About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 57
|
|
Mobile Telephone Networks (Pty) Ltd t/a MTN v Hughes, Chisholm ANd Airey Incorporated and Another (3104/2014) [2015] ZAECMHC 57 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case No.: 3104/2014
Date Heard: 21 May
2015
Date Delivered: 28
May 2015
In
the matter between:
MOBILE
TELEPHONE NETWORKS (PTY) LTD
t/a
MTN
Plaintiff
and
HUGHES,
CHISHOLM AND AIREY INCORPORATED
First Defendant
ARNOLD
CHARLES IMMERMAN
Second Defendant
JUDGMENT
EKSTEEN
J:
[1]
The
plaintiff seeks summary judgment against the defendants in the sum of
R5 653 000 together with interest as set out
later herein.
The first defendant is a firm of attorneys duly incorporated in terms
of the laws of the Republic of South
Africa and practising at
Mthatha. The second defendant is an attorney practising under
the name and style of the first defendant
at 14 Park Road in
Mthatha. The second defendant has full managerial powers and
authority over the operations of the first
defendant, which includes
the administration of the first defendant’s trust account.
[2]
During
approximately 2010 the plaintiff entered into a property transaction
in terms of which it purchased certain immovable property
in Mthatha
for a purchase price of R10 million. The first defendant was
appointed as the conveyancing attorney to effect
transfer of the
property into the name of the plaintiff. The plaintiff
accordingly paid over to the defendant money in respect
of the
purchase price of the property and related expenses.
[3]
The
particulars of the plaintiff’s claim alleges the following:
The plaintiff paid an amount of R11 453 000
(herein
referred to as “the deposit”) into the trust account of
the first defendant. This amount was paid in
two instalments of
R1 193 000 during July 2010 and a further amount of
R10 260 000 on 6 October 2011.
It was a specific
instruction to the defendants that the deposit was to be invested in
an interest-bearing trust account for the
benefit of the plaintiff.
The second defendant, on behalf of the first defendant, acknowledged
receipt of the said amount
and confirmed that the purchase price had
been invested in an interest-bearing account for the benefit of the
purchaser,
it being Standard Bank, Mthatha West account number
081000782 in the name of the first defendant bearing interest at a
rate of
6,6% per annum. During March 2014 plaintiff requested
the first defendant to issue a guarantee based on the deposit
supposedly
being held in trust. The first defendant failed to
do. The plaintiff then appointed new attorneys to attend the
conveyancing
and transfer of the property. During June 2014
plaintiff instructed the defendants that the deposit be transferred
to the
new firm of attorneys who had now been instructed.
Defendants failed to act on the said instruction, however, so
it
is alleged, on 28 June 2014 the defendant paid an amount of
R5 800 000 into the trust account of the newly appointed
attorneys leaving the balance due of R5 653 000 together
with such interest which had accrued in the interim. Following
these developments an anti-dissipatory order was duly obtained on 24
July 2014 together with certain interim relief which was made
final
on 18 September 2014. In terms of the order made Standard Bank
of South Africa were ordered to freeze the said account.
Standard Bank in due course advised that it had honoured the court
order but that there were no monies held in the account to which
I
have referred earlier herein. The plaintiff alleges that the
loss is occasioned by the fraud, alternatively, negligence
of the
second defendant. Plaintiff accordingly seeks judgment for the
amount of R5 653 000 together with interest
calculated at
6,6% on the deposit from the date of the deposit until the date of
summons and further interest at the legal rate
from the date of
summons to the date of payment.
[4]
The second
defendant, in due course, filed an affidavit opposing the application
for summary judgment. I shall revert to the merits
of the defences
raised later herein.
[5]
When the
matter was called before me on 21 May 2015 for argument, Mr
Nobela
,
on behalf of the defendants, advised that he held instruction to move
for a postponement of the matter. He handed up a substantive
application from the Bar. Mr
Botma
,
on behalf of the plaintiff, opposed the granting of the
postponement. After hearing argument I dismissed the
application
for a postponement and I indicated that I would provide
reasons for my ruling in this judgment.
