IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 17779/2010

In the matter between:

and

JUDGMENT DELIVERED ON 20 DECEMBER 2010

[1] This is an opposed application for provisional sentence. Plaintiffs act herein as the trustees of the J W S Trust. Defendant is a company duly incorporated under South African law, named Chantilly Trading 30 (Pty) Ltd.

[2] Plaintiffs claim from defendant an amount of R18 279 427,09 plus interest thereon at the rate of 7% per annum from 1 July 2010 to date of payment.
[3] In para 1 of the plaintiffs' summons it is alleged that their cause of action against defendant arises from:
(1)	
(2)	
(3)	A statement that the sum of R18 279 429,97 has become due and payable by the purchaser.

[4] In para 2 of the summons it is alleged that plaintiffs' claim in terms of the deed of sale is secured by a first mortgage bond over certain property, which was, pursuant to the deed of sale, executed and registered under bond No 35744/2007 at Cape

[5] The agreement of sale is annexed to the summons. On the first page of the deed of sale the purchaser is defined as follows:

"LEONARD KRUGER DE LANGE ID NO 551002 5134 08 4
MARRIED OUT OF COMMUNITY OF PROPERTY and
CHRISTOPHER JOHN TAPSELL ID NO 640831 5002 00 5

[6] The agreement of sale is replete with references to the purchaser. Clause 12 of the deed of sale reads as follows:

SURETY

[7] At the end of the deed of sale the signatures of De Lange and Tapsell appear in the following form:

AS WITNESSES
1._____________________       __________________
PURCHASER
Chantilly Trading 30 (Pty) Ltd
Herein represented by
2. 	  Leonard Kruger de Lange

1. ________________                 ______________________
PURCHASER
Chantilly Trading 30 (Pty) Ltd
Herein represented by

2. 	    Christopher John Tapsell"

[9] Plaintiffs filed a replying affidavit in which defendant's allegations regarding its breaches of the agreement were denied.

[10] The application was heard by me on 3 November 2010. The heads of argument of counsel dealt mainly with the issues raised in the affidavits. At the hearing of the matter, however, additional issues were raised. The Trust was granted leave to supplement its written argument in order to deal with these issues.

[11] On 9 November 2010 plaintiffs gave notice of an application for the amendment of the summons by the insertion of the following words:

"and whether Defendant admits or denies Defendant's signature or the authority of Defendant's agent."

[14] Defendant filed a notice of objection to the amendment of the summons of plaintiffs.

[16] Counsel for plaintiffs retaliated with yet a further written argument.

[17] Before dealing with the merits of defendants' defence there are questions which require prior determination. I consider first whether the agreement of sale can support the application for provisional sentence.

[18] It is not clear from the agreement of sale whether defendant, Chantilly Trading 30 (Pty) Ltd, had been incorporated on 23 October 2006 when the agreement of sale was signed. If it had, the agreement would have been invalid for lack of compliance with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981 ("the Act").

[20] It is apparent, however, that there are a number of requisites for the application of section 35 of the Companies Act. Plaintiffs have not expressly or impliedly pleaded that these pre-requisites have been complied with.

[22] It is accepted that where the defendants liability is dependant on a simple condition, an allegation that it has been complied with would be sufficient for provisional sentence. In the present case, however, the very existence of the agreement is dependant upon the condition that it be adopted by defendant. This is not in my view a simple condition which would not be dependant upon the production of extrinsic evidence.

[23] I am accordingly of the view that plaintiffs are not entitled to provisional sentence on the strength of the agreement of sale.

[24] Plaintiffs' claim for provisional sentence also purports to be based on the mortgage bond annexed to their summons marked 'B'. It is clear from the summons and the mortgage bond that it is intended to secure the balance of the purchase price owing to plaintiffs under the agreement of sale. The mortgage bond is accordingly materially dependant upon the agreement of sale and can have no validity on its own.

[25] Sub-rule 8(3) requires that all documents upon which the claim for provisional sentence is founded shall be annexed to the summons.
[26] The judgment of Nestadt J in Longtill Construction v Liberhorn (Pty) Ltd 1987 (2) SA 240 (W) contains a full discussion of the authorities on the meaning and effect of this sub-rule. He summarised the position as follows, at 244CD:

"In the light of what has been stated above, any one of the following (similar) chteria fall to be applied in determining whether the building contract is a document upon which the plaintiff's claims are founded (thus necessitating it having to be annexed to the summons): Whether it is necessary to determine the defendant's liability; or material to the plaintiff's cause of action; or whether the action is so dependent on it that it cannot proceed without a consideration of it; or whether it forms a vitally important part of the plaintiff's claims against the defendant."

[28] Plaintiffs' summons accordingly lacks averments to sustain the action.

[29] In the result, plaintiffs' application for provisional sentence is refused with costs.