Fokane Family Trust and Others v Finsbury South Development (Pty) Ltd and Others (34457/08/2007) [2008] ZAGPHC 331 (23 October 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION

CASENO: 34457/08/2007

NOT REPORTABLE DATE: 23/10/2008

In the matter between:

FOKANE FAMILY TRUST First Applicant LAWRENCE FOKANE NO. Second Applicant

TEBOGO FOKANE N.O. Third Applicant

MATSHAMA FOKANE N.O. Fourth Applicant

AND

FINSBURY SOUTH DEVELOPMENT (PTY) LTD First Respondent

KNYSNA TRUST Second Respondent

(EDMS) BPK

JOHANNES JAKOBUS KRUGER N.O. Third Respondent

JUDGMENT

MAVUNDLA. J.

[1] The plaintiffs seek a summary judgment for the payment in the amount of R 640 666, 16 against the first defendant.

[2] The cause of action arises out of a settlement agreement concluded between the parties during or about March 2007.

BACKGROUND FACTS

[3] The first plaintiff, that is Fokane Family Trust, and Knysna Trust were 50% shareholders respectively in Finsbury South Development (Pty) Ltd which is the first defendant in these proceedings.

[4] During or about February 2007 the first defendant in terms of a written agreement of sale, sold to a third party a variety of immovable properties for a purchase consideration of

R7 000 000. 00 (seven million rand). A dispute arose between the first defendant and the first plaintiff as to what the plaintiff’s entitlement to the profit share was. This resulted in a settlement agreement being entered into. The first defendant’s attorneys of record confirmed the aforesaid agreement per letter dated 28 March 20071 marked annexure A attached to the particulars of claim.

[5] In accordance with the aforesaid agreement, the first respondent received payment of an amount of R1 259 332, 84 (One Million Two Hundred Fifty Nine Thousand Three Hundred and Thirty Two Rand and Eighty Four Cent) from Knysna Trust, thus resulting in the balance of R640 667, 16 (Six Hundred Forty Thousand Rand sixteen Cent), which is the amount claimed.

[6] It is indeed not in dispute that movable property was sold for the amount of R7million by Knysa and that the amount of

1 900 000 (Million Nine Hundred Rand was calculated as being the profit amount the first plaintiff is entitled to. It is also not in dispute that the first plaintiff has since received the amount of R1 259 332, 84 (One Million Two Hundred Fifty Nine Thousand Three Hundred and Thirty Two Rand and Eighty Four Cent) from Knysna Trust, thus resulting in the balance of R640 667, 16.

[7] Mr. Johannes Jakobus Kruger, who is a director of the first respondent and Finsbury South Developments (Pty) Ltd and also a trustee of the second defendant has deposed to the affidavit resisting the grant of summary judgment. He has stated inter alia that there was no written shareholder’s agreement entered into between the Knysna Trust and the Fokane Family Trust. He says that from inception the understanding between the aforesaid trusts was (a) that the property be either developed and sold or (b) the property be sold at a profit; (c) the net profit after taking all the expenses and liabilities, including shareholders loan accounts etc. into account, be equally divided amongst the shareholders;

and (d) the company thereafter be deregistered since its main purpose would have been fulfilled.

[8] Mr. Kruger avers in his affidavit that the parties would not have arrived at the settlement figure of R1 900 000,00 payable to the first plaintiff if the true state of affairs pertaining to the amount of rates and taxes were known to the parties. The rates and taxes were budgeted at R100 000,00 as being reasonable estimation at the time of the conclusion of the settlement agreement. He says that subsequently when there were massive problems relating to the obtaining of the arrear rates and taxes and the clearance certificates from the Council, it was agreed that a a more specialised conveyancer be appointed to attend to the transfer of the property of the first defendant due to the complexities pertaining to the transaction. He further states that all the parties were informed by Tonkin Clacey on about 17 September 2007 that the agent’s fees, being the agent appointed to obtain the clearance certificates, together with clearance figures amounted to R2 224 013. 81(two million two hundred and twenty four thousand

and thirteen rand and

eighty-one cent). He says that this huge difference between the last mentioned amount and the amount of R100 000. 00 initially budgeted for, was caused by the fact that property had been sub-divided into scores of erven and the Local Municipality levied rates and taxes against each one of the sub-divided erven.