[6]
Before I
turn to the content of the application for a postponement it is
necessary to set out the history of the matter. The
plaintiff
launched the application for summary judgment on 2 December 2014 and
the matter was set down for argument on 12 February
2015. The
defendants did not file opposing papers as provided for in Rule
32(3)(b) of the Uniform Rules of Court. The
duty Judge on 12
February 2015, however, so I am advised from the Bar, considered that
he knew the second defendant and accordingly
declined to hear the
application for summary judgment. The application was postponed
to 19 February 2015, however, the date
reflected on the order issued
was erroneous. In these circumstances, when the matter came
before Alkema J on 19 February
2015 he postponed the matter for
hearing on 5 March 2015. On 5 March 2015, the day of the
hearing, the defendants filed the
opposing affidavit, out of time.
In these circumstances the matter was again postponed to 12 March
2015. I am advised
from the Bar that it was postponed to 12
March 2015 because Brooks AJ, who is an outsider to Mthatha was the
duty Judge.
Brooks AJ, however, indicated that he too knew the
second defendant and he too was reluctant to hear the matter.
The matter
was accordingly called before Nhlangulela ADJP on 12 March
2015 and was postponed
sine
die
to
be set down when a judge from outside Mthatha performed duty in
Mthatha. In these circumstances the matter was set down
for
hearing before me on 21 May 2015. The notice of set down was
duly delivered on 7 May 2015, two weeks prior to the hearing.
[7]
Against
this background Mr
Nobela
moved for the application for a postponement.
[8]
The second
defendant filed an affidavit in support of the application for a
postponement. He states that he had spent most
of his time in
the week preceding 21 May 2015 in East London where he has been
attending to issues related to this matter with
the South African
Police Service and the Standard Bank Fraud Division. He
annexes, in support of this contention, a document
which he states is
an affidavit which he has signed on 17 May 2015 in respect of the
events. I pause to mention that two
pages of a document
headed: Affidavit: have been filed, the remainder of the
statement is not annexed.
[9]
The second
defendant proceeds to explain that on 15 May 2015 counsel who had
been briefed telephoned him to advise that he was unavailable
on 21
May 2015 and he has been unable to brief alternative counsel to draft
heads of argument on behalf of the respondent and to
argue the
application for summary judgment.
[10]
He proceeds
to state that he wishes to deliver a supplementary affidavit because,
after working intensely over the previous six
weeks on the relevant
issues, new information has come to hand concerning other parties
involved in the issues relating to the
matter. He declares that
he hopes to show that in the interest of justice and for the proper
and effective adjudication of
the summary judgment application this
information is essential.
[11]
Finally,
the second defendant declares that he had discussions with the
Fidelity Insurance Fund who have indicated that the matter
should be
postponed in order to allow him time to consider the new facts and to
allow an opportunity to negotiate a possible settlement.
No
confirmatory affidavit from any official at the Fidelity Insurance
Fund is annexed nor is any information divulged as to his
identity.
[12]
The
principles which apply in an application for a postponement of
proceedings was summarised by Plasket J in
Persadh
and Another v General Motors South Africa (Pty) Ltd
2006
(1) SA 455
(SE) at 459 where he stated:
“
First, as that party seeks an
indulgence he or she must show good cause for the interference with
his or her opponent's procedural
right to proceed and with the
general interest of justice in having the matter finalised;
secondly, the court is entrusted
with a discretion as to
whether to grant or refuse the indulgence; thirdly, a court
should be slow to refuse a postponement
where the reasons for the
applicant's inability to proceed has (
sic
)
been fully explained, where it is not a delaying tactic and where
justice demands that a party should have further time for presenting
his or her case; fourthly, the prejudice that the parties may
or may not suffer must be considered; and, fifthly, the usual
rule is
that the party who is responsible for the postponement must pay the
wasted costs.”
