SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NUMBER: D6326/2023
In the matter between:
RENZO ANGELO SCRIBANTE FIRST PLAINTIFF
(Identity number 7[...])
REMBROTHERS (PTY) LTD SECOND PLAINTIFF
(Registration Number 2020/836629/07)
and
THE 47 CLUB TRADING (PTY) LTD FIRST DEFENDANT
(Registration Number 2020/836629/07)
KDE HOLDINGS SECOND DEFENDANT
(Registration Number 2017/007830/07)
GIBSON MTHEMBU THIRD DEFENDANT
(Identity Number 8[...])
ORDER
The following order is made:
1. The application for summary judgment is refused.
2. The defendants are granted leave to defend the action.
3. The costs of the summary judgment application are reserved for
decision by the trial court.
4. This matter is, subject to the provisions of Practice Directive 21, to be
placed on the expedited trial roll.
JUDGMENT
PLOOS VAN AMSTEL AJ
[1] This is an application for summary judgment. The first plaintiff and the third
defendant, both businessmen, were business partners. The genesis of this dispute is
two oral loan agreements, in terms of which funds were transferred from the second
plaintiffs bank account into the first and second defendants' bank accounts
respectively.
[2] The plaintiffs in this matter claim the repayment of the sum of R2 216 211 20,
together with interest and costs, against the first and third defendants (with the
second defendant having been placed under business rescue) jointly and severally,
the one paying the other to be absolved.
[3] Rule 32 was amended on 1 July 2019. It permits a summary judgment
application to be brought within 15 days after the defendant has filed a plea. The Full
Court in Raumix Aggregates (Pty) Ltd v Richter Sand CC and Another, and Similar
Matters1 held that the purpose of the amended rule 32 is to:2
1 Raumix Aggregates (Pty) Ltd v Richter Sand CC and Another, and Similar Matters 2020 (1) SA 623
(GJ).
2 Ibid para 16.
'...allow the court to summarily dispense with actions that ought not to proceed to trial
because they do not raise a genuine triable issue, thereby conserving scarce judicial
resources and improving access to justice... '
[4] Whilst the purpose of the amended rule 32 is to dispense with actions that ought
not to proceed to trial, and while undue formalism in procedural matters is always to
be eschewed, however, as emphasised by Corbett JA in Maharaj v Barclays National
Bank Ltd3 it is important in summary judgment applications that, 'in substance, the
plaintiff should do what is required of him by the Rule'.4
[5] The main issue for determination is whether the affidavit which accompanies
the application complies with the requirements of Uniform rule 32(2)(b). Rule
32(2)(b) reads as follows:-
'(b) The plaintiff shall, in the affidavit referred to in subrule (2) (a), verify the cause of
action and the amount, if any, claimed, and identify any point of law relied upon and
the facts upon which the plaintiff's claim is based, and explain briefly why the
defence as pleaded does not raise any issue for trial.'
[6] The particulars of claim consists of three claims, each claim containing a
pleading in the alternative, with the second claim headed "IN THE ALTERNATIVE TO
CLAIM 1" and the third claim headed "IN THE ALTERNATIVE TO CLAIMS 1 AND 2".
I am required to detail the manner in which the plaintiffs have pleaded their claim/s,
the relevance of which will be dealt with hereinunder.
[i] Under claim 1, it is claimed that during or about August 2021, and at
Durban, the first plaintiff and the first defendant, alternatively, the third
defendant, concluded an oral agreement in terms of which the first plaintiff
agreed to loan and advance the sum of R750 000,00 to the first defendant,
alternatively, the third defendant, and during or about September 2021 and at
Durban, the first plaintiff and the second defendant, alternatively, the third
defendant concluded an oral agreement in terms of which the first plaintiff
3 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).
