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2021
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[2021] ZAGPPHC 371
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Lawrenson and Another v Fouche (77515/19) [2021] ZAGPPHC 371 (18 June 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASENO:
77515/19
In
the matter between:
THOMAS
LAWRENSON
FIRST PLAINTIFF
DRILLMECH
(PTY)
LTD
SECOND PLAINTIFF
and
FREDERICK
JACOBUS
FOUCHE
DEFENDANT
These
reasons for judgment are issued by the Judge whose name is reflected
herein and are submitted electronically to the Parties/their
legal
representatives by email. The reasons for judgment are further
uploaded to the electronic file of this matter on CaseLines
by the
Judge or his/her Secretary on 18 June 2021.
REASONS FOR THE
JUDGMENT
LUKHAIMANE
AJ:
[1]
This matter came before the court as an Unopposed application
(summary judgement) on 10 December 2020.
The
Defendant however appeared on the day. The parties argued the
indebtedness of the Defendant to the Second Plaintiff and the
court
granted the following order:
1.1
Declaring that the Defendant is liable to the Second Plaintiff in
terms of Section 424 (1) of the Companies
Act, Act 61 of 1973 for the
debts incurred by the Defendant to the Plaintiff for an amount of
R1 838 429.00 (one million
eight hundred and thirty-eight
thousand four hundred and twenty-nine rand); and/or
1.2
Declaring that the Defendant is liable to the Second Plaintiff in
terms of a Dissolution Agreement dated
22 February 2017, for the
debts incurred by the Defendant to the Plaintiff for an amount of
R1 838 429.00 (one million
eight hundred and thirty-eight
thousand four hundred and twenty-nine rand); and/or
1.3
Interest on the amount of R1 838 429.00 at a rate of prime
plus 1 from 22 February 2017 to
date of payment, alternatively
mora
interest
at a rate of 10.5%
a tempore morae
until date of
final payment;
1.4
Delivery by the Defendant of the share certificates in respect of
shares transferred, duly completed
and signed together with share
transfer forms duly completed and signed by the Defendant in a form
to enable the Second Plaintiff
to attend to the transfer of the
shares to the Second Plaintiff in accordance with the provisions of
the dissolution agreement.
1.5
Costs of suit calculated on the scale as between attorney and client;
[2]
On 17 May 2021, I received a request to furnish the parties with
reasons for the judgement. It would
seem that such a request had been
forwarded earlier but not brought to my attention, hence the
inordinate delay. I undertook to
provide the reasons by the end of
the current term. Herewith the reasons for the judgement.
[3]
On or about 22 February 2017, at Krugersdorp, the Second Plaintiff,
duly represented and the Defendant
acting personally, entered into a
written contract, hereinafter referred to as the ‘dissolution
agreement’, the Defendant
as the debtor, acknowledges that the
Second Plaintiff as creditor has a claim against him in the amount of
R1 838 429.00.
The dissolution agreement further states
that on the effective date of the agreement, the Defendant shall
deliver to the Second
Plaintiff the share certificates in respect of
the shares hereby transferred duly completed and signed together with
the share
transfer forms duly completed and signed by the date in a
form to enable the Second Plaintiff to attend to the transfer of the
shares to the Plaintiff in accordance with the provisions of the
dissolution agreement.
[4]
Before delving into the merits of the matter, the Defendant raises a
point in limine
regarding the Plaintiffs reliance on Rule
32(2)(b). The Defendant avers that owing to the Plaintiff’s
non-compliance with
Rule 32, they are not entitled to summary
judgement
[5]
The Defendant pleads that the issues raised are better served by a
trial. The Defendant refers to the
fact that the failure to comply
with the dissolution agreement should have been dealt with through
arbitration and that the dissolution
agreement itself falls foul of
the Constitution of the Republic of South Africa as it is
contra
bonos mores
.
[6]
In his plea, the Defendant admits that he facilitated the overdraft
facility with the Second Plaintiff’s
bankers for the Second
Plaintiff. The Defendant also advances the fact that the dissolution
agreement should have been subjected
to arbitration, however does not
disclose the specific aspects of the law and the aspects of the
dissolution agreement that must
be subjected to such arbitration.
Both in the papers and during argument, the Defendant submitted that
he signed the dissolution
agreement under circumstances of undue
influence and duress. In the plea, the opposing affidavit and after
several prompts during
the hearing, the Defendant failed to set out
any such grounds of imminent danger nor actions by the Plaintiffs
that could be denoted
as
contra bonos mores
. Therefore, the
Defendant failed to set out a defence that is good in law. The
Defendant could not even support his allegation
that the dissolution
agreement was concluded under duress or as a result of undue
influence – not one ground nor allegation.
[7]
Similarly, the Defendant sets out that the dissolution agreement
fails to line up to the Constitution,
but does not indicate which
aspects of the Constitution it falls foul of. The Defendant had three
opportunities to take the court
into his confidence by disclosing his
defences; in his plea or his opposing affidavit or during the
hearing. Instead, the Defendant
has pleaded a bare denial and failed
to set out any aspect that required arbitration or indicate
non-compliance to the Constitution.
[8]
In
Maharaj v Barclays National Bank Ltd
1976(1) SA 416 (A) at
423 A – H,the court states as follows:
“
Concerntrating
more particularly on requirement (a) above, I would point out that it
contemplates the affidavit being made by the
plaintiff himself or
some other person ‘who can swear positively to the facts. In
the latter event, such other person’s
ability to swear
positively to the facts is essential to the effectiveness of the
affidavit as a basis of summary judgement; and
the Court entertaining
the application therefor must be satisfied,
prima
facie,
that the deponent is such a person.