[13]
An
application for a postponement of proceedings rests on the foundation
that unless the postponement is granted the applicant will
suffer
prejudice in the case. It is accordingly incumbent upon the
applicant for a postponement to state clearly in what
manner the
applicant will be prejudiced. A bare allegation of prejudice
will not suffice, the applicant must do more and
“satisfy the
court that there is prejudice, at any rate a reasonable possibility
thereof”. (See
Munnich
v Munnich’s Estate
1942 EDL 33
at 36; see also
Herbstein
and Van Winsen The Civil Practice of the High Courts of South Africa
5
th
ed p. 751-752 and the authorities referred to therein.) The
reasons for his inability to proceed must be fully explained
so as to
enable the court to conclude that it is not a delaying tacit and that
justice demands that he should be afforded further
time.
[14]
As recorded
earlier the second respondent contends that counsel instructed to
argue the matter was not available on 15 May 2015.
The deponent
does not take the court into his confidence in stating when counsel
was first instructed nor who he was. The
unavailability of the
particular counsel is, in any event, ordinarily, not a ground in
itself for the granting of a postponement.
(See for example
Ex
Parte Bloemfontein Municipality: In re Reichter v Bloemfontein
Municipality
1937 (1) PH F32 (O) and
D’Anos
v Heylon Court (Pty) Ltd
1950 (2) SA 40
(C); and
Pretorius
v Die Drankraad en ‘n Ander
1987
(2) SA 261
(NC) at 262I-J.)
[15]
The second
defendant provides a superficial explanation for his inability to
instruct other counsel. He states that he had
spent most of his
time in the preceding week in East London with the South African
Police and the Standard Bank Fraud Division
attending to the issues
in this matter. The second defendant does not, however, take
the court into his confidence in explaining
what efforts, if any, he
made to obtain the services of alternative counsel in order to argue
the matter. In this regard
it is significant that counsel
appeared at the hearing of the application but advised that he held
instructions only to argue a
postponement. I pause to mention
that the second defendant alleges in his affidavit that the papers
with which counsel were
briefed have “mysteriously disappeared
and not returned to (him)”. In this regard it must be
recorded that the
papers run in total to just 53 pages. It is
not a matter of great complexity so as to require an extraordinary
period of
preparation and the papers could easily have been copied
from the court file or obtained from his opponent at short notice.
The deponent, however, provides no explanation at all as to what
efforts, if any, he made to retrieve the papers provided to counsel
or to obtain copies thereof. The inability to overcome the
problem is simply not addressed at all.
[16]
Second
defendant says that he has been working intensely on the issues over
the last six weeks. He states that new information
has come to
his attention in this time concerning other parties involved in the
issues. He provides no explanation as to
the nature of this
information nor of its relevance. He does not take the court
into his confidence as to the reasons for
his failure to file, at
this stage, an affidavit setting out the nature of this new
information and the manner in which it could
afford any defence to
the claim. I have set out earlier the averments contained in
the particulars of the plaintiff’s
claim. The plaintiff
relies, for its cause of action, on the fraudulent or negligent
conduct of the second defendant himself.
This has not been
denied and defendants have not addressed this allegation of the
second defendant’s fraud or negligence
in the affidavits filed.
It is difficult, in these circumstances, to conceive of the relevance
of the conduct of other parties
and it seems to me that an
explanation regarding the relevance of this information is called
for. The deponent states that
he hopes to show that this
information is essential in the interests of justice and for the
proper and effective adjudication of
the summary judgment
application. In the absence of an explanation of the nature of
the information or the relevance thereof
for the defence against a
claim founded on his own negligence the mere say-so of the second
defendant cannot satisfy the court
that there is any reasonable
possibility of prejudice if the application were adjudicated without
it.
[17]
I have
alluded earlier to the fact that the second defendant contends that
this information has emerged over the last six weeks
and no
explanation whatsoever is tendered for his failure to take the court
into his confidence in respect of the nature of the
information, save
that he wishes to brief imminent counsel, possibly practising in
Grahamstown or East London, to attend to the
settling of a
supplementary affidavit. He gives no explanation as to any
attempt made to secure the services of such counsel
notwithstanding
that, on his own admission, he has spent much of the last week in
East London.
