Port Elizabeth Inner City Housing (Pty) Ltd v Nieman

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 26 February 2009
• Docket Number: 2575/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 17 February 2009
• Citation: 2009 JDR 0143 (SE)

Jones J:

[1] The applicant seeks an order for summary judgment in the sum of R290 000-00, together with orders for interest and costs. The capital amount was alleged in the particulars of claim to have been for money lent, advanced and paid over by the plaintiff to the defendant. The money was to have been used for the completion of certain building contracts in Grahamstown.

[2] The particulars of claim alleged that the contract originally relied upon was a written agreement for a loan of R300 000-00 entered into between the plaintiff on the one hand and the defendant and a Mr Mjekula, the lenders, on the other on 17 June 2008. The written agreement was then varied by an oral agreement in terms of which the amount was altered to R290 000-00 (the amount actually paid over) and the money was lent solely to the defendant, Mr Mjekula falling out of the picture entirely. In the alternative, the plaintiff alleged that the oral variation of the original written

2009 JDR 0143 p2

Jones J

agreement was an agreement in terms of which there was (a) a loan of R145 000-00 by the plaintiff to the defendant, (b) a loan of R145 000-00 by the plaintiff to Mr Mjekula, which was in turn lent on by Mr Mjekula to the defendant, (c) that the amount of these two loans, R290 000-00, was paid by the plaintiff directly to the defendant, (d) that Mr Mjekula ceded his claim for repayment of R145 000-00 to the plaintiff, and (e) that the plaintiff was as a result entitled to recover the full amount, R290 000-00, from the defendant.

[3] The summary judgment application was opposed on two bases. First, the defendant contended that the summary judgment application was fatally defective because the deponent to the summary judgment affidavit purported to verify two causes of action which were alternative to each other and mutually destructive. Second, he contended on the merits that the plaintiff relied on an agreement of loan which was simulated, and that the real nature of the transaction between him and the plaintiff was a joint venture to do building work. He also contended that he had a counterclaim against the plaintiff which exceeded the amount of the claim against him.

[4] Rule 32(2) requires that an application for summary judgment must be supported by an affidavit by the plaintiff or any other person who is able to swear positively to the facts verifying the cause of action and the amount, if any, of the claim. The plaintiff's managing director deposed to the affidavit in this case. He alleged that the facts contained in the affidavit were true and correct, that they were within his personal knowledge, that he could swear positively to the facts of the matter, and that he verified the applicant's cause of action as set out in the summons

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Jones J

and the amount claimed. The amount claimed and verified was R290 000-00. With reference to the cause of action, the effect of the affidavit was verification by the deponent of

(a)

the original written agreement of loan;

(b)

the oral variation of the loan by a reduction in the amount from R300 000-00 to R290 000 by the plaintiff to the defendant, without Mr Mjekula being involved; and

(c)

the alternative oral variation alleging two loans, one to the defendant and one to Mr Mjekula in the amount of R145 000-00 each, a loan of Mr Mjekula's R145 000-00 to the defendant, and the...