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[2016] ZAECGHC 85
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De Villiers v Human and Another (236/2016) [2016] ZAECGHC 85 (22 September 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO.: 236/2016
In the matter between:
DEAN DE VILLIERS Plaintiff
And
RALPH HUMAN 1st Defendant
PATRICIA HUMAN 2nd Defendant
JUDGMENT
BESHE J:
[1] This is an application for summary judgment.
[2] Plaintiff instituted an action against the defendants for payment of a sum of R1 985 860.10 as well as interest thereon.
[3] Defendants filed an appearance to defend. This prompted plaintiff’s application for summary judgment contending that the appearance to defend was delivered solely for purposes of delay. Plaintiff is of the opinion the defendants have no bona fide defence against the action.
[4] It appears to be common cause that the parties concluded an oral agreement during May 2013 the terms of which were inter alia that plaintiff would lend to the defendant a sum of R1 300 000.00 (the capital amount) that the capital amount will be paid in full by the defendants to the plaintiff on or before the 31 August 2013. Initially the capital amount would attract interest at the rate of 12% per annum. In the event of a failure of repayment on 31 August 2013 a different rate of interest will accrue.
[5] It is clear that the amount of R1 985 860.10 claimed by the plaintiff is a consolidation of the capital sum together with interest.
[6] In resisting the application for summary judgment, defendants in addition to contending that they have a bona fide defence, raise the following point in limine:
Plaintiff annexes a document purporting to be original liquid document yet the claim is founded on an oral agreement.
[7] This point relates to a “certificate of value” in respect of the loan from Dean De Villiers to Ralph and Patricia Human. In the said certificate of value, the interest payable or outstanding as at 7 December 2015 on capital amount as computed brings the balance outstanding to R1 985 860.10. Defendants argue that this is capable of giving rise to the inference that plaintiff’s claim is founded upon a liquid document. Especially in the absence of an allegation that a material term of the agreement was that the amount owing by the defendants would be capable of ascertainment upon the issue of a certificate of value thereof.
[8] In response thereto, plaintiff contends that it is clear from the defendants’ opposing affidavit that they understood the case against them and were not prejudice by the impression created that the claim is based on a liquid document. To this end, plaintiff also abandoned any claim to interest calculated at a higher rate than 12% per annum.
[9] The defendants do not dispute that it was agreed between the parties per the oral agreement that the capital amount will attract 12% interest per annum.
[10] This being the case, I am of the view that this takes care of the point raised by the defendants in limine. This is because the document or annexure complained of relates to interest after the 31 August 2013 and not so much to the capital amount. In any event, a court cannot allow a purely technical defence to frustrate a plaintiff’s summary judgment application especially where as in this case, the defendants will not suffer any prejudice as a result of point so raised.[1]
[11] As regards the bona fide defence, defendants deny that they are applying delaying tactics and claim that they have a bona fide defence. The defendants allege that the oral agreement between them and the plaintiff was varied subsequent to the conclusion thereof. The most significant of the variation, defendants allege, is that the date of payment agreed to between the parties as being upon the sale of 4 / 6 Hill Street (the property) belonging to the defendants. They allege further that the sale and transfer of the property has not taken place so the amount owing to the plaintiff is not yet due, owing and or payable.
[12] Defendants go on to explain why the sale of the property has not materialized yet. I do not think it is necessary to go into the details / reasons for the delay in sale of the property. Save to state that blame is also placed on the doorstep of plaintiff’s attorney for the delay. So is knowledge of such being imputed on the part of the plaintiff.
[13] Summary judgment applications are governed by Rule 32 of the Uniform Rules of this court which provides that:
“32 Summary judgment
(1) Where the defendant has delivered notice of intention to defend, the plaintiff may 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.
(2) The plaintiff shall within 15 days after the date of delivery of notice of intention to defend, deliver notice of application for summary judgment, together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit and the notice of application for summary judgment shall state that the application will be set down for hearing on a stated day not being less than 10 days from the date of the delivery thereof.
(3) Upon the hearing of an application for summary judgment the defendant may-
(a) give security to the plaintiff to the satisfaction of the registrar for any judgment including costs which may be given, or
(b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of himself or of any other person who can swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.”
[14] As far as the capital amount is concerned as well as the rate of interest agreed upon in May 2015, namely 12% per annum, there does not seem to be a dispute between the parties.
