SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No: 2023/102299
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
01 October 2025
IN THE MATTER BETWEEN:
JOSHUA FEIGIN FIRST PLAINTIFF
(Identity Number: 8[…])
NUKO MEDIA (PTY) LTD SECOND PLAINTIFF
(Registration Number: 2016/531649/07)
and
SEAN LESLIE BUTKOW DEFENDANT
(Identity Number: 8[…])
In re the Summary Judgement Application between:
JOSHUA FEIGIN FIRST APPLICANT
(Identity Number: 8[…])
NUKO MEDIA (PTY) LTD SECOND APPLICANT
(Registration Number: 2016/531649/07)
And
SEAN LESLIE BUTKOW RESPONDENT
(Identity Number: 8[…])
JUDGMENT
This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representative and the Respondents by email, publication on Case Lines. The date
for the handing down is deemed 01 October 2025 at 10h00.
___________________________________________________________________
NAIR AJ
INTRODUCTION:
[1] This is an opposed application for summary judgment in terms of Rule 32 of
the Uniform Rules of the High Court (the “Uniform Rules of Court”). The first
applicant, Mr Joshua Feigin, and the second applicant Nuko Media (Pty) Ltd
(the “ first and second plaintiffs in the main action”), seek repayment of
moneys from the respondent , Mr Sean Leslie Butkow (the “defendant in the
main action”), alleged to have been entrusted to the respondent for remittance
to the South African Revenue Service (“SARS”). Summons in this matter was
issued on 11 October 2023 and the respondent’s plea was filed late on 6
February 2024. The applicants subsequently lodged the application for
summary judgment timeously in terms of Rule 32 (2)(a) of the Uniform Rules
of Court on 23 February 2024.
[2] The first and second applicants’ claims are for payment of R3,526,328.79 and
R1,822,571.00 respectively. They allege that these funds were paid over a
period of five years under an oral mandate with the respondent and further
that these amounts were not remitted to SARS by the respondent, leaving the
applicants indebted for substantial arrears and penalties to SARS.
[3] The respondent resists summary judgment and applied to strike out
substantial portions of the plaintiffs’ founding affidavit under Rule 6(15) of the
Uniform Rules of Court arguing that it introduces impermissible new material.
The respondent has in addition to this raised several points in limine.
[4] The matter was allocated for hearing on the opposed motion court roll on 22
May 2025. There was no joint practice note filed by the respondent as per
Consolidated Practice Directive 25.17 of Directive 1/2024 or Heads of
Argument on behalf of the respondent. The applicant filed a unilateral
practice note. On th e day of the hearing, the respondent sought a
postponement on the basis that his previous attorneys firm, Shapiro &
Ledwaba Inc had withdrawn at short notice on 15 May 2025. The
respondents new attorneys on record, GGD Attorneys, were only substituted
as attorneys on record on 21 May 2025, a day before the hearing. 1 As a
consequence thereof the responded averred that his new attorneys on record
were unable to timeously prepare for the argument of this summary judgment
application and further advise the respondent on whether to oppose the
summary judgment application by the filing of a supplementary affidavit or by
serving a notice to amend the respondent’s plea in the main action. 2 The
respondent later in his founding affidavit indicated that he requests the
postponement as his new attorneys on record intended on giving notice to the
applicant that the respondent intended on amending his plea in the main
action.3 The Respondent tendered the wasted costs occasioned by the
request for a postponement which included the costs of counsel.
[5] It is trite that a postponement is not simply there for the asking, but rests in
the discretion of the Court, to be exercised judicially upon consideration of all
the facts Persadh v ersus General Motors South Africa (Pty) Ltd.
4 The Court
was satisfied that the withdrawal of the respondent’s previous attorney on
record occurred at a stage where it would be unfair to expect the respondent’s
1 See court bundle at 28-1
2 Respondent’s founding application in postponement application at court bundle 27-27 par 5.3
3 Respondent’s founding application in postponement application at court bundle 27-28 par 5.9
4 In Persadh versus General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SECLD) at para 13 the
court set out the following:
‘The following principles apply when a party seeks a postponement. 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 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.’
new legal representative, to prepare and argue t he matter on short notice. I
was mindful of the prejudice to the applicant in the form of wasted costs which
could be ameliorated by an appropriate costs order. On these reasons, the
postponement sought on 22 May 2025 was granted with the respondent to
pay the wasted costs of the applicants occasioned by the postponement
which included the costs of counsel on scale C.
[6] The matter was rescheduled for hearing on 11 June 2025 to allow the
respondents new attorneys on record to prepare for argument on the
summary judgment application. During the course of the postponement no
notice of amendment of the respondent’s plea nor an application to
supplement the respondent’s affidavit resisting Summary judgment was made
as alluded to in the respondents founding affidavit in the postponement
application.
