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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 20897/2024
In the matter between:
APOLLON PROPERTY FUND (PTY) LTD PLAINTIFF
and
SANDRE MARAIS INCORPORATED FIRST DEFENDANT
ISHMAIL BOOLAY SECOND DEFENDANT
Coram: Morrissey AJ
Heard: 21 August 2025
Delivered: 13 November 2025
ORDER
Summary Judgment is granted in favour of the plaintiff against the second
defendant for:
i. Payment of R3,250,000.00;
ii. Interest on the amount of R3,250,000.00 at the legal rate from 22
July 2024 until date of final payment;
iii. Costs of suit, including the costs o f two counsel where so employed,
with the fees of senior counsel not to exceed those per scale C and
the fees of junior counsel not to exceed those per scale B.
JUDGMENT
MORRISSEY AJ:
[1] The plaintiff seeks summary judgment against the second defendant
for R3,250,000.00, together with interest and costs.
[2] Per its particulars of claim, the plaintiff says that the second defendant
agreed to pay it 50% of a certain loan; and that he undertook to pay
R3,250,000.00 of that indebtedness from the proceeds of a bond he
was going to register over certain immovable property he owned .
Such a bond was registered on 22 July 2024, but payment was not
forthcoming. It became common cause in the summary judgment
proceedings that the loan the plaintiff avers that the second defendant
agreed to repay was one the plaintiff made to Culture Cars (Pty) Ltd ,
not the second defendant.
[3] The second defendant met the plaintiff’s claim with a plea. In it h e
disputes having any indebtedness to the plaintiff at all . He also
advances an alternative defence that any indebtedness that he does
have is conditional, and the plaintiff’s claim is premature because
those conditions have not yet been fulfilled. As will be seen, the
second defendant also avers that any conditional indebtedness he has
to the plaintiff is legally unenforceable. It is not entirely clear that
that defence was advanced in the plea, but I shall assume that it was
for purposes of this Judgment.
[4] The plaintiff responded to the second defendant’s plea with the
summary judgment application that served before me . The plaintiff
has verified its cause of action and says that the second defendant’s
defence does not raise an issue for trial b ecause it is contrived. In
explaining that submission the plaintiff says that the pleaded defence
contradicts certain contemporaneous documents annexed to the
particulars of claim.
[5] There was no challenge to the plaintiff’s right to apply for summary
judgment per se. Although there is some uncertainty surrounding the
concept of a plea not raising an issue for trial as described in rule
32(2)(b), I am in respectful agreement with what was said in Tumileng
Trading v National Security and Fire 2020 (6) SA 624 (WCC) at [21]
that that concept includes the situation where a plaintiff contends that
the plea is a sham because the defence pleaded does not genuinely
raise an issue for trial.
[6] Rule 32(2)(b) requires an explanation from a plaintiff as to why it
considers a plea does not raise an issue for trial. In my view, a
plaintiff who avers that a plea is a sham must put up a prima facie
basis to substantiate that proposition. The degree of substantiation
required will depend on the facts of a given case.
[7] A defendant fac ing a summary judgment application that meets that
requirement must either put up security for the plaintiff’s claim, or
deliver an affidavit that discloses fully the nat ure and grounds of their
defence and the material facts underlying it.
[8] Loosely stated, the purpose of such an affidavit is to vouch the truth of
the pleaded defence. Precisely what is required will also depend on
the facts of the given case. A statement on oath by an appropriate
deponent that confirms the facts relied on for the defences advanced
in the plea (as opposed to merely confirming that certain defences
appear in the plea) will often be sufficient, even if those facts appear
improbable. That is because summary judgment proceedings are not
the forum for assessing the probabilities of a defendant’s defence or
whether it is likely to prevail at a trial. The enquiry is simply whether
the pleaded defence is genuinely advanced, as opposed to a sham pu t
up to secure a delay ( Maharaj v Barclays Bank Ltd 1976 (1) SA 418
(AD) at 426A-F; Tumileng (supra) at [22]-[23]).
