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[2015] ZAGPPHC 279
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Siegl v Robertson and Another (82314/2014) [2015] ZAGPPHC 279 (4 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 82314/2014
DATE: 4 MAY 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN:
WALTER JOHAN
SIEGL
........................................................................................................
PLAINTIFF
and
MARION SHIRLEY
ROBERTSON
................................................................................
l
st
DEFENDANT
PRIDE ROCK
CC
...........................................................................................................
2
nd
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] This is a
summary judgment based on a written agreement in terms of which the
1
st
defendant sold to the plaintiff 50% of her members
interest in the 2
nd
defendant for an amount of R3 000 000.
[2] In terms of the
agreement the plaintiff was to pay the purchase price over to Messrs
Livingston Chrichton, the defendants’
attorneys of record, to
be held in an interest bearing account, within 30 days from date of
signature of the agreement.
[3]
The plaintiff paid an amount of R500 000 towards the purchase price
into the banking account of the defendants’ attorneys
of record
on 8 October
2010.
[4] The 1
st
defendant cancelled the agreement and refuses to pay back the amount
of R500 000 paid by the plaintiff. The plaintiff is in these
proceedings claiming the return of the amount.
[5] The defendants
are resisting the summary judgment application. The defences raised
by the defendants are the following:
5.1 The matter is
lis pendens;
5.2
The payment made by the plaintiff in terms of the agreement between
the parties was of the nature of a non-refundable deposit
which the
1
st
defendant was entitled to retain until such time as pre-estimate
damages suffered by her are determined. The plaintiff breached
the
agreement and the 1
st
defendant
suffered
damages as a result. The
quantum
of
the damages has not yet been determined.
[6] In her heads of
argument, the 1
st
defendant submits as follows:
“
4.
To defeat an application for summary judgment the defendant is not
required to prove that he has a defence to the plaintiffs
claim. What
is required is for the defendant to swear to a defence, valid in law,
in a manner which is not seriously and inherently
unconvincing.
1
5.
Where the defence is based upon facts, in the sense that facts
alleged by the plaintiff are disputed by the defendant or new
facts
constituting the defence are alleged by the defendant, the court does
not attempt to decide these issues or determine whether
the balance
of probabilities favours one party over the other.
2
6.
All that the court need decide in determining whether the defendant
has set out a
bona
fide
defence
is whether:
3
6.1 the respondent
has disclosed the nature and grounds of his or her defence, and
6.2
on the facts so disclosed the respondent appears to have, a defence
which is
bona fide
and
good in law.
7. It is sufficient
if the respondent swears to a defence, valid in law, which if
advanced may succeed on trial.
8. If the facts
presented by the defendant, disclose an arguable defence, he has
passed the test on paper and must be granted leave
to defend.”
[7] The submission
is correct.
[8]
It is, therefore, my view that the defendants have advanced their
contention in resistance to the plaintiff’s claim with
a
sufficient degree of clarity to enable me to ascertain that they have
deposed to a good defence. The defence is
bona fide,
good in law and my opinion is that
if raised at trial it may constitute a defence to the applicant’s
claim.
[9] An appropriate
cost order should be costs in the cause.
[10] In the premises
I make the following order:
10.1 The application
is dismissed.
10.2 The defendants
are granted leave to defend the matter.
10.3 Costs are costs
in the cause.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD
ON THE :
20
APRIL 2015
DATE
OP JUDGMENT :
04
MAV 2015
APPLICANT’S
COUNSEL:
ADV.
KRUGER
APPLICANT’S
ATTORNEYS:
MALHERBE
RIGG&RANWELL INC.
DEPENDANT’S
COUNSEL :
ADV
L M SPILLER
DEFANDANT’S
ATTORNEYS :
LINGSTONE CRICHTON
ATTORNEYS
1
See
Breitenbach v Fiat S.A (EDMS) BPK
1976 (2) SA 226
at 228B.
2
See
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A.
3
See
Maharaj v Barclays National Bank Ltd above at 426B.