Generally speaking, before a person can swear positively to facts in
legal proceedings they
must be within his personal knowledge. For
this reason, the practice has been adopted, bot in regard to the
present Rule 32 and
in regard to some of its provincial predecessors
(and the similar rule in the magistrates’ courts), of requiring
that a deponent
to an affidavit in support of summary judgement,
other than the plaintiff himself, should state, at least, that the
facts are within
his personal knowledge (or make some averment to
that effect), unless such direct knowledge appears form other facts
stated (
see e.g Joel’s Bargain Store v
Shorkend Bros. (Pty) Ltd,
1959 (4) SA 263
€;
Misid Investments (Pty) Ltd v Leslie
,
1960 (4) SA 473
(W);
Sand and Co. Ltd V
Kollias,
supra at pp. 165 – 7;
Fischereigesellschaft v African Frozen
Products
, supra at pp. 109 – 110;
Flamingo Knitting Mills (Pty) Ltd v Clemans
,
supra at pp. 515 – 6). The mere assertion by a deponent that he
‘can swear positively to the facts’ (an assertion
which
merely reproduces the wording of the Rule) is not regarded as being
sufficient, unless there are good grounds for believing
that the
deponent fully appreciated the meaning of these words (see
African
Frozen Products case
, supra at p110;
Love’s
case
, supra at p515). In my view, this is
salutary practice. While undue formalism in procedural matters is
always to be eschewed, it
is important in summary judgement
applications under Rule 32 that, in substance, the plaintiff should
do what is required of him
by the Rule. The extraordinary and drastic
nature of the remedy of summary judgement in its present form has
often been judicially
emphasised (see e.g.,
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
,
1959 (3) SA 362
(W) at p 366;
Arend and
Another v Astra Furnishers (Pty) Ltd
,
1974
(1) SA 298
(C) at pp. 304 – 5;
Shepstone
v Shepstone
,
1974 (2) SA 462
(N) at p467).
The grant of the remedy is based upon the supposition that the
plaintiff’s claim is unimpeachable and that
the defendant’s
defence is bogus or bad in law. One of the aids to ensuring that this
is the position is the affidavit filed
in support of the application;
and to achieve this end it is important that the affidavit should be
deposed to either by the plaintiff
himself or by someone who has
personal knowledge of the facts.
Where
the affidavit fails to measure up to these requirements, the defect
may, nevertheless, be cured by reference to other documents
relating
to the proceedings which are properly before Court (see
Sand
and Co Ltd v Kollias
, supra at p165). The
principle is that, in deciding whether or not to grant summary
judgement, the Court looks at the matter ‘at
the end of the
day’ on all the documents that are properly before it (
ibid
.
at p165).
[9]
The Defendant is expected to engage with the Plaintiffs averments in
his pleaded defence, i.e disclose
fully the nature and grounds of the
defence and the material facts relied upon therefor. The Plaintiffs
in this matter have indicated
that the point of law that they rely on
is the law of contract in that they are suing for the cancellation of
the dissolution agreement
and immediate payment of the amount therein
owing to the Defendants failure to comply with the provisions of the
said dissolution
agreement. Further, the Plaintiffs clearly indicated
in the form of the dissolution agreement, the facts relied upon and
the supporting
documentation thereto. The Defendant on the other hand
has failed to adduce any facts that would require a trial. The
Defendant’s
allegations regarding breach of the Constitution
and there having been duress in getting him to sign the dissolution
agreements
are not supported by any facts at all – they are
just mere allegations. This claim was in the alternative. The court
did
not deal with section 424 (1) of the Companies Act 61 of 1973 as
this was not the argument being advanced by the Plaintiffs.
[10]
The Defendant further submitted that the
National Credit Act 34 of
2005
, finds application to the dissolution agreement as the
repayments were deferred thereby rendering the dissolution agreement
to
be a credit agreement in terms of the
National Credit Act. It
is
not necessary to go into detail as to why the
National Credit Act
does
not find application in this matter, save to say that the
parties to the dissolution agreement are excluded in terms of
section
4
of the
National Credit Act as
the dissolution agreement is not
being concluded between parties that are acting with each other at
arm’s length and also
does not meet the requirements of the
definition of credit agreement in terms of this Act.
[11]
As far as the merits are concerned, the parties entered into a
dissolution agreement on or about 22 February
2017, in terms of which
the Defendant is indebted to the Plaintiffs in the amount of
R1 838 429.00. The Defendant had
also agreed to deliver
share certificates to the Plaintiffs.
[12]
As at the date of commencing action and during the hearing, the
Defendant had failed to deliver the share
certificates; the Defendant
had also failed to repay the said sum of R1 838 429.00
together with the attendant interest.
Except to advance a bare
denial, the Defendant failed to advance any cogent reasons as to why
Rule 32(2)(b) had not been complied
with.
[13]
Therefore, this Court ruled in favour of the Plaintiffs.
M A LUKHAIMANE
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
APPEARANCES
Counsel for the
Plaintiffs:
Advocate
A Botha
Instructed
by:
Van Heerden & Krugel Attorneys
Counsel for the
Defendant:
Advocate E Mann
Instructed
by:
Cilliers & Reynders Inc Attorneys