5
FACTUAL BACKGROUND:
[7] The first applicant, Mr Joshua Feigin, is the sole director of the second
applicant, Nuko Media (Pty) Ltd. In May 2016, the first applicant engaged the
respondent, Mr Sean Leslie Butkow, in an oral agreement to provide tax and
accounting services in respect of the first and second applicants . According
to the applicants t he respondent represented himself as a chartered
accountant and auditor, trading through SLB Finance and Accounting
Services, and undertook to calculate provisional tax liabilities, prepare tax
5 Respondent’s founding application in postponement application at court bundle 27-27 par 5.3 and
27-28 par 5.9
returns and financial statements and receive funds from the applicants and
remit them to SARS.
[8] Between 3 July 2018 and 18 May 2023, the f irst applicant made payments
totalling R3,526,328.79 and on behalf of the second applicant made payments
totalling R1,822,571.00 all into the r espondent’s FNB account (Account No.
62601299482), as evidenced by annexures POC1 and POC2. 6 In March
2022, the a pplicants appointed Matthew Saunders of Arbor Taxation and
Accounting Services to investigate their tax affairs and report thereon (the
“Arbor Report”). The investigation revealed that:
[8.1] SARS had not received the payments from the respondent;
[8.2] The unpaid company and personal tax exceeded R4,5 million in unfiled
returns and penalties;
[5.3] None of the payments made to the respondent were traceable to
SARS;
[8.4] The applicants remained non-compliant with SARS.
6 See court bundle at 25-23 to 25-26
[9] The respondent failed to provide proof of payment or SARS allocation
confirmations, despite repeated requests via w hatsapp and email 7 The
applicants subsequently instituted action and lodged this Summary judgment
application.
RESPONDENT’S VERSION AND PLEA:
[10] The respondent’s plea appears on pages 02-18 to 02-27 of the court bundle.
The respondent in his p lea admits to receiving payments but claims these
were for professional services and not for onward payment to SARS .8 The
respondent denies any misrepresentation and asserts he never claimed to be
a chartered accountant. 9 The Defendant r aised the special pleas of
prescription, arguing claims prior to October 2020 have prescribed. 10 He also
challenged the locus standi of the first applicant.11 In his answering affidavit 12
he denied the liability for the damages, and maintained that the Plaintiffs were
aware of their SARS debts prior to the appointment of Arbor. It was argued
on behalf of the respondent that the applicants’ claim is not for cancellation of
the professional services agreement but only for damages.
COMMON CAUSE FACTS:
[11] The following are common cause between the applicants and the respondent:
7 Annexures JF3.1–JF3.2, JF4–JF14.9 of the applicants founding affidavit
8 Defendant’s Plea in the court bundle at 02-23 par 18
9 Defendant’s Plea in the court bundle at 02-21 par 5
10 Defendant’s Plea in the court bundle at 02-19
11 Defendant’s Plea in the court bundle at 02-21 par 5
12 Defendant’s answering affidavit in the court bundle at 12-92 to 12-96
[11.1] An oral agreement was concluded on or about 5 December 2016
between the applicants and the respondent;13
[11.2] The agreement contemplated that the respondent would provide tax
and accounting-related services to the applicants;14
[11.3] The respondent was to calculate the applicants ’ provisional tax
liabilities and communicate the amounts due;15
[11.4] The applicants made multiple payments to the respondent, amounting
to R3,526,328.70 in respect of the first applicant and R1,822,571.00 in
respect of the second applicant;16
[11.5] The payments were made between 3 July 2018 and 18 May 2023 in
respect of the first applicant , and between 15 August 2018 and 15
December 2021 in respect of the second applicant;17
[11.6] The respondent acknowledges receiving the funds from the
applicants.18
13 The Respondent/ Defendant’s plea at par 14, Applicants’ founding affidavit at par 17.
14 The Respondent/ Defendant’s plea at pars 14 to 16, Applicants’ founding affidavit at par 17.1.
15 The Respondent/ Defendant’s plea at par 17, Applicants’ founding affidavit at par 17.1.1.
16 The Respondent/ Defendant’s plea at pars 21 to 22, Applicants’ founding affidavit at paras 18.1.
and 18.2
17 The Respondent/ Defendant’s plea at pars 21 to 22, POC 1 and POC 2 of the Plaintiff’s Particulars
of Claim.
[11.7] The respondent was not registered with SAICA19
ISSUES TO BE DETERMINED:
[12] The following are issues which the court is required to decide on:
[12.1] Whether the applicant’ claims, in whole or in part, have prescribed
specifically from 9 October 2020;
[12.2] Whether the applicants, as a prerequisite to claiming repayment, had to
first cancel the oral agreement with the defendant.
[12.3] Whether the f irst applicant’s fiduciary duty as a director of the second
applicant company affects the merits of the claim with regards to the
alleged prescription.
