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[2019] ZALMPPHC 20
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Blue Moonlight Properties 82 (Pty) Ltd and Another v Mashianoke (HCAA10/2018) [2019] ZALMPPHC 20 (10 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: HCAA 10/2018
10/5/2019
In the matter between:
BLUE MOONLIGHT
PROPERTIES 82 (PTY) LTD FIRST APPELLANT
CONRAD HENDRIK
KRüGER
SECOND
APPELLANT
and
THOMO WILLIAM CHACHANE
MASHIANOKE RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgment and order of a single Judge of
this Division (Kganyago J) in
terms of which he granted summary
judgment against the Appellants on the 30 October 2017. The appeal is
with special leave of the
Supreme Court of Appeal.
[2]
The Respondent instituted action against the Appellants claiming
payment of the sum of R 663 458.38
being in respect of a refund
of the purchase price of an immovable property which the Respondent
had purchased from the Appellants
during July 2010. The Appellants
filed a notice of intention to defend the action whereafter the
Respondent applied for summary
judgment against the Appellants.
[3]
The Appellants filed a notice of intention to except to the
Respondent’s particulars of claim
affording the Respondent an
opportunity to remove the Appellants’ causes of complaint
within 15 days from date of delivery
thereof, failing which the
Appellants would proceed to note an exception to the Respondent’s
particulars of claim. The Respondent
elected not to remove the
Appellants’ causes of complaint and, instead, elected to
proceed with an application for summary
judgment.
[4]
The Respondent’s summary judgment
application was initially set down for hearing on 25 April 2017.
On
the even date, the summary judgment application was postponed
sine
die
to
enable the Appellants to file an answering affidavit to the summary
judgment application. The Appellants filed their answering
affidavit
to the Respondent’s summary judgment application on 10 May
2017.
[5]
Both the summary judgment application and the exception were set down
for hearing on 16 October 2017.
On 30 October 2017 the Court
a quo
delivered a written judgment in terms of which the summary
judgment was granted against the Appellants, jointly and
severally,
for payment of the sum of R 663 458.38 as well as
certain ancillary relief.
The
Court
a
quo
refused
an application for leave to appeal. Special leave to appeal to this
Court was granted by the Supreme Court of Appeal on
11 May 2018.
[6]
It is to be noted from the onset that the Appellants’ affidavit
opposing the application for summary
judgment did not disclose any
bona
fide
defence
or at all. The Appellants’ ground of opposing the summary
judgment was based solely on the notice of exception to
the
Respondent’s particulars of claim. Kganyago J in granting the
summary judgment correctly found that the Appellants failed
to
disclose any
bona
fide
defence.
However the learned Judge failed or omitted to consider the
Appellants’ notice of exception under circumstances where
he
should have done so.
[7]
Consequently in this appeal we shall consider the notice of exception
to determine whether the Respondent’s
particulars of claim are
excipiable or not. Where we find that the particulars of claim are
excipiable an appropriate order will
be made in this regard. In the
event of our finding that the particulars of claim are in order we
shall accordingly confirm the
granting of summary judgment by the
Court
a
quo
since
the Appellants have no
bona
fide
defence
to the Respondent’s claim.
[8]
In paragraph 3.1 of the Appellants’ affidavit resisting summary
judgment, the Appellants’
specifically stated that the
Respondent’s particulars of claim lack averments necessary to
sustain a cause of action and,
furthermore, contain several averments
which render the particulars of claim vague and embarrassing.
[9]
It is necessary and convenient to reproduce the Respondent’s
particulars of claim, as we hereby
do hereunder, in order to make a
determination as to whether same are excipiable or not.
[10] The
particulars of claim read as follows:
PARTICULARS
OF CLAIM
1.
“
The
plaintiff is
THOMO
WIILIAM CHACHANE MASHIANOKE
,
a major civil engineer with identity number [….] and currently
resident at
[….]
.
2.
