About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 102
|
|
Hageman NO and Another v Wilgeheuwel Aftree-oord (Pty) Ltd (2020/22358) [2021] ZAGPJHC 102 (27 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
DATE:
27
JULY 2021
Case No: 2020 /
22358
In
the matter between:
JOHANNA
CATHARINA SOPHIA HAGEMAN NO
First Plaintiff
(in
her capacity as the executrix of the estate of the late
Pieter
van Rooyen)
JOHANNA
CATHARINA SOPHIA HAGEMAN NO
Second Plaintiff
(in
her capacity as the executrix of the estate of the late
Yvonne
van Rooyen)
and
WILGEHEUWEL
AFTREE-OORD (PTY)
LTD
Defendant
JUDGMENT
WILSON
AJ
:
1
The central issue in this application for summary judgment is
whether the defendant (“Wilgeheuwel”) has discharged its
obligation, in terms of rule 32 (3) (b) of the Uniform Rules of
Court, to “disclose fully the nature and grounds of the
defence” it intends to mount at trial, including the material
facts upon which it intends to rely.
2
The plaintiff (“Ms. Hageman”) is the executrix of
the deceased estates of Mr. Pieter van Rooyen and Mrs. Yvonne van
Rooyen (“the van Rooyens”). Ms Hageman seeks summary
judgment against Wilgehuewel for an amount alleged to be due to
the
van Rooyens’ estates, in the sum of R747 458-00. She also
asks for interest and costs. Wilgehuewel resists the application.
Apart from raising one jurisdictional claim, and two technical
objections to the way in which Ms. Hageman’s summary judgment
application has been pleaded, Wilgehuewel asserts that it has two
bona fide
defences, which it should be permitted to lead at
trial.
3
Ms. Olwagen-Meyer, who appeared for Wilgehuewel, very fairly
and appropriately conceded that the jurisdictional point had no
merit.
4
Beyond that, it is clear to me that Wilgeheuwel’s
technical objections are likewise without merit. More fundamentally,
however,
Wilgeheuwel has plainly not disclosed its defences with the
particularity required by rule 32 (3) (b). What Wilgeheuwel has
disclosed
satisfies me that there is, in fact, no defence to the
claim at all.
5
In those circumstances, I intend to grant summary judgment.
These are my reasons.
The
Van Rooyens and their agreement with Wilgeheuwel
6
On 26 February 2007, the van Rooyens acquired a life interest
in a unit at a retirement village developed by Wilgeheuwel (“the
village”). The relevant terms of the agreement were that the
van Rooyens would lend R780 000 to Wilgehuewel in return
for the
right to occupy the unit once completed. Wilgehuewel would then
develop the village, ensuring that a range of facilities
and services
were constructed and made available there. Once the unit was
completed, the van Rooyens would be able to take occupation
of it,
and would pay rent to Wilgehuewel equal to one percent of the loan
amount per annum, due monthly and in advance. The van
Rooyens would
also be liable for a monthly levy.
7
Clause 14.2 of the agreement provided that van Rooyens were
entitled to terminate the agreement on notice at any time. The
termination
of the agreement triggered Wilgehuewel’s right to
market the unit and allocate it to a new occupant. Once the new
occupant
had concluded an agreement with Wilgehuewel, and paid the
loan amount due, the van Rooyens would be entitled to what is
described
in the agreement as the value of the “Life Right
Without Profit Share Option”.
8
In substance, the termination of the agreement meant that
Wilgehuewel had to repay the loan it received from the van Rooyens,
plus
any interest earned on that amount before the van Rooyens took
occupation of the unit, minus any outstanding amounts that may be
due
to Wilgehuewel from the van Rooyens. However, that amount would only
be payable once Wilgehuewel had found a replacement occupant
for the
unit, and had received a new loan from that occupant.
9
It appears that the van Rooyens eventually took occupation of
the village and lived there for some years. However, on 25 September
2018, the van Rooyens terminated the agreement and vacated their
unit. This appears from a document the van Rooyens signed on that
date and which purported to record the cancelation of the agreement.
The document is annexed to Ms. Hageman’s particulars
of claim
and is relied upon by her as evidence that the agreement between
Wilgehuewel and the van Rooyens was cancelled.
10
The contents of that document lie at the heart of this case.
At first blush, the document contains an anomaly. In capital letters,
its main heading purports to record the cancellation of an agreement
between the van Rooyens and an entity known as the Belvedere
Trust
(“Belvedere”). Belvedere’s identity, particulars
and role in the development and operation of the village
are nowhere
set out in the papers before me. An entity known as the “Belvedere
Group” is referred to in the footer
of the agreement, but
Belvedere’s relationship to the parties and the agreement at
issue in this case remains obscure.
11
Nonetheless, the anomaly resolves itself once the document is
read as a whole in light of the contents of the agreement. The
document
is signed by the van Rooyens and specifically records that
“the parties have mutually agreed to cancel the Life Right
Agreement
according to Paragraph 14.2 of the said Agreement dated 26
February 2007”. This can only refer to the agreement between
the
van Rooyens and Wilgehuewel. Whatever the nature and status of
Belvedere, the document, on its face, records that Wilgehuewel and
the van Rooyens have terminated their agreement by mutual consent.