POINTS IN LIMINE 1 – THE STRIKING OUT APPLICATION
[13] The respondent, in terms of Rule 6(15) of the Uniform Rules of Court , seeks
an order striking out paragraphs 31, 31.1, 31.2, 31.3, 32, 32.1, 32.2, 33, 34,
18 The Respondent/ Defendant’s plea at pars 21 to 22, Respondent’s affidavit resisting summary
judgment at para 2.7
19 The Respondent/ Defendant’s plea at par 5 and 9
35, 35.1, 35.2, 35.3, 35.4, 45, 45.1, 45.2, 46, 46.1, 46.2, 46.3, 46.4, 46.5,
46.6, 46.7, 46.8, 46.9, 46.10, 46.11, 46.12, 46.13, 46.14, 47, 50, 51, 52, 53,
54, 55, 56, 57, 58, 59, 60, 61, 62, 65 of the applicants’ founding affidavit,
where it relies on the aforementioned, as constituting evidence as well as
annexures JF3.1 to JF3.2, JF4, JF5, JF6.1 to JF6.2, JF7.1 to JF7.4, JF8.1 to
JF8.2, JF9, JF10, JF11, JF12.1 to JF12.2, JF13.1 to JF13.31 & JF14.1 to
JF14 from the applicants ’ founding affidavit, on the grounds that they are
scandalous, vexatious, or irrelevant.
20
[14] The respondent contends that the applicants’ founding affidavit introduces
new evidence and documents not referred to in the particulars of claim, in
contravention of Rule 32(2)(b) of the Uniform Rules of Court.
21 The
respondent argues that summary judgment proceedings are to be determined
on the strength of the particulars of claim and not on additional evidence or
annexures introduced for the first time in the summary judgment application.
22
The respondent submitted that the inclusion of such material is an abuse of
process and prejudices the respondent’s right to a fair trial. The respondent
alleges the following with regards to the inclusion of additional documents and
annexures to the applicants’ founding affidavit that:
20 The respondents head of argument paras 2.1 to 2.32, Respondent’s notice in terms of Rule 6(15) of
the Uniform Rules of Court at page 04-12
21 See court bundle at page 04-10
22 See court bundle pages 04-10 to 0-12 and respondent’s heads of arguments at par 2.32
[15.1] Annexure JF3.1 to JF3.2 are purportedly “ whatsapp” correspondence
between the parties and a proof of payment which was not attached to
the Particulars of Claim;
[15.2] Annexure JF4 is purportedly “ whatsapp” correspondence between the
parties, which was also not attached to the particulars of claim;
[15.3] Annexure JF5 is purportedly email correspondence between the
parties that, again, found no attachment to the particulars of claim;
[15.4] Annexure JF6.1 to JF6.2 & JF12.1 to JF12.2 – purportedly letters of
authority, for which no basis is laid in the particulars of claim;
[15.5] Annexure JF7.1 to JF7.4 – purportedly the invoices for preparation of
the provisional tax payment and emails between the parties;
[15.6] Annexure JF8.1 to JF8.2 – purportedly email correspondence between
the parties and a tax return form;
[15.7] Annexure JF9 & JF10 – purportedly “Whatsapp” correspondence
between the parties, which was not attached to the particulars of claim;
[15.8] Annexure JF11 – purportedly the invoices for preparation of the
provisional tax payment;
[15.9] Annexure JF13.1 to JF13.31 & JF14.1 to JF14 – Purportedly proof of
payments which are provided without context or basis being set out in
the particulars of claim as to how they quantify the alleged damages, or
which particular regard to professional services rendered against which
such documents are to be appreciated;
[15.10] That the purported evidence in paragraphs 31, 31.1, 31.2, 31.3, 32,
32.1, 32.2, 33, 34, 35, 35.1, 35.2, 35.3, 35.4, 45, 45.1, 45.2, 46, 46.1,
46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8, 46.9, 46.10, 46.11, 46.12,
46.13, 46.14, 47, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 65
of the applicants’ f ounding affidavit, where it relies on the
aforementioned, as constituting evidence in support of the attached
annexures.
[16] In response thereto the applicants argue that the annexures and paragraphs
in question are not scandalous, vexatious, or irrelevant, but are necessary to
establish the cause of action and to respond to the respondent ’s defences.
The applicants submit that the evidence is directly relevant to the issues in
dispute, particularly the nature of the payments, the existence of
misrepresentation, and the running of prescription.
[17] An application to strike out any matter from an affidavit is regulated by Rule
6(15) of the Uniform Rules of Court, which read as follows:
“The court may on application order to be struck out from any affidavit any
matter which is scandalous, vexatious or irrelevant, with an appropriate order
as to costs, including costs as between attorney and client. The court may not
grant the application unless it is satisfied that the applicant will be prejudiced if
the application is not granted.”
