Hagemann N.O. v Hagemann N.O. and Others (1427/2017) [2017] ZAFSHC 129 (10 August 2017)
- Citation
- [2017] ZAFSHC 129
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 1427/2017
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 1427/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the third defendant, as trustee, presented a defence that, if proven at trial, would constitute a good defence to the plaintiff's claim. Specifically, he denied the existence of any loan agreement or resolution by the trustees to borrow money from the plaintiff, and asserted that no funds were received into the Trust's account. The plaintiff's case was not unanswerable, and summary judgment is inappropriate where a bona fide defence is raised. Accordingly, the application for summary judgment was dismissed and the defendants were granted leave to defend the action.
Court disposition
Application for summary judgment dismissed; defendants granted leave to defend; costs to stand over.
Orders
- The application for summary judgment is dismissed.
- Leave is granted to the defendants to defend the action.
- Costs to stand over.
02
Material facts
Parties
Johanna-Marie Hagemann
Plaintiff Counsel: Adv. W.J. GroenewaldReinhard Hagemann N.O.
Defendant Counsel: Adv. E.G. LubbeHelena Magdalene Hagemann
Defendant Counsel: Adv. E.G. LubbeCharles Lewis Horatio Vertue
Defendant Counsel: Adv. E.G. LubbeAmounts and remedies
- Claim 1 Amount: ZAR 500,170.27
- Claim 2 Amount: ZAR 1,054,794.52
03
Procedural history
Posture
Summary Judgment Application / Application for Summary Judgment Following Notice of Intention to Defend
04
Questions and positions
Legal issues
- 01
Whether the defendants, as trustees of the Hagemann Trust, are liable to repay amounts allegedly loaned by the plaintiff under oral agreements.
- 02
Whether the defendants have raised a bona fide defence sufficient to defeat summary judgment.
Party arguments
- Applicant
- The plaintiff contends that two oral loan agreements were concluded with the Trust, represented by Mr Hagemann, under which she advanced funds totalling R 2 000 000.00. Partial repayment was made on the first loan, but the balance and the second loan remain unpaid. She asserts that the Trust is indebted to her for the outstanding amounts plus interest and costs, and seeks summary judgment on the basis that the defendants have no bona fide defence.
- Respondent
- The third defendant, Mr Vertue, opposes summary judgment, stating that as an independent trustee, he is unaware of any loan agreements with the plaintiff. He asserts that the Trust never resolved to borrow money from the plaintiff, nor were any funds paid into the Trust's account. He maintains that the Trust has a bona fide defence and disputes the existence of any indebtedness.
05
Court’s reasoning
Legal principles
- 01
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A
A defendant in summary judgment proceedings need not prove the truth of its defence; it suffices to place facts before the court which, if established at trial, would constitute a defence. Probabilities are irrelevant at this stage.
- 02
Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B
Summary judgment should be refused if the defendant's affidavit discloses facts which, if proved, would constitute a defence to the claim.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the third defendant, as trustee, presented a defence that, if proven at trial, would constitute a good defence to the plaintiff's claim. Specifically, he denied the existence of any loan agreement or resolution by the trustees to borrow money from the plaintiff, and asserted that no funds were received into the Trust's account. The plaintiff's case was not unanswerable, and summary judgment is inappropriate where a bona fide defence is raised. Accordingly, the application for summary judgment was dismissed and the defendants were granted leave to defend the action.
Obiter and limits
- The court expressed doubt regarding the attestation of the plaintiff's affidavit, noting it was signed before a solicitor who may not be a properly appointed commissioner of oaths in South Africa, but accepted its validity for purposes of the application.
- The plaintiff does not have an unanswerable case, and the matter should proceed to trial for proper determination of the facts.
Court disposition
Application for summary judgment dismissed; defendants granted leave to defend; costs to stand over.
- The application for summary judgment is dismissed.
- Leave is granted to the defendants to defend the action.
- Costs to stand over.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 1427/2017
In the application between:
JOHANNA-MARIE
HAGEMANN
Plaintiff
and
REINHARD HAGEMANN N.O.
