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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:101816/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

 SHARON ANNE CAPRIATI                                                                                  Applicant

(in her capacity as the executrix in the estate of

the late STUART NELSON DOIG SMITH - Master's ref:

017071/2016)

and

BONNOX (PTY) LTD 1^st                                                                                   Respondent

MOMENTUM HEALTH 2^nd                                                                               Respondent

JUDGMENT

PETERSEN AJ:

Introduction

[1] The application as it currently stands is for a declarator that Stuart Nelson Doig Smith (the deceased) was entitled to have been reinstated by the first respondent on the medical aid administered by the second respondent for the period June 2014 to 24 September 2016. The effect of the relief sought is that the first respondent be ordered to pay the medical aid contributions of the deceased to the second respondent for the period June 2014 to 24 September 2016, during which period the first respondent had ceased to pay the contributions.

[2] The application is accompanied by an application for condonation for the late filing of the applicant's replying affidavit. The respondent  has, in turn, raised a point in limine contending that the founding affidavit is not a proper founding affidavit in that there is no indication of the gender of the deponent in the attestation of the affidavit. A similar submission is made in respect of the confirmatory affidavit of Mr Pieter Daniel Jacobus du Plessis ("du Plessis").

The application for condonation for the late filing of the applicant's replying affidavit

[3] The application for condonation argued at the insistence of the first respondent  was unopposed and not persisted in during the course of argument before me. I do not propose to traverse the reasons giving rise to the condonation application for the late filing of the replying affidavit, save to say that I cannot  find any basis on which not to grant the application.

The point in limine in respect of the founding affidavit and confirmatory affidavit

[4] The first respondent  in support of the point in limine relies on the decision of ABSA Bank Limited v Botha NO and Others 2013 (5) SA 563 (GNP), where an objection was lodged in terms of rule 30 of the Uniform Rules of Court, to the use of the incorrect pronoun "he or she" by a commissioner of oaths when attesting a  founding affidavit in a summary judgment application. In the present application it is submitted that specific provision is made in the affidavit  for an election between "he /she," in particular  when paragraph 1.2 of the founding affidavit is read the deponent specifically declares that she is an adult female whilst the attestation clause omits to identify the gender of the deponent. The submission by the first respondent is that this omission casts serious doubt on whether or not the document was commissioned properly in the presence of a Commissioner of Oaths in compliance with the relevant legislation and regulations.

[5] In the Absa Bank v Botha matter, Kathree-Setiloane J, clearly and ultimately exercised her judicial discretion in refusing to allow the affidavit which in her view did not comply with the Regulations for Commissioners of Oaths when regard is had to paragraph 8 of the judgment:

"... Subject to whether there has been substantial compliance with the Regulations, the court has a discretion to refuse an affidavit which does not comply with the Regulations. Should a commissioner of oaths not certify that the verifying affidavit in a summary judgment application had been sworn to or affirmed, the court will be reluctant to apply the maxim omnia praesumuntur rite essa acta donec probetur in contrarium , also known as the 'presumption of regularity' , for purposes of making the assumption that the document had, in fact, been sworn to (or affirmed) and signed in the presence of the commissioner of oaths."

[6] The decision was handed down in the context of a summary judgment application which, if granted by a court, brings finality to litigation as an extraordinary procedural step. It is important to emphasize, as the judge noted, that the court is vested with a discretion to refuse an affidavit which does not comply with the Regulations. The corollary, in my view, is that a court is vested with a discretion to condone non­compliance with the Regulations and to admit an affidavit.

[7] In Lohrman v Vaal Ontwikkeling 1979 (3) SA 391 (T), a full bench of this Division, dealt with, amongst others, the question of substantial compliance with the regulations governing attestation of affidavits in the context of an application for summary judgment. Nestadt J said at page 398E-H- 399A:

"I should have mentioned that the commissioner is described as being a practising attorney…it seems to me that where an attorney (who is an officer of this Court) describes the statement as being a "beedigde  verklaring", it can and must be accepted that it was sworn to on oath. To require that, in addition to these words, there should again in conjunction with "geteken" be added the word "beedig" would be to insist on an unnecessary duplication of allegations.

Even, however, if this approach be insufficiently formalistic, it nevertheless seems to me that the document in question is an affidavit. It is now settled (at least in the Transvaal) that the requirements as contained in regs 1,2, 3 and 4 are not peremptory but merely directory; the Court has a discretion to refuse to receive an affidavit attested otherwise than in accordance with the regulations depending upon whether substantial compliance with them has been proved or not (S v Msibi 1974 (4) SA 821 (T)). In Ladybrand Hotels v Stellenbosch Farmers' supra a similar conclusion was arrived at. In that case the admissibility of an affidavit was attacked on the basis that the certification did not state that the deponents' had signed it in the presence of the commissioner of oaths. It was held that the maxim omnia praesumuntur rite essa acta applied, that there was an onus on the person who disputes the validity of the affidavit to prove by evidence the failure to comply with the prescribed formalities and that in the absence of such evidence the objection taken failed. In any event, it was held that if the affidavit was defective it should be condoned.

lt is of course a question of fact in each case whether there has been substantial compliance or not."

