IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
(1) REPORTAB LE:NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
In the matter between:
DESMOND TROLLIP
and
LATROSTAX(PTY)LTD
(Reg No.: 2017/010927/07) 10/02/2025
K2019545899 (SOUTH AFRICA) (PTY) LTD
(Reg No.: 2019/545899/07)
KELLAPRINCE AFRICA (PTY) LTD
(Reg No.: 2019/075480/07) CASE NO: 3962/2024
FIRST APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
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This judgment was handed down electronically by circulation to the parties and/or parties’
representatives by email. The date and time for hand -down is deemed to be 10 February
2025 at 10:00.


JUDGMENT


Mangena AJ

[1] The second and third defendants are two independent entities. They established
a company called Latrostax (Pty) Ltd (Latrostax) for the purpose of developing a portion
of land in Mbombela. The second defendant held 60% shareholding , and the remaining
40% was held by the third defendant.

[2] As the development was continuing, there became a need to raise more capital
from third parties . Mr Todd , who was at some point the chairperson of Latrostax , met with
the plaintiff, Mr Trollip , and requested him to advance money towards the project in the
form of a bridging finance. Trusting that the money will be given back to him in good equal
measure , he paid an amount of R 2 000 000.00 into the bank account of Latrostax. Out of
this R 2 000 000.00 , Mr Trollip received R 500 000.00 and the balance of R1 500 000.00
remains unpaid.

[3] Mr Trollip instituted proceedings against Latrostax and its shareholders. He bases
his claim on an oral agreement he concluded with Mr Todd . He avers in the particulars of
claim that Mr Todd presented himself to him as the authorized representative of Latrostax
when the agreement was concluded. He makes further allegations regarding repayment
and other ancillary matters relating to interest . He seeks no relief against the second and
third defendants. Accordingly , the two entities are not participating in th ese proceedings.

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[4] Latrostax is defending the claim and at the heart of its defence is that Mr Todd was
never mandated and or authorized by the company to raise bridging finance for and on
behalf of Latrostax. In amplification of its plea , Latrostax avers that the second and third
defendants were shareholders and none of the directors including Mr Todd had an
unfettered discretion to bind Latrostax in respect of any agreement without prior approval
of the board of Latrostax.

[5] Regarding the bridging finance, Latrostax admits it needed to raise capital and the
shareholders “ were required to obtain bridging finance to ensure that the joint venture
could continue. In securing the bridging finance, the second and third defendants did not
act as agents of the first defendant or on its behalf, but independently.”

[6] The plea actuated Mr Trollip , through his attorneys , to apply for summary judgment
in which he contends strenuously that the defence advanced by Latrostax is a sham and
is intended to delay the finalisation of his claim. Advocate Fourie who argued for him
urged me to have regard to the minutes of the board of Latrostax as well as the email
exchanges between Mr Todd and Mr Tarwa , the current chairperson of the board of
Latrostax. The two had been discussing various issues including the repayment of funds
due and owed to Mr Trollip. There is divergence between them as to who is liable for this
debt.

[7] Mr Fourie’s argument as I understand it is as follows: Mr Todd was a director of
Latrostax at the time of the conclusion of the agreement with Mr Trollip. He concluded an
agreement with Mr Trollip in terms of which Mr Trollip will advance an amount of
R2 000 000.00 as bridging finance towards the development the company was pursuing.
Latrostax will repay the money on demand together with interest calculated at prime plus
3% from the date of first payment into its account until final payment is made. Latrostax
acknowledged its indebtedness to Mr Trollip when it made part payment of R 500 000.00
and reflected the balance outstanding as a loan in its financial statements and other
records like minutes. This, he submitted with ferocity, indicates in the strongest that
Latrostax does not have a bona fide defence to the claim. If it was not for that, it would
have engaged meaningfully with the documentary evidence presented by Mr Trollip in his
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affidavit filed in support of the summary judgment. He cajoled me to find in favour of Mr
Trollip and spare him the trauma of a delayed trial on a matter that does not raise any
triable issue.

