Jukuda v African Pioneer Investment Holdings Ltd

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 07 November 2008
• Docket Number: 1770/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 04 November 2008
• Citation: 2008 JDR 1407 (SE)

Jones J:

[1] This is an application for summary judgment in terms of rule 32(1) for payment of R12 090 000-00. It is opposed.

[2] The cause of action in the particulars of claim is that the 1st respondent, a company which, it turns out, is now deregistered and hence defunct, allegedly failed to pay dividends to the applicant, who was a shareholder, and is in consequence liable to him in the sum of R12 000 000-00, being the capital amount of the dividends, and R90 000-00 for patrimonial and non-patrimonial damages. The 2nd respondent, who was the executive director of the 1st respondent, is alleged to be jointly and severally liable with the 1st respondent for

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Jones J

these amounts. The 2nd respondent has excepted to these particulars of claim on the ground that they do not disclose a valid cause of action, and he has also brought application to have the particulars of claim set aside as an irregular proceeding in terms of rule 30. Those applications are pending.

[3] It is well known that summary judgment is an extraordinary remedy which deprives a respondent of his ordinary right to have having his case heard in the normal course, and that the courts are unwilling to order it unless satisfied that the applicant has an unanswerable case. This requires a careful scrutiny of

(a)

the application, to ensure that there has been proper compliance with the rules, and

(b)

the opposing affidavit, to see whether a proper defence is disclosed. It is of course unnecessary to make findings on the merits and demerits of the defence. But it must be bona fide and legally sound.

[4.1] The opposition to summary judgment was based on two grounds. First, the 2nd respondent raised two respects in which the summary judgment application fails to comply with the provisions of rule 32.

[4.2] The first was that annexed to the summary judgment application is a share certificate issued by a company African Pioneer Limited to the applicant. The applicant seeks to justify this on the ground that the certificate is a liquid document, and hence permissible in terms of rule 32(2) which requires annexation of the liquid document, if any, upon which the claim is founded. It may

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Jones J

be that a share certificate is prima facie evidence that the applicant is the holder, though not necessarily the owner, of the shares and hence entitled to dividends, but it is not a liquid document reflecting an acknowledgement of liability...