[9] If a defendant does not provide the necessary confirmation, or does so
in a manner that is needlessly bald, vague or sketchy, then summary
judgment will usually be granted ( Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226 (TPD) at 228E -F). A bald, vague or sketchy
opposing affidavit is viewed with caution because it tends to indicate
a deponent who does not genuinely believe in the pleaded defence, but
is not prepared to lie, or to do so blatantly, by saying that she does.
Although dealing with the former version of rule 32, t he following
explanation from Breitenbach (supra) at 228H is apposite:
“The penalty (or one of the penalties) for making a false
statement on oath is imposed after a trial for perjury. And in
such a trial a man will find it easier to escape conviction if
the averment to which he swore was brief, bald and vague,
than if it was clear and supported by such detail as an honest
deponent might reasonably have been expected to put
forward even in a concise reply to a summary judgment
application. A dishonest deponent, if he is wise, will present
as narrow a front as possible, and (if it is practicable) a
blurred one.”
[10] The plaintiff sought to substantiate its contention that the second
defendant’s plea was contrived on the basis that, at least on the face of
it, it conflicted with certain contemporaneous documents. All of those
documents were relied on in the particulars of claim, with copies
attached as annexures.
[11] The first document was an email authored by the second defendant on
17 June 2024 (“the 17 June email”). It reads as follows:
“Good Morning Michael
Attached is an approved loan over by Bishopscourt property.
I was waiting on Willie but it seems he merely wants to take
out a guarantee over MY property and settle you once sold.
This will take months. I have also NOT received any mone y
directly from Apolon and my company to which the money
was borrowed is under liquidation.
I will however honor 50% of the loan on behalf of myself and
Kristian and Willie must settle his portion.”
[12] The second document was an email authored by the second defendant
on 2 July 2024 (“the 2 July email”). It reads as follows:
“Good Day Michael
I’m only receiving R3.4 from the proceeds of the first
registration and additional funds of completion of the
project. I will pay the balance of R1mil as soon as it
becomes available.”
[13] The third document , and possibly the most important one, was a n
attachment to the 2 July email. It purports to be a letter of
undertaking dated 2 July 2024 and prepared on the letterhead of
attorneys Sandre Marais Incorporated (“the Undertaking”). It reads as
follows:
“BOND REGISTRATION: ISHMAIL BOOLAY / CAPITEC
BANK
REMAINDER EARTH 9[...] CONSTANTIA
We refer to the above and confirm that we are attending to
the registration of the above transaction.
On instruction of our client, Mr Ishmail Boolay, we herewith
undertake to pay to yourselves, on the date of registration of
abovementioned transaction by ourselves in the Cape Town
Deeds Office, the amount of R3 250 000.00 (Three Million
Two Hundred and Fifty Thousand Rand) int o the following
account:
[Account details omitted]
We anticipate to be ready for lodgement within the 5 to 7
business days, whereafter we anticipate registration to take
place 8 to 10 business days after lodgement.
Our undertaking as aforesaid shall be irr evocable, except in
the following instances in respect of which we reserve the
right to withdraw or revoke this undertaking upon notice to
yourselves:
(a) Should registration of the above transaction be
unreasonably delayed or not be proceeded with; or
(b) We cea se to control the funds in this transaction;
or
(c) We are by operation of law prevented from doing
so; or
(d) Should it appear that the transaction and the
proceeds there from are subject to any preferent
claim by the South African Revenue Services
(SARS) or any obligations on us as Agent for SARS
in terms of Section 99 of the Income Tax Act 58 of
1962 as amended.
This undertaking is neither negotiable nor transferable and
must be surrendered to us against payment of the said sum or
cancellation hereof.”
[14] Sandre M arais Incorporated (“ SMI”) is the first defendant. The
plaintiff advances certain claims against it, one of which is that it
failed to honour the Undertaking. SMI has filed a plea. It disputes
that it furnished the Undertaking to the plaintiff. It says that it only
furnished it to the second defendant, who advised that he had not on -
sent it to the plaintiff. SMI’s plea was filed after the plaintiff
delivered its application for summary judgment, but before the second
defendant filing his opposing affidavit.
