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[2016] ZAWCHC 118
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Absa Bank Ltd v Future Indefinite Investments 201 (Pty) Ltd and Others (20266/2015) [2016] ZAWCHC 118 (12 September 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 20266/2015
DATE:
12 SEPTEMBER 2016
In
the matter between:
ABSA
BANK
LTD
........................................................................................................................
Plaintiff
And
FUTURE
INDEFINITE INVESTMENTS 201 (PTY)
LTD
........................................
First
Defendant
DAVID
CLIFFORD
BIRD
.........................................................................................
Second
Defendant
WHITE
SANDS MARINE (PTY)
LTD
.......................................................................
Third
Defendant
JUDGMENT
Before:
The Hon. Mr Justice Binns-Ward
Date
of hearing: 7 September 2016
Date
of judgment: 12 September 2016
BINNS-WARD
J:
[1]
This is an application by the plaintiff,
Absa Bank Limited, for summary judgment against the first defendant
for payment of the
amount of R617 597,47, together with
mora
interest thereon at 10,25% per annum from 27 June 2015 to date of
payment, such interest to be calculated daily and capitalised
monthly. The claim is founded on the first defendant’s
outstanding obligations in terms of a loan agreement concluded
on 7
November 2008. A copy of the agreement is annexed as annexure
POC 1 to the combined summons.
[2]
The plaintiff also seeks an order declaring
Erf 1...., Vredenburg, to be directly executable in satisfaction of
the aforementioned
money claim. Erf 1..... was given by the
first defendant as security in respect of its obligations under the
aforementioned
loan by means of a first mortgage registered in favour
of the plaintiff in the Cape Town deeds registry in terms of mortgage
bond
number 1584/09 in January 2009.
[3]
Summary judgment is also sought against the
second and third defendants, who stood surety for the first
defendant. The liability
of the second defendant as surety is
limited in terms of the applicable deed of suretyship to R1 150 000,
together with
interest and costs.
[4]
The application is opposed by the
defendants on two bases. Firstly, it is contended that the
supporting affidavit deposed
to by Patricia Elizabeth Beyers, a
manager in the plaintiff’s Corporate and Business Bank, Support
and Recovery Department,
does not comply with the requirements of
rule 32(2). In particular, it is maintained that it does not
appear from the affidavit
that the deponent had the required personal
knowledge of the relevant facts to be qualified to ‘swear
positively to the facts
verifying the cause of action’.
As to the merits of the claim, the defendants contend that the
plaintiff has bound
itself to refinance the debt. For the
reasons given below, the court cannot reach the merits of the claim
in summary judgment
proceedings if the first basis for the
defendants’ opposition to the application is good.
[5]
The supporting affidavit goes as follows:
I,
the undersigned, Patricia Elizabeth Beyers
do
hereby make oath and say that:
1.
I am a Manager in the Absa Corporate and Business Bank, Support and
Recovery Department of the abovenamed Applicant. In
my
aforesaid capacity I am duly authorised to depose to this affidavit
on behalf of Applicant.
2.
Unless the contrary is clearly indicated, I have knowledge of the
facts hereinafter stated as a result of my access to and regard
of
(
sic
) all the relevant documents and data which the Applicant
has electronically captured and stored which pertain to the cause of
action
against the Respondents.
3.
In the light of the aforesaid, I can and do hereby swear positively
to the facts verifying the cause of action and the amount
as claimed
in the summons and confirm that the Respondents are indebted to the
Applicant in the amount of R617 597,47 plus
interest thereon as
set out in the Applicant’s Particulars of Claim’.
4.
In my opinion the Respondents do not have a
bona fide
defense
(
sic
) to the action and have entered an appearance to defend
solely for the purpose of delay.
It
will be noted that the qualification at the beginning of paragraph 2
is purposeless, as there is nothing to the contrary indicated
anywhere in the affidavit, whether ‘clearly’, or at all.
Moreover, there are no ‘facts hereinafter stated’
and
there is nothing to indicate definitively which documents and data
the deponent considered to be relevant. She does not
say
positively that she has read the summons.
[6]
The sloppy drafting of affidavits made in
support of applications for summary judgment is to be deprecated.