[9] Mr. Kruger further avers that the parties would not have arrived at the settlement figure of R1 900 000. 00 payable to the first plaintiff if the true state of affairs pertaining to the amounts of rates and taxes were known to the parties. He says that the rates and taxes were an unavoidable expenses which has to be deducted from the purchase price in order to arrive at the nett figure available for distribution between the shareholders. He says that both parties erred in their estimation and acceptance of the amount of R100 000. 00 in respect of rates and taxes and that this was a material aspect upon which the agreement was concluded. He says that there is therefore a iustus error, or mutual or common mistake of fact, which renders the agreement relied upon by the plaintiffs void, alternatively voidable.

[10] According to the authorities, for the defendants to succeed in resiling from the agreement on the basis of iustus error, it would have to be shown that the plaintiffs were to blame in the existence of such iustus error2.

In the matter of Standard Bank of SA Ltd v El-Nadder and Another3 Marais J said:

“The requirements of justus error were dealt with in George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A). The principles as therein enunciated were repeated and approved by the Appellate Division in Sprindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1) SA 303 (A) at 314J-315D.” Marais J further cited the dictum by Fagan J in the matter of George v Fairmead (supra) at 471A-D, which I have already fully cited under footnote 2 herein above, and also where Fagan J proceeded at 472A to say:

“‘When a man is asked to put his signature to a document he cannot fail to realise that he is called upon to signify, by doing so, his assent to whatever words appear above his signature. In cases of the type of which the three I have mentioned are examples, the party who seeks relief must convince the Court that he was misled as to the purport of the words to which he was thus signifying his assent. That must, in each case, be a question of fact, to be decided on all the evidence led in that particular case.’ “.

[11] In his works, The Principles of the Law of Contract4 where the learned author, Kerr states that:

‘Discussing the iustus error approach G F Lubbe and C M Murray cite Van Rensburg, Lotz and Van Rhijn who in their description of approach say that: “Before a person is allowed to claim nullity on the ground of mistake, he must show that he was labouring under a mistake which was both operative and reasonable (iustus).” The learned authors (G F Lubbe and C M Murray go on to say that on this approach “the party seeking to resile from the transaction (the resiler) will succeed in doing so only if, in addition to proving dissensus, he discharges the onus of showing that his mistake was reasonable and excusable under the circumstances (see Joubert 84, Van Rensburg (1986) 49 THRHR 448 at 4553, 459). Should he succeed in establishing dissensus but fail on the second point the resiler will be liable ex contractu on objective grounds on account of his injustus error.”

[12] The letter of the 28 March 20085, which was written in unambiguous terms, was written by the attorneys representing the defendants. This letter is very clear with regard to how the matter was settled. If indeed the settlement reached by the parties was subject to any variance at a later stage, to have regard to a subsequent determined correct rates and taxes, certainly this would have been spelt out in very clear terms. The defendants, through their attorneys prepared the documents and the figures reflected in annexure “A” and “B” attached to their opposing affidavit. They provided the estimates of the rates and taxes of R100 000, 00. It does not seem that the plaintiffs had any hand at all in the determination of the figures that were used in calculating the plaintiffs’ entitlement. In my view, it cannot be said that the plaintiffs contributed in any fashion at all in making the defendants to negotiate under any mistaken belief, in particular in regard to the amount of R100 000, 00.

[13] In an unreported judgment in the matter of Port St Francis (Pty) Ltd v Louw NO. and others6 the Court stated that:

“The parole evidence rule

The general principle regarding the parole evidence rule, as

formulated by Watermeyer JA in Union Government v

Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at 47

is:

“That when a contract has been reduced to writing, the writing is,

in general, regarded as the exclusive memorial of transaction and in

a suit between the parties no evidence to prove its terms may

be given save the document or secondary evidence of its contents,

nor may the contents of such documents be contradicted, altered,

added to or varied by parole evidence.”

[14] Mr. Hartog, on behalf of the applicants, has submitted that for the defendants to succeed in showing that there was mutual mistake, they would have to lead secondary evidence of what transpired during the negotiations, and this is against parole evidence. I agree with this submission. The defendants, who were represented by able and competent attorneys, cannot want to resile from the agreement which was concluded and which they recorded as the settlement between the parties of their disputes. The defendants did not state, through their attorneys that the letter of 28 March 2007 was not without prejudice. They cannot want to seek to contradict the terms of this agreement. Neither can they succeed to show that there was mutual mistake on both parties at the time of the conclusion of the agreement,7by wanting to lead evidence relating to what happened during the negotiations.

