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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – PORT ELIZABETH)

CASE NO.: 1007/2013

In the matter between:

DONOVAN NADISON N.O...............................................................................................First Plaintiff

IHRON RENSBURG N.O. …........................................................................................Second Plaintiff

DERRICK SWARTZ N.O. …..........................................................................................Third Plaintiff

(In their capacities as co-trustees of the

Northern Areas Trust)

And

RONALD NIEGAARDT N.O. …..................................................................................First Defendant

(In his capacity as trustee for the Bethelsdorp

Development Trust)

RONALD NIEGAARDT............................................................................................Second Defendant

ROBERT GALLAGHER N.O. …...............................................................................Third Defendant

JUDGMENT

BESHE J:

[1] On the 2 July 2013 I granted the plaintiffs summary judgment against first and second defendants for payment of R8 763 096.92 as well as interest thereon. Judgment was not sought against the third defendant due to the fact that he had not been properly served with the summons.

[2] Subsequent to my order, on the 28 August 2011 default judgment was granted against the third defendant by the Registrar.

[3] Despite the fact I granted judgment only against first and second defendants, third defendant against whom default judgment was granted by the registrar is also, together first and second defendants seeking leave to appeal the granting of summary judgment against him. When I drew applicant’s attorneys to this fact, which appears to have elluded all of us when the application for leave to appeal was argued, I was asked to ignore any reference to third defendant as his inclusion was an error.  

[4] My judgment is sought to be appealed against on the following grounds:

(1) The amount claimed is not a liquidated amount in money.

(2) Only one trustee of Bethelsdorp Development Trust, first defendant is joined in that capacity, other trustees have not been joined.

(3) Clause 8 of the written agreement on which the defendants are issued contains an arbitration clause. Plaintiff have failed to plead the arbitration clause was exhausted. That therefore the summons was issued prematurely. The arbitration clause reads as follows:

“8.1 Any difference or dispute between the parties in connection with the interpretation or application of the provisions of this agreement or its breach or termination shall be referred to and be determined by informal arbitration in terms of this clause.”

[5] The claim in question is for an amount of R8 763 096.92 which was allegedly paid to trustees of the Bethelsdorp Development Trust by Northern Areas Trust between August 2007 and March 2008. The money was meant to be used for the advancement of sustainable development of the youth, women, veterans and disabled people in the Nelson Mandela Municipality. Plaintiff alleged that the defendants misappropriated the funds, alternatively they failed to use that donated funds in accordance with the provisions and spirit of the memorandum of understanding.

[6] I do not understand why it can be said that the amount claimed is not a liquidated amount.

[7] As regards the non-joinder of other trustees or there being no allegation about their current position – there are reasonable prospects another court may find this non-joinder to be fatal. The same applies to non-compliance with aforementioned arbitration clause.

[8] Accordingly leave to appeal against the order that I made on the 12 July 2013 is granted. Such appeal is to be heard by the full bench of this division.

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N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Plaintiffs : Adv: Mullins

Instructed by : KAPLAN BLUMBERG ATTORNEYS

First Floor, Block A

Southern Life Gardens

70 – 2^nd Avenue

Newton Park

PORT ELIZABETH

Tel.: 041 – 363 6044

Ref.: K Morris/Bronwynne/MAT9208

For the Defendants : Adv: J F Steyn

Instructed by : ROELOFSE MEYER INC.

29 Bird Street

Central

PORT ELIZABETH

Tel.: 041 – 585 3270

Ref.: L Meyer/S. Fritz

Date Heard : 18 February 2014

Date Reserved : 18 February 2014

Date Delivered : 11 December 2014

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