[18] Mahomed CJ in Beinash versus Wixley
23 had the following to say:
“What is clear from this Rule is that two requirements must be satisfied before
an application to strike out matter from any affidavit can succeed. First, the
matter sought to be struck out must indeed be scandalous, vexatious or
irrelevant. In the second place the Court must be satisfied that if such matter
was not struck out the parties seeking such relief would be prejudiced.”
23 Beinash versus Wixley 1997 (3) SA 721 (SCA) at page 733A-B.
[19] Rule 6(15) of the Uniform Rules of Court empowers the court to strike out any
matter in an affidavit which is scandalous, vexatious, or irrelevant, with an
appropriate costs order. The following was held in the matter of Smith NO
versus Brummer24:
“It has been found that the relevant factors, when orders of this kind are
considered, will be (a) the reasons for non- compliance with the rules, request,
notice, order or direction concerned and, in this regard, whether the defaulting
party has recklessly disregarded his obligations; (b) whether the defaulting
party's case appears to be hopeless; and (c) whether the defaulting party
does not seriously intend to proceed. In addition, prejudice to either party is a
relevant factor.
[20] In essence t he test is whether the matter is relevant to the issues in dispute
and whether its inclusion would prejudice the other party .25 In summary
judgment proceedings, the court must be cautious not to allow the application
to become a trial by affidavit, but must also ensure that the applicant can
establish its claim and respond to the defences raised.
24 Smith NO versus Brummer 1954 (3) SA 352 (O) at page 357
25 Ibid at page 357
[21] Wanless J as he then was AJ, had the following to say in Absa Bank Limited
versus Mphahlele N.O:26
“What is apparent to this court, is the need to draw a clear distinction between
points of law and the facts as envisaged in subrule (2)(b). A plaintiff is now
required to “ identify any point of law relied upon and the facts upon which
the plaintiff’s claim is based”. These may not necessarily be related to one
another. Whether they are or not, what is abundantly clear is that the points
of law relied upon by a plaintiff and the facts upon which a plaintiff’s claim is
based as contemplated in the subrule, are not related to the defence of the
defendant but relate solely to the plaintiff’s cause of action which has to be
verified in the same affidavit and in terms of the same subrule. As to the “brief
explanation as to why the defence as pleaded does not raise any issue for
trial”, this must be confined solely thereto. This brief explanation does not
open the door to entitle a plaintiff to introduce new evidence as to why, at
Summary judgment stage, a defendant should not be given leave to defend
an action and to attempt to show that a plaintiff has an unanswerable case.
This would be contrary to the very nature of Summary judgment procedure
both in terms of Rule 32 in its original and amended forms.”
[22] The heads of argument filed on behalf of the respondent referred to the matter
of Petso and Others .
27 Crutchfield J, after consider ing the ABSA Bank case
26 Absa Bank Limited versus Mphahlele N.O and Others (45323/2019, 42121/2019) [2020] ZAGPPHC
257 (26 March 2020) at par 33
27 Petso and Others (017371/2022) [2024] ZAGPJHC 129
supra held that a plaintiff in summary judgment proceedings may not
introduce new evidence or documents as to why a defendant should not be
given leave to defend an action and to show that the plaintiff has an
unanswerable case. She found that new evidence or new documents may not
be introduced in circumstances where they were not referred to by the plaintiff
in the particulars of claim.
[23] I find myself in agreement with the reasoning in both the ABSA Bank and
Petso cases supra that a plaintiff in summary judgment proceedings is not
entitled to introduce new evidence or documents not contained in the
plaintiff’s particulars of claim as to why a defendant should not be given leave
to defend an action and show that the plaintiff has an unanswerable case.
[24] In my view the evidence sought to be included is not scandalous or vexatious,
but its relevance is apparent from the factual issues in dispute. The
respondent’s objection is, in substance, an objection in respect of the
applicants’ ability to prove their claim on the facts without the respondent
being given the opportunity to lead evidence, cross -examine and test the
evidence presented by the applicants through trial proceedings . A summary
judgment application is sui generis and has its own set of procedure. In terms
of subrule 32(4) of the Uniform Rules of Court no evidence may be adduced
by the plaintiff otherwise than by the affidavit referred to in subrule 32(2)
28, nor
28 “ Rule 32(2)
may either party cross -examine any person who gives evidence orally or on
affidavit. The simple interpretation is that no extrinsic evidence outside what is
in the particulars of claim and plea may be consider ed. I am therefore
satisfied that no regard can be had to the inclusion of the alleged impugned
paragraphs and annexures for the fair adjudication of the summary judgment
application as they would not be admissible in summary judgment
proceedings, thereby also rendering the evidence irrelevant for the purposes
of the Summary judgment application. The respondent has furthermore set
out that the inclusion of the w hatsapp messages, emails and annexures not
contained in the Particulars of Claim are prejudicial to the respondent’s case
and the respondents defence as he would be deprived of an opportunity to
challenge the evidence through cross-examination at a trial.
