Madima and Others v Ratshitanga and Others (35748/2018) [2019] ZAGPJHC 257 (1 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:35748/2018

In the matter between:

HOPE MATSHIDISO MADIMA 1st Plaintiff

VUSUMUZI ISAIAH ZAWNE N.O 2nd Plaintiff

MABELINDILE ARCHEBALD LUHLABO N.O 3rd Plaintiff

BENNETT MLAMLI NIKANI N.O 4th Plaintiff

and

JULIA MOTHIRI RATSHITANGA First Defendant

ESTHER MGIJIMA Second Defendant

HENRY MGIJIMA Third Defendant

THE REGSITRAR OF DEEDS, PRETORIA Fourth Defendant

JUDGMENT

MALUNGANA AJ

[1] This is an application for summary judgment brought by the plaintiffs in their capacities as trustees of Peermont Children’s Trust (IT 7550(T)) (“the Children’s Trust”), against the First Defendant. It appears from the particulars of claim that the cause of action is founded on the theft of monies allegedly misappropriated by the first respondent when she was a trust administrator of the Children’s Trust between June 2008 to 20 March 2017. In the particulars of claim the plaintiffs

sought, inter alia; the following relief from the first defendant:

1. Setting aside the sale agreement entered into between the first and second defendant on 15 March 2017 and registered on 3 September 2017 in respect of Erf 83, Portion 0 in the Township of La Camargue, Madibeng Local Municipality, Northwest Province situated at La Camargue Private Country Estate, Hartbeespoort (“the La Camargue property);

2. Declaring that the La Camargue property is the property of the first defendant;

3. Directing the fourth defendant to maintain the caveat against the title deed of the La Camargue property against alienation and in favour of the interest of the Children Trust;

4. Declaring the La Camargue property specially executable at the instance of the plaintiffs in satisfaction of the debt of R13 338 348.33

owed to them by the first defendant;

[2] The first and second defendants have filed a notice of intention to defend the action.

[3] I shall set out briefly the relevant factual complex which provides the background and the context of allegations giving rise to this litigation as contained in the particulars of claim:

3.1 The First Defendant was employed as a trust administrator by the Children’s Fund during the period 1 June 2008 to 20 March 2017.

3.2 In or about March 2017 the Children’s Trust became aware that the first defendant had defrauded the Children Trust during the period of her employment by misappropriating and/or misusing the Children’s Trust funds (“the missing funds”).

3.3 The first defendant caused the missing funds to flow directly or indirectly to at least fourteen separate entities mentioned in paragraph 16.[1]

3.3 The implicated entities had no business relationship with the Children’s Fund save for Irresistible Experts, Hope for Children Foundation and Rwesi Trading which rendered partial services to the Children’s Trust against the inflated invoices.

3.4 Entities such as ITA Project Management, ITA Foundation, Ergo flex, Donko and Mandata were at all material times under the direction or control of the relatives and friends of the first defendant, whose names appear under paragraph 17.6.1 to 17.6.4.

3.5 The defendant is the founder, trustee and the beneficiary of their Family Trust;

3.6 The first defendant’s sister, Nombulelo Mgijima is a trustee and beneficiary of their Family Trust.

3.7 The Children’s Trust reasonably believe that the first defendant has defrauded the Children’s Trust in an amount of R13 338 342.33, calculated on the basis set out under paragraph 19.1 to 19.12.

3.8 In consequence, the plaintiff alleges that the defendant is indebted to the Children’s Trust in an amount of R13 338 342.33 as consequence of the misappropriation and misuse of the Children’s Trust funds.

[4] The following allegations are equally relevant in the adjudication of this application:

4.1 On 15 March 2017, the date scheduled for her disciplinary inquiry, the first defendant entered into a sale agreement with the second defendant for La Camargue property in terms of which the property in question was sold for R290 000.00. On 03 July 2017 the said property was placed in the market for sale for R5, 5 million. Reference is made to a Windeed Property Report attached to the particulars of claim as annexure “P1”.

4.2 The second defendant acquired the La Camargue property gratuitously as it was sold to him far below the market value.

4.3 The first defendant sold the La Camargue property to the second defendant in order to diminish her estate with the intention to defraud her creditors, in particular the Children’s Trust to whom she is indebted in the amount of R13 338 342.33.

[5] The application is opposed and the first defendant filed an opposing affidavit in support whereof, whilst the second defendant filed a confirmatory affidavit.

[6] In their opposing papers the first defendant raises a point in limine regarding the liquidity of the plaintiffs’ claim, being for the loss allegedly suffered. The first defendant further denies that it is indebted to the plaintiffs, and contends that she has a bona fide defence to the plaintiffs’ claim.

[7] Before determining whether or not the allegations the defendants have made constitute a valid defence to the plaintiffs claim, I propose to deal with the requirements underpinning summary judgment applications.

[8] It is well settled in our law that summary judgment should only be granted in circumstances where the plaintiff has established his claim clearly and the defendant has failed to establish a bona fide defence. In considering whether the plaintiff in this matter is entitled to summary judgment, it must be determined whether the plaintiff has shown not only that it has a claim which falls within the ambit of `rule 32, but that it has taken all steps to perfect its claim and make it unanswerable.