[15] It is trite that to succeed in resisting an application for summary judgment, the defendant, in his opposing affidavit, must fully disclose the nature and grounds of the defence and the material facts on which it is based.[2] The defendant must depose to facts which, if accepted as the truth or proved at the trial, would constitute a defence to the plaintiff’s claim. See Maharaj supra. Such a defence should not be averred in a manner that appears to be needlessly bald, vague or sketchy. If the defence is averred in a vague, bald or sketchy manner, that may be taken into account by the court considering the summary judgment application when determining whether the defendant has a bona fide defence or not.[3]
[16] The principle that the defence must be fully disclosed was approved and applied in Joob Joob Investments v Stocks Mavundla Zek[4]where the following was said:
“[32] The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of her/his day in court. After almost a century of successful application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj case at 425G-426E, Corbett JA was keen to ensure, first, 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. The second consideration is that the defence so disclosed must be both bona fide and good in law. A court that is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.”
[17] Have the respondents in the matter under consideration crossed the threshold referred to above? Has there been a full disclosure of the defence and the material facts upon which they rely as a defence to plaintiff’s claim?
[18] The opposing affidavit deposed by the first defendant spans from page 25 to 46. In the first seven pages or so he takes issue with the interest claimed by the plaintiff and a document that was prepared by an actuary in this regard.
[19] At page 32 onwards he addressed the issue of whether the defendants have a bona fide defence to the claim. At paragraph 16 the following is stated:
“16. The plaintiff sues on an oral agreement at paragraph 6 of his particulars.
17. It has already been demonstrated that one of the terms pleaded therein does not correctly reflect the agreement in relation to the interest.
18. In addition thereto the defendants allege that the agreement was varied in a number of respects subsequent to the conclusion of the agreement. The most important of this in relation to this application is that the date of payment has been agreed between the parties as being upon the sale of the property as set out below. Furthermore, it was all times a material term of the agreement that the plaintiff would only be entitled to cancel the agreement in the event of the defendants thereof. They were not, and are still not. This material disputes must of fact must be determined at the trial of the matter. I respectfully submit that the defendants will succeed therein and therefore summary judgment is wholly inappropriate in the circumstances.”
[20] In the following paragraphs first defendant embarks on an explanation why the sale / transfer of the property has to date not materialised.
[21] At paragraph25 the following is contended:
“The plaintiff was aware of the situation at all times and was amenable to extending the date of payment until I was able to sell the property upon receipt of, inter alia, the tittle deed in respect thereof.”
[22] Does the allegation by the defendants that the agreement between the parties was varied, inter alia, by plaintiff agreeing that payment would be upon the sale of the property concerned contain enough particulars or details to satisfy the standard set for a defence in summary judgment application? As opposed to payment in full on or before 31 August 2013 as alleged by the plaintiff and not disputed by the defendants. In my view, the allegations of the defendants in this regard are lacking in particularity. Defendants do not state when, where and where and in whose presence and under what circumstances the terms of the contract were varied in the manner suggested by the defendants. Defendants do not state the material facts upon which they rely other than the bald statement that their agreement with the plaintiff was subsequently varied verbally.
[23] It is also strange that plaintiff would persist in demanding payment from the defendants knowing that he agreed to the variation of the agreement and fully knowing as defendants contend that the property in question has not been sold yet and knowing the reason why the sale has not materialised. In my view, the fact that plaintiff was aware of the difficulties encountered by the defendants in selling the property does not mean that he acquiesced to the moving of the goal posts as far as the payment is concerned from the date agreed upon in May 2013 when the agreement was concluded.
[24] I am unable to find that the defendants have complied with the provisions of Rule 32 (3) (b).
[25] Accordingly summary judgment is granted against the defendants jointly and severally the one paying the other to be absolved in favour of the plaintiff based on the terms agreed to between the parties as follows:
For payment of the sum of R1 300 000.00 together with interest thereon at the rate of 12% per annum from 29 May 2013 until the date of payment together with costs of suit, including the costs of two counsel where so employed.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Plaintiff : Adv: IJ Smuts SC & Adv: KL Watt
Instructed by : WHEELDON RUSHMERE & COLE
119 High Street
GRAHAMSTOWN
Ref: Mr Brody/Glyn/S18776
Tel.: 046 -622 7005
For the Defendants : Adv: DS Hodge
Instructed by : YOKWANA ATTORNEYS
87 High Street
GRAHAMSOWN
Ref.: Yokwana
Tel.: 046 – 622 9928
Date Heard : 9 June 2016
Date Reserved : 9 June 2016
Date Delivered : 22 September 2016
[1] See headnote in Liberty Group v Singh and Another 2012 (5) SA 526 (KZN) a matter referred to by plaintiff.
[2] Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 A at 426.
[3] Breitenbach v Fiat S.A. (Edms.) Bpk. 1976 (2) SA 226 (J) at 228.
[4] 2009 (5) SA 1 at 11 – 12 [32].