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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-119314
In the matter between:
In the matter between:
HENDRIE ANDRIES MARAIS N.O. First Plaintiff
DINNAH JOHANNA STOLS Second Plaintiff
And
ANNAMARIE LORETO First Defendant
JOSE LORETO Second Defendant
JUDGMENT
MVUBU, AJ
Introduction
[1] This is an opposed application for summary judgment. The Executor of the
First Defendant’s late father’s estate (the First Plaintiff) and her mother (the
Second Plaintiff) seek to make recovery from her (and the Second
Defendant), of alleged outstanding rental. The matter is simply a family law
dispute.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
05 JUNE 2026 _________________________
DATE SIGNATURE
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[2] Summary judgment proceedings are not competent for resolving what is a
clearly family dispute, of deep and rooted import. One would run the risk of
closing out one family member without the opportunity of presenting the full
evidence and permitting discovery to offer much needed insight.
[3] Greater than the foregoing, the various versions need to be subjected to
scrutiny and a court, having the benefit of all the evidence, assess es the
evidence and arrive at a conclusion justified by the prevailing circumstances.
[4] Summary judgment proceedings ought not be used to steal a march.
Background facts
[5] The Plaintiffs instituted action proceedings in terms of which the following
relief is sought in the combined summons:
“WHEREFORE the plaintiffs claim:
‘1. Payment of the sum of R214 979.28.
2. Interest thereon a tempore morae at the rate of 11.75% per
annum.
3. Costs of suit.
4. Further and/or alternative relief.”
[6] In its particulars of claim, the Plaintiffs allege that the relief stems from a
lease agreement, best defined as follows:
“7. The deceased and the Second Plaintiff are the registered
owners of immovable property situated at 4[…] P[…] J[…]
Street, M[…], Krugersdorp (“the property”).
8. During or about 2014 and at Krugersdorp the Second
Plaintiff and the deceased concluded an oral agreement of
lease (“the agreement”) with the First and Second Defendants.
The parties of the agreement all acted personally.
9. The express alternatively implied, further alternatively tacit
terms of the agreement of lease are as follows:
9.1 The Defendants would rent the property from the Second
Plaintiff and the deceased for occupation by the Defendants
and their son, BRANDON.
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9.2 The lease agreement be terminable upon the giving of one
month’s notice.
9.3 The rental would be equal to the monthly instalment
payable to Standard Bank in respect of account number:
363767185 and shall be paid by no later than the last day of
each month.
…
11. In breach of the terms of the agreement, the Defendants
have since January 2023 failed to pay the agreed rental. The
rental payable since January 2023 until September 2024 in the
sum of R204 082.94 is set out in the schedule annexed hereto,
marked “POC1”.”
[7] Save to admit an agreement, the Defendants deny that the agreement was a
lease agreement as alleged. In their plea, they allege the following, I
summarise:
7.1. The deceased and the Second Plaintiff are the First Defendant’s
parents. The Second Plaintiff being her mother and the deceased her
late father.
7.2. There were 4 (four) children born of the union between the deceased
and the Second Plaintiff.
7.3. The deceased had a successful business incorporated as a Close
Corporation under the name “Rudi Scrap Metal CC” and in which the
deceased and the four (4) children were members of Rudi Scrap Metal
CC.
7.4. The deceased together with the Second Plaintiff (married in community
of property) decided to implement a succession plan. In that plan,
7.4.1. the deceased offered to sell his business to their son Petrus Stols
and when he declined the offer, the business was “sold” to their
daughter Valerie De Mendoca.
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7.4.2. With Valerie De Mendoca taking over the business, the other 3
(three) children had to resign as members of Rudi Scrap Metal
CC. They did.
7.4.3. Following her (the First Defendant) resignation, it was agreed that
– as pleaded in paragraphs 13, 14 and 15 of their plea:
“[13] …with the agreement, between the deceased and the
Second Plaintiff that the First Defendant would become the
owner of the immovable property, Erf 3[…] M[…] Township
Registration Division I.Q. Gauteng Province held by Deed of
Title T[…] , also known as 4[…] P[…] J[…] Street, Krugersdorp.
[14] The conditions were that the First Defendant would pay the
bond during the lifetime of the deceased, the insurance policy
settling the bond when the deceased would pass away
whereafter the First Defendant could take transfer of the
immovable property.