The
first respondent is
BLUE
MOONLIGHT PROPERTIES 82 (PTY) LTD
with
registration number 2004/011601/07, a company with limited liability,
registered in accordance with the relevant Laws of the
Republic of
South Africa and with its registered address and domicilium citandi
et executandi at
6
PEACE STREET, TZANEED, LIMPOPO PROVINCE
.
3.
The
second defendant is
CONRAD
HENDRIK KRüGER
,
in his personal capacity as well as the as sole proprietor of Conrad
Kruger attorneys at all relevant times, a major male attorney
of 42
BOUNDARY STREET, TZANEEN, LIMPOPO PROVINCE and whose full and further
particulars are unknown to the plaintiff.
CLAIM
IN RESPECT OF FIRST RESPONDENT
4.
On
or about 13 July 2010 and at Tzaneen, the plaintiff, in his capacity
as a representative of a trust to be registered, alternatively,
in
his personal capacity, and first defendant, duly represented by the
second defendant in his capacity as director of the first
defendant,
concluded a written contract in respect of the purchase and sale of
immovable property.
4.1.
A copy of the relevant part of the agreement is attached hereto as
Annexure
“A”
.
5.
The
relevant express provisions of the contact are as follows:
5.1.
The seller is the first defendant (clause 1.1.);
5.2.
The purchaser is the plaintiff (clause 1.2.);
5.3.
The first defendant sold and the plaintiff purchased the property
described
as Erf 5047, Tzaneen, X84 (“the property”) for an amount
of
R 650, 000.00
(
Six Hundred and Fifty Thousand Rand
)
(“the purchase price”) (clauses 1. And 2.);
5.4.
The purchase price would be paid as follows:
5.4.1.
R 100, 000.00 (One Hundred Thousand Rand)
as deposit on
signing the contract (Clause 3.1.); and
5.4.2.
R 550, 000.00 (Five Hundred and Fifty Thousand Rand)
within 90
(ninety) days of signature of the contract (clause 3.2.).
5.5.
The transfer of the property from the seller to the purchaser shall
be attended to by CONRAD KRüGER
ATTORNEYS, Tzaneen, as the
purchaser has made satisfactory arrangements for the payment or
securing of payment of the purchase
price and had paid the costs of
transfer (Schedule Item 6);
5.6.
Should a trust referred to in the heading of the contract not be
formed within 60 (sixty) days from the date
of signing the contract,
the plaintiff will purchase the property in his personal name
(Schedule Item 8);
6.
The
plaintiff did not register a trust within 60 (sixty) days of signing
the
agreement.
7.
The
plaintiff complied, alternatively, substantially complied, with his
obligations
in terms of the contract as the plaintiff made payment of the
purchase price as well as the cost of transfer into the
trust account
of the second defendant, as follows:
7.1.
Payment of R 113, 458.38 into the trust banking account of the second
defendant on or about 14 July 2010;
7.2.
Payment of R 100, 000.00 into the trust banking account of the second
defendant on or about 2 August 2010;
7.3.
Payment of R 100, 000.00 into the trust banking account of the second
defendant on or about 14 December 2010;
7.4.
Payment of R 100, 000.00 into the trust banking account of the second
defendant on or about 3 January 2011;
7.5.
Payment of R 70, 000.00 into the trust banking account of the second
defendant on or about 8 March 2011;
7.6.
Payment of R 10, 000.00 into the trust banking account of the second
defendant on or about 29 June 2011;
7.7.
Payment of R 50, 000.00 into the trust banking account of the second
defendant on or about 1 August 2011;
7.8.
Payment of R 120, 000.00 into the trust banking account of the second
defendant on or about 2 August 2011;
8.
The
first defendant breached the contract in that the transfer of the
property
From
the first defendant to the plaintiff did not occur within a
reasonable time
after
the purchase price and transfer costs were paid by the plaintiff.
9.
On
or about 4 November 2014 the plaintiff notified the first defendant,
in
writing,
that it is in breach of the contract and that he intends to cancel
the
contract
if the breach is not remedied by the first defendant within 10 (ten)
days
of from the date of service of the letter.