[15] As I understood it, a mainstay of the plaintiff’s explanation as to why
it considered that the second defendant’s plea was contrived was the
fact that the Undertaking was unconditional , was ostensibly issued on
the second defendant’s instructions, and contemplated R3,250,000.00
being paid to the plaintiff from the proceeds of a bond that was to be
registered over the second defendant’s property. The plaintiff said
that those features contradicted the defences raised in the second
defendant’s plea, namely, that it was not indebted to the plaintiff,
alternatively, that that any indebtedness he did have to the plaintiff
was unenforceable and conditional.
[16] The second defendant deposed to the affidavit opposing summary
judgment. Much of it is devoted to a critique of the interpretations the
plaintiff attaches to the three documents described above and
recordals that certain defences are advanced in his plea. What is
noticeably absent is a clear explanation or confirmation by the second
defendant of the facts underlying those defences.
[17] For example, when dealing with his defence that any indebtedness he
has to the plaintiff is unenforceable in law , the second defendant
explained himself as follows:
“As appears from my Plea, I at all material times denied
receiving money from Apollon. I further made it clear that
the loan which lies at the heart of this matter was one which
Apollon made to a company in liquidation, Culture Cars, for
which I have not stood surety and was not legally
responsible.
I also stated in my Plea that I had made a gratuitous offer of
repaying a portion of the loan, although not obligated to do
so. I am advised it is trite that such an offer, made out of
generosity and not obligation, does not create binding
obligations and it not legally enforceable. This is manifestly
an issue destined to be decided at trial.”
[18] Phrased in this way, it is unclear whether the second defendant is
confirming that he did in fact make a gratuitous offer of repayment, or
merely that that is what he stated in his plea.
[19] Even if I read the affidavit as providing a confirmation of the second
defendant having made such an offer, the affidavit contains no
explanation as to when or why that offer was made. More
significantly, there is no s uggestion whatsoever that the second
defendant did not consider he was bound by his offer at the time he
made it. If anything, the extract cited above suggests that the second
defendant did consider himself bound by it , but was s ubsequently
advised that he was not because his offer was gratuitous in nature.
[20] The second defendant’s attitude as to whether he was bound by his
undertaking is central to his defence of unenforceability. While it is
so that a gratuitous payment is by de finition one that is not legally
enforceable because it is made without a legal obligation to do so, that
does not mean that an offer to make a gratuitous payment is not
binding on the person making it.
[21] Applied to the facts of this case, although the second defendant could
not be legally compelled to pay a loan the plaintiff advanced to
Culture Cars, there is no reason why, without more, an offer by him to
pay that indebtedness would not be enforceable by the plaintiff .
Conceivably such an offer might have been made with an absence of
an intention to be bound ( animus contrahendi), but in order to
advance a defence on that basis it would be necessary for the second
defendant to s tate such an absence of int ent. He has not done so in
either his plea or his affidavit opposing summary judgment.
[22] What makes matters worse is that the second defendant has omitted to
explain how the Undertaking came to be prepared on the terms that it
was. All he says about it is that the plaintiff’s case has been dealt a
“mortal blow” by the plea filed on behalf of SMI. I do not understand
that submission (at least insofar as it is made regarding the plaintiff’s
claim against the second defendant ) and i t was not amplified during
argument.
[23] I consider th e second defendant’s omission is significant because, if
he considered he was not bound by his gratuitous offer, why did he go
about procuring an undertaking that would enforce it? Why did he not
require it to state that it could be withdrawn at any time? Why did he
not state that when sending it to the plaintiff? I accept that there may
be explanations to these questions . What is significant is the second
defendant’s omission to provide one, and the account he has provided
regarding his gratuitous offer is a scant one.
[24] For these reasons I do not consider that the second defendant has
confirmed the facts underlying his allegation of unenforceability, and
has refrained from dealing with material facts that tend to contradict
that conclusion.
[25] The second defendant approached his defence regarding the
conditional nature of any payment obligations he had to the plaintiff
in a similar way. Before discussing what he said in his opposing
affidavit it is convenient to explain how the second defendant’s case
on conditionality was advanced in his plea.