If a deponent
has shown herself to be willing to sign a deposition
that is so vacuous in obvious respects, how seriously is the court
meant to
take her word? Why should the court not be concerned
that she has been just as careless in her consideration of ‘all
the relevant documents and data’ and the summons referred to in
her averments? Slapdash supporting affidavits in summary
judgment applications give cause for concern about their bona fides,
and parties, such as the plaintiff in this case, who rely
on them
should not be surprised if their applications are refused in the
exercise of the judge’s discretion on this basis
alone.
Improper attention to the drafting of supporting affidavits in
these cases can not only stultify the procedure to
the detriment of
the plaintiffs, but can also be prejudicial to the efficient disposal
of cases in the court system.
[7]
Corbett JA made it clear 40 years ago
in
Maharaj v Barclays National Bank
Limited
1976 (1) SA 418
(A) at 423D-E,
that ‘[t]
he mere assertion by a
deponent that he “can swear positively to the facts” (an
assertion that merely reproduces the
wording of the Rule) is not
regarded as being sufficient, unless there are
good
grounds
for believing that the
deponent
fully appreciated
the meaning of these words
’ (my
emphasis). As mentioned, in the current case, the affidavit
gives no indication of what the deponent considered
to be ‘all
the relevant documents and data’ and the court thus has no
basis to qualitatively assess the cogency of
the averment. The
averments amount to ‘
mere
assertion
’.
[8]
However, as the judgment in
Maharaj
also indicated (at p.423H), ‘
Where
the affidavit fails to measure up to
[the]
requirements
[of rule 32(2
)
]
,
the defect may, nevertheless, be cured by reference to other
documents relating to the proceedings which are properly before the
Court (see
Sand
and Co. Ltd. v Kollias
[1962 (2) SA
162
(W)] …
at p.165). The
principle is that, in deciding whether or not to grant summary
judgment, the Court looks at the matter “at
the end of the day”
on all the documents before it
’.
[9]
The affidavit was deposed to in
Johannesburg and it may be inferred that the deponent employee is
based there. The relevant
transactions took place in the
Western Cape. It may therefore also be inferred, as indeed
indicated in the affidavit, that
the deponent’s knowledge of
the facts germane to the cause of action, such as it was, was derived
entirely from her consideration
of ‘
all
of the relevant documents and data
’
that the plaintiff has electronically captured. It is now
established that that is, in principle, unexceptionable
in a case
like this; see
Trustees for the time
Being of the Delsheray Trust and Others v ABSA Bank Limited
[2014] 4 All SA 748
(WCC) and also the provisions of s 15 of the
Electronic Communications and Transactions Act 25 of 2002 (to which,
curiously
in the circumstances, no reference was made in the Full
Court’s judgment).
[10]
Delsheray
does
not, however, stand as authority that bald averments of the nature
made in this case are sufficient to satisfy the requirements
of rule
32(2). The founding affidavit in
Delsheray
read as follows:
1)
I am a Specialist employed at the Retail Bank Collection Division of
the Plaintiff / Applicant. I am duly authorised to depose
of this
Affidavit.
All the data and records, relating to the
Applicant’s/Plaintiff’s action against the Defendant are
under my control
and I deal with this account on a day to day basis.
The facts contained herein are within my personal knowledge and are
both true and correct.
2)
Unless the contrary appears, I have knowledge of the facts
hereinafter stated, either personally or as a result of my access
to
all relevant computer data and documents pertaining to the Trust’s
mortgage loans, account number 4056939083.
3)
I
hereby verify the facts and cause of action stated in the
Summons and the Particulars of Claim to the Summons
as true and
correct and verify in particular, that the Respondents/Defendants
jointly and severally the one to pay the other to
be absolved are
indebted to the Plaintiff in the sum of R1 588 208,61
on
the grounds stated in the Summons
.
4)
In my opinion the Respondents/Defendants, jointly and severally, the
one paying the other to be absolved, do not have a
bona
fide
defence to the Applicant’s/Plaintiff’s claim and their
appearance to defend has been entered solely for purpose of
delay.
(Underlining
supplied.)
The
affidavit was not a model of draftmanship and quite thin on
substance, but the deponent in that matter did make it clear that
he
dealt with the account in question on a day to day basis and thereby
gave the court reason to believe that he had read the summons
and
particulars of claim on an informed basis. The distinguishing
features of the supporting affidavit in
Delsheray
show that
the submission by the plaintiff’s counsel that I was bound by
the principle of
stare decisis
to accept the supporting
affidavit in the current case as sufficiently compliant with the
requirements of rule 32(2) was misconceived.
