About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 33
|
|
Makan v Geswindt (2019/2016) [2016] ZAECPEHC 33 (10 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 2019/2016
Date
heard: 2 August 2016
Date
delivered: 10 August 2016
NOT
REPORTABLE
In
the matter between:
PATRICIA
ANN
MAKAN
.............................................................................
Plaintiff
/ Applicant
vs
CAROL
GESWINDT
...........................................................................
Defendant
/ Respondent
JUDGMENT
TSHIKI
J:
[1]
In this matter the plaintiff claims summary judgment against the
defendant, basing her claim upon the following allegations
contained
in its particulars of claim to the summons:
“
[1]
That the plaintiff and Errol Ralph Makan (hereinafter referred to as
Mr Makan) were previously the registered owners of Erf
2…….
G……, in the Nelson Mandela Bay Municipality Division of
Port Elizabeth situated at no 1……
R….. C…….,
G……. P…... P……. E…..
(hereinafter referred to as “the
property”). On or about
the 4
th
September 2014 and at Port Elizabeth the plaintiff and Makan sold the
property to Achmet Nasim Davids (hereinafter referred to
as “the
purchaser”) for the purchase price of R600 000.00 (six hundred
thousand rand).
[2]
During September 2014 the plaintiff and Mr Makan appointed the
defendant as the attorney to attend to the transfer of the property
to the purchaser which appointment the defendant accepted
(hereinafter referred to as the agreement).
[3]
In terms of the Deed of Sale:
[3.1]
the purchase price of the property was payable in cash by the
purchaser on the date of registration of the property into his
name;
[3.2]
one half of the proceeds of the sale of the property would be
transferred to the plaintiff’s bank account at Nedbank
on
registration of transfer of the property;
[4]
On 25 February 2015 the defendant provided the plaintiff with a
written undertaking that the plaintiff would receive her one
half
share of the proceeds of the sale upon registration of transfer.
[5]
It was an implied term of the agreement between the plaintiff, Mr
Makan and the defendant that the defendant would render her
services
in a proper and professional manner and without negligence.
[6]
In breach of the agreement the defendant was negligent in the
performance of her duties, alternatively, the defendant failed
to
comply with her obligations in terms of the agreement in the
following respects:
[6.1]
the defendant authorised the registration of the property into the
purchaser in the Cape Town Deeds Office on 18
th
March 2015
without securing or procuring payment of the purchase price of the
property from the purchaser on or before the date
of transfer; and
[6.2]
the defendant failed to effect payment of one of the proceeds of the
sale of the property to the plaintiff’s bank account
at Nedbank
on registration of transfer of the property in compliance with clause
16 of the Deed of Sale;
[6.3]
as at 18 March 2015 the plaintiff was entitled to payment in the sum
of R300 000.00 which amount constituted one-half
of the proceeds
of the sale of the property;
[6.4]
on 26 March 2015 and unbeknown to the plaintiff the purchaser paid
the full purchase price of the property in the sum of R600 000.00
to Mr Makan on Mr Makan’s instructions;
[6.5]
as at that stage Mr Makan was only entitled to payment on
registration of transfer of the property in the name of the purchaser
with the balance being due owing and payable to the plaintiff on
registration of transfer of the property in the purchaser’s
name;
[6.6]
Mr Makan was not possessed of the assets, nor is Mr Makan financially
in a position to pay to the plaintiff the sum of R300 000.00
which was incorrectly and unlawfully paid to Mr Makan due to the
aforesaid negligence of the defendant.
[7]
The defendant, by the exercise of such care as could be reasonably
have been expected of the reasonable attorney, would (and
should)
have ensured that;
[7.1]
the purchase price of the property was paid into her trust account
before the registration of transfer, alternatively;
[7.1.1]
payment of the purchase price of the property was secured before
registration of transfer, by procuring a guarantee issued
by a bank
on behalf of the purchaser for payment of the purchase price of the
property on registration of transfer.
[8]
It was within the contemplation of the parties, when the agreement
was concluded that the plaintiff would suffer damages in
the event of
the defendant breaching the agreement.
[9]
Accordingly, the plaintiff has suffered damages in the amount of
R300 000.00 as a result of the defendant’s breach
of the
agreement aforesaid.”
[2]
Plaintiff is now seeking from the defendant the remainder of the
purchase price in the amount of R300 000.00 together with interest
and costs of suit.
