THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 368/2022

In the matter between:
LEON HOWARD COHEN N O

FIRST APPELLANT
GREGORY WILLIAM DEANS N O
SECOND APPELLANT
JONATHAN SHAWN RABIE N O

THIRD APPELLANT
JONATHAN ALFRED LEONARD
CHAPMAN N O

FOURTH APPELLANT
COLLIN WILLIAM GREEN N O

FIFTH APPELLANT
COLIN ANDERSON N O

SIXTH APPELLANT
(Appellants cited in their capacities as
trustees for the time being of the Century
City Property Investment Trust)
and
MICHELLE LYNNE DEANS

RESPONDENT

Neutral citation: Cohen N O & Others v Deans (Case no 368/2022) [2023]
ZASCA 56 (20 April 2023)

Coram:
SALDULKER, MOCUMIE and NICHOLLS JJA and MALI and
SIWENDU AJJA
Heard:
17 March 2023
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be at 11h00 on 20 April 2023.
Summary: Summary judgment - particulars of claim based upon incorrect
trust deed - plaintiff verified an incorrect cause of action - defendants
disclosed a bona fide defence - summary judgment refused.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Allie J, sitting as court of first instance):
The appeal succeeds with costs, including the costs of two counsel.
The order of the court a quo is set aside and substituted with the
following order:
‘1
Summary judgment is refused.
The defendants are granted leave to defend the main action.
Costs shall be costs in the cause.’

JUDGMENT

Nicholls JA (Saldulker and Mocumie JJA and Mali and Siwendu AJJA
concurring)

[1] The appellants, the defendants in the high court, are the trustees of the
Century City Property Investment Trust (the Trust), a trading trust run as a
commercial enterprise. There are 23 beneficiaries of the Trust consisting of
the trustees, their wives, children and their respective family trusts. The
respondent, Michelle Lynne Deans (Ms Deans), the plaintiff in the high court,
is the ex-wife of the second appellant, Gregory William Deans (Mr Deans),
one of the trustees. During the course of their marriage, Ms Deans was a

beneficiary of the Trust by virtue of her marriage to Mr Deans until the date
of their divorce on 8 February 2019.

[2] As a result of the sale of certain properties to a third party in 2013 and
2014, the Trust earned substantial capital gains. During the 2014 and 2015 tax
years the trustees resolved to allocate the net income of the capital gains to
the 23 beneficiaries of the Trust. This resulted in a net allocation of
R184 179 657 to the beneficiaries, of which two amounts of R6 050 895 and
R279 044.00, totalling R6 329 939, were allocated to Ms Deans. The amounts
owing to the beneficiaries is reflected as a vested liability in the 2017 Annual
Financial Statements of the Trust.

[3] On the basis of this allocation, Ms Deans issued summons in July 2021
against the Trust for payment of the amount of R6 329 939. The matter was
defended and after the Trust filed its plea, Ms Deans applied for summary
judgment. On 7 March 2022, the Western Cape Division of the High Court
(the high court) granted summary judgment in favour of Ms Deans for an
alternative amount. Because no alternative amount had been claimed, an
application for variation of the order was brought by the trustees, deleting any
reference to the alternative amount. The variation order was granted on
27 June 2022, the net effect of which was to reduce the amount by deducting
the tax paid by the Trust on behalf of Ms Deans, in respect of her allocations.
Leave to appeal to this Court was granted by the high court on the basis that
an important issue was raised, namely whether ‘a court seized with summary
judgment may consider the common cause facts that are at variance with the
pleadings’.

[4] The trustees advanced six grounds of appeal, but only three of these
were seriously argued. The first was that there was non-compliance with the
peremptory requirements of rule 32(2)(b) of the amended rule 32. This sub-
rule sets out what is required of a plaintiff’s affidavit filed in support of an
application for summary judgment.1 The second ground is that the summary
judgment was granted on a cause of action which differed materially from
what was pleaded, or advanced in the particulars of claim. Thirdly, it is
contended that a bona fide defence was disclosed.