[18]
Finally,
the deponent refers to his discussion with the Fidelity Insurance
Fund who have indicated that time would be required to
consider new
facts and to allow for an opportunity to negotiate a possible
settlement. Again the deponent does not take the
court into his
confidence in respect of the new facts which may be considered by the
Fidelity Insurance Fund.
[19]
In all the
circumstances I am not satisfied that the reasons for the defendant’s
inability to proceed have been fully explained
nor that the
application for a postponement is not a delaying tactic. I do
not consider that the application papers reveal
clearly the manner in
which the applicant will be prejudiced, more particularly in view of
the statement that a settlement of the
matter might be pursued.
The bare allegation of prejudice is insufficient. In the
present matter the finalisation of
the matter has been considerably
delayed already (compare
Ngcobo
v Union & South West African Insurance Co Ltd
1964 (1) SA 42
(D) at 44G-H). In these circumstances I
considered that the interests of justice demand that the application
proceed to finality
and for the reasons set out herein I dismissed
the application for a postponement.
[20]
I turn to
the merits. In response to the application for summary judgment
the defendants raise two points
in
limine
.
Firstly, the defendants allege that the deponent to the plaintiff’s
affidavit for summary judgment has failed to establish
his authority
to depose to the affidavit and secondly it is argued that he has
failed in his affidavit to verify the amount claimed,
which, it is
argued, is the crux of an application for summary judgment.
[21]
I consider
that the first point
in
limine
is misconceived. Mr Willem Hendrik Weber attested to the
affidavit for summary judgment. He states that he is a senior
manager of technical infrastructure of the applicant. He
proceeds to state that as a result of his position as a senior
manager he is duly authorised to depose to the affidavit and to
conduct the current litigation. This statement is not
disputed.
He refers to a written delegation of authority in
support of the position which he holds and which was annexed as
annexure “A”.
The defendants allege, correctly,
that nowhere in the written delegation of authority is there any
reference to the authority to
depose to an affidavit. The
delegation of authority is, however, annexed in support of his
contention that he holds a senior
position, not in support of the
allegation that he is authorised to depose to the affidavit.
[22]
Rule 32(2)
of the Uniform Rules of Court, which sets out the requirements which
are to be met in an affidavit for summary judgment
provides that the
plaintiff shall “deliver notice of application for summary
judgment, together with an affidavit made by
himself or by any other
person who can swear positively to the facts verifying the cause of
action and the amount, if any, claimed
…”. The
rule, it seems to me, simply requires an affidavit to be filed by any
person who can swear positively
to the facts.
[23]
In
application proceedings generally a deponent does not require
authority to depose to an affidavit. The point was raised
in
Ganes
and Another v Telkom Namibia Limited
2004 (3) SA 615
(SCA) ([2004]
2 All SA 609).
In that matter
Streicher JA disposed succinctly of this argument at 624F-H where he
stated:
“
There is no merit in the
contention that Oosthuizen AJ erred in finding that the proceedings
were duly authorised. In the founding
affidavit filed on behalf of
the respondent Hanke said that he was duly authorised to depose to
the affidavit. In his answering
affidavit the first appellant stated
that he had no knowledge as to whether Hanke was duly authorised to
depose to the founding
affidavit on behalf of the respondent, that he
did not admit that Hanke was so authorised and that he put the
respondent to the
proof thereof. In my view, it is irrelevant whether
Hanke had been authorised to depose to the founding affidavit. The
deponent
to an affidavit in motion proceedings need not be authorised
by the party concerned to depose to the affidavit. It is the
institution
of the proceedings and the prosecution thereof which must
be authorised.”
[24]
This
position pertains too to summary judgment proceedings. See
Firstrand
Bank v Fillis and Another
2010 (6) SA 565
(ECP) 565G. There is accordingly no merit in
this argument.
[25]
I turn to
consider the second point
in
limine
.
Weber states in his summary judgment affidavit as follows:
“
I have read the Applicant’s
summons, particulars of claim and application for summary judgment in
this matter. I can
and do swear positively to the claim set out
in the summons and the particulars of claim and verify the
Applicant’s cause
of action.