9.1.
A copy of the letter is attached hereto as
Annexure “B”
.
10.
The
first defendant failed to rectify the breach of the contract and the
plaintiff elected to cancel the contract on or about 6
February 2015,
alternatively, the contact is cancelled hereby.
10.1.
A copy of the letter of cancellation is attached hereto as
Annexure
“C”
.
11.
As
a result of the breach of the agreement, alternatively, the
cancellation of
the
agreement the first defendant and / or the second defendant, jointly
and
severally,
the one paying the other to be absolved, should re-pay the amount
R
663, 458.38 (Six Hundred and Sixty Three Thousand Four Hundred and
Fifty
Eight Rand and Thirty Eight Cents)
to
the plaintiff.
Despite
due demand the first defendant and / or second defendant has failed
and / or refused and / or neglected to make payment
of the amount
referred to in paragraph 11. to the plaintiff, which amount remains
due and payable.
CLAIM
IN RESPECT OF SECOND DEFENDANT
13.
The
contents of paragraphs 4. – 7. Above are repeated as if
specifically pleaded herein.
14.
The
second defendant had a fiduciary duty towards the plaintiff as
follows:
14.1.
To represent the best interests of the plaintiff;
14.2.
Not to act to the detriment of the plaintiff;
14.3.
Not to act contrary to the instructions of the plaintiff;
14.4.
Not to act without any instructions from the plaintiff; and
14.5.
Not to make any representations to the plaintiff.
15.
The
second defendant had acted contrary to his fiduciary duty towards the
plaintiff in that:
15.1.
The second defendant misrepresented to the plaintiff that it is
legally tenable to sign a contract of sale on behalf
of a trust which
is not yet registered;
15.2.
The second defendant misappropriated the purchase price by paying the
amount of the purchase price over to the first defendant
without the
plaintiff’s consent or instruction;
15.3.
The second defendant misappropriated the purchase price by paying the
amount of the purchase price over to the first
defendant even though
the property has not yet been registered in the name of the
plaintiff;
15.4.
The second defendant accepted payment(s) for the purchase of a
property which was not yet proclaimed;
15.5
The second defendant misrepresented to the plaintiff that the
property was not burdened by any mortgage bonds where
in fact it was
/ is.
16.
The
plaintiff suffered damage in the amount of
R
663, 458.38 (Six Hundred and Sixty Three Thousand Four Hundred and
Fifty Eight Rand and Thirty
Eight
Cents)
as
a result of the second defendant’s breach of its fiduciary
duty
to the plaintiff.
17.
Despite
due demand the second defendant, fails and / or refuses and / or
neglects to make payment of the amount mentioned in 16.
above to the
plaintiff, which amount remains due and payable.
WHEREFORE
the
plaintiff prays for the judgment as follows:
1.
Confirmation
of the cancellation of the contract, alternatively, that the
agreement is now cancelled;
2.
The
first and second defendants are ordered, jointly and severally, one
to pay the other to be absolved, to pay to the plaintiff
the amount
of
R
663, 458.38 (Six Hundred and Sixty Three Thousand Four Hundred and
Fifty Eight Rand and Thirty Eight Cents)
;
3.
Payment
of interest a tempore morae on the amount of
R
663, 458.38 (Six Hundred and Sixty Three Thousand Four Hundred and
Fifty Eight Rand and Thirty Eight Cents)
at the prescribed rate, from 6 February 2015 until final date of
payment;
4.
Cost
of suit; and
5.
Any
competent further and / or alternative relief.
SIGNED
and
DATED
at
TZANEEN
on
this 1
st
day of February 2017.”
[11] In the
light of the above-stated particulars of claim the Appellants filed a
notice of intention to except to the
Respondent’s particulars
of claim, in opposition to the Respondent’s summary judgment
application. The Appellants submit
that the Respondent’s
particulars of claim are fatally defective in that they do not
disclose a cause of action against them
and furthermore contain
several averments which render them vague and embarrassing.