4 Ibid at 423E-F.
agreed to loan and advance the sum of R2 000 000,00 to the second
defendant alternatively the third defendant;
[ii] Under the heading of claim 2, it is claimed that during or about August
2021 the second plaintiff and the first defendant, alternatively, the third
defendant concluded an oral agreement in terms of which the second plaintiff
agreed to loan and advance the sum of R750 000,00 to the first defendant,
alternatively, the third defendant and during or about September 2021 and at
Durban, the first plaintiff and the second defendant, alternatively, the third
defendant, concluded an oral agreement in terms of which the first plaintiff
agreed to loan and advance the sum of R2 000 000,00 to the second
defendant, alternatively, the third defendant;
[iii] Under the heading of claim 3, it is claimed that during or about August
2021 the first plaintiff, alternatively, the second plaintiff and the first and third
defendants concluded an oral agreement in terms of which the first plaintiff,
alternatively, the second plaintiff agreed to loan and advance the sum of R750
000,00 to the first and third defendants, and during or about September 2021
and at Durban, the first plaintiff and the second and third defendants
concluded an oral agreement in terms of which the first plaintiff agreed to loan
and advance the sum of R2 000 000,00 to the second and third defendant.
[7] In summary, and to demonstrate the difficulty which arises from the pleadings,
the plaintiffs plead that during or about August 2021, an oral agreement was
concluded between the first, alternatively, the second plaintiff and the first,
alternatively, the third defendant, alternatively, the first and third defendants, in terms
of which the first, alternatively, the second plaintiff agreed to loan and advance the
sum of R750 000 to the first, alternatively, the third defendant, alternatively, the first
and the third defendants and that during or about September 2021, an oral
agreement was concluded between the first plaintiff and the second, alternatively, the
third defendant, alternatively, the second and the third defendants, in terms of which
the first plaintiff agreed to loan and advance the sum of R2 000 000 to the second,
alternatively, the third defendant, alternatively, the second and the third defendants.
[8] Whilst it is not disputed that the sum of R750 000 which forms the subject
matter of the August 2021 oral agreement was earmarked for the payment of the first
defendant's supplier, and that the sum of R2 000 000 which forms the subject matter
of the September 2021 oral agreement, was earmarked to settle the second
defendant's debt or liability to the South African Revenue Services, it is unclear from
the particulars of claim, pleaded as aforementioned, which plaintiff/s concluded the
August 2021 and/or the September 2021 oral agreements with which defendant/s.
[9] The affidavit in support of the application for summary judgment, deposed to
by one Shalimar Rupu, goes no further to narrow the wide extent of the pleadings.
Shalimar Rapu described himself as 'the nominated and appointed agent of the first
plaintiff in terms of a special power of attorney signed by the first plaintiff on 23 June
2023' employed by the second plaintiff as its financial manager stated following:
'I hereby swear positively to the facts set out in the Summons and Particulars of
Claim and confirm that the Defendants are indebted to the First and Second Plaintiffs
in the amount and on the grounds set forth in the Summons and Particulars of
Claim.'
[10] When Mr Prinsloo, who appeared on behalf of the plaintiffs, was asked
whether it was competent to seek summary judgment in circumstances where the
plaintiffs' claims are pleaded in the alternative, such as they have been, with
reference to the Cape Business Bureau (Pty) Ltd v Van Wyk and Another5 he sought
an opportunity to consider the judgment and deliver short supplementary heads of
argument on the issue. Having received these supplementary heads of argument,
they do not address the aforesaid judgment, nor do they address the competency or
otherwise of summary judgment proceedings in circumstances where the plaintiff is
evidently uncertain as to with which defendant it contracted.
[11] An explanation for the multitude alternative claims as contained in the
pleadings was proffered in the plaintiffs in their supplementary heads of argument.
Mr Prinsloo explained that the "particulars of claim set out three claims in the
alternative, all which stem from a considered effort to employ a cautious approach to
5 Cape Business Bureau (Pty) Ltd v Van Wyk and Another 1981 (4) SA 433 (C).
pleading. This is primarily due to the oral nature of the loan agreement". The
supplementary heads of argument explains further that the defendants could easily
have challenged the construction placed on the loan agreement in claim 1, and all it
would have taken was an allegation that, in concluding the loan agreement, the first
plaintiff was not acting personally but only on behalf of the second plaintiff, hence the
plaintiffs pleaded alternative constructions of the loan agreements in claims 2 and 3.