The
ratio
decidendi
of
Delsheray
concerned the admissibility of
evidence adduced on the basis of a deponent’s reference to
computerised records, as distinct
from his first-hand knowledge of
the underlying facts. Whether what the deponent states on the
basis of such records is adequate
for the purposes of rule 32(2) will
depend on the content of the affidavit. Each case will have to
be individually assessed.
[11]
The judgments of the appeal court in
Rees
and Another v Investec Bank Ltd
2014
(4) SA 220
(SCA) and
Stamford Sales &
Distribution (Pty) Limited v Metraclark (Pty) Limited
[2014] ZASCA 79
(29 May 2014), which the plaintiff’s counsel
invoked to support his attempt to defend the adequacy of the
supporting affidavit
in this case, in point of fact both serve to
demonstrate that more was required.
[12]
It is evident upon a proper reading of the
judgment in
Rees
that the appeal court was persuaded to accept the supporting
affidavit in that particular case as sufficient on the basis of the
cumulative effect of a number of considerations. The affidavit
in that matter went as follows:
1. I
am an adult female
Recoveries Officer
employed as such by the
applicant at 100 Grayston Drive, Sandton.
2. I
am duly authorised to bring this application and depose to this
affidavit on behalf of the applicant. I refer in this regard
to the
resolution of the applicant annexed hereto marked A.
3.
In my capacity as Recoveries Officer
, I have in my possession
and under my control all of the applicant's records, accounts and
other documents relevant to the claims
forming the subject matter of
the action instituted against the respondents under the above case
number (the action).
4.
In the ordinary course of my duties as Recoveries Officer and
having regard to the applicant's records, accounts and other relevant
documents
in my possession and under my control, I have acquired
personal knowledge of the respondents' financial standing with the
applicant
and I can swear positively to the facts alleged and the
amounts claimed in the applicant's particulars of claim.
5.
I hereby verify —
5.1
the causes of action set out in the applicant's particulars of claim;
5.2
that, on the grounds set out therein, the respondents are indebted to
the applicant in the amounts claimed by it.
6.
In my opinion, the respondents —
6.1
do not have a bona fide defence to the action; and
6.2
they have delivered a notice of intention to defend the action solely
for purpose of delay.'
[Emphasis
with italicisation provided in the appeal court’s judgment.]
The
supporting affidavit in
Rees
was fuller in material respects
than the affidavit in the current case. The appeal court also
regarded it as material that
the contract documents on which the
claim was based had been annexed to the summons and that the deponent
appeared to have had
access to the other relevant documentation in
the ordinary course of her duties
(rather like the bank
manager in
Maharaj
).
[13]
It
was also apparent on the papers before the court in
Rees
that the deponent to the supporting affidavit ‘
had
been corresponding with the appellants' attorney in regard to the
principal debtors' delinquent accounts and had also addressed
letters
of demand to them, receiving letters in response which canvassed the
appellants' defences
’.
[1]
It is particularly the latter consideration that seems to have
satisfied the appeal court that the deponent had been in a
position
sufficiently to swear positively to the facts verifying the cause of
action.
[2]
The approach of
the appeal court in
Rees
was thus in all respects reconcilable with that adopted by the court
in
Maharaj
(at pp. 422-424) in dealing with the point raised
in
limine
in that case concerning non-compliance by the plaintiff with rule
32(2). It was also in line with the approach of Miller
J in
Barclays
Bank Ltd v Love
1975 (2) SA 514
(D) at 516-7, referred to with approval in
Maharaj
at 424A-D.
[14]
There was plainly material of substance
before the court in
Rees
to satisfy it that the deponent to the supporting affidavit had
sufficient knowledge of the facts. In the current matter
the
court is required to assume that by the ‘relevant documents’
the deponent meant the documents attached in copied
form to the
summons. The affidavit does not expressly state as much.
The court is also not informed what the deponent
considered to be the
relevant electronic data. One might assume that the captured
data concerns the transactional history
of the loan account, but the
opacity of the entirely generic references by the deponent to the
material that she had regard to
means that making that assumption
requires educated guesswork rather than reliance on evidence
adduced. That is unsatisfactory.