[15] The Deceased and Second Plaintiff attested to a last will
and testament dated and signed 22 April 2014 that the loan by
Valerie would be bequeath to Valerie and the immoveable
property, Erf 3[…] M[…] Township Registration Division I.Q.
Gauteng Province held by Deed of Title T[…] , also known as
4[…] P[…] J[…] Street to the First Defendant.”
7.5. The relevant insurance policy, referred to in the quoted passages, is
enclosed as well as the Last Wills and Testaments of the deceased and
the Second Plaintiff.
7.6. It is the Defendants’ version that the intention of the deceased and the
Second Plaintiff was to pass title of Erf 3 […] M[…] Township
Registration Division I.Q. Gauteng Province held by Deed of Title T[…] ,
also known as 4 […] P[…] J[…] Street to the First Defendant.
Consistent with this version, it was not meant to be a lease agreement.
They say that it was for this reason that they effected improvements
upon the property – they claim for these improvements in their
counterclaim.
7.7. That, transfer of the property, was to be done as follows:
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7.7.1. The First Defendant (and/or together with her husband, the
Second Defendant but the obligation laid with the First Defendant)
would make bond payments to the Standard Bank, account
number 363767185. The payments were, as I have it, made to
Standard Bank via Rudi Scrap Metals CC and never to the
deceased and the Second Plaintiff. This much is common cause
as is reflected in the judgement of Marais N.O v Loreto and
Others (2024/115982) [2025] ZAGPJHC 1078 (21 October 2025)
wherein at paragraphs 9, 10 and 11 it is recorded:
“[9] The applicants aver that the first and second respondents
had agreed with Stols and the deceased that the respondents
may occupy the property on condition that they pay an amount
equivalent to the bond instalment being paid on the property to
Standard Bank.
[10] The bond instalment is paid from the banking account of
Rudi Scraps Metals CC (“Rudi Scraps Metals CC”). The first
and second respondents made payment of the agreed amount
into the banking account of Rudi Scrap Metals until December
2022.
[11] Since December 2022 no further payment had been made
by the respondents to the banking account of Rudi Scrap
Metals. Instead, the respondents elected from that day
onwards to pay the agreed amount into the trust account of
their attorney.”
7.7.2. On the passing of the deceased, the insurance payout would be
used to cover the remaining bond repayments and settle the
liability. On the Defendants’ version, that would mark an end to
their obligations to pay towards the property.
7.8. The relevant portions of the deceased and Second Plaintiff’s joint Last
Will and Testament dated 22 April 2014 reads:
“[2.2.1.] Ons bemaak ons residensiele vaste eiendom, tesame
met al ons meubels, huishoudelike toebehore en persoonlike
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effekte (motorvoertuie uitgesluit) daarin gevind, aan ons dogter
ANNEMARIE LORETO.”
7.9. It was explained during submissions that the property, at that stage was
their residential property and hence it is so reflected in the Joint Will.
The family had lived at the property and had since moved out leaving
the Defendants in occupation.
7.10. The deceased died in October 2019. In March 2022, the Second
Plaintiff attested to a Last Will and Testament dated 26 March 2022 and
wherein she attested as follows:
“3.2 I specifically bequeath my residential property situated at
4[…] P[…] J[…] t Lane, M […] , Krugersdorp; all household
content and my vehicle as follows:
3.2.1. 100% to my daughter, Annemarie Stols, born 1982”
7.11. Annemarie Stols and Annemarie Loreto being the same person – Stols
is her maiden name, whereas Loreto is her marital name. This is
common cause.
7.12. The Last Will and Testament of the Second Plaintiff dated 26 March
2022 was preceded by her Last Will and Testament dated 12
November 2019 – a month after the passing of the deceased and
wherein she attested:
“3.1 Ek bemaak my huis, gelee te Piet Jourbetstraat 4[…] ,
M[…] , Krugersdorp, aan my dokter Annemarie Loreto ((1/2))
een halwe aandeel van hierdie eiendom is onderhewig ann die
bepalings van die testament van my oorlede eggenoot, Jan
Johannes Stols, geteken te Krugersdorp op 28 November
2015. ‘n Afskrif van sy testament word hierby aangeheg as
aanhangsels “A””
7.13. As I read, at least one half of the property “belongs” to the First
Defendant – that half was given her by her late father in his Last Will
and Testament dated 28 November 2015.
