transfer by Absa Bank” a number of
bank
statements. These reflect that on 11 April 2008 there was a cheque
payment of R 775 912.99; that on 19 November 2008 there
were two
separate cheque payments of R 1 481 640.27 and R 473 616.51 (a total
of R 1 955 256.78); and that on 27 March 2009 there
was a cheque
payment of R 193 923.56. These bank statements do not indicate to
whom or in whose favour these payments were made.
[4] In the defendant’s opposing affidavit he states that he is
employed as the general manager of a trust described as the
Mzingisi
Development Trust (the trust). The defendant avers that during
approximately November 2007 the trust appointed the plaintiff
to
erect certain residential units on its behalf. The defendant states
that as a result of various problems experienced by the
plaintiff in
the completion of the project, the trust decided to cancel the
contract with the plaintiff and institute a claim for
damages. He
goes on to allege that prior to the cancellation of that agreement,
an agreement was concluded between the plaintiff
and the trust in
terms whereof the trust agreed to lend and advance to the plaintiff
the sum of R 1 218 279.84. The defendant annexes
a copy of an
acknowledgement of debt signed by the plaintiff which reflects its
indebtedness to the trust in this amount. The defendant
then, in
paragraph 11 of his opposing affidavit, says the following:
“
In the Plaintiff’s Particulars of
Claim, it is alleged that certain sums over a certain period were
loaned and advance (sic)
to myself in my personal capacity. Under no
circumstances did the plaintiff loan and advance any monies to myself
personally. The
plaintiff has also failed to attach copies of the
relevant cheques/payment stubs to reflect that monies were advanced
to myself.”
The defendant proceeds to deny that he entered an appearance to
defend purely for purposes of delay and alleges that he has a bona
fide defence to the plaintiff’s claim.
[5] When the matter was argued before me, Mr Pretorius, who appeared
on behalf of the plaintiff, strenuously argued that, apart
from what
is set out in paragraph 11 of the defendant’s opposing
affidavit, the allegations made in the opposing affidavit
have
nothing to do with the plaintiff’s claim and therefore do not
disclose a defence. Much was sought to be made of the
fact that the
defendant had annexed the acknowledgement of debt to his opposing
affidavit, with it being contended that he had
sought to do so to
establish his defence to the plaintiff’s claim and as this had
nothing to do with that claim the subsequent
statement, in paragraph
11 of the opposing affidavit, could not be accepted. Thus, so it was
argued, the defendant had not disclosed
a bona fide defence.
[6] It is indeed so that much of what has been set out in the
opposing affidavit does not disclose a defence to the claims made
by
the plaintiff. However, it seems to me that what the defendant was
trying to do was to refer to the relationship between himself,
as the
manager of the trust, and the plaintiff. In annexing the
acknowledgement of debt to his opposing affidavit the defendant
did
not state that this indicated that no amounts were owing by him to
the plaintiff. All that he stated was that the plaintiff
signed an
acknowledgement of debt which indicated that money had been lent to
it by the trust. The argument that this indicated
an attempt on
behalf of the defendant to avoid liability, which reflects on the
bona fides of his statement that no money was lent
to him personally
is, in my view, without substance. The simple fact of the matter is
that the defendant states that the plaintiff
did not under any
circumstances lend and advance money to him personally, without
saying that what has been set out earlier in
his opposing affidavit
supports that statement.
[7] A further submission made by Mr Pretorius was that the defence
disclosed by the defendant was a bare denial and that this
insufficient to avoid having summary judgment granted against him.
This argument is, in my view, also without merit. I agree with
Mr
Scott, who appeared on behalf of the defendant, that in considering
the contents of the defendant’s opposing affidavit
one must
have regard to the allegations made by the plaintiff in its
particulars of claim. These are equally bald statements that
money
was lent to the defendant. The bank statements annexed to the
particulars of claim do not support the allegations that the
amounts
in question were paid over to the defendant. There is also no
explanation why loans would have been made in the amounts
stated,
which are not round amounts. In addition, in respect of the second
claim, there is no explanation why, if an agreement
had been reached
that a specific amount would be lent to the defendant, it would have
been necessary to effect payment of that
amount by writing out two
cheques for different amounts. In all these circumstances it seems to
me that there was very little that
the defendant could have done
other than to deny that the money was lent to him personally.
[8] I am of the view that the defendant has disclosed a defence to
the plaintiff’s claims against him. In the circumstances
summary judgment cannot be granted. Insofar as the costs of the
application for summary judgment are concerned, these must stand
over
for determination by the court that hears the action.
[9] The order that I make is that summary judgment is refused and the
defendant is granted leave to defend the action. The costs
of the
application for summary judgment are reserved for decision by the
trial court.
J J NEPGEN
JUDGE OF THE HIGH COURT
Appearance:
For the plaintiff: Mr Pretorius, instructed by Greyvensteins
Attorneys
For the defendant: Mr Scott, instructed by Roland Meyer & Co