[5] Ms Deans’ particulars of claim were premised on an amended trust deed
dated 11 May 2015 (the amended trust deed). It was pleaded that during the
period 1 March 2015 to 28 February 2017, on a date peculiarly within the
knowledge of the trustees, they resolved to pay, apply or appoint the realised
capital gain for the benefit of the beneficiaries. In terms of clause 5.1 and 5.2
of the amended trust deed, the trustees were entitled to pay the whole or any
portion of the capital to any of the beneficiaries, subject to an aggregate sum
of R50 million ‘. . . in such manner and upon such terms and subject to such
conditions, limitations and restrictions in all respect as the trustees may from
time to time in their sole and absolute discretion determine . . .’. Ms Deans
attached the signed Annual Financial Statements of the Trust for the period
ending 28 February 2017, which showed a liability for vested amounts in the
sum of R184 179 657 in favour of the 23 beneficiaries, including an amount
of R6 329 939 for Ms Deans.

1 From 1 July 2019 rule 32 was amended to provide that an application for summary judgment could only be
made after the defendant had filed a plea. The rule also provides that a plaintiff's affidavit in a summary
judgment application may explain why the defence as pleaded does not raise any issue for trial.

[6] The various family members and family trusts were divided into
Groups A to G, with the Deans Family being Group D beneficiaries.
Ms Deans’ entitlement to the monies was as a Group D beneficiary. Her claim
was thus grounded in the provisions of the amended trust deed, and the amount
thereof confirmed by the 2017 Annual Financial Statements.

[7] In response to the particulars of claim, the trustees raised a special plea
of prescription. In this Court, the special plea was abandoned. As a result, it
is unnecessary to deal with the question of prescription.

[8] In their plea on the merits, the trustees admitted the relevant clauses of
the trust deed as pleaded by Ms Deans. They also admitted that the first
allocation of R6 050 895 was made to Ms Deans during the tax year ended
28 February 2014, and the second allocation of R279 044 during the tax year
ended 28 February 2015. The first allocation attracted income tax of
R727 576, which the Trust paid on Ms Deans’ behalf. The second allocation
did not attract a tax liability.

[9] The trustees, in their plea, relied on clause 5.6 of the amended trust deed
to withhold payment to Ms Deans. The clause provides:
‘ . . .the Trustees shall be entitled . . . to withhold actual payment of the whole of any part
of the nett income and/or capital gain applied or appointed to any Beneficiary for such
period and otherwise upon such terms and subject to such conditions as the Trustees may
from time to time in their sole and absolute discretion determine . . . ’

[10] The clause also makes provision for payment of any assessed taxes, for
which the beneficiaries may be liable, to be paid by the Trustees. This amount

should be deducted from the sum payable to the beneficiaries. Actual payment
of the amounts withheld is to be made on the ‘vesting date or the date of death
of the [b]eneficiary concerned (whichever first occurs) . . . ’. The vesting date
is defined in the amended trust deed as the date which the trustees ‘may at any
time in writing appoint to be the [v]esting [d]ate’.

[11] The nub of the Trustees’ case is set out in their plea as follows:
‘In the premises, the Plaintiff’s claim, if any, would only arise upon the vesting date as
defined or the death of the Plaintiff, whichever occurs first, alternatively by the exercise of
the trustees’ discretion to effect payment, none of which have occurred to date.’

[12] In her founding affidavit in support of the application for summary
judgment, Ms Deans verified the cause of action as set out in her particulars
of claim. She then dealt with the defences put up by the trustees, as was
required of her in terms of rule 32(2)(b). Apart from denying that her claim
had prescribed, she stated that the trustees had not disclosed on what dates
they had exercised their absolute discretion to withhold the actual payment of
the capital gains applied to the beneficiaries. In any event, stated Ms Deans,
this provision only pertained to beneficiaries, and it was common cause that
with effect from 8 February 2019, she was no longer a beneficiary as a result
of her divorce. Therefore, this clause could not be invoked as a pretext for
withholding payment to her as an acknowledged creditor of the Trust. Because
of the above, she submitted that there was no defence to her claim and the plea
and special plea had been raised purely for the purposes of delay.

