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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 106000 / 2024
In the matter between:
M[…] D[… ] T[…] APPLICANT
(Identity Number: 8[…] )
and
N[…] P[…] T[…] RESPONDENT
(Identity Number: 9[…] )
JUDGMENT
________________________________________________________________
NTHAMBELENI AJ
Introduction
[1] This is an application for summary judgment brought by the applicant (plaintiff in
the main action) against the respondent (defendant in the main action) in terms
of Rule 32 of the Uniform Rules of Court. The applicant seeks judgment based
on an alleged oral agreement concluded between the parties during December
2017.
Background
[2] The parties in this matter were married to each other out of community of
property without an accrual system and divorce in Polokwane Regional Court
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and however the relationship between the parties ended via the divorce. It is
alleged that they then entered into a business agreement in relation to a
property referred to in the papers as an “investment property”.
[3] The background facts, as gleaned from the papers, are briefly as follows.
During June 2017, the parties purchased an immovable property (the property)
as an investment. The purchase price was R990,000.00. The applicant made a
cash payment of R540,000.00 towards the purchase price on or about 17 June
2017. The respondent obtained a home loan of R450,000.00 on 17 November
2017, which loan was registered in her name. The property was registered in
the respondent’s name on 20 December 2017.
[4] The applicant alleges that the parties entered into an oral agreement in
December 2017, the terms of which were that upon the sale of the property, the
proceeds would be shared between them in proportion to their respective
financial contributions. Accordingly, the applicant claims he is entitled to 56% of
the proceeds (being R540,000.00 out of the total R990,000.00 purchase price)
and the respondent to 44%. On 20 September 2018, the property was sold to a
third party for R1,600,000.00, with final payment made during June 2023. The
applicant now claims R896,000.00, being 56% of the sale proceeds.
[5] The respondent denies the existence of any such oral agreement. She admits
receiving the applicant ’s contribution of R540,000.00 but contends that no
agreement was ever reached regarding the sharing of sale proceeds on a
56%/44% basis. The respondent further disputes the applicant ’s alleged
renovation costs, contending that the applicant paid only R28,000.00 (not
R101,668.91). An amount of R330,000.00 was paid by the respondent to the
applicant as reimbursement for certain payments made by the applicant, which
the respondent says is not an acknowledgment of any oral agreement.
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Issue for determination
[6] Two principal issues arise for determination. First, whether the respondent has
raised triable issues to be referred to trial. Second, whether the respondent’s
denial of the existence of the alleged oral agreement suffices for the summary
judgment application to be denied.
Legal principles governing summary judgment
[7] The principles applicable to summary judgment applications under Rule 32 are
trite. Summary judgment is an extraordinary and drastic remedy, which closes
the doors of the court to the defendant without a trial. It should only be granted
where the plaintiff’s case is clear and the defendant’s defence is plainly
unmeritorious, bad in law, or fictitious.1
[8] Where the defendant raises a genuine and bona fide dispute of fact, summary
judgment must be refused. The defendant is not required to prove her defence
on a balance of probabilities; she need only disclose facts which, if proved at trial
would constitute a good defence. A mere bare denial is insufficient, but a denial
that is coherent, plausible, and raises a triable issue is enough.2
[9] Critically for present purposes, where the agreement relied upon is oral, a
dispute as to its existence is inherently foreseeable. The plaintiff who chooses to
proceed by way of summary judgment in such circumstances does so at his own
peril. The court will not grant summary judgment where the defendant’s denial of
the oral agreement is not far -fetched or implausible. In Bottcher and Another v
City of Tshwane Metropolitan Municipality 3 the court refused summary judgment
where the defendant raised a bona fine defence about the true lender in an oral
agreement.
[10] The next question which this court must answer in this matter is whether the
question of a liquid document. Dealing with the meaning of a liquidated
1 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zulu Joint Venture 2009 (5) SA 1 (SCA)
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).
3 [2025] ZAGPPHC 768
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amount for purposes of summary judgment, Griesel J in Tredoux v Kellerman 4
held at paragraph 18 as follows:
“…A liquidated amount of money is an amount which is either agreed upon or
which is capable of 'speedy and prompt ascertainment' or, put differently,
where ascertainment of the amount in issue is 'a mere matter of calculation'.”