12
In any event, the agreement itself provides for the van
Rooyens to terminate unilaterally, merely by giving written notice to
Wilgehuewel.
There is no suggestion that the document did not
constitute that notice, whatever Wilgehuewel’s thoughts on the
matter. Indeed,
the document is printed on Wilgehuewel’s
letterhead.
13
The agreement having been terminated and the van Rooyens
having vacated their unit, it is alleged that, on or about 3 June
2019,
the van Rooyens received two documents, which describe
themselves as a “Resale Interest” and a “Resale
Settlement
Account”. These documents are also annexed to Ms.
Hageman’s particulars of claim. They are signed by an
individual
identified as “J Steyn” and purport to record
that an amount of R747 458.83 is due to the van Rooyens.
14
Wilgehuewel does not dispute that the van Rooyens are owed
this amount. Its plea asserts simply that Wilgehuewel did not send
the
documents to the van Rooyens. The plea alleges that Belvedere
sent them. The plea also asserts that the amount is not due to the
van Rooyens from Wilgehuewel, but from Belvedere. The basis for this
assertion is that it was Belvedere that is “liable in
terms of
the termination agreement to effect payment, not [Wilgehuewel]”.
15
By the “termination agreement”, Wilgehuewel
appears to mean the notice of termination dated 25 September 2018.
But a
cursory glance at that document reveals that it neither creates
a repayment obligation on Belvedere nor constitutes an agreement.
In
substance, it does no more than record that the van Rooyens have
terminated the agreement unilaterally, as they are entitled
to do.
What it says about payment is that an attorney from “Victor and
Partners” will “repay the Loan”
to the van Rooyens
“without delay” once the life right in the unit has been
successfully resold. The obligation to
repay the loan amount flows
not from what Wilgehuewel alleges is the “termination
agreement” with Belvedere, but from
the agreement the van
Rooyens signed with Wilgehuewel itself on 26 February 2007.
16
It is alleged in Ms. Hageman’s particulars of
claim that the “Resale Interest” and “Resale
Settlement
Account” documents would not have been issued unless
Wilgehuewel had found a new occupant for the van Rooyens’ unit
at the village, and the new occupant had paid over to Wilgehuewel the
loan amount necessary to assume occupation of the unit. This
allegation is met with a bare denial in Wilgehuewel’s plea.
The
application for summary judgment
17
There is no dispute that the claim for repayment of the loan
amount under the agreement is a liquidated demand, and that it
properly
forms the subject of a summary judgment application.
18
In its opposing papers, Wilgehuewel instead resists summary
judgment on four bases. First, it contends that I lack jurisdiction
over Ms. Hageman’s cause of action. Second, it alleges that Ms.
Hageman has failed to identify the point of law relied upon
in the
plaintiff’s claim upon which summary judgment is sought, as is
required of the plaintiff in terms of rule 32 (2) (b).
Third, again
relying on rule 32 (2) (b), Wilgehuewel alleges that Ms. Hageman has
failed to explain why Wilgehuewel’s
pleaded defence does
not raise an issue for trial.
19
Finally, Wilgehuewel contends that it has raised two
bona
fide
defences to Ms. Hageman’s claim. The first defence is
said to be that Wilgehuewel does not owe the van Rooyens’
estate
anything. Belvedere does. The second defence is that Ms.
Hageman has failed to plead that Wilgehuewel actually found a
replacement
occupant for the van Rooyens’ unit. This means, so
the argument goes, that Ms. Hageman has failed to plead the
fulfilment
of one of the suspensive conditions that had to be met
before the van Rooyens were entitled to repayment of the loan amount.
20
Before addressing these contentions, it is necessary to say
something about the nature of summary judgment proceedings under the
revised rule 32. The underlying purpose of the rule is clearly to
ensure that only cases which raise a genuine dispute about the
plaintiff’s claim are permitted to proceed to trial. A
plaintiff’s obligations to verify its cause of action, and the
amount, if any, that is claimed; to identify the points of law on
which it relies; and to explain why the pleaded defence does
not
raise an issue for trial are mirrored by the defendant’s
obligation to “disclose fully the nature and grounds of
the
defence and the material facts relied upon therefor”.
21
Fundamentally, the parties are required to define and
summarise the issues in a way that will enable a court to identify
the dispute
between them, and decide whether that dispute raises a
real controversy. In meeting an application for summary judgment, a
defendant
is accordingly required to explain why its pleaded case
raises a defence in law that will be sustained if the facts it
alleges
are proved at trial. This is the essence of the obligation to
“disclose fully the nature and grounds of the defence and the
material facts relied upon therefor”.
22
It seems clear to me that Wilgehuewel’s opposition to
Ms. Hageman’s summary judgment application falls woefully short
of this standard.