[13] The trustees in the affidavit opposing summary judgment, while
admitting the allocation to Ms Deans, and relying on clause 5.6 of the

amended trust deed, denied that she was entitled to payment of the amount
claimed until the vesting date or her death. In any event, because the amount
had to be reduced by the payment made by the trustees in respect of the tax
liability, they contended that the quantum was in dispute. The Trustees
admitted that Ms Deans ceased to be a beneficiary on 8 February 2019, the
date of her divorce, but stated that this did not change any rights which may
have accrued to her during the period in which she was a beneficiary. Nor did
it have any bearing on their absolute discretion to withhold actual payment,
which the amended trust deed conferred on them.

[14] It appears that it was only at the hearing of the application for summary
judgment that both parties realised that it was not the amended trust deed dated
11 May 2015 that was applicable, but rather the original trust deed dated
13 June 2006 (the original trust deed). This was because the allocations had
taken place in the 2013 and 2014 tax years, respectively, before the amended
trust deed had come into effect in 2015. On the face of it, the fact that the
particulars of claim were premised on an incorrect trust deed, should have
necessitated an amendment of the particulars of claim.

[15] Notwithstanding the above, and despite acknowledging that the
particulars of claim were drafted on the basis of the amended trust deed and
not the original trust deed, the high court found this to be of ‘no particular
moment’. Ultimately, said the high court, although not pleaded by Ms Deans,
it was common cause that the payment had been withheld in terms of clause 15
of the original trust deed. And despite the pleading being defective as a result
thereof, the parties argued the matter as though clause 15.2 of the original trust
deed was applicable.

[16] Clause 15.2 provided that:
‘Until the vesting date, the trustees shall have the power from time to time and at any time,
to accumulate any part of the income of the Trust for periods continuous or discontinuous
as the trustees shall think fit and shall hold any accumulations so made as part of the capital
of the Trust for all the purposes hereof, but so that the trustees may at any time and from
time to time pay, apply, or appoint in their sole discretion, the whole or any part/parts of
the said accumulations as if the same were income arising in the current year.’
The vesting date in the original trust deed was defined as 1 June 2056 or the
date which the trustees may at any time in writing appoint to be the vesting
date.2

[17] The high court found that the defence put up by the trustees was
‘incredibly peculiar’, because they had admitted the allocation and had even
made payment of tax in relation to the allocations. While the high court
accepted that the trustees had the power to make allocations and also to
withhold payment, it found that the trustees had not sufficiently pleaded the
basis on which they withheld payment. Clause 15, although granting absolute
discretion to the trustees to withhold payment, had more expansive provisions
than simply authorising the trustees to withhold payment and this absolute
discretion was subject to certain limitations in terms of the provision, so the
high court found. It is these conditions and restrictions that the trustees did not
deem necessary to explain to the court.

[18] Further, the high court was of the view that by relying on the amended
trust deed as pleaded in the particulars of claim, the trustees were attempting
to ‘dupe’ Ms Deans, the court or both. This finding was made on the basis that

2 Clause 1.17.1 of the Original trust deed, dated 13 June 2006.

the trustees were well aware that the incorrect trust deed was relied on by
Ms Deans, but nonetheless went along with the incorrect allegations,
presumably to gain some tactical advantage. The court criticised the trustees
for not interacting with Ms Deans, presumably to inform her before the
hearing of the summary judgment application that the original trust deed was
applicable. As such their defence was not brought on reasonable grounds. Nor
did they plead their reasons for withholding payment.