[15]
In
Stamford
Sales & Distribution (Pty) Limited v Metraclark (Pty) Limited
[2014] ZASCA 79
(29 May 2014), it was pointed out that where the
supporting affidavit is deficient by reason of a failure to comply
punctiliously
with the letter of rule 32, the deficiency might be
cured by a consideration of
the
contents of the verifying affidavit together with the other documents
properly before the court ‘at the end of the day’.
[3]
As apparent from what has been said earlier in this judgment, that
echoed what had been said in
Maharaj
.
As Swain AJA explained ‘
The
object is to decide whether the positive affirmation of the facts
forming the basis for the cause of action, by the deponent
to the
verifying affidavit, is
sufficiently
reliable
to justify the grant of summary judgment.
’
[4]
(Emphasis supplied.) The learned judge did not purport to
depart from the judgment of Corbett JA in
Maharaj
,
in which, approving the statement of the requirements of rule 32(2)
by Theron J in this court in
Fischereigesellschaft
F. Busse & Co. Kommanditgesellschaft v. African Frozen Products
(Pty.) Ltd
.,
1967 (4) SA 105
(C) at p.
108,
it was
emphasised
that ‘[w]
hile
undue formalism in procedural matters is always to eschewed,
it
is important in summary judgment applications under Rule 32 that, in
substance, the plaintiff should do what is required of him
by the
Rule
’.
Corbett JA went on to state ‘
The
grant of the remedy is based upon the supposition that the
plaintiff's claim is unimpeachable and that the defendant's defence
is bogus or bad in law. One of the aids to ensuring that this is the
position is the affidavit filed in support of the application;
and
to
achieve this end it is important that the affidavit should be deposed
to either by the plaintiff himself or by someone who has
personal
knowledge of the facts
’
(emphasis supplied).
[16]
The
reiterated use by Corbett JA of the word ‘important’
in this passage (at p.423B-H) also illustrates that plaintiffs
such
as banks that are not in a position to support their applications for
summary judgment with affidavits by any one person who
has direct
personal knowledge of all the material facts, but which do have
comprehensive electronic records of all the pertinent
documents and
transactional evidence, would be well advised to avail of the
Electronic
Communications and Transactions Act in
the manner advised in
Absa
Bank Ltd v Le Roux
2014
(1) SA 475 (WCC),
[5]
rather than
hoping, that in an opposed application like the current matter where
the defendants take the point of non-compliance
with
rule 32
, a judge
might be persuaded, on a conspectus of all the papers after the
opposing affidavit has been delivered, that there is enough
to go
on.
[6]
Use of the relevant
provisions of the Act would entail the deponent identifying the ‘data
messages’ (i.e. electronic
records) to which reference is made
with specificity.
[17]
The supporting affidavit in
Stamford
Sales
was quoted at para 8 of the
appeal court’s judgment. It went as follows:
I,
the undersigned
JANE
WILLIS-SCHOEMAN
do
hereby make oath and state:
1.
I am the National Credit Manager of the Applicant herein and I am
duly authorised to depose to this affidavit on behalf of the
Applicant.
2.
The facts contained herein are both true and correct and are within
my personal knowledge and belief.
3.
The Applicant’s file pertaining to the above-captioned matter
which contains,
inter alia,
a cession of book debts in favour
of the Applicant, proof of the Applicant’s claim against Quali
Cool CC and all correspondence
entered into by the Applicant and/or
its attorney with the Respondent, is currently in my possession and
under my control and I
am fully conversant with the content thereof.
4.
I have read the Combined Summons in this action and can and hereby do
swear positively to the facts and verify all the causes
of action and
the total amount claimed by the Applicant therein.
5.
I verily believe that the Respondent does not have a
bona fide
defence/defences to any of the Applicant’s causes of
action, and that Notice of Intention to Defend has been entered
solely
for the purposes of delay.
WHEREFORE
I pray that the Court will grant Summary Judgment against the
Respondent in favour of the Applicant in terms of the Notice
to which
this Affidavit is annexed
It
is evident that it contained a more detailed account and, thereby,
provided a much firmer basis for the court to have inferred
sufficient knowledge by the deponent of the facts of the case than
does the supporting affidavit in the current matter. He
stated
that he had the plaintiff’s file pertaining to the matter in
his possession and under his control. His averments
conveyed
enough to confirm that he had indeed read and was
au fait
with
its contents. They did this by making express reference to
certain of the contents of the file that were germane to
the claim.