[25] It is common cause between the parties that the respondent is not a
registered chartered accountant with SAICA . P aragraphs 55, 56 and 57 of
the applicants founding affidavit address these facts as raised by the
respondent in his plea. In my view this is in response to the defence raised by
the respondent in his plea and I am not satisfied that these paragraphs should
be struck from the applicants’ founding affidavit. Similarly paragraphs 60 to
63 and annexures JF6.1 to JF6.2 & JF12.1 to JF12.2 are in response to the
respondent’s defences of fiduciary duty and locus standi of the first applicant
(a) Within 15 days after the date of delivery of the plea, the plaintiff shall deliver a notice of
application for Summary judgment, together with an affidavit made by the plaintiff or by any
other person who can swear positively to the facts.
(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.”
that was raised by the respondent in his plea. I am not satisfied that these
paragraphs are scandalous, vexatious or irrelevant so as to be struck from the
applicants’ founding affidavit. This application for striking out of the
aforementioned paragraphs in the applicants founding affidavit in terms of
Rule 6(15) of the Uniform Rules of Court is dismissed.
[26] The proof of payments of the first applicant’s claims are annexed as JF 13.1
to JF 13.31 whilst the second applicants proof of payment is annexed as JF
14.1 to JF 14.9. These are not contained in the particulars of claims and were
added presumably to prove the payments listed in POC 1 and POC 2 of the
Particulars of Claim. Annexures JF3.1 to JF3.2, JF4, JF9 and JF10 are
whatsapp messages which were not part of the Particulars of Claim.
Annexure JF 5, JF 8.1 and JF8.2 are email correspondence not included in
the Particulars of Claim. Annexure JF7.1 to JF 7.4 and JF.11 are invoices not
included in the Particulars of Claim. P aragraphs 31, 31.1, 31.2, 31.3, 32,
32.1, 32.2, 33, 34, 35, 35.1, 35.2, 35.3, 35.4, 45, 45.1, 45.2, 46, 46.1, 46.2,
46.3, 46.4, 46.5, 46.6, 46.7, 46.8, 46.9, 46.10, 46.11, 46.12, 46.13, 46.14, 47,
50, 51, 52, 53, 54, 58, 59, 64 and 65 all relate to additional evidence not set
out in the applicants’ Particulars of Claim and which refer to the
aforementioned annexures . Applying the ABSA Bank case these
paragraphs, documents and annexures should not be allowed in this
summary judgment application as it did not form part of the Particulars of
Claim. Under the circumstances I find that the said p aragraphs 31, 31.1,
31.2, 31.3, 32, 32.1, 32.2, 33, 34, 35, 35.1, 35.2, 35.3, 35.4, 45, 45.1, 45.2,
46, 46.1, 46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8, 46.9, 46.10, 46.11, 46.12,
46.13, 46.14, 47, 50, 51, 52, 53, 54, 58 , 59, 64 and 65 of the applicants’
founding affidavits as well annexures JF 3.1 to JF 3.2, JF 4, JF5, JF7.1 to
JF7.4, JF8.1 to JF8.9, JF9, JF10, JF13.1 to JF 13.31 and JF 14.1 to JF 14.9
are irrelevant to the summary judgment application at hand as they did not
form part of the Particulars of Claim and are accordingly struck from the
applicants’ founding affidavit in terms of Rule 6(15) of the Uniform Rules of
Court.
POINT IN LIMINE 2 - LOCUS STANDI:
[27] The respondent challenged the locus standi of the first applicant to act on
behalf of the second applicant but provided no factual basis for this. 29 The
respondent’s challenge is vague and unsupported. 30 The first applicant is the
sole direct or of the second applicant and the applicants have provided
company documents and resolutions .31 The applicants have shown that
payments were made from their respective accounts. The payments made by
Nuko Media were from its corporate account and t he first applicant having
made payments from his own account 32 I am therefore satisfied that locus
standi of the first applicant to act on behalf of the second applicant is
established.