[19] Accordingly, the high court granted summary judgment in Ms Deans’
favour. It did so on the basis that the trustees had failed to advance a
reasonable and bona fide defence.

[20] The first question is whether Ms Deans had failed to comply with the
peremptory requirements of rule 32(2)(b) by advancing a case which was not
pleaded and was thus unverified. Rule 32(2)(b) provides that:
‘The plaintiff shall, in the affidavit referred to in sub-rule (2)(a), verify the cause of action
and the amount, if any, claimed, and identify any point of law relied upon and the facts
upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded
does not raise any issue for trial.’

[21] The issue of Ms Deans’ non-compliance with rule 32(2)(b) is
inextricably bound up with whether summary judgment was granted on a case
that was materially different from that which was pleaded in her particulars of
claim and that which she advanced in her affidavit in the support of her
application for summary judgment. The cause of action which Ms Deans
verified was that in terms of clause 5 of the provisions of the amended trust

deed, the trustees applied capital gains in the sum of  R6 329 939 to which she
was entitled as a Group D beneficiary.

[22] Insofar as it was argued that the cause of action which Ms Deans
verified was that payment of R6 329 939 was due to her by the trustees, this
is misconceived. A cause of action is generally defined as a set of facts which
give rise to a claim enforceable in law. The set of facts which gave rise to her
action was not the non-payment of R6 329 939, as contended, but her
entitlement to payment in terms of the relevant trust deed. It is common cause
that the incorrect trust deed was relied on in the particulars of claim. She
therefore verified a defective cause of action. Given the errors contained on
the particulars of claim, Ms Deans was neither able to correctly verify the
cause of action nor the facts upon which she relied.

[23] It was also contended on behalf of Ms Deans that the trustees were not
obliged to rely on the amended trust deed, merely because it had been
incorrectly pleaded by her. Instead, they knew very well that Ms Deans placed
reliance on the 2017 financials of the Trust and these were peculiarly in their
knowledge. Because both parties finally argued the summary judgment
application on the basis that clause 15 of the original trust deed was applicable,
it was suggested that her non-compliance with rule 32(2)(b) should be
overlooked. This submission, too, does not bear scrutiny. It matters not
whether the correct cause of action was argued by both parties at the hearing.

[24] In Standard Bank of South Africa Ltd v Roestof (Roestof),3 it was held
that a technical defect due to some obvious and manifest error which causes
no prejudice to the defendants, can be overlooked.4 Wallis J did not follow
this decision in Shackleton Credit Management (Pty) Ltd v Microzone
Trading 88 CC and Another (Shackleton).5 Also dealing with the old rule
32(2), he stated that the suggestion that a defective summary judgment
application could be cured if the defence dealt with the merits of the claim,
was incorrect. The fact that a defence has been set out and argued, does not
cure the defect in the particulars of claim or the summary judgment
application. Such a view, he stated, would amount to saying that defects would
be overlooked if the defence deals with the merits of the claim. This was not
tenable.

[25] Paragraph 25 of Shackleton sets out why the approach in Roestof should
not be adopted:
‘Insofar as the learned judge suggested that a defective application can be cured because
the defendant or defendants have dealt in detail with their defence to the claim set out in
the summons that is not in my view correct. That amounts to saying that defects will be
overlooked if the defendant deals with the merits of the defence. It requires a 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 a bold 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. The fact that they set out that defence does not cure the defects in the
application and to permit an absence of prejudice to the defendant to provide grounds for

3 Standard Bank of South Africa Ltd v Roestof 2004 (2) SA 492 (W) at 496F-H, followed in Coetzee and
Others v Nassimov 2010 (4) SA 400 (WCC) (Coetzee).
4 Coetzee at 402B-403A.
5 Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another [2010] ZAKZPHC 15;
2010 (5) SA 112 (KZP); [2011] 1 All SA 427 (KZP) para 25.

overlooking defects in the application itself seems to me unsound in principle. The proper
starting point is the application. If it is defective then cadit quaestio. Its defects do not
disappear because the respondent deals with the merits of the claim set out in the
summons.’