[8] In the present matter there is no evidence that the founding affidavit was not sworn to properly except for an allegation that the omission in indicating the correct pronoun "she" should lead to an inference that the founding affidavit was not properly commissioned. The founding affidavit was attested to by an attorney of this court. In the absence of evidence to the contrary, this court accepts that, the attorney who attested the affidavit of the applicant, who happens to be an advocate of this court, complied substantially with the regulations save for failing to make a deletion indicating the gender of the applicant. The first respondent did not pursue this point in limine in terms of rule 30, but instead raised it in its heads of argument. If the first respondent seeks this court by mere submission to find that the founding affidavit constitutes an irregular step, it militates against the first respondent's filing of its answering affidavit which would constitute condoning of the alleged irregular step. The answering affidavit further does not place in dispute the gender of the applicant.

[9] Whilst a different position applies to the confirmatory affidavit of du Plessis which was attested to by a police constable, du Plessis identifies himself as an adult male at paragraph 1 of the affidavit. The first respondent chose to respond to the confirmatory affidavit, thereby condoning any irregular step it may have raised in terms of rule 30.

[10] The point in limine raised in respect of the founding and confirmatory affidavits bears no merit and must accordingly fail.

The main application

Background

[11] The deceased was employed by the first respondent as an Administrative Manager from 1994 until his retirement at the age of 70 in January 2012, at which time he was also a shareholder of the first respondent. At the centre of the dispute in the present matter is one of two letters issued by the first respondent to the deceased under signature of du Plessis dated 12 January 2012. The two letters are headed, Retirement Letter and Medical Benefit respectively. In the Medical Benefit letter du Plessis notes that the deceased as a benefit of his exemplary conduct in respect of the company for 18 years, would remain on the same medical aid for the remainder of his life.

[12] du Plessis was the General Manager of the first respondent from around 2010. When the deceased retired in January 2012, he, Ms Anita Julia Gent and du Plessis were shareholders of the first respondent. The applicant's states in her affidavit, that premised on recollection; but unsubstantiated, that the deceased donated his shares to du Plessis in or during May 2012 at a nominal value. The first respondent, on the contrary, provided an agreement dated 29 October 2012 entered into between the deceased and du Plessis in terms of which the deceased transferred the 10 ordinary shares he held in the first respondent to du Plessis in consideration of payment of a sum of R488 999.00. The financial statements of the first respondent for the period ending 30 June 2012 said to have been prepared by the deceased in the capacity of financial manager of the first respondent at the time, reflects the equity of the first respondent at R39 530 175.00. The deceased's 1O ordinary shares it is said would have entitled him to a total purchase price of R2 648 521.71 at the time.

[13] The first respondent premised on the aforementioned believes that the deceased sold his shares to du Plessis and as part payment of the purchase consideration allowed the deceased to remain on the medical aid with the costs thereof being borne by the first respondent.

[14] The applicant's evidence , relying on a CIPRO search dated 8 April 2015 is that du Plessis was appointed as a Director of the first respondent on 18 January 2012 with authority to bind the first respondent. du Plessis reassured her during May 2014 that he had authority to grant the medical aid benefit to the deceased.

Factual disputes

[15] The first respondent submits that du Plessis has misrepresented his authority to bind the first respondent when regard is had to the two letters issued by du Plessis to the deceased on 12 January 2012. The retirement of the deceased is not disputed. The two letters bear a glaring contradiction. The Retirement Letter at the foot refers to AJ Gent as the Director of the first respondent whilst the Medical Benefit Letter refers to du Plessis as the Director. The CIPRO searches conducted by the applicant and first respondent shows that neither du Plessis nor AJ Gent were Directors of the first respondent as at 12 January 2012. du Plessis as mentioned above became a Director of the first respondent on 18 January 2012 and AJ Gent on 18 January 2013. The confirmatory affidavit of du Plessis fails to address the contradictory letters in respect of the directorship of the first respondent. The basis of the ostensible authority that du Plessis allegedly had to bind the first respondent on these two documents in my view raises a clear factual dispute.

[16] du Plessis states that he was the sole Director of the first respondent when the deceased retired at the end of February 2012. According to du Plessis he had discussed the benefits/pension of the deceased with Mr VH Shadewald ("Shadewald"), Ms AJ Gent's father towards the end of 2011 and they agreed to keep the deceased on the medical aid. He further states that the date on the letter,12 January 2012, was not the date on which the decision and agreement had already been reached regarding the deceased's medical benefit at the time of retirement but was merely a formality and confirmation of an agreement reached with the deceased previously. The role of Shadewald in the first respondent during the period alleged by du Plessis is placed in dispute by Gent. A clear factual dispute is raised in this regard as well.

Evaluation

[17] On a reading of the papers it is manifest that a factual dispute exists between the applicant and the first respondent premised predominantly on the evidence of du Plessis and the two letters of 12 January 2012, one of which forms the basis of the medical aid benefit which was paid to the deceased until June 2014. I am not persuaded by the argument that the applicant should have foreseen the said factual dispute and therefore should be constrained by the Plascon Evans rule.

[18] I am of the view that the alleged ostensible authority of du Plessis to bind the first respondent lies at the heart of this application and is inextricably linked to the factual disputes which cannot be determined on the papers alone. The credibility of the role players likewise cannot be determined on the papers.

Order

[19] In the result, it is ordered that:

1. The matter be referred to oral evidence.

2. Costs are reserved.

AH PETERSEN

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Appearances:

For the Applicant: Adv. CE Puckrin SC with him GD Lubbe

Instructed by: Nel Kotze and Van Dyk Attorneys

For the First Respondent: Adv. JH Sullivan

 Instructed by: Waldick Jansen Van Rensburg Inc.

 Date heard: 19 February 2018

Date of judgment: May 2018

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