[8] Latrostax remains unmoved by the arguments advanced on behalf of Mr Trollip.
Mr Groenewald , who appeared for Latrostax , took issue with annexures submitted in
support of the summary judgment application and sought to persuade me to disallow
them. He called in aid the judgment of Firstrand Bank Limited v Badenhorst .1 I do not read
the Badenhorst judgment to be a prohibition to the attachment of annexures to the
supporting affidavit in a summary judgment application. Such a reading will be contrary
to the clear language used in the text of Rule 32(2)(b) which requires the plaintiff to explain
briefly why the defence as pleaded does not raise an issue for trial. My understanding of
Rule 32(2)(b) is that it affords the plaintiff an opportunity to place facts by way of evidence
in an affidavit form through which the court can be able to assess whether the defence
raised in the plea is genuine and bona fide. Such evidence should still meet admissibility
requirements and be of such probative value that it will enable the court to arrive at a
conclusion that the plaintiff’s case is unanswerable and no purpose will be served by
referring it to trial.

[9] In the words of Binns -Ward J in Tumileng Trading CC v National Security and Fire
(Pty) Ltd ; E & D Security Systems CC v National Security and Fire (Pty) Ltd ,2 “the plaintiff
is now required to engage with the content of the plea in order to substantiate its
averments that the defence is not bona fide and has been raised merely for the purpose
of delay”. I therefore remain unpersuaded that the annexures to the affidavit fall foul of
Rule 32(2)( b) requirements . This is not to say that care should not be taken to place a
limit on them given the nature of the summary judgment proceedings. Only those
annexures relevant to the issue in dispute as contained in the plea should be attached.
Unnecessary prolixity should still be avoided. I have therefore given them due regard in
the assessment of the defence as raised by Latrostax and the attendant issue of whether

1 FirstRand Bank Limited v Badenhorst [2023] ZAGPJHC 779 .
2 Tumileng Trading CC v National Security and Fire (Pty) Ltd; E & D Security Systems CC v National
Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) at para 22 .
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the plaintiff made out a case for a summary judgment. I now turn to the summary judgment
application.

[10] The principles governing summary judgment are trite and it has often been stated
that the procedure is not intended to shut out the defendant from defending unless it is
clear that he/she does not have a case. For the plaintiff to succeed, the claim must be
unimpeachable , and it is for that reason that summary judgment is limited only to certain
categories of claims mainly those based on a liquid document, for a liquidated amount in
money, for delivery of specified movable property and ejectment.

[11] The plaintiff’s claim is for a liquidated amount of money paid into the first
defendant’s bank account and part of it has been paid back. At issue is the authority of
Mr Todd to represent the first defendant at the meeting with the plaintiff. As stated earlier,
the first defendant denies that Mr Todd was its agent nor was he authorized to represent
it in the meeting with the plaintiff or raise any bridging finance from him. It contends that
there is no resolution to support any contrary view. It further argues that the payment part
made was not in acknowledgment of liability towards the plaintiff and neither was it due
to any agreement between plaintiff and itself but by consequence of the third defendant
as a shareholder of the first defendant having concluded an agreement with the plaintiff.
There is accordingly no money owed to the plaintiff by the first defendant.

[12] There is merit in the argument advanced by the first defendant to the effect that
Mr Todd was possibly representing the third defendant when he met with the plaintiff to
raise the bridging finance required for the project Latrostax was pursuing on behalf of its
shareholders. I say so because in the documents submitted in support of the summary
judgment application, there are instances where the money paid by Mr Trollip is
referenced as payment by Kellerprince/ Africa . In the minutes of 28 September 2021, two
days before Mr Trollip paid in the money, Mr Todd informed the meeting that “ Kellerprince
has managed to secure some additional bridging finance of R3 million ”. This is repeated
in the minutes of 27 January 2022 where the following is recorded: It is confirmed that all
the bridging finance had now been paid back with the exception of R900 000 to the K2019
consortium and R2 000 000.00 to Africa, that being Des Trollip. The reference to K2019
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consortium and Africa lends credence to the argument by Mr Groenewald that the
shareholders had an obligation to raise funds from third parties and in doing so, they were
not acting as agents for the first defendant but for themselves.