[15] It is trite that in summary judgment applications, for the defendant to successfully resist the application, he must satisfy the Court that he has a bona fide defence against the plaintiff’s claim. He must set out fully the material facts upon which he relies. The Court has a discretion in such matters and that its discretion should not be exercised on the basis of conjecture or speculation but on the basis of the material before it8. In the matter of Wilson Bayly Holmes (Pty) Ltd v Maeyane and Others9 Nugent J (as he then was) said that:

“Summary judgment may be granted if a defendant has not set out in his affidavit facts which if proved at a trial, will constitute an answer to the plaintiff’s claim (Brietenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T). The appellant has not done so, and it cannot avoid summary judgment merely because there is a possibility that something may come up at trial. While the court retains a discretion to refuse summary judgment even where a defence has not been disclosed, that discretion is not to be exercised against the plaintiff on the basis of mere conjecture or speculation.”

[16] In casu, I am of the view that the defendants have not set out facts, upon which, if proven at trial, can be regarded as establishing a defence to the plaintiffs’ action. There are no facts set out demonstrating that there was mutual mistaken error that resulted in the calculation of rates and taxes

of R100, 000, 00.10 Neither are there any facts alleged upon which it can be said that the plaintiffs contributed to any justus error. On the contrary, in my view, the defendants attorneys, should have realised at the time of the negotiations, that there may be an error in respect of the estimates on the rates and taxes. The defendants’ attorneys should have carried more investigations

before conveying to the plaintiffs that the estimates for the rates and taxes11 were estimated at R100 000, 00. I am of the view that the dicta of Miller J in Diedericks v Minister of Lands are apposite in casu, namely:

“It was not reasonable or excusable error at all; it seems to me to have been a blunder which could, with the exercise of moderate care, have been avoided. Moreover, as I have already pointed out, defendant’s error was not due to any misrepresentation by the plaintiff who neither knew of the error nor was concerned with the defendant’s motive or reasons or beliefs in making the offer. In such circumstances the mistake cannot successfully be set up as a defence by the erring party when sued upon the contract.”

[17] It is trite that in summary judgment applications, the defendant must disclose fully the nature and the grounds of his defence and the material facts upon which his defence is grounded. The Court has a discretion and will then inquire whether, on the facts so disclosed, the defendant appear to have a bona fide defence. If the Court is satisfied that on the facts so disclosed the defendant has a bona fide defence. So too will the Court, if not satisfied that the defendant has a bona fide defence, in the exercise of its discretion will grant summary judgment12.

[18] In casu, for all the reasons I have stated herein above, I am not satisfied that the defence raised by the defendants is bona fide. I am consequently of the view, that in the exercise of my discretion, I should not grant the defendants leave to defend but grant the summary judgment against the defendants as prayed for by the plaintiffs.

[19] In the premises, I make the following order:

1. That summary judgment in favour of the plaintiffs is granted against the defendants, the one paying the other to be absolved, for:

1.1 payment of the sum of R640 666, 16;

1.2 Interest on the aforesaid amount at the rate of

15,5% per annum a tempore morae from 4th July 2007 to date of payment;

1.3 Costs of suit.

N.M. MAVUNDLA

JUDGE OF THE COURT

HEARD ON THE : 09 OCTOBER 2008.

DATE OF JUDGEMENT : 23 OCTOBER 2008.

PLAINTIFF’S ATT : RENIE VAN RENSBURG INC.

PLAINTIFF’S ADV : MR. A P DEN HARTOG.

DEFENDANTS’ ATT : EFSTRATIOU & VISAGIE ATTORNEYS.

DEFENDANTS’’ ADV : P. NEL

1 The letter states that: “1. We refer to your without prejudice telefax dated 27th March 2007 as well as the telephone discussion between the writer and yourself on 28th March 2007 and confirm that the matter is settled as follows: Your client will be entitled to an amount of R1 900 000, 00 (One Million Nine Thousand Rand), in full and final settlement of all claims that your client may have against our client or the company (Finsbury South Development (Pty) Ltd).

