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2017
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[2017] ZALMPPHC 29
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Mashianoke v Blue Moonlight Properties 82 (Pty) Ltd and Another (630/2017) [2017] ZALMPPHC 29 (30 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: 630/2017
Not
reportable
Not
of interest to other judges
Revised.
30/10/2017
In
the matter between:
THOMO
WILLIAM CHACHANE MASHIANOKE
PLAINTIFF
and
BLUE
MOONLIGHT PROPERTIES82 (PTY) LTD
1ST
DEFENDANT
CONRAD
HENDRIK KRUGER
2
ND
DEFENDANT
JUDGMENT
KGANYAGO
J
[1]
The
plaintiff has issued combined summons against both defendants and
seeking an order for confirmation of the cancellation of the
contract
of sale and also refund in the amount of R663 458-38 from both
defendants jointly and severally. The defendants have
entered an
appearance to defend the plaintiff’s action. Thereafter within
the time period allowed by the Uniform Rules of
Court (“the
Rules”) the plaintiff applied for summary judgment against the
defendants. The defendants are opposing
the plaintiff’s
application for summary judgment. The defendants have also filed a
notice of intention to except. The defendants
have listed seven
grounds upon which they intend to except to the plaintiff’s
particulars of claim.
[2]
According to the plaintiff’s particulars of claim, plaintiff
entered into a contract of purchase and sale of immovable
property
with the first defendant for R650 000-00. The plaintiff duly
paid the full purchase price and transfer costs in the
sum of
R13 458.38 in eight installments between 14
th
July 2010 up to 2
nd
August 2011. The said purchase price together with the transfer costs
were paid into the trust account of Conrad Kruger Attorneys,
who
according to the deed of sale was supposed to attend to the transfer
of the property into the names of the plaintiff. It is
alleged that
the transfer of property into the names of the plaintiff did not
occur and as a result of that, the plaintiff elected
to cancel the
contract.
[3]
The second defendant is the sole proprietor of Conrad Kruger
Attorneys. It is alleged that the second defendant has acted contrary
to his fiduciary duty towards the plaintiff by misappropriating the
purchase price. It is alleged that the second defendant
misappropriated
the purchase price by paying it over to the first
defendant without the plaintiff’s consent or instruction.
[4]
The defendants in their answering affidavit to the plaintiff’s
summary judgment application have raised points
in
limine
to the effect that the plaintiff has failed to properly verify all
existing causes of action. The defendant is further alleging
that the
plaintiff’s particulars of claim is fatally defective as it
lacks averments necessary to sustain the cause of action
and further
that it contains averments which are vague and embarrassing. The
defendant is also relying on the notice of intention
to except the
plaintiff’s particulars of claim which was delivered to the
plaintiff’s attorneys.
[5]
The remedy for summary judgment is extraordinary and stringent in
nature as it effectively closes the door of the court on the
defendant without been afforded an opportunity to ventilate the case
by way of a trial.
[6]
The principles and what is required from a defendant in order to
successfully oppose a claim for summary judgment where formulated
in
Maharaj
v Barclays National Bank Ltd 1976(1) SA
418(A)
at 426 A-D where the court said:
“
Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the court
by affidavit that he
has a bona fide defense to the claim. Where the defense is based upon
facts, in the sense that material facts
alleged by the plaintiff in
his summons, or combined summons, are disputed or new facts are
alleged constituting a defense, the
court does not attempt to decide
these issues or to determine whether or not there is a balance of
probabilities in favour of the
one party or the other. All that the
court enquires into is: (a) whether the defendant has “fully”
disclosed the nature
and grounds of his defense and the material
facts upon which it is founded, and (b) whether on the facts so
disclosed the defendant
appears to have, as to either the whole or
part of the claim, a defense which is bona fide and good in law. If
satisfied on these
matters the court must refuse summary judgment,
either wholly or in part, as the case may be. The word “fully”,
as
used in the context of the rule (and its predecessors), has been
the cause of some judicial controversy in the past. It connotes,
in
my view, that, while the defendant need not deal exhaustively with
the facts and the evidence relied upon to substantiate them,
he must
at least disclose his defense and the material facts upon which it is
based with sufficient particularity and completeness
to enable the
court to decide whether the affidavit discloses a bona fide defense”
[7]
In
Joob
Joob Investment v Stocks Mavundla Zek
2009 (5) SA 1
(SCA)
at para 31 the court said:
“
So
too in South Africa, the summary judgment procedure was not intended
to shut (a defendant) out from defending , unless it was
very clear
indeed that he had no case in the action. It was intended to prevent
sham defenses from defeating the rights of the
parties by delay, and
at the same time causing great loss to plaintiffs who were
endeavoring to enforce their rights”
[8]
In this case the defendants are relying on technical defenses as they
appear in their notice of intention to except the plaintiff’s
particulars of claim. In relation to the merits of the plaintiffs
claim, the defendants does not dispute that the plaintiff has
entered
into a purchase and sale agreement with the first defendant, that the
plaintiff has paid the full purchase price and that
despite paying,
the property in question was never transferred into the names of the
plaintiff. Further the defendants does not
dispute that the plaintiff
has given them notice of intention to cancel the agreement and
demanded a full refund of the purchase
price plus transfer costs.