He also expressly stated that he had read the summons.
[18]
The
affidavit in the current matter, by contrast, is more closely
comparable to that which I found to be inadequate in
Le
Roux
supra.
[7]
It does not
escape notice that the plaintiff in the current matter was also the
plaintiff in that matter, which suggests
that little notice appears
to have been taken of what was said there.
[19]
I think it bears emphasis that the judgment
in
Stamford Sales
should not be misread as having suggested that it is no longer
‘important’, as Corbett JA put it, for an applicant
for summary judgment to comply with rule 32(2). What
Stamford
Sales
did hold, consistently with
Maharaj
,
was that it was not necessary for the deponent to the founding
affidavit to have first-hand knowledge of all the material facts.
Swain AJA used the term ‘personal knowledge’ at para 11,
but I think it is quite clear from the context that by
that the
learned judge meant first-hand knowledge, as distinct from knowledge
derived from relevant and prima facie reliable sources.
[20]
The potential for uncertainty arising out
of the use interchangeably in
Maharaj
of the terms ‘personal knowledge’ and ‘direct
knowledge’ (to which might have been added ‘first-hand
knowledge’) when the rule does not employ any of those
expressions was remarked upon in
Delsheray
at para 54. The rule requires the deponent to be able to
‘swear positively’ to the facts.
[21]
Corbett JA held that for a person to
be able to swear positively to the facts they had, ‘generally
speaking’, to
be within his ‘personal knowledge’.
The learned judge of appeal’s quotation with approval of the
extract
from Miller J’s judgment in
Love
supra,
loc.
cit.
, made it apparent, however, that
he did not equate ‘personal knowledge’ with knowledge
necessarily based on actual
personal involvement in, or first-hand
experience of, the underlying transactions. Thus, evidence
predicated on personal
knowledge derived from reference to records,
which in the circumstances a court might reasonably accept would have
been kept reliably
and accurately, would be admissible for the
purposes of compliance with rule 32(2).
[22]
The
judgment in
Stamford
Sales
did no more than confirm that incidence of the judgment in
Maharaj
.
It was in that context that it pointed out that ‘[t]
hose
high court decisions which have required personal knowledge of all of
the material facts on the part of the deponent to the
verifying
affidavit are accordingly not in accordance with the principles laid
down by this court in
Maharaj
’
[8]
and further ‘[t]
o
insist on personal knowledge by the deponent to the verifying
affidavit on behalf of the cessionary of all of the material facts
of
the claim of the cedent against the debtor, emphasises formalism in
procedural matters at the expense of commercial pragmatism
’.
[9]
[23]
The
axiom that adequate compliance with rule 32(2) is important is also
confirmed in the Full Court’s judgment in
Delsheray
supra, where at para 33, the court disapproved the approach
adopted in
FirstRand
Bank Ltd v Huganel Trust
2012
(3) SA 167
(WCC), on the basis of its inconsistency with the
reasoning of Wallis J at para 25 of
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC
2010
(5) SA 112 (KZP).
[10]
On
the approach in
Huganel
Trust
,
non-compliance with rule 32(2) could never be raised by a defendant
as a self-sufficient basis for opposing an application for
summary
judgment. It is, of course, quite apparent from the judgment in
Maharaj
that an allegation of substantial non-compliance with the
requirements of rule 32(2) was treated as a point
in
limine
,
quite distinct from the allegations in the opposing affidavit set
forth in terms of rule 32(3). Adequate compliance by the
plaintiff with rule 32(2) is a juristic prerequisite to a court’s
ability to entertain an application for summary judgment.
The
supporting affidavit is, after all, the evidence adduced by the
plaintiff in support of its case. Indeed, that is the
reason
why it was necessary for the appeal court in
Maharaj
first
to dispose of the question as a point
in
limine
before it engaged with the question whether a defence had been made
out prima facie. Were the legal effect of non-compliance
with
rule 32(2) different,
Maharaj
could have been decided solely on the basis that the defendant had
not made out a sustainable defence; a determination of the adequacy
of the plaintiff’s compliance with the sub-rule would not have
been necessary.
[11]
[24]
In the result, the application for summary
judgment in the current matter cannot succeed by virtue of the
plaintiff’s failure
to comply adequately with rule 32(2).