We will effect payment of an amount of R300 000, 00 (Three Thousand Rand) to your client in terms of the deposit received pertain to the deed of sale. The balance of the deposit will be appropriated towards our client’s loan account and the expenses of the company, such as they are. In the event that the deed of sale of the property owned by the company is cancelled for whatever reason, the balance due to your client in the amount of R1 600 000, 00 (One Million Six Hundred Rand ), will be recorded as against your client’s loan account, together with our client’s proven loan account as that juncture.

1 The letter states that:

“1. We refer to your without prejudice telefax dated 27th March 2007 as well as the telephone discussion

between the writer and yourself on 28th March 2007 and confirm that the matter is settled as follows:

Your client will be entitled to an amount of R1 900 000, 00 (One Million Nine Thousand Rand), in full and final settlement of all claims that your client may have against our client or the company (Finsbury South Development (Pty) Ltd).

We will effect payment of an amount of R300 000, 00 (Three Thousand Rand) to your client in terms of the deposit received pertain to the deed of sale. The balance of the deposit will be appropriated towards our client’s loan account and the expenses of the company, such as they are. In the event that the deed of sale of the property owned by the company is cancelled for whatever reason, the balance due to your client in the amount of R1 600 000, 00 (One Million Six Hundred Rand ), will be recorded as against your client’s loan account, together with our client’s proven loan account as that juncture.

2In the matter of Horty Investments (Pty) Ltd v Interior Acoustics (Pty) Ltd 1984 (3) SA (3) 537 (WLD) at 539G- 540C Coetzee J stated that: “The unilateral mistake in casu was an error in negotio which can avail the plaintiff if it was a iustus error. The crisp question is whether the facts support such an inference. But this is not purely a question of fact. Only to a limited category of mistakes will the law attach the quality of “iustus”, and the fault principle looms large in determination of this question. In the leading case on the subject, George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471, Fagan CJ said: “When can an error be said to be iustus entitling a man to repudiate his apparent consent to a contractual term? As I read the decisions, our Courts, in applying the test, have taken into account the fact that there is another party involved and have considered his position. They have, in effect,

said: Has the first party- the one who is trying to resile- been to blame in the sense that by his conduct he has led the other party, as a reasonable man, to believe that he was binding himself? (Vide Logan v Beit (1890) 7 SC 197; I Pieters & Co v Salomon 1911 AD 121 especially at 130, 137; Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 especially 422, 423; Hodgson Bros v South African Railways 1928 CPD 257 at 261.) If his mistake is due to a misrepresentation, whether innocent or fraudulent, by the one party, then of course, it

is the second party who is to blame and the first party is not bound.” (My italics.) The mistaken party will therefore not be able to rely on the lack of true consensus if his mistake was due to his own fault. The other party is then entitled to rely on the doctrine of quasi-mutual assent (“die

skyn van ‘n kontrak”) which renders the contract binding and enforceable despite the dissensus. So, for instance, in Patel v Le Clus (Pty) Ltd 1946 TPD 30 the error of one of the contracting parties, who carelessly misread one of the terms of the contract, was for that reason not regarded as iustus. He was bound because he was at fault. Cf also ex parte Rosenstein 1952 (2) SA 324 (T). The fault principle similarly applies to the second party who seeks to hold the mistaken one to the contract. He must be blameless. If he is also to blame then the first party is not bound. This is well expressed by Christie in The Law of Contract in South Africa at 314 where he says: “This summary of the law is borne out by the cases, which show the possibility of iustus error to be very limited, unless the other party knew or ought to have known of, or caused the mistake.”

2In the matter of Horty Investments (Pty) Ltd v Interior Acoustics (Pty) Ltd 1984

(3) SA (3) 537 (WLD) at 539G- 540C Coetzee J stated that:

“The unilateral mistake in casu was an error in negotio which can avail the plaintiff if it was a iustus error. The crisp question is whether the facts support such an inference. But this is not purely a question of fact. Only to a limited category of mistakes will the law attach the quality of “iustus”, and the fault principle looms large in determination of this question. In the leading case on the subject, George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471, Fagan CJ said:

“When can an error be said to be iustus entitling a man to repudiate his apparent consent to a contractual term? As I read the decisions, our Courts, in applying the test, have taken into account the fact that there is another party involved and have considered his position. They have, in effect,

said: Has the first party- the one who is trying to resile- been to blame in the sense that by his conduct he has led the other party, as a reasonable man, to believe that he was binding himself? (Vide Logan v Beit (1890) 7 SC 197; I Pieters & Co v Salomon 1911 AD 121 especially at 130, 137; Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 especially 422, 423; Hodgson Bros v South African Railways 1928 CPD 257 at 261.) If his mistake is due to a misrepresentation, whether innocent or fraudulent, by the one party, then of course, it

is the second party who is to blame and the first party is not bound.”