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7.14. That is sufficient to raise a dispute, at least in relation to the transfer of
the ½ (half) portion of the property, to the First Defendant flowing from
the passing of the deceased. That there should be transfer in terms of
the law of succession accords with the Defendants’ version. It is
enough to show that the Defendants’ version is not without merit.
[8] For purposes of summary judgment, I accept the averments contained in the
plea are correct and having so accepted, determine whether the defence
raised is “bona fide” and that the nature as well as grounds of the defence
have been fully disclosed.
LEGAL PRINCIPLES AND ANALYSIS OF DEFENCE
[9] The defence is clearly bona fide, in my view. I also find that the said
defence’s nature and grounds have been fully disclosed, as accompanied by
the material facts relied upon therefor, in compliance with the Rule 32(3)(b)
requirements.
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[10] It is trite that the Defendants need not prove their defence but merely comply
with Rule 32(3)(b) . That they have done. In this regard, as long as the
affidavit resisting summary judgment demonstrates merits in the defence, the
defence is bona fide.
2 Below, as foreshadowed above, it will be illustrated
that the defence is indeed one with merits.
[11] The legal position, as we know, is that it will be sufficient if the defendant
swears to a defence, valid in law, in a manner which is not inherently or
seriously unconvincing.
3 As was held in South African Securitisation
Programme (RF) LTD and Others v Cellsecure Monitoring and
Response (PTY) Ltd and Others
“[33] I am mindful that a bona fide defence is assessed upon a
consideration of the extent to which the nature and grounds of
the defence and the material facts relied upon have been
1 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418(A).
2 He & She Investments (Pty) Ltd v Brand NO 2019 (5) SA 492 (WCC).
3 NBS Boland Bank v One Berg River Drive and Others, Deeb and Another v ABSA Bank Ltd;
3 NBS Boland Bank v One Berg River Drive and Others, Deeb and Another v ABSA Bank Ltd;
Friedman v Standard Bank of South Africa Ltd (291/98, 428/98, 85/99) [1999] ZASCA 60; [1999] 4
All SA 183 (A); 1999 (4) SA 928 (SCA) (10 September 1999) paragraphs 33-35.
8
canvassed. Bona fides does not mean that the defendant has
to satisfy the court that his version is believed to be true. All
the defendant is required to do is to swear to a defence valid in
law, in a manner which is not seriously unconvincing. Put
differently, he should show that there is a reasonable possibility
that the defence he advances may succeed on trial.”4
[12] The Plaintiffs argue that the Defendants rely on an oral agreement support a
claim that they would eventually be entitled to transfer of the property. They
say, the only oral agreement was the oral lease agreement. Any suggestion
that the property would be transferred pursuant to an oral agreement, is
unsustainable and bad in law because it violates section 2(1) of the
Alienation of Land Act, 1981 as amended.
[13] The argument that the defence falls foul of the section 2(1) of the Alienation
of Land Act, 1981 as amended, is without merit. The property is clearly dealt
with in terms of testamentary instruments. All of these instruments make it
plain that the property is earmarked – at least the remaining 50% - to the
First Defendant.
[14] I was referred to this Court decision in Marais N.O v Loreto and Others
wherein this Court found that:
“[20.2] any claim to an agreement regarding the property
would be subject to section 2(1) of the Alienation of the Land
Act, 68 of 1981 (“the Act”) which provides as follows:
"2(1) No alienation of land after the commencement of this act
shall, subject to the provisions of section 28, be of any force or
effect unless it is contained in a deed of alienation signed by
the parties thereto or by their agents acting on their written
authority." (Own emphases)
“Alienate” is defined in Section 1 of the Act as follows:
"'Alienate', in relation to land, means sell, exchange or donate,
irrespective of whether such sale, exchange or donation is
4 South African Securitisation Programme (RF) LTD and Others v Cellsecure Monitoring and
4 South African Securitisation Programme (RF) LTD and Others v Cellsecure Monitoring and
Response (PTY) Ltd and Others (21647/2021) [2022] ZAGPPHC 925 (25 November 2022)
paragraph 33.