An order refusing the application will follow accordingly.
[25]
Although I heard argument on the merits the
case, it would be inappropriate in the circumstances to say anything
that might influence
their determination at the trial. It does
seem to me, however, that the nature and ambit of the dispute between
the parties
adumbrated in the opposing affidavit is such that the
action should be amenable to being disposed of on a stated case in
terms
of rule 33. I suggest that this observation should be
drawn to the attention of the case manager judge.
[26]
As far as the costs of the summary judgment
application are concerned, I intend to follow the approach adopted in
Le Roux
supra, at para 23. Although the application for summary
judgment has failed because of the plaintiff's failure to comply
adequately with rule 32(2), I do not think it appropriate that a
costs order against the plaintiff should necessarily follow. The
object of the remedy is to discourage defendants who do not have a
bona fide
defence from delaying the determination of claims and to diminish the
clogging effect on the court rolls of trials in matters in
which
there is no sustainable defence. The defendants' point
in
limine
may have been good, but it is a
not a point that defendants should be encouraged to take in the
abstract. A defendant who
does not have a
bona
fide
defence to a plaintiff's claim
should not profit by taking the point for technical reasons, instead
of conceding that he has no
defence to the claim and submitting to
judgment. In the circumstances I shall, subject to the
qualification to be dealt with
in the next paragraph, direct that the
costs of the summary judgment application shall be costs in the cause
in the action.
[27]
This
application came before me in the Fourth Division. It was
postponed for hearing in this Division consequent upon an order
that
the duty judge in the Third Division was persuaded to make by
agreement between the parties. The costs involved in a
hearing
in the Fourth Division are materially higher than those that would
have been involved had the matter been disposed of in
the Third
Division. Counsel for the plaintiff candidly conceded that his
fee in this matter would be higher than that he
would have charged
for arguing the application in the Third Division.
It
is the practice of this court that opposed summary judgment
applications should, save in exceptional circumstances, be determined
in the Third Division.
[12]
There was nothing exceptional about the current matter. The
setting down for hearing in the Fourth Division of matters
that
should properly be disposed of in the Third Division also means that
other cases that have to be heard on the opposed motion
roll must
wait longer in the queue for hearing than they should do. It
would be inappropriate in the circumstances for any
costs allowed in
respect of the hearing on 7 September 2016 to be taxed or recoverable
at a level higher than that that would have
been allowed on taxation
had the matter been argued in the Third Division.
[28]
The following orders are made:
1.
The application for summary judgment is refused.
2.
The costs of the application shall, subject to paragraph 3 of
this order, be costs in the cause.
3.
The costs attendant on the hearing of the application in the
Fourth Division on 7 September 2016 shall be taxed and
recoverable,
even as between attorney and client, only at the rate
that would have been allowed had the application been argued and
determined
in the Third Division of this court.
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiff’s
counsel: J.W. Jonker
Plaintiff’s
attorneys: Marais Muller Hendricks
Tyger
Valley
Defendants’
counsel: Paul Tredoux
Defendants’
attorneys: KJ Bredenkamp Attorneys
Cape
Town
[1]
See
Rees
at para 14.
[2]
Ibid.
[3]
See
Maharaj supra, at 423
in
fine
quoting from
[4]
Stamford
Sales
supra, at para 11.
[5]
At para 20-21. To the extent that the observations at
para 23-25 of the Full Court’s judgment in
Delsheray
supra,
might suggest that the judgment in
Le
Roux
had held that institutional plaintiffs such as banks could not rely
on computer data in their supporting affidavits in summary
judgment
applications, the content of para 19-21 of
Le
Roux
,
which is to the contrary effect, appears to have been overlooked.
[6]
Compare the remarks I made in similar circumstances in
Absa
Bank Ltd v Walker
[2014] ZAWCHC 92
(17 June 2014) at para 5-8.
[7]
See
Le
Roux
at
para 21 in particular.
[8]
Stamford
Sales
at
para 11.
[9]
Stamford
Sales
at
para 12.
[10]
In
Shackleton
,
at para 25, Wallis J held, ‘
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 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
’.
[11]
Cf.
Le
Roux
supra, at paras 15 and 18.
[12]
See
Absa
Bank Ltd v Walker
supra (n. 6), at para 18