[26] Having pleaded (in the alternative) that he made a gratuitous offer to
the plaintiff, the second defendant went on to plead that his offer was:
“… dependent on (a) the completion of a housing
development project upon which he had embarked and which
was at material times in progress, and (b) funds emanating
therefrom becoming available.”
[27] The second defendant also dealt with the question of the
conditionality of any payment obligations he had to the plaintiff when
responding to the plaintiff’s allegations regarding the terms of the
Undertaking:
“Inasmuch as the ‘undertaking’ does not subject payment to
the conditional terms referred to in para 8 above, it do es not
correctly reflect the terms of the undertaking contemplated by
Second Defendant.
In particular, inasmuch as the ‘undertaking’ does not
stipulate that payment would be made when funds became
available upon completion of the aforementioned housing
development project, it does not correctly reflect the terms of
the undertaking intended to be made by Second Defendant.
On 2 July 2024, contemporaneously with the transmission of
the ‘undertaking’ by Second Defendant to Plaintiff, the latter
was informed by Second Defendant of the qualifications
subject to which the ‘undertaking’ as presented ought to be
read.”
[28] It follows that the second defendant’s case is that his gratuitous offer
was a conditional one, and that he informed the plaintiff that the terms
of the Undertaking were also subject to those conditions on 2 July
2024. Although initially uncertain, by the time his opposing affidavit
was filed it was apparent that the second defendant’s communication
of 2 July was a reference to the 2 July email.
[29] In light of that, I would have expected the second defendant to
confirm in his answering affidavit that he notified the plaintiff of the
conditionality of his gratuitous offer (presumably at the time he made
it), and to explain, even in brief outline, why he considered that the 2
July email served to impose conditions on the undertaking. Indeed,
the second defendant could likely have limited himself to a statement
that he drafted the 2 July email with the intention of conveying to the
plaintiff that the Undertaking was conditional, even if his phraseology
was not as clear as it might have been.
[30] The second defendant did none of those things. Instead, he begins by
quoting the 2 July email and then goes on to state the following:
“It is quite clear from the tenor of [the 2 July 2024] email
that it referred to a certain context, and that Apollon was
aware of that context: that there was a project under
completion; that funds would become available from first
registration of the project; that further funds would become
available upon completion of the project. I submit that there
is no other reasonably rational interpretation.”
[31] Later on he goes on to state that (emphasis in original):
“In para 8 of my Plea, I pleaded that my offer of payment to
Apollon was gratuitous; I pleaded that the offer was
furthermore dependent upon the completion of a housing
development then in progress, and funds emanating
therefrom becoming available. I respectfully point out how
this defence dovetailed with my email of 2 July 2024, and
how easy it is to distinguish the payment references made
therein from Bauer’s laboured attempt to force the payment
references into the ambit of Apollon’s cause of action. This
serious discrepancy constitutes and unexplained anomaly in
Apollon’s case. This surely justifies referral of the matter to
trial.”
[32] As this quote reveals, the second defendant has again contented
himself with stating what it contained in his plea, as opposed to
confirming the facts underlying those allegations.
[33] Benevolently interpreted, the opposing affidavit contains an assertion
that the 2 July email communicated to the plaintiff that the payment
obligations in the undertaking were conditional.
[34] The difficulty with this is that there is no explanation as to why the
plaintiff would or should or did read the 2 July email that way . As
pointed out, there not even a statement that the second defendant
intended it to be read that way when he drafted it.
[35] All the second defendant has done is to aver that the only reas onably
rational interpretation of the 2 July email was that it was discussing a
housing project from which the second defendant would procure
funds in the future. Assuming for the sake of argument that that is the
proper interpretation of the 2 July email , it remains entirely unclear to
me how that indicates that the Undertaking is subject to conditions.