23
Wilgehuewel first contends that this court lacks jurisdiction
to entertain the claim at all, because Wilgehuewel is domiciled in
the Western Cape, not in Gauteng. This overlooks the fact that the
agreement upon which Ms. Hageman brings her claim was concluded
in
Johannesburg. Accordingly, the whole of Ms. Hageman’s cause of
action arose in Johannesburg, and this court clearly has
jurisdiction. In her careful and disciplined oral argument, Ms.
Olwagen-Meyer readily abandoned the jurisdictional point.
24
Wilgehuewel’s second and third arguments are really two
sides of the same coin. They seek to press a claim of technical
non-compliance
with rule 32 much further than it can go.
25
The contention that Ms. Hageman has not set out the points of
law on which she relies has no merit. Ms. Hageman contends that the
contract was terminated, and that the payment she claims is now due,
because the agreement says so. Wilgehuewel seizes on Ms. Hageman’s
failure to mechanically set out the fulfilment of all of the
conditions embodied in clause 14.2 of the agreement and elevates this
failure to non-compliance with rule 32.
26
This is mistaken. The fulfilment of the conditions in clause
14.2 of the agreement are hardly points of law. They are facts that
have been clearly and adequately pleaded in Ms. Hageman’s
particulars of claim. Ms. Hageman says that the van Rooyens
terminated
the agreement, and then received the “Resale
Interest” and “Resale Settlement Account”
documents. She says
that the van Rooyens would not have received
these documents had another occupant not been found and induced to
pay for a life
interest in the van Rooyens’ unit. That, it
seems to me, is clear enough both to plead the fulfilment of clause
14.2 of the
agreement, and to set out the plaintiff’s cause of
action: Wilgehuewel’s failure to repay the loan, despite its
contractual
obligation to do so.
27
The summary judgment application clearly explains why it is
contended that Wilgehuewel’s pleaded defences do not raise an
issue for trial. This is done at some length in paragraphs 7 to 18 of
the supporting affidavit. The jurisdiction point is dealt
with more
or less on the same terms as I have already disposed of it, and
Wilgehuewel’s contention that Belvedere must be
joined to the
proceedings is met with the assertion that Belvedere did not owe the
van Rooyens any obligations under the agreement,
and is therefore not
sufficiently interested in the claim, which lies solely and
exclusively against Wilgehuewel.
28
Ms. Hageman has clearly complied with Rule 32.
29
Finally, then, I turn to whether Wilgehuewel has adequately
disclosed the nature and grounds of its defences. As should be
abundantly
clear by now, I cannot accept that it has. What
Wilgehuewel has done is seized on the mention of Belvedere in the
notice of termination
of the agreement and sought to create the
impression that Belvedere, and not it, owes the van Rooyens their
money. On a plain reading
of the agreement, this cannot be so. It is
Wilgehuewel that received the van Rooyen’s loan, and
Wilgehuewel who, on cancelation
of the agreement, was obliged to pay
the loan back.
30
In light of the clear and unambiguous meaning of the
agreement, and the failure of Wilgehuewel to seriously dispute either
that
the van Rooyens had terminated the agreement or that a new
occupant for the unit was promptly found, there is no conceivable
defence
to the claim for payment. Wilgehuewel has not explained on
what possible basis Belvedere could be liable for its obligations
under
clause 14.2 of is agreement with the van Rooyens. In the
absence of such an explanation, its opposition to summary judgment
cannot
be sustained.
31
Ms. Kolloori, who appeared for Ms. Hageman, submitted that the
assertion that Belvedere had any role to play in these proceedings
is
a mere contrivance, intentionally set up by Wilgehuewel. She
submitted this contrivance only made sense as part of a
well-organised
scheme to confuse vulnerable older people, and deprive
them of payments due under their agreements with Wilgehuewel.
32
Wilgehuewel’s over-reliance on Belvedere’s alleged
role in this case, together with its failure to explain that role
in
any detail, is certainly consistent with such a scheme, but I need
not go as far as Ms. Kolloori pressed. Wilgehuewel has simply
not
explained what its defence at trial will be. Put more precisely, it
has offered no logical explanation, consistent with the
pleaded
facts, of why Belvedere would owe anything to anyone involved in this
matter.
33
That being so, I am satisfied that Wilgehuewel has not
disclosed the nature and grounds of its defence fully – or,
indeed,
at all. On the facts of this case, I am driven to conclude
that this is because there is, in truth, no defence to the
claim
in fact available.
34
For these reasons, I make the following order –
34.1
The defendant is ordered to pay
JOHANNA CATHARINA SOPHIA HAGEMAN
NO
, in her capacity as the executrix of the deceased estates of
Pieter van Rooyen and Yvonne van Rooyen, the sum of R747 458-00
plus interest at the rate of 7% per annum from 6 March 2019 to the
date of payment.
34.2
The defendant is directed to pay the costs of the action.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 27 July 2021.
HEARD
ON:
19 July 2021
DECIDED
ON: 27 July
2021
For
the Applicant:
A Kolloori
Instructed by Norton Rose
Fullbright
For
the Respondent:
G
Olwagen-Meyer
(Heads of Argument drawn by V
Vergano)
Instructed by Casper Le Roux
Incorporated