In
dealing with the Appellants’ submissions this Court has to
determine whether the exception goes to the heart of the claim,
if
so, whether it is vague and embarrassing to the extent that the
Appellants do not know the claim they have to meet.
[12]
Summary judgment proceedings should only be resorted to when the
plaintiff can establish his claim and the defendant
fails to set up a
bona
fide
defence.
It is trite that summary judgment proceedings should only be resorted
to where the plaintiff can establish his claim clearly
[1]
.
[13] It is
permissible for a defendant in summary judgment proceedings to
in
limine,
and without having recorded them in an opposing affidavit
at all, advance any attack on the summary judgment application.
Summary
judgment should never be granted on an excipiable summons. An attack
on a summary judgment application may include an attack
on the
particulars of claim in that it may be contended that the claim is
excipiable
[2]
.
[14]
In
Bentley
Mendesley and Company Limited v Carburol (Pty) Ltd
[3]
it was held that a defendant may in opposition to a summary judgment
application show that a plaintiff’s claim is excipible,
in
which even the summary judgment application must be dismissed.
In
Gulf
Steel (Pty) Ltd v Rack Hire BOP (Pty) Ltd
[4]
it was held:
“
Before
even considering if the defendant has established a bona fide
defence,
the Court must be satisfied that the plaintiff’s claim has been
clearly established and that his pleadings are technically
in order
and, if either of these two requirements are not met, the Court is
obliged to refuse summary judgment even if the defendant
has failed
to put up a defence or has put up a defence which did not meet the
standard required to resist summary judgment”.
[15]
The particulars of claim as set out in paragraph [10] above have been
closely scrutinised and I come to a conclusion
that the particulars
of claim in respect of the First Appellant are proper and do disclose
a cause of action as against the First
Appellant. They are not vague
and embarrassing as alleged by the Appellants. The First Appellant is
in a position to can plead
to these particulars of claim.
[16]
An exception is essentially a legal objection by one party to the
other’s pleadings. The defendant bears
the onus of persuading
the Court that every interpretation which the particulars of claim
could reasonably bear, no cause of action
was disclosed in relation
to that part of the claim
[5]
.
In
casu
,
I am unable to conclude that there was any embarrassment to the
Appellants flowing from the way in which the Respondent had
formulated
his claim against the First Appellant. In my view there
are sufficient averments made in support of the claim for the First
Appellant
to plead thereto.
[17] The onus
was on the Appellants to show that the pleading is excipiable. An
exception may not be taken unless the
excipient will be seriously
prejudiced if the pleading is allowed to stand.
The reason for requiring
prejudice is to prevent parties from taking technical objections
without real substance as
in casu
– See
Levitan v
Newhaven Holiday Enterprise CC 1991 (2) 297 (C) at 298A
.
[18]
In
South
African Railways & Harbours v Deal Enterprises (Pty) Ltd
[6]
,
it
was said that –
“
Whereas
formerly a plaintiff was obliged to furnish such particulars as were
“reasonably necessary” to enable the defendant
to plead
or tender, the position is now that such particulars only are
required to be furnished as are “strictly necessary”
for
either of the said purposes… no hard and fast rules can be
laid down as to the degree of particularity that is required,
the
Court exercises its discretion upon the facts of each case.”
See
also
Jowel
v Bramwell – Jones & Others
1998 (1) SA 836
(W)
where Heher J (as he then was) summarised the general principles as
follows at 902
I
–
903
E:
1.
minor
blemishes are irrelevant;
2.
pleadings
must be read as a whole, no paragraph can be read in isolation;
3.
a
distinction must be drawn between
facta
probanda
,
or primary factual allegations which every plaintiff must make, and
the
facta
probantia,
which
are the secondary allegations upon which the plaintiff will rely in
support of his primary factual allegations;
4.
only
facts need be pleaded, conclusions of law need not be pleaded.
[19]
It is a trite principle that the particulars of claim will not be
excipiable where the leading of evidence will
cure any possible
defects in a pleading. If evidence can be led which can disclose a
cause of action alleged in the pleadings,
that particular pleading is
not excipiable. A pleading is only excipiable on the basis that no
possible evidence can be led on
the pleading to disclose a cause of
action
[7]
.