[36] I say that because, per the second defendant, the 2 July email
discusses money the second defendant anticipate s receiving upon the
completion of a housing development. The Undertaking is concerned
with money the second defendant was going to receive from a bond he
was going to register over his property and which would be paid to the
plaintiff. T here is no obviou s reason why the second defendant’s
mention of one source of money (the housing development) should
have any influence on his payment of money coming from an entirely
different source (the bond). The second defendant has not provided
such a reason, and has chosen instead to leave that issue in the air.
[37] The unconditional nature of the Undertaking and the second
defendant’s omission to provide any explanation as to how it came to
be prepared is also significant regarding the conditionality defence. I
raised this with Mr Van den Berg , who appeared for the second
defendant. I understood him to fairly accept that the opposing
affidavit does not devote any explanation to how or why the
Undertaking came to be prepared , but to submit that may have been
due to oversight as opposed to an intentional omission. I cannot
discount the possibility that the omission was an accidental one, but in
my view I cannot assume that gaps in the affidavit were due to
oversight as opposed to design.
[38] As was the case regarding his defence of unenforceability, I consider
that the second defendant’s approach to vouching his defence of
conditionality also fails to meet the threshold of by rule 32(3)(b), and
that his opposing affidavit on that question is unduly vague and
sketchy.
[39] For the reasons mentioned above, and on a reading of the opposing
affidavit as a whole, it seems to me that the second defendant does not
have a genuine belief in the defences he has raised in his plea, but is
not pr epared to be untruthful in his affidavit by confirming facts
necessary to sustain them. He has instead limited himself to stating
that certain defences are alleged in the plea and to making certain
submissions about the meanings of documents. The result in an
opposing affidavit that, on a proper review, does not do what rule
32(3)(b) requires.
[40] A further issue that requires consideration is whether the second
defendant’s attack on the plaintiff’s cause of action should have any
bearing on the outcome of t he matter. This is particularly so
regarding the attack on the plaintiff’s interpretation of the 2 July
email, which is central to its cause of action. The plaintiff says that in
that email the second defendant:
“… acknowledged his liability for the debt and undertook to
discharge a portion of the same out of the proceeds of the
bond [to be registered over his immovable property].”
[41] I agree with Mr Van der Berg ’s submission that that interpretation is
not only a difficult one to sustain on the express wording of the 2 July
email, it is also contrary to the interpretation the second defendant has
placed on it in his opposing affidavit.
[42] The upshot of this is that a key element of the plaintiff’s cause of
action has been placed in dispute by the second d efendant. I consider
that that may have been significant if the second defendant resisted
the claim purely on the basis that it was not indebted to the plaintiff .
But that is not the case here.
[43] A difficulty created by the alternative defences pleaded by the second
defendant is that he cannot confirm those alternatives in his opposing
affidavit because he can have only one factual version . For instance,
the second defendant cannot dispute having any indebtedness to the
plaintiff whatsoever, but also stat e that he made a conditional and
unenforceable offer to pay a debt owed by Culture Cars.
[44] Although the second defendant has tended to record the defences
appearing in his plea as opposed to confirming the facts underlying
them, it seems to me that there is in truth no real dispute that he
undertook to pay the plaintiff a loan it had advanced to Culture Cars
(or at least a portion of it), and that the Undertaking was procured to
discharge that indebtedness, either in whole or in part. Rather, the
heart of the second defendant ’s defence is that the indebtedness he
had is legally unenforceable and conditional. I have explained why I
consider his opposing affidavit does not satisfactorily “ vouch” those
defences in the manner I described above.
[45] While it is conceivable that the Undertaking related to an entirely
different debt to the one the plain tiff alleges (a portion of 50% of the
loan it says the second defendant agreed to pay), I do not consider that
the second defendant can rely on that possibility to resist summary
judgment. In my view, his opposing affidavit has at best indicted that
the Undertaking was to effect payment in full of the loan he undertook
to pay, not just a portion of it.
[46] Should the plaintiff seek to sue the second defendant for any balance
it contends is owing in future proceedings (I express no view on
whether it would be entitled to do so), there would be no reason why
the second defendant could not resist those proceedings o n the basis
that that debt has been discharged b y a payment directed in this
application. All that an order granting summary judgment will serve
to do is to provide judicial confirmation of the second defendant’s
indebtedness to the plaintiff in a certain amount.