[12] Unfortunately the plaintiffs' cautious approach to pleading operate to defeat
their right to sue any of the defendants for summary judgment.
[13] The plaintiffs, by way of a draft order delivered with the aforesaid
supplementary heads of argument, have elected to seek judgment against the first
and third defendants only, jointly and severally the one paying the other to be
absolved. In support of their election, the plaintiffs seek to rely on the third claim
pleaded in their particulars of claim read with the defendants plea thereto. This
approach unfortunately fails to take into account the plea as a whole, wherein the
defendants surprisingly admit all six variations of the loan agreement as pleaded by
the plaintiffs, whilst denying that the amounts in question were transferred in terms of
a loan agreement.
[14] Notwithstanding the plaintiffs' election during argument to only seek summary
judgment against the first and third defendants, they are bound by the pleadings as
they stand at the time of the institution of the summary judgment application read
together with the allegations contained in the affidavit in support thereof. The
aforementioned summary of claims pleaded by the plaintiffs demonstrate that the
particulars of claim contain mutually destructive versions of the loan agreements, as
not all three variations pleaded can be true and correct at the same time.
[15] It has been held in Diesel Power Plant Hire CC v Master Diggers (Pty) Ltd, 6
cited with approval in this division in the unreported judgment of Liberty Group Ltd v
Sonitis and Another,7 that whilst it is in order in a verifying affidavit to verify a cause
6 Diesel Power Plant Hire CC v Master Diggers (Pty) Ltd 1992 (2) SA 295 (W) at 297C-D.
7 Liberty Group Ltd v Sonitis and Another (2013) ZAKZDHC 39 para 7.
of action based on alternative claims, it is objectionable to verify 'a cause of action
based on two mutually destructive alternative versions of the cause of action".
[16] In Cape Business Bureau (Pty) Ltd v Van Wyk and Another 8 the court
specifically held that if the identity of the defendant is uncertain, for example where
there is more than one defendant and the plaintiff does not know which one
concluded a certain contract with him, that uncertainty would operate to defeat the
plaintiffs right to sue any particular one of them for summary judgment.
[17] This manner of pleading, and a subsequent application for summary judgment
based thereupon, was discussed in Barclays National Bank Ltd v Smith 9, where
Booysen AJ (as he then was) concluded that a summons containing alternative
claims and mutually destructive allegations does not prohibit the plaintiff from
applying for summary judgment on one of those claims, provided that the verifying
affidavit, in order to be effective, would have to verify only those allegations which
support that claim.
[18] The verifying affidavit herein does not verify only the allegations which support
claim 3 as pleaded therein, but rather verifies all claims as pleaded.
[19] In Threeball Construction (Pty) Ltd v Lipschitz ,10 the court differentiated
between pleading in the alternative, and confirming claims in the alternative in the
affidavit in support of summary judgment, in the following terms:11
'Pleading inconsistent versions in the alternative is, of course, entirely proper. The
pleader knows the limitations of the evidence available to him, and that it may be
found not to go far enough to establish the facta probanda on which the first cause of
action is based. He therefore pleads in the alternative that the available evidence is
sufficient to make out a somewhat different cause of action with elements
inconsistent with the cause of action first set out. The pleader's alternatives are as to
the conclusions of law that are to be drawn from the available evidence.
8 Cape Business Bureau fn 5 above at 439A-B.
9 1975 (4) SA 675 (D) at 682E and G.
10 Threeball Construction (Pty) Ltd v Lipschitz 1987 (2) SA 633 (W).
11 Ibid at 634I-635D.
A witness is in a different position. He does not testify about conclusions of law but
about facts. If he purports to testify that he met the defendant at a particular time and
place and expressly agreed on a stated price, he cannot expect to be believed if he
also testifies that he did not meet the defendant, and that they did not expressly
agree on the stated price. That seems to me to be the effect of the affidavit filed on
behalf of the plaintiff in the present matter In the present matter it is not clear that
the alternatives are complementary to each other (as they may be), and that they are
not mutually destructive.'
