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[2015] ZAGPPHC 562
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Frank v Frank (17296/2015) [2015] ZAGPPHC 562 (7 July 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 17296/2015
DATE: 07 JULY 2015
NOT REPORTABLE
In the matter between:
LIONEL
FRANK
.........................................................................................................................
Plaintiff
And
MICHAEL
FRANK
.................................................................................................................
Defendant
J UDGMENT
MAKGOKA, J
[1] This is an opposed summary judgment
application. The plaintiff instituted action against the defendant in
respect of two claims.
Claim 1 is based on a written sale agreement
concluded between the parties (the sale agreement) and it is for
payment of R3 350
000. Claim 2 is for an oral loan agreement (the
oral agreement) and the plaintiff claims R150 000. In both instances
the plaintiff
also claims interest and costs.
[2] The sale agreement was concluded on
1 April 2010 in terms of which the plaintiff sold to the defendant
all issued shares in
the capital of Gearbox and Diff Centre
(Pretoria) (Pty) Ltd; 25% of total member’s interest in EZ
Trade 207 CC t/a Parts
International, and 50% total interest in LML
Frank Property Investment CC, and 50% of the total member’s
interest in Starlight
Property Investments 101 CC. The purchase price
for the above was R15 000 000, payable in monthly instalments on
certain terms.
In subsequent arbitration proceedings for the
resolution of an alleged breach of the agreement by the defendant,
the parties entered
into a written settlement agreement in terms of
which the defendant agreed to pay R11 050 00 in instalments of R300
000 per month
and two monthly instalments R15 000.
[3] The plaintiff alleges that the
defendant breached the terms of the settlement agreement when it
stopped making payments during
April 2014. The plaintiff claims the
alleged outstanding amount of R350 000 000, and seeks summary
judgment in respect thereof.
[4] In his opposing affidavit, the
defendant states that the payment of the last R3 000 000 referred in
terms of the settlement
agreement was conditional upon the sale and
transfer of the property owned by Starlight Property, one of the
entities referred
to in paragraph 1 above. It being common cause that
at the time of issue of summons such sale and transfer had not
occurred, the
defendant argues that the claim of R3 000 000 is
premature.
[5] Furthermore, the defendant contends
that the arbitration settlement agreement does not contain an
acceleration clause entitling
the plaintiff to claim the entire
amount in the event of non-payment. For this reason the defendant
argues that the plaintiff can
only have two claims of R350 000 (in
respect of claim 1) and R150 000 in respect of claim 2. However, the
defendant further avers
that he has a counterclaim of R2 796 186
against the plaintiff. The counterclaim is said to arise from the
payments that the defendant
made on behalf of the plaintiff through
his company Gearbox and Diff Centre in respect of the two properties
in issue.
[6] The payments were made during the
period March 2013 to January 2015, and recorded against the
defendant’s loan account
in Gearbox and Diff Centre. The
defendant therefore request that summary judgment be refused on the
basis of his alleged counterclaim.
[7] The remedy of summary judgment is
an extraordinary and drastic one, which has the hallmark of a final
judgment in that it closes
the doors of the court to the defendant
and permits a judgment to be given without a trial. In Dowson and
Dobson Industrial Ltd
v Van der Werf
1981 (4) SA 417
(C) AT 419, it
was noted that an ever increasing reluctance to grant summary
judgment in the face of opposition, was evident from
the South
African courts. See also District Bank Ltd v Hoosain
1984 (4) SA 544
(C) at 550, and Standard Krediet Korporasie v Botes
1986 (4) SA 946
(SWA). Therefore the court must always be reluctant to deprive the
defendant of his normal right to defend, except in a clear case.
See
Standard Bank ofSA Ltd v Naude
2009 (4) SA 669
(E) at 672C-676D.
[8] In the present case, I cannot see
how it can tenably be argued that this is a clear case where the
plaintiff is entitled to
summary judgment. The issues between the
parties can only be clarified and ventilated at the trial, after the
plaintiff had delivered
its declaration and full sets of pleadings
and discovery had been exchanged. I do not have to be satisfied at
this stage of the
veracity of the defendant’s allegations. All
I have to be satisfied about is whether the defendant has disclosed a
defence,
good at law, which if proven at the trial, would constitute
a complete answer to the plaintiff’s claim. I am further
satisfied
that the defendant has an arguable counterclaim against the
plaintiff.
[9] For the above reasons, and
considering the conspectus of all the relevant factors - the facts
and the proper approach to applications
for summary judgments, I am
satisfied that the defendant has disclosed a bona fide defence to the
plaintiff’s claim. There
is nothing inherently implausible
about the defendant’s version. As stated earlier, if
established at the trial, it will
be a complete answer to the
plaintiff’s claim. The defendant is therefore entitled to be
granted leave to defend.
[10] In the result the following order
is made:
1. Summary judgment is refused;
2. The defendant is granted leave to
defend;
3. Costs are in the main action.
T.M. MaKgoka
Judge of the High Court