(My italics.)

The mistaken party will therefore not be able to rely on the lack of true consensus if his mistake was due to his own fault. The other party is then entitled to rely on the doctrine of quasi-mutual assent (“die

skyn van ‘n kontrak”) which renders the contract binding and enforceable despite the dissensus. So, for instance, in Patel v Le Clus (Pty) Ltd 1946 TPD 30 the error of one of the contracting parties, who carelessly misread one of the terms of the contract, was for that reason not regarded as iustus. He was bound because he was at fault. Cf also ex parte Rosenstein 1952 (2) SA 324 (T).

The fault principle similarly applies to the second party who seeks to hold the mistaken one to the contract. He must be blameless. If he is also to blame then the first party is not bound. This is well expressed by Christie in The Law of Contract in South Africa at 314 where he says:

“This summary of the law is borne out by the cases, which show the possibility of iustus error to be very limited, unless the other party knew or ought to have known of, or caused the mistake.”

3 1999 (4) SA (WLD) at 781H-781C

4 6th edition at p243

5 Vide footnote 1 supra.

6 [2000] JOL64212 (SE) at page 4.

7 In the matter of National Board (Pretoria) (Pty) Ltd and another v Estate Swanepoel [1975] 3 SA 16 (A.D.) at 26A-C the Appeal Court per Botha J.A cited the general rule regarding parole evidence as stated by Watermeyer JA in the Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at p 47 is- “that when a contract has been reduced to writing, the writing is, in general, regarded as the exclusive memorial of transaction and in a suit between the parties no evidence to prove its terms may be given save the document or secondary evidence of its contents, nor may the contents of such documents be contradicted, altered, added to or varied by parole evidence.” The rule is well summarised by Wigmore, Evidence, 3rd ed., vol.9. sec.2425, as follows: ‘This process of embodying the terms of a jural act in a single memorial may be termed the integration of the act, i.e. its formation from scattered parts into an integral documentary unity. The practical consequences of this is that its scattered parts, in their former and inchoate shape, do not have any jural effect; they are replaced by a single embodiment of the act. In other words: When a jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally immaterial for purpose of determining what the terms of their act are.” Vide also Christie, The Law of Contract 5th edition at p193.

7 In the matter of National Board (Pretoria) (Pty) Ltd and another v Estate Swanepoel [1975] 3 SA 16 (A.D.) at 26A-C the Appeal Court per Botha J.A cited the general rule regarding parole evidence as stated by Watermeyer JA in the Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at p 47 is-

“that when a contract has been reduced to writing, the writing is,

in general, regarded as the exclusive memorial of transaction and in

a suit between the parties no evidence to prove its terms may

be given save the document or secondary evidence of its contents,

nor may the contents of such documents be contradicted, altered,

added to or varied by parole evidence.”

The rule is well summarised by Wigmore, Evidence, 3rd ed., vol.9. sec.2425,

as follows:

‘This process of embodying the terms of a jural act in a single memorial may be termed

the integration of the act, i.e. its formation from scattered parts into an integral

documentary unity. The practical consequences of this is that its scattered parts, in their

former and inchoate shape, do not have any jural effect; they are replaced by a single

embodiment of the act. In other words: When a jural act is embodied in a single

memorial, all other utterances of the parties on that topic are legally immaterial for

purpose of determining what the terms of their act are.” Vide also Christie, The Law

of Contract 5th edition at p193.

8 First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (CPD) at 184F-H the Court said: “The criticism of Mr. Gess is justified. The particulars in the second defendant’s affidavit in respect of the defence in question fall far short of the requirements in terms of Rule 32(3)(b). Second defendant fails to disclose with sufficient particularity and completeness the material facts on which he relies for his defence. This impacts, no doubt, on the bona fides of his defence. As pointed out by Farlam AJA (as he then was) in Tesven CC and Another (supra at 277H), that is not the end of the matter. The Court still has a discretion in such a case to refuse summary judgment if the Court is of the opinion that there is sufficient evidentiary material to lead the Court to believe that plaintiff’s case may not be unanswerable The Court’s discretion should not be exercised on the basis of conjecture or speculation, but on the basis of the material before it.”

