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[2020] ZAWCHC 45
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Propell Specialised Finance (Pty) Ltd v Point Bay Body Corporate SS493/2008 and Another (14191/2019) [2020] ZAWCHC 45 (26 May 2020)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: 14191/2019
Before: The Hon. Mr Justice Binns-Ward
Order made: 19 February 2020
Reasons
furnished: 26 May 2020
In
the matter between:
PROPELL
SPECIALISED FINANCE (PTY)
LTD
Plaintiff
and
POINT
BAY BODY CORPORATE SS
493/2008
First
Defendant
POINT
BAY BODY CORPORATE
SS66/2009
Second
Defendant
REASONS FOR POSTPONEMENT ORDER
(Transmitted
electronically to the parties’ attorneys and posted on SAFLII,
these reasons are deemed to have been handed down
at 11h00 on 26 May
2020.)
BINNS-WARD J:
[1]
In this matter, which is an opposed summary
judgment application, I made an order in the Third Division
postponing it for hearing
in the Fourth Division on the semi-urgent
roll on 4 June 2020. The order was made in accordance with
the terms of a
draft to that effect that was handed up by counsel.
It was apparent at the time I made the order that practitioners were
uncertain as to what the practice should be in such matters
consequent upon the changes wrought by the amendments to Uniform Rule
32 that came into effect on 1 July 2019. I was given to
understand that some guidance in this respect would be appreciated
to
lend certainty and consistency. I agreed that this was
desirable and therefore undertook to provide written reasons for
making the order that was sought. The subsequent intervention
of a succession of more pressing matters and the general disruption
caused by the Covid-19 lockdown resulted in these taking longer to
produce than I had intended.
[2]
It had been the long-established practice,
prior to the coming into effect of the aforementioned rule
amendments, for opposed summary
judgment applications to be heard on
the Third Division roll in the court that is ordinarily reserved for
the hearing of unopposed
matters. The reason for this was
manifest; summary judgment was intended to afford a quick and
cost-effective route
to final judgment in a confined category of
cases in which a plaintiff’s entitlement to relief was amenable
to easy and ready
proof and when it was demonstrable that a defendant
had entered appearance to defend only as delaying tactic.
Sending an
opposed summary judgment application off to be heard on
the opposed motion roll would involve a delay of at best a number of
weeks,
often months, and also entail the incurrence of materially
increased costs. It would therefore be a course that would tend
to thwart the achievement of some of the primarily intended
advantages of the procedure. Indeed, I had occasion, more than
once over the years, to forcefully deprecate the occasional
unjustified deviation from the established practice that resulted in
such matters coming up in the Fourth Division; see
Absa
Bank Ltd v Walker
[2014] ZAWCHC 92
(17
June 2014) at para 18 -19,
Absa Bank Ltd
v Future Indefinite Investments 201 (Pty) Ltd and Others
[2016] ZAWCHC 118
(12 September 2016) at para. 27 and
Santoro
and Others v Mortgage Secured Finance (Pty) Ltd and Other
s
[2019] ZAWCHC 103
(22 August 2019) at para 8 – 9.
[3]
In the last-mentioned case, being mindful
of the possible effects of the then recently introduced rule
amendments, I did add the
qualification that ‘[t]
he
position might well be different in respect of applications for
summary judgment under the very different procedure in terms
of the
recently substituted rule 32, but that is a subject for another
day
’. The contemplated
other day is now upon us.
[4]
The number of summary judgment applications
on the court roll has dropped off significantly since the rule
amendments came into
operation, and apart from my very recent
judgment in
Tumileng Trading CC v
National Security and Fire (Pty) Ltd; E and D Security Systems CC v
National Security and Fire (Pty) Lt
d
[2020] ZAWCHC 28
(30 April 2020), I am not aware that there has yet
been any jurisprudence concerning the working of the amended rule
32.
As noted in
Tumileng
(which
was heard in the Fourth Division), it is clear that amended rule,
which provides that an application for summary judgment
may be
brought only after the delivery of the defendant’s plea, no
longer provides for the degree of expedition contemplated
in terms of
the pre-amendment regime. If the initially delivered plea were
to be the object of an exception or rendered the
subject of amendment
for any other reason, which is by no means unusual, especially when a
defendant seeks to advance dubious defences,
the ripeness of a claim
for summary judgment for hearing could actually be very considerably
delayed beyond the time within which
the rules provide for the
delivery of a plea in the ordinary course.
[5]
It is also evident that the effect of the
amendments has been to render availing of the remedy materially less
cost-effective.
In most cases the application can be brought
only after the pleadings have closed, for it is only in a minority of
cases that the
exchange of pleadings continues after a plea has been
delivered. A plaintiff contemplating making application for
summary
judgment now not only has to consider the defendant’s
plea before instituting the application, it also has to support the
application with a more elaborate affidavit than was previously
required, dealing not only with a motivated reiteration of the
grounds of its own case, but also engaging with the content of the
defendant’s plea. Quite apart from the possibility
of
supervening interventions such as exceptions or applications to amend
the originally delivered plea, the additional input required
from
legal representatives before an opposed application for summary
judgment is ready for hearing means that the attendant expense
will
be appreciably higher than it used to be in respect of such
applications brought prior to the rule amendments; in some cases,
such as those in which exceptions and amendments intervene, very
considerably higher.
[6]
The time and costs factors that militated
in favour of the exceptional treatment of opposed summary judgment
applications by permitting
their hearing on the unopposed motion
court roll have consequently been negated in large measure.
[7]
An additional consideration is that the
papers in opposed summary judgment applications may now be expected
to often be more voluminous
than used to be the case. This is
because of the new requirements introduced in terms of the amendments
concerning the content
of the papers, which I discussed at some
length in
Tumileng
.
This effect needs to be considered in the context of the generally
increased reading burden on judges sitting in the Third
Division
brought about in recent years as a result of the requirements of the
National Credit Act 34 of 2005
and the related jurisprudence of the
Supreme Court of Appeal and the Constitutional Court and also the new
rules pertaining to
applications for execution against fixed property
that is a defendant’s primary residence. There is a limit
to the
extent to which the unopposed roll judge’s already heavy
reading burden can reasonably be increased if he or she is to be
able
to prepare properly for the roll call.
[8]
Regard being had to the cumulative effect
of all of the aforementioned factors, it would be appropriate, in my
judgment, for summary
judgment applications brought in terms of the
amended
rule 32
that are opposed to be heard and determined on the
semi-urgent roll in the Fourth Division, and no longer in the Third
Division
as was the case before the amendments were effected.
It was for those reasons that I acceded to making the order proposed
by counsel in the current case.
A.G. BINNS-WARD
Judge of the High Court