POINTS IN LIMINE 3 – CONTRACT NOT CANCELLED:
29 Defendant’s Plea in the court bundle at 02-21 par 5
30 See court bundle page 02-20, para 3
31 See court bundle page 12-24 to 12-26
32 See court bundle page 12-44 to 12-86
[28] The third point in limine raised by the respondent is that the applicants did not
expressly plead in the Particulars of Claim the cancellation of the professional
services contract and as such the applicants are barred from claiming
damages resulting from the respondents breach. It is generally accepted in
law that cancellation of an agreement should be in the form of a pleaded
case. In the present case it is difficult to follow that the applicants should be
precluded from claiming damages as a result of failing to plead cancellation of
the respondent’s professional services when considering the alleged
misrepresentation by the respondent as pleaded by the applicants . It is
disputed that the amounts claimed by the applicants were for professional
services but rather for moneys that were due to SARS and paid to the
respondent for payment to SARS in the course of his accounting services to
the applicants. It is common cause that these amounts were never paid by
the respondent to SARS and thus the applicants allege a fraudulent
misrepresentation and misappropriation of the funds by the respondent. In
my view under such circumstances of a fraudulent misrepresentation such
cancellation of the agreements would not necessarily be required to be
pleaded before a plaintiff would be entitled to the plaintiff’s claim. To require a
cancellation of an oral agreement to be pleaded in the Particulars of Claim
before a plaintiff can be entitled to claim damages resulting from a
misrepresentation would be encouraging delinquent defendants who have
misrepresented on an agreement and thereby breaching it, the opportunity to
evade liability for any resultant damages which flow from their actions of
misrepresentation merely because the cancellation of the agreement i s not
pleaded. This is certainly prejudicial to a plaintiff who has a legitimate claim
against a defendant based on a misrepresentation.
[29] In the present case the respondent stated in his affidavit resisting summary
judgment that the applicants terminated his services. 33 The only inference
that can be drawn from the termination of the respondent’s services to the
applicants, is that the applicants cancelled the oral agreement with the
respondent. The respondent’s argument regarding cancellation of the oral
agreement occurring first before the applicants may be entitled to their claim
must therefore fail.
POINTS IN LIMINE 4 - PRESCRIPTION:
[30] The third point in limine raised by the respondent is that all amounts claimed
by the applicants prior to 9 October 2020 have prescribed. Section 11 of the
Prescription Act 68 of 1969 (the “Prescription Act”) provides for the periods
applicable to the prescription of debts as follows:
“ 11 Periods of prescription of debts
The periods of prescription of debts shall be the following:
(a) thirty years in respect of-
(i) any debt secured by mortgage bond;
33 Respondents affidavit resisting Summary judgment at par 2.1.2
(ii) any judgment debt;
(iii) any debt in respect of any taxation imposed or levied by or under any law;
(iv) any debt owed to the State in respect of any share of the profits, royalties
or any similar consideration payable in respect of the right to mine
minerals or other substances;
(b) fifteen years in respect of any debt owed to the State and arising out of an
advance or loan of money or a sale or lease of land by the State to the
debtor, unless a longer period applies in respect of the debt in question in
terms of paragraph (a);
(c) six years in respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless a longer period
applies in respect of the debt in question in terms of paragraph (a) or (b);
(d) save where an Act of Parliament provides otherwise, three years in
respect of any other debt.”
[31] The respondent contends that the claims of the applicants prior to 9 October
2020 are prescribed. In terms of section 12(3) of the Prescription Act 34, a debt
is not deemed due until the creditor has knowledge of the facts giving rise to
the debt. The applicants’ claim s are subject to a three- year extinctive
34 “Section 12 of the Prescription Act 68 of 1969 - When prescription begins to run
(1) Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon
as the debt is due.
(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt,
prescription shall not commence to run until the creditor becomes aware of the existence of the
debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the
debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to
have such knowledge if he could have acquired it by exercising reasonable care.
prescription period and the applicants allege that they only became aware of
the misappropriation of funds in September 2023, upon receipt of the Arbor
Report. In terms of section 12(2) of the Prescription Act, if the debtor wilfully
prevents the creditor from coming to know of the existence of the debt,
prescription shall not commence to run until the creditor becomes aware of
the existence of the debt . Prior to th e receipt of the Arbor Report it is
undisputed that the respondent did not disclose that payments were not being
made to SARS. The respondent averred that the payments made to him by
the applicants were for his professional fees but did not provide any invoice of
his professional fees indicating that he was entitled to the amounts for
professional services.
[32] In Truter v Deysel
35, the Supreme Court of Appeal held the following:
“Cause of action’ for the purposes of prescription thus means –
‘…every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the Court. It does not comprise
every piece of evidence which is necessary to prove each fact, but every fact
which is necessary to be proved.”
[33] The Supreme Court of Appeal further held that
:
35 Truter v Deysel 2006 (4) SA 168 (SCA) at par 18
“in accordance with the so- called ‘once and for all’ rule, a plaintiff must claim
in one action all damages, both already sustained and prospective, flowing
from one cause of action. Therefore, a plaintiff’s cause of action is complete
as soon as some damage is suffered, not only in respect of the loss already
sustained by him or her, but also in respect of all loss sustained later.”
36
[34] Applying the Truter case supra the applicants cause of action w ould be
complete and the debt of respondent became due as soon as the first known
misappropriation came to the knowledge of the applicants . The applicants
allege that this was on 1 September 2023 when the Arbor Report was made
available. The applicants also contend that they appointed Mathhew
Saunders to compile the Arbor report after they became suspicious thereof in
2022. The respondent avers that prescription commenced from 11 October
2020. This in my view raises the triable issue of the actual date when the
debt of the respondent became due. Even if partial prescription is accepted,
the applicants would in the very least be entitled to judgment for the portion of
the claim arising after 11 October 2020, amounting to R3,430,641.33 as the
date when the respondent alleges the applicants claim became prescribed.