8 First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (CPD) at 184F-H the Court said:

“The criticism of Mr. Gess is justified. The particulars in the second defendant’s

affidavit in respect of the defence in question fall far short of the requirements in

terms of Rule 32(3)(b). Second defendant fails to disclose with sufficient particularity

and completeness the material facts on which he relies for his defence. This impacts,

no doubt, on the bona fides of his defence. As pointed out by Farlam AJA (as he then

was) in Tesven CC and Another (supra at 277H), that is not the end of the matter. The

Court still has a discretion in such a case to refuse summary judgment if the Court is

of the opinion that there is sufficient evidentiary material to lead the Court to believe

that plaintiff’s case may not be unanswerable The Court’s discretion should not be

exercised on the basis of conjecture or speculation, but on the basis of the material

before it.”

9 1995 (4) SA 340 at 346G-H.

10 Vide Osman v Standard Bank Credit Corporation Ltd 1985 92) SA 378 at 387C Friedman J (as he then was)cited Schreiner JA in National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) AT 479G-H as saying: “Our law allows a party to set up his own mistake in certain circumstances in order to escape liability under a contract into which he has entered. But where the other party has not made any misrepresentation and has not appreciated at the time of acceptance that his offer was being accepted under a misapprehension, the scope for defence of unilateral mistake is very narrow, if it exists at all. At least the mistake (error) would have to be reasonable (justus) and it would have to be pleaded.”

10 Vide Osman v Standard Bank Credit Corporation Ltd 1985 92) SA 378 at 387C Friedman J (as he then was)cited Schreiner JA in National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) AT 479G-H as saying:

“Our law allows a party to set up his own mistake in certain circumstances in order to escape liability under a contract into which he has entered. But where the other party has not made any misrepresentation and has not appreciated at the time of acceptance that his offer was being accepted under a misapprehension, the scope for defence of unilateral mistake is very narrow, if it exists at all. At least the mistake (error) would have to be reasonable (justus) and it would have to be pleaded.”

11 1964 (1) 49 (N) at 57

12 In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 423F-G Corbett JA said: ‘Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts alleged constitute a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is this: (a) whether the has ‘fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded. (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law. If satisfied on the matter that Court must refuse summary judgment , either the whole or part, as the case may be. The word “ fully “as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that while the defendant need not deal exhaustively with the facts and evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide

whether the affidavit disclosed a bona fide defence. (See, generally, Herb Dyers (Pty) Ltd v Mahommed an Another 1965 (1) SA 31 (T); Caltex Oil (SA) Ltd v Webb and Another 1965 (2) SA 914 (N), Arend and Another v Astra Furnishers (Pty) Ltd [1974 (1) SA 289 (C) ] at 303-4; Shepstone v Shepstone 1974 (2) SA 462 (N) at 467E-H. At the same time defendant is not required to formulate his opposition to the claim with the precision that he would be required of a plea; nor does the Court examine it by the standards of pleading (See Estate Potgieter v Elliot 1948 (1) SA 1084; Herb Dyers case supra at 32.)” Vide also (vide also Tesven CC & another v South African Bank of Athens 2000 (1) SA 268 (SCA) at 275H–276D).

12 In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 423F-G Corbett JA said:

‘Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts alleged constitute a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is this: (a) whether the has ‘fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded. (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law. If satisfied on the matter that Court must refuse summary judgment , either the whole or part, as the case may be. The word “ fully “as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that while the defendant need not deal exhaustively with the facts and evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide

whether the affidavit disclosed a bona fide defence. (See, generally, Herb Dyers (Pty) Ltd v Mahommed an Another 1965 (1) SA 31 (T); Caltex Oil (SA) Ltd v Webb and Another 1965 (2) SA 914 (N), Arend and Another v Astra Furnishers (Pty) Ltd [1974 (1) SA 289 (C) ] at 303-4; Shepstone v Shepstone 1974 (2) SA 462 (N) at 467E-H.

At the same time defendant is not required to formulate his opposition to the claim with the precision that he would be required of a plea; nor does the Court examine it by the standards of pleading (See Estate Potgieter v Elliot 1948 (1) SA 1084; Herb Dyers case supra at 32.)” Vide also (vide also Tesven CC & another v South African Bank of Athens 2000 (1) SA 268 (SCA) at 275H–276D).