[20] I make a
finding that the particulars of claim in respect of the First
Appellant are such that it is able to plead
thereto. They are not
vague and embarrassing to the extent that the First Appellant does
not know the claim it has to meet. The
exception in this regard is
accordingly dismissed.
Since
the First Appellant failed to disclose any
bona
fide
defence
in the affidavit resisting the summary judgment application, the
Court
a
quo
was
correct in entering summary judgment against the First Appellant.
[21]
The position concerning the Second Appellant is quite different. The
particulars of claim with regard to the Second
Appellant are indeed
excipiable.
[22]
The relationship between an attorney and client is based on a
contract of mandate. The Respondent’s particulars
of claim do
not contain any allegation to the effect that the Respondent has
indeed mandated the Second Appellant to render professional
service
on his behalf. The Respondent based his claim on breach of fiduciary
duty in the circumstances where the particulars of
claim do not
contain the necessary averments to disclose the origin and foundation
of the alleged fiduciary duty which the Second
Appellant supposedly
owed to the Respondent. The fact that the Second Respondent was
appointed in a deed of sale to attend to the
transfer of the
immovable property does not necessarily make him a party to that
agreement.
[23] To
establish a breach of a fiduciary duty the plaintiff must allege
facts from which the existence of such a duty
can be deduced. For
instances the plaintiff can rely on the relationship between attorney
and client, of principal and agent, of
a guardian to a ward or a
director to a company.
The
Supreme Court of Appeal held in
Glafinco
v Absa Bank Limited t/a United Bank
[8]
that
a party wishing to rely on agency must allege and prove the existence
and scope of the authority of the alleged agent, whether
express or
implied.
Failure
by the Respondent
in
casu
to
allege the contract of mandate and the scope thereof renders the
particulars of claim excipiable as against the Second Appellant.
[24]
Accordingly, the Second Appellant’s appeal should succeed and
the judgment and order of the Court
a quo
is so far as it
relates to the Second Appellant should be set aside and the
Respondent be granted leave to amend his particulars
of claim. The
costs incurred by the Second Appellant in the summary judgment
proceedings shall be costs in the cause.
[25] I
accordingly grant the following orders:
1.
The First Appellant’s appeal is
dismissed with costs and the judgment and order of the Court
a
quo
for
payment of the amount of R 663 458.38 plus interest and costs is
confirmed.
2.
The Second Appellant’s appeal is upheld with no order as to
costs.
3.
The Second Appellant’s exception against the Respondent’s
particulars of claim is upheld
and the Respondent is granted leave to
amend his particulars of claim within 20 days from date of this
order.
4.
The costs of the summary judgment proceedings in the Court
a quo
in respect of the Second Respondent shall be costs in the cause.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
M
V SEMENYA
JUDGE
OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
L
G P LEDWABA
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 26 April 2019
Judgment
delivered on
: 10 May 2019
For
the Appellant
: Adv. J A du Plessis
Instructed
by
: Conrad
Kruger Attorneys
For
the Respondent
: Adv. F J
Labuschagne
Instructed
by
: Stephan
Van Rensburg Attorneys
c/o
De Bruin Oberholzer Attorneys
[1]
See Bank of Athens Ltd v Van
Zyl
2005 (5) SA 93
SCA at 102E
[2]
Van Niekerk
et
al,
Summary
Judgment, a Practical Guide, at page 11 – 14(2) to 11 14(5)
[3]
1949 (4) SA 873 (C)
[4]
1998 (1) SA 679
(O) at 683H –
684B
[5]
See Cloete v Edel Investments
(Pty) Ltd [2019] JOL 41480 (WCC)
[6]
1975 (3) SA 944
(W) at 947
[7]
See Mckelvey v Cowan
NO 1980 (4) SA 525 (Z) at 526
[8]
2002 (60 SA 470
(SCA)