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[2018] ZAGPPHC 290
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Moosa and Another v Prop and Others (42328/17) [2018] ZAGPPHC 290 (26 January 2018)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 42328/17
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
GOOLAM
HOOSEN M
OOSA
First Plaintiff
ZARINA
JHAVERY MOOSA
Second Plaintiff
and
BE
PROP
First Defendant
SHAMSOODIEN
SHAIK OMAR
Second Defendant
AZEEMAH
SHIRAZ AHMED MAHOMED
Third Defendant
HAMZAH
BAVA
Fourth Defendant
JUDGMENT
SHANGISA
AJ:
Introduction
1.
The first and second plaintiffs bring the present application for
Summary Judgment against the first and fourth defendants. Although
they initially also sought relief against the second defendant, they
subsequently withdraw the application against the second defendant.
2.
The factual matrix is as follows. The plaintiffs were the owners of
an immovable property which was sold to a third party. The
first
defendant purported to be an authorised agent of the plaintiffs. The
second defendant is an attorney who transferred the
property and paid
the proceeds to the fourth defendant ostensibly on the instructions
of the first defendant who alleged to have
been acting as an
authorised agent of the plaintiffs. Later, I deal at some length with
the latter allegations.
3.
Initially, the plaintiffs jointly instituted action proceedings
against the first, second and fourth defendants, jointly and
severally, the one paying the others to be absolved, for payment of
the sum of R1 000 000.00 (one million rand) plus interest.
In
addition, the plaintiffs also sought against the defendants a
punitive costs order on the scale as between attorney and own
client.
Upon receipt of the summons, the defendants entered their notice of
intention to defend the action. Consequently, the plaintiffs
launched
the present application for Summary Judgment. They aver that the
defendants have no bona fide defence and that they entered
appearance
solely to delay payment of the liquidated amount claimed.
4.
The second defendant filed an Opposing Affidavit and thereafter the
fourth defendant filed an Affidavit Resisting Summary Judgment
on his
own behalf and purportedly on behalf of the first defendant as well.
It is worth mentioning that the plaintiffs have made
it clear in
their papers that Summary Judgment is not sought against the third
defendant. I might add, that although I was informed
from the bar
that the application would be withdrawn against the second defendant,
as appears in the discussion of the background
facts, I deem it
convenient to also deal with the role of the second defendant as set
out in is affidavit.
Plaintiffs'
case and defendants' defence
5.
The principles applicable in Summary Judgment applications are trite.
I therefore do not intend rehashing them here. It suffices
merely to
have regard to the facts of this matter and determine whether the
plaintiffs have met the threshold required to succeed
in the relief
they seek. Similarly, it is important to consider the defence
proffered by the defendants and determine if it makes
out a case for
successfully resisting the plaintiff's application for Summary
Judgment.
6.
I must at the outset clarify a matter that may result in some
confusion. In the initial short heads of argument and the practice
note filed on behalf of the plaintiffs by their counsel, it was
submitted that the plaintiffs consent to the leave to defend being
granted to the second defendant. In that regard, counsel for the
plaintiff set out the following in his practice note:
"2
nd
Defendant
has filed an Opposing Affidavit and the Plaintiffs consent that leave
to defend should be granted to the 2
nd
Defendant.
"
[1]
7.
In the same vein, plaintiffs' counsel repeated the plaintiffs' stance
on the second defendant by making the following submission
in his
heads of argument:
"However,
2nd Defendant has filed an Opposing Affidavit and the Plaintiffs
consent that leave to defend should be granted to
the 2nd
Defendant."
[2]
8.
However, at the commencement of the hearing, counsel for the
plaintiffs handed up heads of argument which indicated that
the plaintiffs
had revisited that earlier position towards the
second defendant. Accordingly , it was submitted on behalf of the
plaintiffs that
although they were initially amenable to consenting
to the granting of leave to defend to the second defendant, events in
the matter
had led to their change of position. The plaintiffs, so it
was suggested, were no longer inclined to accede to the granting of
leave to defend to the second defendant. The result was that the
plaintiffs now sought relief for Summary Judgment against all the
defendants, with the exception of the third respondent. It was
submitted on behalf of the plaintiffs that their change of heart
was
caused by certain averments that had been made in the affidavit filed
on behalf of the first and fourth defendants. However,
I was later
informed from the bar that the plaintiffs were no longer persisting
with their application against the second defendant.
Be that as it
may, I think the affidavit of the second defendant, confirmed by the
first and fourth defendants, assumes some importance
and may not be
ignored.
9.
For their part, the plaintiffs asserted that there was a
contradiction between the version of the second defendant and the one
put up by the first and fourth defendants. The nature of such
contradiction was said to be as follows. According to the second
defendant the arrangement was that the fourth defendant was to pay to
the first plaintiff instalments of R20 000.00 per month.