9
subject to a suspensive or resolution condition, and 'Alienation'
has a corresponding meaning;" (Own emphases)
Thus, in the absence of the alleged agreement being contained
in a deed of alienation signed by all the parties, the agreement
relied upon by the first respondent is of no force and effect. In
Hohl N.O. and Others v Dalcos and Others (38224/2020)
[2022] ZAGPJHC 34 (11 February 2022) the court in very
similar circumstances held:
“[8] The first respondent also makes the claim that, during
2008, he concluded an oral agreement with the deceased in
terms of which the property would be subdivided and he would
acquire a portion of the property. Pending his acquisition of the
property, he and his family would be allowed to occupy rent-
free a new house, which the deceased and presumably the first
applicant had agreed to erect on the property for him and his
family. This claim is denied by the first applicant. I need not
dwell on this factual dispute too long, for the simple reason that
the claim is not only bad in law but is also so far -fetched, if
regard is had to the other undisputed facts in the matter, that it
can be rejected out of hand.
[9] The claim is bad in law because of section 2(1) of the
Alienation of Land Act, Act 68 of 1981, which provides as
follows:… ‘
[10] The oral agreement, as alleged by the first respondent, is
therefore of no force and effect...” (Own emphases)”
[15] I am not aware whether the Last Wills and Testaments were placed before
the Court. In the matter before me, the said Last Wills and Testaments were
placed as part of the evidence to be considered. In my mind, the Last Wills
and Testament move the nature of the “oral” agreement. That is, I am able to
work out that there may have been an oral agreement for the First Defendant
(and through her, her husband, being the Second Defendant) to take
occupation of the property. That there was to be transfer of the property to
occupation of the property. That there was to be transfer of the property to
the First Defendant, is not merely “oral” but also in writing as reflected in the
Last Wills and Testaments quoted above. The explanation given by the
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Defendants for this position is, in my view, clear and is inherently and
seriously convincing.
[16] The arguments advanced before Justice Esterhuizen in Marais N.O v
Loreto and Others is not the same argument advanced by the Defendants
in this case. In fact, Mr Mostert (for the Defendants) made it plain that he
was not pursuing the same argument, which Justice Esterhuizen had
dismissed. As such the issue does not fall foul of the res judicata principle.
[17] Whatever “oral” agreement may have been, the follow ing is uncontroverted
and forms part of the inherently and seriously convincing version that:
17.1. There was a family meeting. At the meeting the First Defendant was to
take occupation and pay towards the Standard Bank bond repayments.
Which repayments would cease upon the settlement of the bond by the
life insurance policy taken out by the deceased. No payments would be
made to the deceased or the Second Plaintiff but to Rudi Scrap Metals,
then under the control of the deceased.
17.2. There is no allegation that there was no life policy nor is there an
allegation that even if there was a life policy, it did not settle the debt.
Whereas the Defendants say any obligation to pay would cease after
settlement of the bond using the proceeds of the insurance payout. I
would imagine that, approximately 7 (seven ) years after the passing of
the deceased, a claim must have been made to the insurance in
question and there was a payout. It remains to be determined whether,
as alleged by the Defendants, the payout was in fact used to settle the
bond with Standard Bank.
17.3. There is no allegation that Standard Bank is owed any monies and
ergo, the Plaintiffs are “coming after” the Defendants for that debt. This
may accord with the Defendants’ version that the proceeds of the life
cover payout were used as alleged by them. If that part is true, it may
yet be that the other parts could stand scrutiny, and they ought to be
yet be that the other parts could stand scrutiny, and they ought to be
afforded that opportunity. Referring the matter to trial will iron out all
these issues.
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17.4. Further, it is not as if the Defendants are malicious. To the extent that
this dispute arose, to demonstrate their bona fides (not the bona fides
of their defence), they have continued making payment of the amount
alleged to have been rental into the trust account of their attorney. If it is
proved that rental was indeed due and ought to have been paid – that
is, the Plaintiffs are successful in their action, those funds are with the
Defendants’ attorney.
17.5. Added to that, the Defendants aver that Rudi Scrap Metals is under
Valerie De Mendoca’s control not the Plaintiffs. This seems to accord
with the facts alleged by the Defendants – at least the First Defendant. I
cannot, then, dismiss the alleged agreement, as the Defendants plead,
at summary judgment stage. Also added to that, the rental would not
have been received by the Plaintiffs, in any event. Why are they
entitled to it, now – assuming there was rental as alleged by the
Plaintiffs.
