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[2017] ZAFSHC 129
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Hagemann N.O. v Hagemann N.O. and Others (1427/2017) [2017] ZAFSHC 129 (10 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1427/2017
In
the application between:
JOHANNA-MARIE
HAGEMANN
Plaintiff
and
REINHARD
HAGEMANN N.O.
1
st
Defendant
HELENA
MAGDALENE HAGEMANN
2
nd
Defendant
CHARLES
LEWIS HORATIO VERTUE
3
rd
Defendant
(
In
their capacity as trustees of the Hagemann trust)
(IT
1398/1997)
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
3 AUGUST 2017
DELIVERED
ON:
10 AUGUST 2017
[1]
The Plaintiff is Johanna-Marie Hagemann, a medical practitioner (Dr
Hagemann). The Defendants are the three trustees of the
Hagemann
Trust (the Trust) and are sued in such capacity. They are Reinhard
Hagemann (1
st
Defendant, Mr Hagemann), Helena Magdalene
Hagemann (2
nd
Defendant, Ms Hagemann) and Charles Lewis
Horatio Vertue (3
rd
defendant, Mr Vertue). Dr Hagemann
issued summons against the Defendants on 23 March 2017 for payment in
the amounts of R 500 170.27
(Claim 1) and R 1 054 79.27
(Claim 2) respectively. Interest on the said amounts as well as costs
are also prayed for.
[2]
After a notice of intention to defend was filed by Mr Vertue Dr
Hagemann now moves for summary judgment against the Defendants.
Mr
Vertue opposed the application averring that the Trust has a
bona
fide
defence against the claim by Dr Hagemann.
[3]
According to Dr Hagemann, in respect of the Claim 1, she entered into
an oral loan agreement with the Trust represented by Mr
Hagemann on 9
October 2014. The terms and conditions of the loan agreement
entails that the amount of R 1 000 000.00
would be advanced
to the Trust who will repay her. The amount is repayable immediately,
with interest to be levied. The sum was
lend and advanced to the
Trust, and repayment of R 635 700.00 in eight separate
instalments took place. At 22 March 2017 the
Trust is indebted to Dr
Hagemann in the amount of R 500 170.27 plus interest.
[4]
Claim 2 is for the amount of R 1 000 000.00 plus interest.
On 5 September 2016 an oral loan agreement was entered
into by Mr
Hagemann, representing the Trust, on the same conditions as the loan
agreement in respect of Claim 1. Although the money
was lend and
advanced to the Trust after conclusion of the agreement, the Trust
has not repaid any of the money lend and advanced.
As on 22 March
2017, it is indebted to Dr Hagemann in the amount of R 1 054 794,52
plus interest.
[5]
Dr Hagemann’s affidavit in support of summary judgment is on
face value signed at New St Killarney and sworn to before
a solicitor
from Downing Courtney and Larkin Solicitors. I have my serious doubts
whether this is an attorney of South Africa and
therefore a properly
appointed commissioner of oaths in this country. I was not addressed
on this issue and accepts for purposes
hereof that the affidavit had
been properly attested to.
[6]
It is trite that a defendant in summary judgment proceedings does not
have to convince a court of the truth of its defence.
Probabilities
play no role at this stage. Should a defendant place sufficient facts
before court which would constitute a defence
in the main action,
summary judgment should be denied.
See:
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226 (T) at
228B
[7]
I turn to the defence proffered by the 3
rd
Defendant. Mr
Vertue confirms that he has been an independent trustee of the Trust
since 16 August 2011. He states that the Trust
has never borrowed
money from Dr Hagemann nor entered into any agreement. At no stage
did the trustees resolve to borrow money
from Dr Hagemann. He
confirms that no such money has been paid into the Trust’s
banking account.
[8]
Mr Groenewald on behalf of Dr Hagemann pressed hard upon me to find
that no
bona fide
defence was tendered by Mr Vertue, whereas
Mr Lubbe on behalf of the 3
rd
Defendant argued that the
Plaintiff does not have a clear case against the Defendants. I am
satisfied that the defence stated by
Mr Vertue would constitute a
good defence should it be proven at the main trial. The Plaintiff
certainly does not have an unanswerable
case.
[9]
Accordingly I grant the following orders:
1.
The application for summary judgment is dismissed.
2.
Leave is granted to the Defendants to defend the action.
3.
Costs to stand over.
______________
C.
REINDERS, J
On behalf
of the Plaintiff:
Adv. W.J. Groenewald
Instructed by:
Marius Muller Hendricks Ing
c/o Kramer Weihmann & Joubert Inc
BLOEMFONTEIN
On behalf
of the Defendants: Adv. E.G. Lubbe
Instructed by:
Gous Vertue & Ass Inc
BLOEMFONTEIN