1st Defendant
HELENA
MAGDALENE HAGEMANN
2nd Defendant
CHARLES
LEWIS HORATIO VERTUE
3rd Defendant
(In their capacity as trustees of the Hagemann trust)
(IT 1398/1997)
JUDGMENT BY: C REINDERS, J
HEARD ON: 3 AUGUST 2017
DELIVERED ON: 10 AUGUST 2017
[1] The Plaintiff is Johanna-Marie Hagemann, a medical practitioner (Dr Hagemann). The Defendants are the three trustees of the Hagemann Trust (the Trust) and are sued in such capacity. They are Reinhard Hagemann (1st Defendant, Mr Hagemann), Helena Magdalene Hagemann (2nd Defendant, Ms Hagemann) and Charles Lewis Horatio Vertue (3rd defendant, Mr Vertue). Dr Hagemann issued summons against the Defendants on 23 March 2017 for payment in the amounts of R 500 170.27 (Claim 1) and R 1 054 79.27 (Claim 2) respectively. Interest on the said amounts as well as costs are also prayed for.
[2] After a notice of intention to defend was filed by Mr Vertue Dr Hagemann now moves for summary judgment against the Defendants. Mr Vertue opposed the application averring that the Trust has a bona fide defence against the claim by Dr Hagemann.
[3] According to Dr Hagemann, in respect of the Claim 1, she entered into an oral loan agreement with the Trust represented by Mr Hagemann on 9 October 2014. The terms and conditions of the loan agreement entails that the amount of R 1 000 000.00 would be advanced to the Trust who will repay her. The amount is repayable immediately, with interest to be levied. The sum was lend and advanced to the Trust, and repayment of R 635 700.00 in eight separate instalments took place. At 22 March 2017 the Trust is indebted to Dr Hagemann in the amount of R 500 170.27 plus interest.
[4] Claim 2 is for the amount of R 1 000 000.00 plus interest. On 5 September 2016 an oral loan agreement was entered into by Mr Hagemann, representing the Trust, on the same conditions as the loan agreement in respect of Claim 1. Although the money was lend and advanced to the Trust after conclusion of the agreement, the Trust has not repaid any of the money lend and advanced. As on 22 March 2017, it is indebted to Dr Hagemann in the amount of R 1 054 794,52 plus interest.
[5] Dr Hagemann’s affidavit in support of summary judgment is on face value signed at New St Killarney and sworn to before a solicitor from Downing Courtney and Larkin Solicitors. I have my serious doubts whether this is an attorney of South Africa and therefore a properly appointed commissioner of oaths in this country. I was not addressed on this issue and accepts for purposes hereof that the affidavit had been properly attested to.
[6] It is trite that a defendant in summary judgment proceedings does not have to convince a court of the truth of its defence. Probabilities play no role at this stage. Should a defendant place sufficient facts before court which would constitute a defence in the main action, summary judgment should be denied.
See: Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A
Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B
[7] I turn to the defence proffered by the 3rd Defendant. Mr Vertue confirms that he has been an independent trustee of the Trust since 16 August 2011. He states that the Trust has never borrowed money from Dr Hagemann nor entered into any agreement. At no stage did the trustees resolve to borrow money from Dr Hagemann. He confirms that no such money has been paid into the Trust’s banking account.
[8] Mr Groenewald on behalf of Dr Hagemann pressed hard upon me to find that no bona fide defence was tendered by Mr Vertue, whereas Mr Lubbe on behalf of the 3rd Defendant argued that the Plaintiff does not have a clear case against the Defendants. I am satisfied that the defence stated by Mr Vertue would constitute a good defence should it be proven at the main trial. The Plaintiff certainly does not have an unanswerable case.
[9] Accordingly I grant the following orders:
1. The application for summary judgment is dismissed.
2. Leave is granted to the Defendants to defend the action.
3. Costs to stand over.
______
C. REINDERS, J
On behalf of the Plaintiff: Adv. W.J. Groenewald
Instructed by:
Marius Muller Hendricks Ing
c/o Kramer Weihmann & Joubert Inc
BLOEMFONTEIN
On behalf of the Defendants: Adv. E.G. Lubbe
Gous Vertue & Ass Inc
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