17.6. There is no indication, as far as I could establish, that the Second
Plaintiff had any interest in Rudi Scrap Metals CC and there is no
indication that she would have been entitled to receive “rental”. This
matter raises more questions than it offers answers. A trial would
ensure that to the questions that arise, answers are provided.
17.7. However, what is clear is that to reflect the agreement, the deceased
and Second Plaintiff attested to various testamentary instruments in
terms of which the “intention” to transfer the property to the First
Defendant was made manifest . The testamentary instruments are in
writing and not “oral’ and ergo, the “oral agreement” was reduced to
writing and that would render it compliant with the Alienation of Land
Act, 1981. That is, the property – on the Defendants’ version – would
be alienated pursuant to laws governing succession and, in this regard,
transfer would take place and be effected in accordance with the terms
of a written valid will.
of a written valid will.
17.8. The Second Plaintiff’s Last Will and Testament of November 2019
makes it plain that – on her (the Second Plaintiff) understanding – that
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one half of the property was to be transferred to the First Defendant in
terms of the deceased’s wishes, and she would transfer her half of the
property, at her death. I do not read her will of November 2019 to
suggest that – at the time, a month after the death of the deceased –
she inherited the 50% share of her late husband. She was under the
impression that her late husband bequeathed his 50% share in the
property to the First Defendant. She was then, in turn, disposing of her
50% share.
17.9. In the result, at least one half of the property stands to be transferred to
the First Defendant in terms of a written testamentary instrument
alienating the land. There can be no oral agreement alienating land, to
speak off.
[18] Simply, then, there does not appear to be any intention to lease the property
as alleged by the Plaintiffs. According to the Defendants, the intention was
for the property to pass to the First Defendant and as part of succession.
[19] To be clear:
19.1. The lease is disputed. The Plaintiffs must then prove the existence of
this alleged lease. I am not persuaded, given the family -oriented
context, that the Defendants’ version is so inherently or seriously
unconvincing that it stands to be rejected.
19.2. The payments are similarly disputed, in so far as they were intended to
be rental payments. The Defendants aver that they were payments for
purposes of keeping and maintaining bond repayments and which bond
repayments would end upon the deceased policy paying out and the
property being settled using funds from the payout . Again, given the
family-oriented context, it is difficult to look past the Defendants’
explanations, they are convincing.
Costs
[20] In the totality of circumstances, and given the family -oriented context
involved in this matter, it was rather opportunistic of the Plaintiffs to seek
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summary judgment. The dispute is clear and the explanation why the
dispute ought to be resolved at trial even clearer.
[21] Added to that, there are counterclaims to the action. I am not persuaded that
the counterclaims are without merit and in my view, the relief sought in the
main action cannot be resolved independently of the counterclaims. The
disputes are intricately linked.
[22] I am inclined to granting costs in favour of the Defendants on scale C.
Conclusion
[23] It follows that summary judgment stands to be refused and the Defendants
are granted leave to defend, with costs on scale C.
[24] One last matter to mention, both parties sought condonation in respect of
filings in the summary judgment proceedings. I granted condonation with no
orders as to costs in relation to the condonation applications.
Order
[25] In the result, then, I make the following order:
1. The Plaintiffs’ failure to comply with Rule 32(2)(a) is condoned,
the Defendants’ late filing of their opposing affidavits in the
condonation application as well as application for summary
judgment are condoned with no orders as to costs in relation to
the condonation applications.
2. Summary judgment is refused and the Defendants are granted
leave to defend the action.
3. The Plaintiffs, jointly and severally with the one paying and the
other being absolved, are ordered to pay the costs of the
summary judgment application on scale C.
________________________
K. MVUBU
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ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This Judgment was handed down electronically by circulation to the
parties/their legal representatives by email and by uploading to the electronic
file on Court Online. The date for hand-down is deemed to be 05 June 2026.
Date of Hearing :02 June 2026
Date of Judgement :05 June 2026
For the Plaintiff :Adv. M.A. Kruger
Instructed by :Scholtz Inc.
For the Defendant :Adv Mostert
Instructed by :Kapp Attorneys Inc