[3]
The defendant has defended the action and in turn the plaintiff has
filed an application for summary judgment with the necessary
costs
and the application for summary judgment has been opposed by the
defendant.
[4]
Mr Williams
for
the plaintiff has tried to justify the conduct and actions of the
plaintiff by referring to the judgment of this Court in
Standard
Bank Ltd v Naude
2009 (4) SA 669
(ECP). In my view, the judgment referred to me does not appear
to be relevant to the issues involved in the case in issue.
[5]
In response to the irregularity pointed out by
Mr
Moorhouse, Mr Williams
referred to as a
minor irregularity which could simply be ignored by the Court. His
view was that such prejudice as pointed by
Mr
Moorhouse
did not prejudice the
defendant.
[6]
In response to
Mr Williams’
contention
Mr Moorhouse
for the defendant submitted that if the particulars of claim are
excipiable summary judgment cannot be granted. He referred
this
Court to the judgment in
Dowson and Dobson Industrial v Van Der
Werf
1981 (4) SA 417
where Marias AJ remarked as follows:
“
In
considering the affidavits filed by defendants, I have been mindful
of the summary and final nature of the relief for which Rule
32
provides. I have also given due weight to the observations made in
cases such as
Arend
and Another v Astra Furnishers (Pty) Ltd
1974
(1) SA 298 (C)
;
Gilinsky
and Another v Superb Launderers and Dry Cleaners (Pty) Ltd
1978
(3) SA 807
(C)
and
the other cases cited to me by Mr
Carstens
.
I think it fair to say that an ever increasing reluctance to grant
summary judgment in the face of opposition is evident from
the more
recent decisions in South African Courts. Given the exceptional
nature of the remedy and the fact that it may result
in a final
judgment being given against a defendant without a full ventilation
of the issues, this reluctance is entirely understandable.
But the
ease with which a defendant may avoid summary judgment in terms of
Rule 32 is so apparent that I do not think one should
balk at
granting it in cases where, despite the ease with which he could have
done so if a sufficient factual foundation existed,
a defendant
has failed to allege any recognisable defence … It is
important to note that a decision as to whether a
plaintiff's case is
unanswerable or not must be founded on information before the Court
dealing with the application. This information
is derived from the
plaintiff's statement of case, the defendant's affidavit or oral
evidence and any documents that might properly
be before the Court.
It would be inappropriate to allow speculation and conjecture as to
the nature and ground of the defence to
constitute a substitute for
real information as to these matters.”
[7]
In addition to the above, I agree with
Mr Moorhouse
that the
plaintiff’s particulars of claim are excipiable in the
following manner as gleaned from paragraph 9.1.1 as follows:
“
9.1.1
Firstly, the applicant alleges that an agreement was concluded
between her, Mr Makan and me. At paragraph 9 of the Applicant’s
Particulars of Claim, the applicant alleges that I was negligent in
the performance of my duties in terms of the agreement and/or
failed
to comply with my obligations in terms thereof. However, the
applicant has failed to plead what the material terms of the
said
agreement were and what my duties and/or obligations were in terms of
the said agreement.
9.1.2
Secondly, the applicant has failed to allege where the said agreement
was concluded and whether the said agreement was written
and or oral.
9.1.3
Thirdly, the applicant alleges in her Particulars of Claim that I was
negligent in that I failed to ensure that the plaintiff’s
alleged share of the purchase was paid into my trust account prior to
registration of the transfer.”
[8]
Furthermore, in terms of clause 2 of the said Deed, the purchase
price is only payable upon the date of registration of the
transfer
and not before. The purchaser,
Mr
Davids
, was to pay the applicant’s
share of the purchase price directly into the bank account of the
applicant and not into or via
the trust account. I, therefore, agree
with counsel for the defendant that the particulars of claim fail to
disclose a cause of
action, alternatively, are vague and
embarrassing.
[9]
Having said the above, I am of the view that the plaintiff is not
entitled to the order applied for.
[10]
Therefore, the application for summary judgment is hereby dismissed.
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the plaintiff / applicant : Adv Williams
Instructed
by : Rob McWilliams Attorneys
PORT
ELIZABETH
Ref:
DMOT
(T):
041 - 373 0871
For
the defendant / respondent : Adv Moorhouse
Instructed
by : Gregory Van Vught Attorneys
PORT
ELIZABETH
Ref:
G Van Vught
(T):
041 - 481 9211