I can and do swear positively to the
facts herein contained and verify that the Defendant is truly and
lawfully indebted to the
Applicant upon the grounds as stated in the
summons and particulars of claim.”
[26]
Weber
incorporates the averments made in the particulars of claim in his
affidavit and he swears positively to “the claim
set out in the
summons and the particulars of claim”. The particulars of
claim allege that the deposit was made in
the amount of R11 453 000
in two instalments, as set out earlier herein during July and October
2010. They then
allege the instruction to the defendants to
invest the deposit in an interest-bearing account and the
acknowledgement by the defendants
that the amount had been so
invested. They contain the allegation that R5 800 000
was repaid upon demand in 2014
and that a balance of R5 653 000
remains outstanding. Weber accordingly verifies “that
the defendant
is truly and lawfully indebted to the (plaintiff) upon
the grounds stated in the summons and particulars of claim”.
[27]
In
All
Purpose Space Heating Co of SA (Pty) Ltd v Schweltzer
1970 (3) SA 560
(D) at 563H-564A Muller J stated:
“
It is impossible to lay down
any rule of general application as to the degree of particularity
required of an affidavit under Rule
32 (2). In view of the infinite
variety of causes of action each case must depend on its own
circumstances. In my view, it is permissible
for a plaintiff in an
affidavit filed in support of a summary judgment application, to
incorporate by reference only the allegations
contained in his
summons. By doing so the plaintiff takes a calculated risk that his
summons does not contain sufficient allegations
to enable the Court
hearing his application for summary judgment to hold that his claims
are of the nature specified by Rule 32
(1).”
[28]
I agree
with the view expressed herein. This is clearly not a case
where the particulars of claim leave any doubt.
[29]
In
Van
den Bergh v Weiner
1976 (2) SA 297
(T) a Full Bench of the Transvaal Provincial Division
considered the compliance with Rule 32(2) of an affidavit filed in
support
of a summary judgment application wherein the deponent had
stated “the first defendant is truly and lawfully indebted to
the plaintiff on the grounds as set out in the summons”.
He had neglected to make any express allegation in respect
of the
amount claimed. At 299G-H Cillié JP commented on this
affidavit as follows:
“
The words of the Rule had not
been followed meticulously, and it is said that there should have
been a specific statement that the
amount as such is also verified
and confirmed. Because of the cryptic statement it is contended that
the provisions of the Rule
had not been complied with. This Court is
of the opinion that the affidavit complies substantially with what is
required under
the Rule, namely verification of the cause of action
and the amount claimed. By reference to the combined summons and the
grounds
set out therein, the respondent is in effect referring to and
confirming the cause of action and the amount. The affidavit is not
irregular and therefore the judgment is not one which can be set
aside in terms of Rule 42 (1) (a) as having been sought and granted
erroneously.”
[30]
The
decision in Van den Bergh has been approved and followed in a number
of subsequent cases (see
Lohrman
v Vaal Ontwikkelingsmaatskappy (Edms) Bpk
1979 (3) SA 391
(T) at 395;
Joubert,
Owens, Van Niekerk Ing v Breytenbach
1986 (2) SA 357
(T) at 359; and
Kruger
v Standard Krediet Korporasie Bpk
1988
(1) SA 570
(T) at 573).
[31]
In
Standard
Bank of South Africa Limited v Secatsa Investments (Pty) Ltd and
Others
1999
(4) SA 229
(C) at 235 Van Heerden J had occasion to consider the
approach in Van den Bergh. Van Heerden commented at 235H-236A:
“
The decision in the Van den
Bergh case is, in my view, clearly good law
on
the facts of that case
. As
Cilliers JP pointed out at 300C-D:
'Rule 32 gives a Court power to grant
judgment without trial even though notice of the defendant's
intention to defend had been
properly given. This power must be
exercised with great care, which is achieved,
inter alia
, by
ensuring that the plaintiff brings his case within the scope of the
Rule. It does not mean that effect will be given to any
insubstantial
technicality that may be set up by way of objection to the grant of
summary judgment.'
However, the facts before the Court in
the present case can be distinguished from the facts in the Van den
Bergh case. In the Van
den Bergh case, the plaintiff claimed
repayment of the amount of R3 000 paid to the first defendant in
terms of an agreement of
sale of fixed property.
The amount claimed was not dependent
upon proof of a third party's indebtedness to the plaintiff.”
[32]
These
comments, to my mind, are perfectly consonant with the dictum of
Muller J in the
All
Purpose Heating
case
supra
.
In the present case, as I have stated earlier, like the
Van
den Bergh
case
supra
,
the plaintiff claimed repayment of an amount paid to the defendants
pursuant to an agreement of sale. In my view, by incorporating
in the summary judgment affidavit a reference to the particulars of
claim and verifying that the defendant is truly and lawfully
indebted
to the applicant upon the grounds stated therein the deponent did
indeed verify the amount claimed. It follows that
in my view
the second point
in
limine
cannot be upheld.
[33]
I turn to
consider the defences raised on the merits of the plaintiff’s
claim. A defendant faced with a summary judgment
application is
required by Rule 32(3) to satisfy the court by affidavit or, in
certain circumstances by oral evidence, of himself
or of any other
person who can swear positively to the fact that he has a
bona
fide
defence to the action. Such affidavit (or evidence) must
“disclose fully the nature and grounds of the defence and
the
material facts relied upon therefore”.
[34]
There must
accordingly be sufficiently full disclosure of the material facts
relied upon to persuade the court that what the defendant
has
alleged, if it is proved at the trial, will constitute a defence to
the plaintiff’s claim. See
Maharaj
v Barclays National Bank Limited
1976
(1) SA 418
(A) at 426; and
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228. If the defence is averred in a
manner which appears to be needlessly bald, vague or sketchy, that
would constitute
material for the court to consider in relating to
the requirement of
bona
fides
(see
Breitenbach
supra
).
[35]
The
defendants’ statement in opposition to the claim is by no means
a model of clarity. The respondents raise three
matters which
may potentially be advanced as defences. First it is contended
that an employee of the first defendant had
defrauded the first
defendant and stole a substantial amount of money from it. The
second defendant states in his affidavit:
“
As from 2013 until 2014 the
amount she took from my account is R734 755.00.”
[36]
He proceeds
to state that Standard Bank together with two firms of accountants
employed by the first defendant, one in Johannesburg
and one locally,
had confirmed to the first defendant that its books of account were
in order and complied with all the necessary
requirements. It
is now abundantly clear, so he states, that his said employee
together with Standard Bank and the accountants
mentioned
“represented an entirely incorrect situation to (him) of the
First Defendant’s financial position to their
own benefit”.
Finally, in respect of this potential defence the second defendant
states:
“
Whilst I fully appreciate the
law of vicarious liability I respectively submit that I will be able
to show on trial that the respondents
cannot be held vicariously
liable in the circumstances set out above, particularly where fraud
is involved.”
[37]
I pause to
record that in the portion of an alleged “affidavit”
which is annexed to the application for a postponement
and to which I
alluded earlier the second respondent records that the plaintiff’s
money was never placed in a separate interest-bearing
account at all
and that it was deposited into the first defendant’s current
trust account. He acknowledges therein,
however, that he is the
sole signatory of first defendant’s trust account held at
Standard Bank, West Mthatha under account
number 081000782.
Whilst these averments occur in the application for a postponement, I
shall assume for purposes hereof
that, to the extent that they favour
the defendants they are properly before me. It does not,
to my mind, advance the
defendants position at all.
[38]
To my mind,
the defendants have misconceived the nature of the plaintiff’s
claim. The plaintiff does not claim damages
from the defendants
in consequence of the unlawful conduct of its said employee.
Plaintiff relies for its claim on the fraud
or negligence of the
second defendant as sole director and proprietor of the first
defendant. The plaintiff claims the return
of monies entrusted
to the defendants to hold in trust pending the transfer of the
immovable property. The defendants were
required to hold the
money in an interest-bearing account as is provided for in section
78(2A) of the Attorneys Act, 53 of 1979.
There is no suggestion
in the explanation provided by the second defendant that any employee
withdrew any monies out of such an
account. The deponent states
merely that his employee had stolen money, from “my account”.
The fact that
the loss may have occurred because he deposited the
plaintiff’s money into his current trust account contrary to
his instructions
cannot provide a defence. Even if I accept
that it was intended to allege that the employee had withdrawn
R734 755 which
she misappropriated from the account holding the
plaintiff’s money, there is no attempt to explain how the
remainder of the
funds in that account came to be withdrawn, who
withdrew them, when they were withdrawn or how they were applied.
In these
circumstances I do not think that the defendants have
disclosed material facts which, if proved, would constitute a valid
defence.
[39]
The second
defendant proceeds to allege in the circumstances that he is advised
that the other parties mentioned above need to be
joined in this
action, and that “neither in fact or in law should the first
and second respondents be held liable for the
amount claimed by the
applicant”. The reference to other parties mentioned
above, as I understand it, is reference
to Standard Bank, the two
firms of accountants, and the Law Society. No factual basis at
all is laid in the affidavit for
this contention. The
plaintiff’s claim, as earlier alluded to, proceeds on the basis
of the defendants own negligence.
In the event that the
defendant is of the view that it has suffered a loss as a result of
the conduct of others it is at
liberty to issue summons and to
recover such loss from such parties. It cannot, however, create
a
lis
between the plaintiff and such other parties.
[40]
The second
potential defence raised, somewhat tentatively, in the affidavit is
that the second defendant alleges that it had been
agreed that a fee
would be paid to the first defendant in respect of the property
transaction in the amount of R1 million.
The fee, he states,
would be paid either by the plaintiff or by the seller of the
property. At best the second defendant
raises a possibility
that the plaintiff may become liable to pay this fee. No basis
is laid for any contention that the plaintiff
may in fact be liable
to defendant in such an amount and if the mere possibility were
proved at the trial it would raise no defence.
[41]
Finally,
the third defence raised on the papers is set out as follows in the
second defendant’s affidavit:
“
The situation of the first
respondent was further severely prejudiced when, on or about
September 2014 the applicant brought an
application,
12.1
As a matter of urgency.
12.2
Ex
partie (
sic
) and without any Notice whatsoever.
12.3
Maliciously to suspend the trust account of the first respondent.
The preliminary
order having the effect of a final order literally
destroyed the first respondent. This order should never have
been granted
with respect and is incorrect in law.”
[42]
It was, of
course, open to the first defendant to anticipate the return day in
those proceedings and to set aside the interim order
if it believed
that the order was wrongly granted. It did not do so and no
explanation for this failure is advanced.
The second defendant
does not deny that the order was subsequently made final and that it
remains in force today. He does
not allege any attempt to set
aside the final order. Whatever the consequences might
therefore have been to the first defendant
they occurred in
consequence of an order of the High Court which remains valid and
binding to this day. There is no merit
in this defence.
[43]
In all the
circumstances I do not think that the defendants have alleged facts,
which, if proved at the trial, would constitute
a defence to the
claim. The possible defences advanced are so vague and sketchy
as to raise serious doubt as to the
bona
fides
of the defendants and I am not satisfied that the opposition is not
merely a delaying tactic.
[44]
In the
result, there will be judgment for the plaintiff against the first
and second defendants, jointly and severally, the one
paying the
other to be absolved, for:
1.
Payment of
the amount of R5 653 000,00.
2.
Interest on
the amounts deposited from time to time into the first defendant’s
trust account at the rate of 6,6% per annum
up to the date of
summons.
3.
Interest on
the amount aforestated at the legal rate from the date of summons to
the date of payment.
4.
Costs of
the suit as on a scale as between attorney and client.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Mr Botma instructed by J A le Roux
Attorneys, Mthatha
For
Defendants: Mr Nobela instructed
by Messrs Hughes Chisholm & Airey, Mthatha