[9] The grant of a summary judgment is based on the supposition that the plaintiff’s claim is unimpeachable and also that the defendant’s defence is bogus or bad in law- per Corbet JA in Maharaj v Barclays National bank Ltd 1976 (1) SA 418 (A) at 423G-H.

[10] Rule 32(1) provides that the plaintiff may apply for summary judgment on each of such claim 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;

(d) for ejectment

[11] It is currently settled that a claim for the repayment of stolen money is a proper claim in summary judgment proceedings. See Colrod Motors (Pty) Ltd v Bhula 1976 (3) SA 836 (W), Attorneys, Notaries and Conveyancers Fidelity Fund v Tony Alle, (Pty) Ltd and Another [1990] ZASCA 5; 1990 (2) SA 665 (A) 674B-E; Nedcor Bank Ltd v Behardien 2000 (1) SA 307 (C) 311G.

[12] Rule 32(3) provides that the defendant who is faced with the summary judgment application 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 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.

Point in limine

[13] In paragraph 10 of the opposing affidavit the first defendant contends that the plaintiffs’ claim is for unliquidated amount for loss allegedly suffered and consequently does not fall within the scope of application of summary judgment. I respectfully disagree with this contention. Rule 32(1)(b) does not require the existence of a liquid claim, but instead, stipulates that that the claim must be for a liquidated amount in money. The emphasis accordingly falls squarely on the liquidated nature of the quantum and not on the label attached to the cause of action.

[14] A liquidated amount in money is an amount which is either agreed upon or which is capable of speedy and prompt ascertainment. In the present matter the plaintiffs have set out clearly the amounts of money paid to various entities associated with the first defendant. The amounts in question are ascertainable in my view. The nature of the claim (liquidated damages) cannot be altered by the defendant’s denial of the factual basis upon which it is founded. If there are really merits underlying the denial, summary judgment ought to be refused. Ultimately it is the merit of denial that determines whether summary judgment should be granted or refused. Consequently the label attached by the plaintiff to his cause of action is of no moment – the deciding factor therefore is whether the amount claimed is a liquidated one. In determining this aspect the court gives consideration to the papers put forward by both parties.[2] In my view the plaintiffs have fully set out the nature of their claim, and the amounts which have been misappropriated from the children’s trust and paid to specific entities by the first defendant.

[15] It is immediately apparent that for purposes of the requirement of ‘liquidated amount in money” as recorded in rule 32(1)(b) a claim for the repayment of stolen money fall within the ambit of summary judgment. See Colrod case supra 837C-G.

[16] It follows from the aforegoing that the defendants’ point in limine should be dismissed.

[17] I must now consider whether the defendants’ affidavit meet the requirements for resisting summary judgment.

[18] Rule 32(3)(b) provides that the defendant may satisfy the Court by an affidavit that he/she has bona fide defence and such affidavit or defence must disclose fully the nature and grounds of the defence and the material facts relied upon therefor. While the defendant need not deal exhaustively with the facts and evidence relied upon to substantiate his/her defence,

he must at least disclose his defence and material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence. See Maharaj v Barclays National Bank supra 426D.

[19] In Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC 2010 (5) SA 112 (KZP) at 122F-I it was held that “…it requires the defendant who wishes to contend that the application is defective to confine themselves to raising that point, with the concomitant risk that if the technical point is rejected they have not dealt with the merits. It will be bold of a Defendant that limits an opposing affidavit in summary judgment proceedings to technical matters when they believe that they have a good defence on the merits...?”

[20] Turning to the facts of this case. The defendants have not disclosed the nature and material facts of their defence. All they simply did was to deny the plaintiffs’ claim. What is evident from the particulars of claim is that the plaintiffs have set out allegations of the monies allegedly paid by the first defendant from the Children’s Trust when she was working as a trust administrator. What is further undisputed is the fact that the implicated entities which received funds listed in the particulars of claim are associated with the first defendant. Given the sensitive nature of the allegations, there is clearly, in my view, indispensable need for the defendants to state the nature and material facts of their defence as a matter of law and of necessity.

Under the circumstances the defendants have failed to meet the requirements of rule 32(3)(b). I must also point out before I conclude, that the defendants, further had an option under rule 32(3)(a) if they chose not to disclose their defence in terms of rule 32(3)(b), to give security to the satisfaction of the registrar. It seems to me that the nature of the discretion to be exercised by courts in cases where the defendant has failed to meet the requirements of rule 32(b) is regrettably to grant a judgment in favour of the plaintiff.

[21] In the result, the following order is made:

1. The first defendant is ordered to pay the plaintiff the sum of R13 338 342.33.

2. Interest on the aforesaid sum at the rate of 10,25% per annum from date of this order to date of payment;

3. The first defendant is further directed to pay the cost of action

____________________

P H MALUNGANA

Acting Judge of the

High Court of South Africa

Gauteng Local Division, Johannesburg

APPEARANCES

Counsel for Plaintiffs :

Adv Salim .A. Nakhjavani

Instructed by :

Clyde & Co Inc

Counsel for Defendants :

Adv C.J. Nieuwenhuys

Instructed by :

Grove and Dormehl Attorneys

[1]See the list of entities on page 3 of the POC para.16.

[2]Neves Builders & Decorators v De La Cour 1985 1 SA 540 ( C ) 544G – 545C, Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 ( C ) para.470.