[26] It is noteworthy that the learned authors in Erasmus Superior Court
Practice preferred the Shackleton decision over the Roesetof decision. They
suggested that the principles in Shackleton should be applied when dealing
with the amended rule 32(2)(b).6

[27] In the present matter, it is immaterial whether one follows the Roestoff
or the Shackleton approach. The defect in the particulars of claim is not merely
some technical defect. The reliance on the incorrect trust deed, and therefore
on the incorrect clauses, goes to the heart of Ms Deans’ claim. There is no
evidence that the trustees were aware of this defect in the particulars of claim
until the day of the hearing. But even if they had been, it was not incumbent
on them to ‘interact’ with Ms Deans in this regard, as found by the high court.
Nor does it assist Ms Deans that both parties may have argued on the basis
that clause 15 of the original trust deed was applicable. This was not the case
that the trustees came to court to meet.

[28] I am not convinced on the facts of this matter that one even has to
determine what is required to verify a cause of action under the amended rule
32 or what should be contained in the affidavits of a plaintiff and a defendant,
respectively. Nor is the question whether reliance can be placed on facts not
pleaded but which emerged during argument. Whether under the old rule 32

6 D E van Loggerenberg and E Bertelsmann, Erasmus Superior Court Practice 2 ed 2015 at D1-404.

or the amended rule 32, what has not changed is that a defendant, to
successfully oppose a summary judgment application, has to disclose a bona
fide defence.

[29] The only decision to trace the history and reasoning behind the
amended procedure for summary judgment in detail is Tumileng Trading CC
v National Security and Fire (Pty) Ltd; E & D Security Systems CC v National
Security and Fire (Pty) Ltd (Tumileng).7 As observed by Binns-Ward J in
Tumileng, most of the old authorities still apply in determining whether a
defendant has disclosed a bona fide defence. All the defendant is required to
do is disclose a genuine defence, as opposed to ‘a sham’ defence.8 Prospects
of success are irrelevant and as long as the defence is legally cognisable in the
sense that it amounts to a valid defence if proven at trial, then an application
for summary judgment must fail.

[30] Be it the original trust deed or the amended trust deed which is
applicable, both require a court to interpret the extent of the trustees’
discretion and when vesting takes place. The defence of the trustees that, prior
to the date of vesting, their discretion when to make actual payment is absolute
and unfettered, cannot be considered as unreasonable and male fides. It is
certainly not a ‘sham defence’ in any sense of the word.

[31] The high court failed to consider the test to be applied in deciding
whether to grant summary judgment. This was, and remains, whether the facts

7 Tumileng Trading CC v National Security and Fire (Pty) Ltd; E & D Security Systems CC v National
Security and Fire (Pty) Ltd (3670/2019; 3671/2019) [2020] ZAWCHC 52 (15 June 2020)
8 Ibid para12.

put up by the defendants raise a triable issue and a sustainable defence in the
law, deserving of their day in court.9 The defendants must fully disclose the
nature and grounds of their defence and the material facts on which it is
founded. All a defendant has to do is set out facts which if proven at trial will
constitute a good defence to the claim.10

[32] On the facts so disclosed, the trustees have put up a sustainable defence
which is bona fide, namely that until vesting occurs the decision to make
payment is solely within their discretion. In the context of summary judgment,
all the trustees are asking for is their day in court. They have met this threshold
and summary judgment should accordingly be refused.

[33] As far as costs are concerned, both parties asked for the costs of two
counsel in respect of this appeal. The appellants sought a punitive costs order
against the respondent. This is unjustified and there is no reason why the usual
costs order should not be appropriate.

[34] In the result I make the following order:
The appeal succeeds with costs, including the costs of two counsel.
The order of the court a quo is set aside and substituted with the
following order:
‘1
Summary judgment is refused.
The defendants are granted leave to defend the main action.
Costs shall be costs in the cause.’