However, the
first and fourth defendants whilst purporting to confirm the second
defendant's version, contradicted this by stating
that the
arrangement was that the money would in fact be paid by the fourth
defendant to a certain Mr. Gani in instalments of R20
000.00 per
month. The nub of the plaintiff's complaint is that Mr.Gani is
conspicuously not mentioned at all by the second defendant
in his
affidavit.
10.
The further reason advanced in the heads of argument on behalf of the
plaintiffs concerning their supposed change of position
towards the
second defendant was that he had failed to allege or aver that the
plaintiffs had instructed him in writing to act
as their agent. That
being the case, so it was argued, the second defendant's defence that
he acted as an agent of the plaintiffs
was bad in law and therefore
does not avail him.
11.
In my view, because of the nature of the defence raised by the first
and fourth defendants, it is necessary to have regard to
the version
of the second defendant as well.
12.
In his opposing affidavit, the second defendant states that on 2
February 2016 he received instructions from the first defendant
to
attend to the registration of the transfer to the third defendant of
property that was owned by the plaintiffs. The second defendant
further averred that according to his knowledge the first defendant
was at all material times acting as the authorised agent of
the
plaintiffs.
13.
The second defendant further asserted that the plaintiffs signed the
powers of attorney and the transfer documents on 5 March
2016, and
that all documents were thus lodged in the deeds office in Pretoria
for registration. Subsequently, the second defendant
received written
instructions from the first defendant, acting as the plaintiffs' duly
authorised agent, to transfer the proceeds
of the sale of the
property into the account of the fourth defendant.
14.
According to the second defendant, the transfer of the property was
registered at the deeds office on 11 May 2016. On the same
day, the
second defendant states that he spoke to the first plaintiff on the
telephone and in the presence of the first defendant
who was the
plaintiffs' authorised representative. In his affidavit, the second
defendant states that in the course of the aforementioned
conversation, he advised the first plaintiff of the registration of
the transfer and requested confirmation as to whether he should
proceed with the instruction to pay the proceeds to the fourth
defendant. The second defendant accordingly asserts that the first
plaintiff confirmed that the instruction that the proceeds be paid to
the fourth defendant was in order.
15.
The second defendant thereafter duly paid the proceeds of the
property sale to the fourth defendant, in the amount of R1,
011,420.13.
He stated that his understanding was that the arrangement
entailed that the fourth defendant was to pay to the first plaintiff
instalments of R20, 000.00 per month. In that regard, the second
defendant annexed to his affidavit nine payment confirmations issued
by a bank which indicated that the fourth defendant had paid to the
plaintiffs several instalments over a number of months.
16.
For his part, the fourth defendant deposed to a confirmatory
affidavit in which he confirmed the aforementioned version of the
second defendant. In addition, the fourth defendant further deposed
to an opposing affidavit in which he also set out the basis
of his
defence. Counsel for the first and fourth defendants submitted that
they also persist with placing reliance on the version
of the second
defendant set out in his affidavit under oath.
17.
The second defendant avers in his affidavit that some six months
after the registration and transfer of the property, he was
approached by the first plaintiff who advised him that one of the
transactions purportedly paid by the fourth defendant did not
materialize. He says he was asked by the first plaintiff to approach
the fourth defendant and request that the outstanding amount
should
be paid as soon as possible. The second defendant asserts that he
relayed the first plaintiff's message to the fourth defendant.
18.
The second defendant expressed surprise that after a period of more
than six months from the date of registration of the property,
first
plaintiff alleged that he never instructed him to pay the proceeds of
the sale of the property to the fourth defendant. In
that connection,
the second defendant further asserted that in a telephone
conversation between himself and the plaintiffs' attorney
on 14
November 2016, the plaintiffs' attorney confirmed that the reason the
first plaintiff is claiming the money is because one
of the
"underlying transactions " did not materialize.
19.
In the subsequent summons issued by the plaintiffs and served on the
defendants, the plaintiffs allege in their Particulars
of Claim that:
"1.
It was an oral instruction from the Plaintiffs that the balance of
the purchase price of the property (R1, 000,000.00,"the
balance"
was to be paid to the Plaintiffs.
2.
The Second Defendant failed to inform the Plaintiffs that the
transfer of the property was effected.
3.
The Second Defendant unlawfully or negligently paid the balance to
the Fourth Defendant."
20.
In essence, the plaintiffs allege that the second defendant breached
his mandate by unlawfully transferring the proceeds of
the sale of
the property to the fourth defendant. For his part, the second
defendant strenuously denied such allegations of breach
and asserted
that he acted in accordance with the instructions given to him by the
plaintiffs, through their authorised agent the
first defendant. He
also averred that the fact that there was an arrangement between the
plaintiffs and the fourth defendant is
apparent from the fact that
the first plaintiff has been receiving payments from the fourth
defendant over a number of months.
In that regard, he also raised the
defence of estoppel.
21.
The second defendant further denied the plaintiffs' assertion that
they were not aware of the registration and transfer of property.
In
support of the latter contention, the second defendant attached
correspondence which purportedly indicated that the plaintiffs
were
aware of the transfer of property and that there was some independent
corroborating evidence which indicated that the plaintiffs
had no
further interest in the property.
22.
Moreover, the second defendant mounted an attack on the amount of R1,
000,000.00 claimed by the plaintiffs. He pointed out that
as
evidenced by the proof of payment he attached to his affidavit, the
fourth defendant had already paid to the plaintiffs an amount
of
R180, 000.00. He further asserted that, over and above the mentioned
amounts , it was possible that further amounts had been
paid to the
plaintiffs. That being so, the second defendant asserted that the
plaintiffs' claim of R1000, 000.00 is not based on
a liquid document,
nor is it a claim for liquidated amount of money.
23.
For their part, the first and fourth defendants made common cause
with the second defendant. The fourth defendant filed a supporting
affidavit confirming the version of events set out in the second
defendant's affidavit. He further filed an affidavit on his and
first
defendant's behalf. I do not consider it necessary to repeat all the
allegations set out in the fourth defendant's affidavit
since they
merely confirm the version proffered by the second defendant.
24.
However, there is one aspect of the fourth defendant's version which
warrants some consideration. Having confirmed the second
defendant's
version, the fourth defendant asserted that the proceeds of the sale
of property were paid to him in terms of the underlying
transaction
which included him, the first plaintiff and a third party who was
their mutual acquaintance , a Mr. Javed Gani. He
mentioned that he,
the first plaintiff and Gani had entered into a tri-partite oral
agreement. Accordingly , the fourth defendant
was adamant in his
affidavit that, following the aforementioned tripartite
agreement, the proceeds of the sale of the property
were paid to him
in accordance with the instructions of the first plaintiff and his
agent, the first defendant. He confirmed the
version of the second
defendant. The latter version was attacked as marking a departure
from the version proffered by the second
defendant. In my view, on
the evidence as a whole, this cannot be properly described as a
contradiction. It may well be an additional
factor that might not
have been within the knowledge of the second defendant. There may
well be an explanation for it which may
be tested at the trial.
25.
In my view, upon a consideration of the facts of this matter, it
seems to me that the second and fourth defendants' version,
constitutes a bona fide defence against the plaintiffs' application
for Summary Judgment. On the evidence as set out in the defendants
'
affidavits, the allegations that the second defendant paid the
proceeds of the property to the fourth defendant on instructions
of
the first defendant who was a duly authorised representative of the
plaintiffs, certainly raises a triable issue which, if proven
to be
true, that may avail the first and fourth defendants at the trial.
26.
If there was no underlying agreement as suggested by the plaintiffs,
then it would seem rather strange that the first plaintiff
accepted
monthly payments of instalments of R20 000.00. Indeed, the plaintiffs
did not refute the allegation made by the first
and fourth defendants
that such monthly payments were still being paid even at the stage of
the present hearing.
27.
What is more, if it is later proven correct that the plaintiffs have
been paid the aforementioned monthly instalments, the question
arises
concerning the liquidity of the amount claimed by the plaintiffs in
the summons.
28.
In my view, on the facts of this matter viewed as a whole, the
defendants have made out a bona fide defence against the claim of
the
plaintiffs. In the circumstances , the Application for Summary
Judgment falls to be dismissed.
Costs
29.
It was urged on me on behalf of the first and fourth defendants that,
should I find against the granting of the Summary Judgment,
I should
make a punitive costs order against the plaintiffs. I do not agree.
Although the facts of this matter are somewhat convoluted,
I do not
think there is any basis for departing from the normal practice which
requires that costs in the summary judgment applications
be the costs
in the main action. In my view, there are no circumstances which
warrant that I saddle the plaintiffs with the punitive
costs order.
Order
30.
In the result, I make the following order:
1.
The First and Fourth Defendants are granted leave to defend.
2.
Costs shall be the costs in the cause.
SHANGISA
AJ
Acting
Judge of the High Court,
Gauteng
Division, Pretoria
DATE
OF JUDGMENT: 26 January 2018
APPEARANCES:
COUNSEL
FOR THE PLAINTIFFS: Adv. BP GEACH SC
INSTRUCTED
BY: MORRIS POKROY ATTORNEYS
COUNSEL
FOR THE 1
st
and 4
th
DEFENDANT:Adv. SJ VAN
RENSBURG
INSTRUCED
BY: ATTORNEYS
[1]
Plaintiff’s Practice Note,para D ,at page 1.
[2]
Plaintiffs’ Counsel’s Heads of Argument,para 4 at page
2.