The quantification of the actual amounts that the applicant s would be entitled
to repayment of would then become a triable issue as there are varying dates
of when the applicants would have become aware of the debt due by the
respondent and the quantification thereof.
36 Ibid at par 21
[35] In support of the defence of prescription t he respondent further alleged that
the first applicant failed in his fiduciary duties under section 76 of the
Companies Act 71 of 2008 (the “Companies Act”), and that if the first applicant
had acted with the necessary care and skill required of a director under
section 76(3)(c) of the Companies Act, the first applicant would have gained
the requisite knowledge of the applicants’ cause of action during 2022.37
[36] Section 76(4)(b)38 of the Companies Act, however, entitles directors to rely on
professional advisors . The first applicant relied on the respondent ’s
representations and documentation that the applicants moneys were being
paid to SARS , which were later proven false in the Arbor report . In my view
the fiduciary duty defence does not absolve the respondent of liability and
does not constitute a triable issue. The respondent’s argument that the f irst
applicant should have detected the fraud earlier is speculative and
unsupported. In my view the first applicant acted reasonably and diligently
upon discovering discrepancies. The aspect of prescription however may
become a triable issue as to when the applicants’ gained knowledge of the
alleged misrepresentation and when the respondents debt became due in
terms of section 12(3) of the Prescription Act as well as the resultant
quantification of the applicants claim if the prescription point in limine is
upheld. This can only be done if the respondent is afforded an opportunity to
test the evidence of the applicants at trial.
37 Respondent’s affidavit resisting Summary judgment at par 2.2
LEGAL PRINCIPLES:
[37] Summary judgment is an extraordinary remedy intended to prevent
defendants from delaying final judgment where no genuine defence exists. It
is governed by Rule 32 of the Uniform Rules of Court. 39 In terms of Rule
32(2)(a) read with Rule 32(2)(b), the Plaintiff must:
[37.1] Swear positively to the facts;
[37.2] Verify the cause of action and amount claimed;
[37.3] identify any point of law relied upon and the facts upon which the
plaintiff’s claim is based,
[37.4] Explain briefly why the defence as pleaded does not raise any issue for
trial.
[38] The onus in summary judgment applications rests on the applicant to
establish a prima facie case and on the respondent to show, on affidavit, that
39 “Rule 32. Summary judgment
(1) The plaintiff may, after the defendant has delivered a plea, apply to court for Summary judgment
on each of such claims in the summons as is only—
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment,
together with any claim for interest and costs.
there is a triable issue or bona fide defence. In Maharaj v ersus Barclays
National Bank Ltd 40, the Appellate Division held that the Plaintiff must set out
facts clearly and verify them. Once this is done, the onus shifts to the
Defendant to disclose facts which, if proved at trial, would constitute a valid
defence.
The court further held that the principle is that, in deciding whether or
not to grant summary judgment, the court looks at the matter 'at the end of the
day' on all the documents that are properly before it . Corbet JA also had the
following to say:
“Under Rule 32 (3), upon the hearing of an application for Summary judgment,
the defendant may either give security to the G plaintiff for any judgment
which may be given, or satisfy the Court by affidavit or, with the leave of the
Court, by the oral evidence of himself or 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 therefor. If the defendant finds security or
satisfies the H Court in this way, then, in terms of Rule 32 (7), the Court is
bound to give leave to defend and the action proceeds in the ordinary way. If
the defendant fails either to find security or to satisfy the Court in this way,
then, in terms of Rule 32 (5), the Court has a discretion as to whether to grant
Summary judgment or not (see Gruhn v. M. Pupkewitz & Sons (Pty.) Ltd.
1973 (3) SA 49 (AD) at p. 58). If on the hearing of the application it appears
that the defendant is entitled to defend as to part of the claim, then, in terms of
Rule 32 (6), the Court is bound to give him leave to defend as to that part and
40 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 422, 423 and 424
to enter judgment against him for the balance of the claim, unless he has paid
such balance into Court”41
[39] In Joob Investments v ersus Stocks Mavundla Zek Joint Venture 42, the
Supreme Court of Appeal emphasised that summary judgment is not a
mechanism to shut out genuine defences, but to prevent abuse of process. It
was intended to prevent sham defences from defeating the rights of parties by
delay, and at the same time causing great loss to plaintiffs who were
endeavouring to enforce their rights . The court referred to the Maharaj case
supra
43 where Corbett JA was keen to first ensure, an examination of whether
there has been sufficient disclosure by a defendant of the nature and grounds
of his defence and the facts upon which it is founded, and secondly whether
the defence so disclosed must be both bona fide and good in law. The
Supreme Court of Appeal held that a court which is satisfied that this
threshold has been crossed is then bound to refuse summary judgment.
