About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 885
|
|
Maepi v Abrahams (43355/15) [2015] ZAGPPHC 885 (21 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 43355/15
DATE:
21 AUGUST 2015
In
the matter between:
MAEPI
ANDRE
EUGENE
................................................................................................
APPLICANT
And
E
ABRAHAMS
...............................................................................................................
RESPONDENT
JUDGMENT
HEARD
ON: 07 AUGUST 2015
JUDGMENT
ON: 21 AUGUST 2015
KUBUSHI,
[1]
In this application the plaintiff seeks an order for summary judgment
against the defendant. The contention by the plaintiffs
counsel is
that the defence raised by the defendant is not a bona
fide
defence as required in terms of uniform rule 32 (3)
(b)
to resist a summary judgment application. The defendant’s
defence in resisting the summary judgment is that he did not receive
the amount claimed.
[2]
According to counsel, in order for the defence to be a
bona
fide
defence, the defendant must supply
sufficient material facts to show that he did not receive the amount
of the loan.
[3]
The parties are contesting a loan agreement entered into by the
parties. It is not in dispute that a loan agreement was negotiated
and concluded between the parties wherein the plaintiff was to loan
to the defendant an amount of R700 000. It is also not in dispute
that the said agreement was signed by both the plaintiff and the
defendant and one witness instead of two witnesses. What is in
dispute is the receipt of the amount of R700 000 by the defendant.
Whilst the plaintiff is adamant that the defendant was given
the
amount of loan, it is the defendant’s case, however, that he
did not receive such an amount. According to the defendant’s
counsel there was an oral agreement between the parties that a second
witness was to sign the agreement as proof that the defendant
received the amount of the loan, since the second witness has not
signed, it is an indication that the defendant has not received
the
money. His further assertion is that the date inserted in the
agreement must have been inserted at a later date because the
date
falls on a Sunday, and he does not do business on Sunday. The date
also appears to be tempered with and it is more probable
that the
date on the agreement was the 9 February 2012, in which event it
raises the question of prescription.
of
the correctness of the facts stated by him or her or where the facts
are disputed, that there is a preponderance of probabilities
in his
or her favour.
[1]
[4]
In a summary judgment application, where the question of whether the
respondent has a
bona
fide
defence arises,
the court does not attempt to decide the issues or to determine
whether or not there is a balance of probabilities
in favour of the
one party or the other. The respondent is also not required to
persuade the court
[5]
All that a court requires, in deciding whether the respondent has set
out a
bona fide
defence, is:
a.
whether the respondent has disclosed the nature and grounds of his or
her defence, and
b.
whether on the facts so disclosed the respondent appears to have a
defence which is
bona fide
and good in law.
[6]
It
is sufficient if the respondent swears to a defence, valid in law,
which if advanced may succeed on trial.
[2]
[7]
On the basis of the defence raised by the defendant I am not
satisfied that the plaintiff has an unanswerable case. The defendant
must be given the benefit of the doubt and be granted leave to defend
the matter.
[8]
In the circumstances the application for summary judgment is
dismissed and costs to be costs in the application.
E.
M. KUBUSHI JUDGE OF THE HIGH COURT
AppwtmiMH
On
behalf of the applicant: ADV. M |AH
Instructed
by:
LAMPEN
ATTORNEYS
BLOCK
C, EQUITV PARK
BROOKLVN
PRETORIA
On
behalf of the respondent: ADV M SCHEEPERS
Instructed
by:
SCHEEPERS
A AUCAMP ATTORNEYS
SERFONTEIN
VIUOEN STREET
BROOKLVN
PRETORIA
[1]
See
Nair v Chandler
2007 (1) SA 44
(T) at 47 B-C and Maharaj v Barclays
National Bank Ltd
1976 (1) SA 418
(A) at 426A-E.
[2]
See
Maharaj v Barclays National Bank Ltd
1979 (1) SA 418
(A) at 426B and
Marsh v Standard Bank of SA Ltd
2000 (4) SA 947
(W) at 949E-F.