[11] Furthermore, it has been held that the court is entitled to have regard to the
defence raised by a defendant in opposition to a claim for summary judgment in
deciding whether or not the claim is liquidated. If from the defence as disclosed,
it appears to the Judge that proof of the claim may be protracted and difficult
rather than prompt, then it seems to me that that is a matter which he may take
into account in deciding whether or not the claim is liquidated.
Application of the principle to this case
[12] The respondent’s resisting affidavit is clear and unequivocal. She states under
oath that there was no oral agreement entered into between the parties during
December 2017 as alleged. The parties did not agree to split the proceeds of
the sale on a 56%/44% basis. The applicant’s payment of R540,000.00 was a
contribution towards the purchase price, but no agreement was ever made
regarding the division of future sale proceeds.
[13] These denials are not vague or bald. They are specific, coherent, and directly
traverse the very foundation of the applicant ’s claim. If the respondent can
prove at trial that no such oral agreement existed, the case will fail. This is
plainly a triable issue which require viva voce evidence in a trial and cannot be
dealt with through a summary judgment application.
[14] The applicant contends that the respondent ’s denial is implausible given the
financial arrangements between the parties. However, that is precisely the kind
of dispute that must be resolved by oral evidence at trial, not on affidavit in
summary judgment proceedings. The court cannot assess credibility or weigh
summary judgment proceedings. The court cannot assess credibility or weigh
probabilities in this truncated procedure.
4 Tredoux v Kellerman 2010 (1) SA 160 (C)
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[15] Moreover, the alleged agreement is purely oral. There is no written
memorandum, no contemporaneous note, no independent witness, and no
corroborating document. In such circumstances, a defendant’s denial of the
existence of the agreement is not only foreseeable but almost inevitable. The
applicant ought to have anticipated that the respondent might deny the alleged
oral terms. He should have proceeded by way of ordinary action and trial, not
summary judgment.
[16] The respondent has also raised a dispute regarding the quantum of renovation
costs (R101,668.91 claimed by the applicant versus R28,000.00 admitted by
the respondent). This further dispute of fact reinforces the conclusion that this
matter is unsuitable for summary judgment.
[17] Having considered the pleadings and the arguments advanced by the parties'
respective counsel, it seems to me that the claim against the respondent is
from the allege oral agreement. An enquiry into the nature and extent of the
oral agreement is needed to determine the claim and or counter -claims. In this
matter is clear that there is a need for viva voce evidence to determine the true
nature, terms and the extent of the oral agreement between the parties. This
court as a summary judgment court is not suited for such an enquiry.
[18] I am satisfied that the respondent has demonstrated a bona fide defence and
has disclosed triable issues. The defence is not put up for purposes of delay.
On the contrary, the applicant’s pursuit of summary judgment in the face of a
clear dispute of fact is difficult to comprehend.
Costs
[19] The respondent seeks costs on an attorney -and-client scale. The applicant, for
his part, has persisted with this application despite the foreseeable dispute of
fact. The matter previously came before Windell J on 2 February 2026 but was
not allocated due to the applicant’s non-compliance with the practice directives
of this Division. That non- compliance caused unnecessary costs to be incurred
on that date.
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[19] However, during argument this issue was contested by Mr Borman for the
applicant and he directed the court to the Revised Consolidated Practice
Directive 1 of 2024 and 2025 practice directive of this court in relation to a joint
practice note, stating that t he joint practice note must be filed on Court Online
and emailed to the senior judge no later than 12 court days prior to the week in
which the matter has been set down. Further that in the case of the non-
cooperation of the applicant as submitted by Mr Patel for the respondent , the
respondent should have filed a unilateral practice note and declare the
applicant to be in default. Therefore, if this Court is not with him the issue all the
costs including the costs of the 22 April 2026 should be in the case.
[20] Mr Patel for the respondent holds an opposite view to Mr Borman for the
applicant. He submitted that the applicant are dominus litis and should take
responsibility in the filing of the practice note. However, his submission was not
supported by any authority or any practice directives and as such this court will
algin with the submission made by Mr Borman for the applicant.
[21] Therefore, all costs including the costs incurred on 2 February 2026 and the
costs of the 22 April 2026 before me will be determined by the trial court
ceased with the matter.
Order
[22] In the premises, the following order is made:
1. The application for summary judgment is dismissed.
2. The Defendant is granted leave to defend the Plaintiff’s claim.
3. The cost shall be the cost in the cause.
______________________________
NTHAMBELENI AJ
ACTING JUDGE OF THE HIGH COURT
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GAUTENG DIVISION, JOHANNESBURG