Bester N.O and Others v Richter, Niewoudt, Malherbe, Geldenhuys, Conradie, Kellerman, Conradie, Visser, Horn, Visser (7596/2015, 11901/2015, 11210/2015, 11321/2015, 11229/2015, 11209/2015, 11233/2015, 11208/2015, 11641/2015, 11211/2015) [2015] ZAWCHC 169 (6 November 2015)

Bester N.O and Others v Richter, Niewoudt, Malherbe, Geldenhuys, Conradie, Kellerman, Conradie, Visser, Horn, Visser (7596/2015, 11901/2015, 11210/2015, 11321/2015, 11229/2015, 11209/2015, 11233/2015, 11208/2015, 11641/2015, 11211/2015) [2015] ZAWCHC 169 (6 November 2015)

The court held that the second plaintiff's verifying affidavit did not meet the requirements of Rule 32, as she lacked sufficient personal knowledge of the underlying transactions and circumstances of the trust's operation. The nature of the dispute, involving complex issues of trustee authority, the application of the trust deed, and the possible relevance of the Turquand rule, required a full ventilation of evidence at trial. The defendants raised bona fide defences, including the possibility that payments were made pursuant to valid investment contracts and that they acted in good faith. The court exercised its discretion to refuse summary judgment, finding that the disputes should be...

Citation
[2015] ZAWCHC 169
Parties
Plaintiff: Lambertus Von Wielligh Bester N.O; Plaintiff: Rynette Pieters N.O; Plaintiff: Barend Petersen N.O; Defendant: Abraham Jacobus Stephanus Richter; Defendant: Marlene Niewoudt; Defendant: Gabriël Rossouw Malherbe; Defendant: Jacobus Frederick Geldenhuys; Defendant: Jacobus Wilhelmus Conradie; Defendant: Frans Albertus Kellerman; Defendant: Rosalie Conradie; Defendant: Hendrik Johannes Visser; Defendant: Gertruida Johanna Horn; Defendant: Gesina Maria Visser
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2015
Case Number
7596/2015, 11901/2015, 11210/2015, 11321/2015, 11229/2015, 11209/2015, 11233/2015, 11208/2015, 11641/2015, 11211/2015
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Interlocutory Stage Before Trial
Outcome
Summary judgment applications refused; defendants granted leave to defend; costs reserved for trial court.
Judges
Davis
Legal Topics
Summary Judgment, Condictio Sine Causa, Trustee Authority, Ponzi Scheme, Rule 32, Turquand Rule
Civil Procedure Commercial and Corporate Summary Judgment Condictio Sine Causa Trustee Authority Ponzi Scheme Rule 32 Turquand Rule

Case Brief

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Parties

Lambertus Von Wielligh Bester N.O

Plaintiff

Rynette Pieters N.O

Plaintiff

Barend Petersen N.O

Plaintiff

Abraham Jacobus Stephanus Richter

Defendant

Marlene Niewoudt

Defendant

Gabriël Rossouw Malherbe

Defendant

Jacobus Frederick Geldenhuys

Defendant

Jacobus Wilhelmus Conradie

Defendant

Frans Albertus Kellerman

Defendant

Rosalie Conradie

Defendant

Hendrik Johannes Visser

Defendant

Gertruida Johanna Horn

Defendant

Gesina Maria Visser

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Interlocutory Stage Before Trial

Legal Issues

  1. 1 Whether the plaintiffs' verifying affidavit meets the requirements of Rule 32 for summary judgment.
  2. 2 Whether the plaintiffs, as trustees, have sufficient personal knowledge to swear positively to the facts underlying the claim.
  3. 3 Whether payments made by the trust to defendants were made without proper authority and constitute unjust enrichment recoverable via condictio sine causa.

Ratio Decidendi

The court held that the second plaintiff's verifying affidavit did not meet the requirements of Rule 32, as she lacked sufficient personal knowledge of the underlying transactions and circumstances of the trust's operation. The nature of the dispute, involving complex issues of trustee authority, the application of the trust deed, and the possible relevance of the Turquand rule, required a full ventilation of evidence at trial. The defendants raised bona fide defences, including the possibility that payments were made pursuant to valid investment contracts and that they acted in good faith. The court exercised its discretion to refuse summary judgment, finding that the disputes should be...

Court Disposition

Summary judgment applications refused; defendants granted leave to defend; costs reserved for trial court.

Orders

  • The applications for summary judgment under case numbers 11229/2015, 11901/2015, 7596/2015, 11641/2015, 11208/2015, 11211/2015, 11210/2015, 11233/2015, 11209/2015 and 11321/2015 are refused.
  • Defendants are granted leave to defend the actions instituted against them under these case numbers.