[40] In Cohen NO and Others v ersus D
44 at paragraph 31 the Supreme Court of
Appeal reiterated that the core test from the Joob Joob case remains valid
even after the amendment to Rule 32 of the Uniform Rules of Court in 2019.
The critical question is whether the defence is genuine, not whether it will
necessarily succeed. The court found that the High Court failed to consider
whether the facts raised a "triable issue" and a "sustainable defence in law"
41 Ibid page 426
42 Joob Joob Investments versus Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at par 31
43 Maharaj versus Barclays National Bank Ltd 1976 (1) SA 418 (A) at 425G to 426E
44 Cohen NO and Others v D (368/2022) [2023] ZASCA 56 handed down on 20 April 2023
for the defendants. All that a defendant has to do is set out facts which if
proven at trial will constitute a good defence to the claim.
CONCLUSION:
[41] It is not in dispute that the applicants claims are liquidated amounts. The
respondent admits receipt of the amounts paid by the applicant s as set out in
schedules annexed to the particulars of claim as “POC1” and “POC2”, but
denies that he is liable to repay these amounts as ‘the claim in this regard has
wholly prescribed’. 45 Additionally, the defendant pleads that the applicants’
payments were the fee paid to the respondent for a professional service which
was rendered, not money owed to SARS’. 46 The first applicant swore
positively to the facts and verified the applicants claims and cause of action.
The applicants did not however rely on any points in law but only on the facts
which gave rise to their cause of action wherein they claim repayment of the
amounts of R3,526,328.79 and R1,822,571.00 respectively . The applicants
attempted to explain why the defences as pleaded by the respondent does
not raise any issue for trial but s ome of these facts were based on evidence
placed before this court which has been struck out from the founding affidavit
of the applicants and no regard was had to it.
[42] The applicants rely on POC 1 and POC 2 in the Particulars of Claim to reflect
payments that were made to the respondent for payment to SARS. No proof
45 Respondent’s plea par 21 to 22
46 Respondent’s plea par 20
of these payments were attached in the applicants Particulars of Claim and
this would be a triable issue for the applicants to prove considering the
respondents defence that it was payments made for professional services
rendered. In my view, th is supports the respondent that he has a bonafide
defence to some of the applicants’ claims. The difficulty I also have is
quantifying these amounts as this would only be possible at trial after
scrutinising any proof of payments that may be led at a trial.
[43] Applying the principles in the Cohen, Joob Joob and Maharaj cases, I am not
persuaded that the plaintiffs have established that the respondent’s defences
are a complete sham. Genuine disputes of fact exist, and these must be
resolved at trial. In light of the this and my earlier finding that the date of when
the applicants became aware of the debt becoming due by the respondent in
terms of section 12(3) of the Prescription Act being also a triable issue, I am of
the view that the respondent has raised a bona- fide defence to the applicants’
claims. I therefore refuse the application for summary judgment and grant the
respondent leave to defend the action.
ORDER:
[44] Under the circumstances I make the following order:
[44.1] The respondent’s application in terms of Rule 6(15) of the Uniform
Rules of Court to strike out is partially granted in that paragraphs 31,
31.1, 31.2, 31.3, 32, 32.1, 32.2, 33, 34, 35, 35.1, 35.2, 35.3, 35.4, 45,
45.1, 45.2, 46, 46.1, 46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8, 46.9,
46.10, 46.11, 46.12, 46.13, 46.14, 47, 50, 51, 52, 53, 54, 58, 59, 64
and 65 of the applicants’ founding affidavits as well annexures JF 3.1 to
JF 3.2, JF 4, JF5, JF7.1 to JF7.4, JF8.1 to JF8.9, JF9, JF10, JF13.1 to
JF 13.31 and JF 14.1 to JF 14.9 are struck out from the applicants’
founding affidavit;
[44.2] The respondent’s point in limine in respect of the first applicant’s locus
standi to act on behalf of the second applicant is dismissed;
[44.3] The respondent’s point in limine in respect of the cancellation of the
contract is dismissed;
[44.4] The respondent’s point in limine regarding prescription and
quantification of the applicants claims are considered triable issues and
thus summary judgment application is refused;
[44.5] The respondent is granted leave to defend that action.
[44.6] The costs of the summary judgment application is reserved for
determination at the end of the trial.
________________________
M NAIR
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of appearance: 11 June 2025
Date Judgment delivered: 01 October 2025
Appearances:
For the Plaintiff:
Instructed by: Schindlers Attorneys
Email address: piveteau@schindlersattorneys.com
Tel: 011- 448 9600
For the Defendant:
Instructed by: Adv JA Steyn
Instructed by: GGD Attorneys
Email address: garrow@ggdattorneys.com
Tel: 078 038 2545