9 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Joint Venture Zek Joint Venture [2009] ZASCA 23;
2009 (5) SA 1 (SCA); [2009] 3 All SA 407 (SCA) para 32.
10 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 418H-419A.

_______________________
C H NICHOLLS
JUDGE OF APPEAL

Appearances

For appellant:
H Loots SC (with him, M A McChesney)
Instructed by:
BDP Attorneys, Cape Town
Phatshoane Henney Attorneys, Bloemfontein

For respondent:
F J Gordon-Turner (with her, A J Brouwer)
Instructed by:
Mandy Simpson Attorneys, Cape Town

Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

20 April 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Cohen N O & Others v Deans (Case no 368/2022) [2023] ZASCA 56 (20 April 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding an appeal against the
decision of the Western Cape Division of the High Court, Cape Town (the high court).
The issues before the SCA were whether summary judgment should have been granted in
circumstances where the respondent had failed to comply with the peremptory requirements of rule
32(2)(b) by advancing a case which was not pleaded and was thus unverified; and whether summary
judgment was granted on a case that materially differed from that which was pleaded in the
respondent’s particulars of claim and that which the respondent advanced in her affidavit in support of
her application for summary judgment.
The appellants are trustees of a trading trust which has 23 beneficiaries made up of the trustees, their
wives, their children and their various family trusts. The respondent is the ex-wife of one of the trustees
and was a beneficiary by virtue of her marriage until its dissolution in February 2019. During the 2014
and 2015 tax years, the trustees resolved to apply the net income of certain capital gains to the 23
beneficiaries of the Trust, which resulted in allocations of monies being made to the beneficiaries. Two
amounts totalling R6 329 939 were allocated to the respondent. The sum of R184 179 657 allocated to
all the beneficiaries, including the allocation to the respondent, was reflected as a vested liability in the
2017 Annual Financial Statements of the Trust. Because she had not been paid the amount allocated
to her, the appellant issued summons against the trust in July 2021 for payment of the amount of
R6 329 939. The matter was defended on the basis that up until the vesting date, which had not yet
occurred, the trust deed gave the trustees an unfettered discretion to as to when actual payment should
be made.
After the trust filed its plea, the respondent applied for summary judgment. The respondent’s plea was
premised on an amended trust deed dated 11 May 2015. It only became apparent to both parties during

the hearing of the summary judgment application that it was not the amended trust deed that was
applicable, but rather the original trust deed dated 13 June 2006. The high court found this to be of ‘no
particular moment’ and granted summary judgment in favour of the respondent for an alternative
amount, which was later varied to reduce the amount claimed by the respondent by deducting the tax
already paid by the Trust on the respondent’s behalf, in respect of her allocations. The high court
granted leave to appeal to the SCA on the basis that an important issue was raised, ie whether ‘a court
seized with summary judgment may consider the common cause facts that are at variance with the
pleadings.’
The SCA found that it was common cause that the incorrect trust deed was relied on in the particulars
of claim. The respondent therefore verified a defective cause of action. Given the errors contained in
the particulars of claim, the respondent was neither able to correctly verify the cause of action nor the
facts upon which she relied. The SCA cautioned that the defect in the particulars of claim was not merely
some technical defect. The reliance on the incorrect trust deed went to the heart of the respondent’s
claim.
The SCA found that whether under the old rule 32 or the amended rule 32, what has not changed is
that a defendant, to successfully oppose a summary judgment application, has to disclose a bona fide
defence. The SCA held that the high court failed to consider the test to be applied when deciding
whether to grant summary judgment, which is whether the facts put up by the trustees raised a triable
issue and a sustainable defence in the law, deserving of their day in court. The SCA further held that
the trustees had met this threshold and summary judgment should have accordingly been refused.
~~~~ends~~~~