[13] The fact that R500 000.00 was paid back from the account of the first defendant is
neutral in the determination of whether the defendant has met the threshold regarding the
bona fides of his defence. Latrostax has admitted to this payment and they gave an
explanation as to how it came about. It’s explanation cannot be rejected out of hand as it
is consistent with its defence.

[14] Regarding the description “loan” in the financial statements, I also do not think that
it conclusively proves indebtedness to plaintiff. This is so because the first defendant has
not admitted to the correctness of the contents of the documents submitted n or was I
called upon to make a finding on their admissibility. In the view I take, the respondent in
a summary judgment application has a right to resist admission of evidence on any
recognizable ground including that it is hearsay or that it is of qu estionable reliability.
Summary judgment proceedings are not suited to determine this kind of issues as no
cross examination is allowed. It is only a trial court with the benefit of observing witnesses
testify that will be able to establish circumstances u nder which Mr Todd concluded the
agreement with the plaintiff and what the terms of those agreement are. The trial court
will also be able to conduct a proper assessment of the status of the documents and make
an informed ruling as to their admissibility. Wallis JA puts it better in
PriceWaterhouseCoopers Inc and Others v National Potato Co -operative and Others :3 It
is only the trial court that will be able to sort the wheat of admissible evidence from the
chaff of inadmissible hearsay. With this I agree.

[15] It is also noteworthy that Mr Todd, a central figure in this case , has taken side of
Mr Trollip and deposed to a confirmatory affidavit in support of his claim. He however
does so laconically , and it still remains unclear to me what he was confirming in relation
to the issue in dispute , which is his authority to represent the first defendant. His

3 PriceWaterhouseCoopers Inc and Others v National Potato Co -operative and Others [2015] 2 All SA 403
(SCA) at para 81 .
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confirmatory affidavit does not constitute evidence to his authority to represent Latrostax
in his meeting with Mr Trollip. It therefore serves no purpose in advancing the plaintiff’s
case for summary judgment. The Supreme Court of Appeal deprecated this manner of
using confirmatory affidavits and said the following in Kalil N.O and Others v Mangaung
Metropolitan Municipality and Others :4

“Confirmatory affidavits at times may have their place but, by and large, constitute a
slothful means of placing evidence before a court which is entitled to expect that the actual
witnesses to an event depose to the facts. Be that as it may, when no facts are alleged ,
either in a respondent’s answering affidavit or in a supporting confirmatory affidavit, to
substantiate a denial of the version alleged by the applicant, the denial can be
disregarded.”

[16] The issue regarding Mr Todd’ s authority to represent Latrostax remains uncleared
and therefore triable. The plaintiff has therefore failed to meet the requisite threshold for
a summary judgment and the defendant ’s plea is undisturbed and in my considered view
remains bona fide, genuine and raise a triable issue.

[17] The issue of costs should not detain us. Mr Trollip was justified to think that
Latrostax is delaying his case . He is the plaintiff and believes in the strength of his case.
The argument advanced on his behalf were not spurious. However, the strength of his
case is not the test , the test is whether the defendant’s plea raises a bona fide defence.
Having found that it does, it is no reason to deviate from the usual costs order and make
an adverse one against him. I propose to make a usual cost order applicable in summary
judgment which is costs in the cause.

[18] In the result, t he following order is made:
1. Summary judgment is refused .
2 Costs shall be costs in the cause .



4 Kalil N.O and others v Mangaung Metropolitan Municipality and others 2014 (5) SA 123 (SCA) at para 32.
APPEARANCES
Counsel for the Applicant:
Instructed by:
Counsel for the Defendan t:
Instructed by:
Date of Judgment: 8
I ~.;N~ENA
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Adv H Fourie
BVR Attorneys
Adv Groenewald
Serfontein Viljoen & Swart Attorneys
1 O February 2025