[9]
The question which this court must now determine is whether the
technical defenses raised by the defendants in the form of points
in
limine
and notice of intention to except the plaintiff’s particulars
of claim can be said to disclose bona fide defenses.
[10]
Where a point
in
limine
or exception is put up as a defense, rule 32(3)(b) requires a full
disclosure of the defense as well as the material facts upon
which it
relies. Failure to comply with those provisions will not necessarily
mean however, that summary judgment will follow.
In accordance with
the provisions of rule 32(5), the court retains an overriding
discretion to refuse summary judgment. (See Soil
Fumigation Services
v Chemfit Technical Products 2004(6) SA 29 (SCA) at para 10).
[11]
In relation to the defendants’ point
in
limine
of alleged failure by the plaintiff to properly verify all his causes
of action, the defendants are alleging that the plaintiff’s
action is premised on two alternative causes of action. What appears
from the plaintiff’s particulars of claim is that the
two
defendants’ are sued jointly and severally and there is no
other alternative claim. The plaintiff in his affidavit in
support of
summary judgment has verified his cause of action. The fact that he
has stated “cause(s) of action” in his
affidavit, in my
view is immaterial and does not imply that he is also claiming in the
alternative. What is clear is that he was
verifying his cause of
action.
[12]
With regard to the exception which the defendants intends to raise
against the plaintiff, in my view, the defendants have failed
to make
a full disclosure of the nature and grounds of the intended exception
as well as the material facts upon which it relies
upon. The grounds
which have been stated in the said notice of intention to except, are
just vague allegations which in my view
will not be a sustainable
defense in court.
[13]
In my view the defendants’ points
in
limine
and notice of intention to except are merely sham defenses which are
intended to delay the plaintiff’s right of claiming
his refund.
The defendants’ intentions are to frustrate the plaintiff in
his action against them.
[14]
As I have pointed out in paragraph 10
supra
,
even if the defendants’ have failed to make a full disclosure,
the court still retains an overriding discretion to refuse
summary
judgment. In my view the court would have been in a better position
to exercise that discretion if the defendants have
also dealt with
the merits of their defenses. The defendants did not at all attempt
to deal with the merits of their defenses.
Besides the technical
defenses raised by the defendants, there is nothing appearing on
their papers that discloses their actual
defenses on merits of the
plaintiff’s claim. Since the defendants have failed to disclose
their defense with regard to the
plaintiff’s claim on merits,
in my view, their defense is incomplete. The defendants have adopted
a wait and see attitude
which is not helpful to this court. Under
these circumstances the court is unable to exercise its discretion to
refuse the granting
of the plaintiff’s summary judgment.
Therefore, in my view, the defendants have failed to raise a bona
fide defense that
is good in law.
[15]
In
the result I make the following order:
15.1
Summary judgment is granted in favour of the plaintiff against both
defendants jointly and severally the one paying the other
to be
absolved for:
15.1.1
Payment of the sum of R663 458.38
15.1.2.
Payment of interest on the aforesaid amount at the prescribed rate
from 6
th
February 2015 to date of final payment.
15.1.3.
Costs of the suit.
_________________________
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
1.
For
the Applicant : Adv. FJ Labuschagne
Attorneys
for the Applicants : Stephan Van Rensburg Attorneys
2.
For the Respondent : Adv. M Naude
Attorneys
for the respondent : Conrad Kruger
:
Boland Arcade Polokwane
3.
Date argued: 18
th
October 2017
4.
Date of judgment: 30
th
October 2017