[47] A final issue that bears mention concerns a submission made by Mr
Dickerson, who appeared with Mr Robertson on behalf of the
plaintiff.
[48] As I understood him, Mr Dickerson contended that the plaintiff could
rely exclusively on the Undertaking for the relief it seeks . That was
because the Under taking amounted to an acknowledgement of
indebtedness by the second defendant coupled with an obligation to
pay it, which provided the plaintiff with a complete cause of action .
Mr Dickerson relied on the decision in Chemfos Limited v
Plaasfosfaat (Pty) Ltd 1985 (3) SA 105 (A) at 115 (AD) in support of
that submission.
[49] I respectfully agree with the submission that an acknowledgement of
liability coupled with an obligation to pay gives rise to an independent
cause of action. Indeed, that is why the second defendant’s gratuitous
offer was, without more, enforceable. I am however not convinced
that the plaintiff can be granted summary judgment on the strength of
the Undertaking alone.
[50] Firstly, part of the second defendant’s pleaded defence is that
conditions were imposed on the Undertaking. Thus even if it did give
rise to an independent cause of action, the conditions would have to
be fulfilled before payment could be demanded. I have explained
above why I do not consider that the second defendant has confirmed
his belief in the defence of conditionality.
[51] Secondly, it is not clear to me that an undertaking prepared by SMI
can be construed as an acknowledgment of indebtedness by the
second defendant. While it certainly provides evidence of such
indebtedness (for why else would the second defendant instruct SMI
to prepar e it ?), I have difficulty with the submission that it can be
treated as a source of the second defendant’s indebtedness.
[52] Thirdly, a similar issue arises regarding the Chemfos requirement of
an undertaking to pay. The Undertaking purports to be given by SMI
and it is that firm, as opposed to the second defendant, that undertakes
to pay. Indeed, SMI’s non-payment was the principal basis on which
the plaintiff sued it. Again, and as I see it, the Undertaking constitutes
prima facie (and contemporaneous) evidentiary material that the
second defendant has an indebtedness to the plaintiff that is due and
payable, but is not itself the source of that indebtedness. As stated at
the outset of this Judgment, the pleaded source the plaintiff relied on
was an undertaking by the second defendant to pay a portion of 50%
of the loan that t he plaintiff advanced to Culture Cars. The
Undertaking was a mechanism to discharge that indebtedness.
[53] Even if I have misunderstood Mr Dickerson’s submission, that is of
no moment as I am satisfied that summary judgment should be
granted without taking it into account.
[54] As regards interest, the plaintiff seeks mora interest from 22 July
2024, the date on which it alleges the bond was registered. That
allegation is made in the particulars of claim and repeated in the
affidavit filed in support of summary judgment. The second
defendant has pleaded no knowledge of that allegation and has thus
not admitted that fact. The issue is not dealt with in his opposing
affidavit. It seems to me that although there might have been an
earlier date by which payment might have been due, by 22 July 2024
it certainly was. In my view mora interest can should thus run from
that date.
[55] As far as costs are concerned, th e plaintiff seeks the costs of two
counsel where so employed, on scale C. I consider that the retention
of two counsel was justified, but that the costs of junior counsel
should be limited to scale B.
[56] In the circumstances, the plaintiff will be granted s ummary judgment
as follows:
a. Payment of R3,250,000.00;
b. Interest on the amount of R3,250,000.00 at the legal rate from
22 July 2024 until date of final payment;
c. Costs of suit, including the costs of two counsel where so
employed, with the fees of senior counsel not to exceed those
per scale C and the fees of junior counsel not to exceed those
per scale B.
___________________
MORRISSEY AJ
Acting Judge of the High Court
APPEARANCES
Counsel for the Plaintiff: Adv J Dickerson SC
Adv D Robertson
Instructed by: Werksmans Inc.
Counsel for Second Defendant: Adv J Van Der Berg
Instructed by: Liddell, Weeber & Van der Merwe
Inc.