[20] The aforesaid reasoning by the court has been held to be correct and applies
equally to the present matter. Where mutually destructive versions are verified, there
has not been a proper verification of the cause of action relied on 'because an
essential allegation has in the same breath been verified and contradicted' 12. The
deponent to the verifying affidavit confirms that the defendants are indebted to the
plaintiffs "in the amount and on the grounds set forth in the Summons and Particulars
of Claim" and notably does not purport to verify the allegations only in support of the
claim relied upon by the plaintiffs at this stage, being claim 3.
[21] In my view, the deponent's confirmation as aforesaid renders the application
defective because of the uncertainty that it creates. A similar view was taken by
Wallis J in Shackleton13, as referred to more recently by Mossop J in Sanlam Life
Insurance Limited v Africhick Trading (Pty) Ltd t /a Africaz and Others 14 in dealing
with a situation where it was not clear from the affidavit in support of summary
judgment against which defendant summary judgment was being sought, he stated:
'... where the applicant's affidavit is confusing and does not make clear against whom
judgment is being sought and on what basis, the application is defective and must
fail.'
12 Barclays National Bank Ltd v Smith 1975 (4) SA 675 (D) at 682G-H.
13 Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another 2010 (5) SA 112
(KZP).
14 [2024] ZAKZDHC 12.
[22] In light of what I have stated above summary judgment cannot be granted.
This is so regardless of whether or not the plea, or the affidavit opposing summary
judgment, sets out a defence15 as there can be no need to consider a defence raised
by a defendant if the summary judgment application is itself defective. For as Wallis J
further stated in Shackleton and cited with approval in Sanlam Life Insurance Limited
'The proper starting point is the application. If it is defective then cadit quaestio. Its
defects do not disappear because the respondent deals with the merits of the claim
set out in the summons.'
[23] I am of the view however that ex facie the defendants' plea, wherein all six
iterations of the oral agreements pleaded by the plaintiffs are admitted, and the only
defence raised pertains to whether or not such funds were transferred in terms of an
oral agreement as a loan, it is evident that no substantial point of law will require
determination and that the whole of the matter can be disposed of in not more than
one day. Accordingly, it would be in the interests of justice to direct that, subject to
the provisions of Practice Directive 21, this matter be placed on the expedited trial
roll.
[24] As the plaintiffs' non-compliance with rule 32(2)(b) was not an issue raised by
the defendants in their affidavit opposing summary judgment, and as it may well be
that the defendants have no defence to the action, I am of the view that the usual
order reserving costs for decision by the trial court is appropriate in the
circumstances.
Order
[25] In the result, the order which I make is as follows:
1. The application for summary judgment is refused.
2. The defendants are granted leave to defend the action.
3. The costs of the summary judgment application are reserved for decision by
the trial court.
15 Gull Steel (Pty) Ltd v Rack Hire BOP (Pty) Ltd 1998 (1) SA 679 (O) at 683 H Sanlam Life Insurance
Limited v Africhick Trading (Pty) Ltd t/a Africaz and Others [2024] ZAKZDHC para 16.
4. This matter is, subject to the provisions of Practice Directive 21, to be placed
on the expedited trial roll.
Case information
Date of Hearing: 19 November 2024
Date of Judgment: 05 December 2024
For plaintiffs / applicants: Adv Prinsloo
Instructed by: Eversheds Sutherland (KZN) Inc.
Plaintiffs' attorneys
1st Floor
29 Richefond Circle
Ridgeside
Umhlanga
(Ref: D Avenant/N Naidoo/MAT7878)
Tel: 031 940 0501
Email:donovanavenant@
evershedssutherland.co.za
For respondent: No appearance
Instructed by: