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[2013] ZAGPPHC 175
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Rossouw v United Church School (69476/2012) [2013] ZAGPPHC 175 (14 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 69476/2012
DATE:14/06/2013
In
the matter between:
CHRISTA
ROSSOUW
..................................................................
Plaintiff
and
UNITED
CHURCH
SCHOOL
.....................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
This judgment has taken unnecessarily long to deliver. The
application was argued before me on 25 April 2013. An administrative
error occurred in my office which resulted in the matter not being
placed on my list of reserved judgments. As a result, the matter
did
not receive my immediate attention. I regret any inconvenience caused
by the delay.
[2]
This is an opposed application for summary judgment. The plaintiff
claims from the defendant, an amount of R91 000. The plaintiff
claims
that it entered into a lease agreement with the defendant on 20
November 2007, in terms of which the plaintiff let to the
defendant
certain property for a fixed period of 3 years starting on 1 January
2008 until 31 December 2010, against payment of
rental in the amount
of R5 500 per month. According to the plaintiff, it was also agreed
that the defendant would be liable for
payment of the water and
electricity supplied to the property.
[3]
During October/November/December 2010, so alleges the plaintiff, the
parties concluded an oral lease agreement in terms of which
the
plaintiff leased to the defendant the same property for a further
period of 3 years, commencing on 1 January 2011, at the rental
of R6
500 per month. The plaintiff alleges that the defendant failed to pay
rental for the months of October 2011 to November 2012.
The plaintiff
alleges that it has cancelled the agreement after the defendant had
failed to pay the arrear rental (of R91 000)
after having been
requested to do so.
[4]
In order to stave off summary judgment, the defendant has to disclose
a bona fide defence. This means a defence set up bona
fide or
honestly, which if proved at the trial, would constitute a defence to
the plaintiffs claim (Bentley Maudesley & Co.
Ltd v “Carburol’’(
Pty) Ltd and Another
1949 (4) SA 873
(C); Lombard v Van der
Westhuizen
1953 (4) SA 84
(C) at 88).
[5]
In its defence, the defendant states that it conducts business as a
school. It purchased among others, the property in issue.
The
plaintiff is a founder member of the school. As the school did not
have sufficient cash at that stage to buy the property cash,
it was
agreed between the school and the plaintiff that the plaintiff would
act as the defendant’s representative. The deed
of sale would
be signed between her and the seller, and that the property would be
registered in the deeds office in her name and
not the defendant. It
was further agreed that as soon as the property was paid off, the
property would be transferred from the
plaintiff to the name of the
defendant. The defendant further states that a number of properties
were acquired on a similar basis,
and were indeed, transferred to the
defendant’s name. It is only in respect of the property in
question that the plaintiff
refuses to transfer the property into the
defendant s name.
[6]
With regard to the alleged lease agreement, the defendant denies that
a lease agreement was entered into between itself and
the plaintiff.
It admits that the defendant paid an amount for rental to the
plaintiff whilst she was employed by the defendant,
on the advise of
the defendant’s auditors. This, the defendant explains,
constituted part- payment of the plaintiff’s
salary, and did
not distract from her obligation to transfer the property to the
defendant. When the plaintiff terminated her employment
with the
defendant, she refused to sign the transfer documents for the
property to be transferred to the defendant’s name.
As a result
of the above, the defendant contends that it intends to counter-claim
for the registration of the property into its
name.
[7]
Before I consider the contentions on behalf of the parties, I deem it
pertinent to set out the jurisprudential framework within
which an
application for summary judgment should be considered, which is trite
and established. The defendant must satisfy the
court that he has a
bona fide defence to the plaintiffs claim and the full nature and
grounds thereof. In Oos-Raandse Bantoesake
Administrasieraad v Santam
Versekeringsmaatskappy Bpk
1
it was stated that not a great deal is required of a defendant but
that he must lay enough before the court to persuade it that
he has a
genuine desire and intention of adducing at the trial, evidence of
facts which, if true, would constitute a valid defence.
All that the
court enquires into is whether the defendant has ‘fully’
disclosed the nature and grounds of his defence
and the material
facts upon which it is founded and whether, on the facts disclosed so
disclosed the defendant appears to have
a defence which is bona fide
and good in law. See Maharaj v Barclays National Bank
2
.
[8]
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
3
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
4
,
and Standard Krediet Korporasie v Botes
5
.
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 of S/A Ltd v Naude
6
.
[9]
In the present matter, I am more than satisfied that the defendant
has disclosed a bona fide defence. There is nothing inherently
implausible about the defendant’s version. If established at
the trial, it will be a complete answer to the plaintiff’s
claim. I therefore take a view that the defendant’s point
regarding the alleged agreement between the parties has merit,
and
thus constitutes a bona fide defence worthy of ventilation in a
trial.
[10]
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’s defence is bona fide and not
raised solely for the purpose of delay.
[11]
In the result the defendant is granted leave to defend. Costs are in
the main action.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 25 APRIL 2013
JUDGMENT
DELIVERED : 14 JUNE 2013
FOR
THE PLAINTIFF : ADV Z MARX
INSTRUCTED
BY : JOHN TRIBELHORN ATTORNEYS, PRETORIA
FOR
THE DEFENDANT : ADV W SAAIMAN
INSTRUCTED
BY : BREYTENBACH MOSTERT SKOSANA INC, PRETORIA
1
1978(1}
SA 164 (W) at 171
2
1976
(1} 418 (A) at 426
3
1981
(4) SA 417
(C) AT 419
4
1984
(4) SA 544
(C) AT 550
5
1986
(4) SA 946
(SWA)
6
2009 (4) SA 669
(E) at 672C-676D