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[2020] ZAWCHC 52
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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)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 3670/2019
In
the matter between:
TUMILENG
TRADING CC
Applicant
/ Plaintiff
and
NATIONAL
SECURITY AND FIRE (PTY) LTD
Respondent / Defendant
Case
No. 3671/2019
And
in the matter between:
E
& D SECURITY SYSTEMS
CC
Applicant
/ Plaintiff
and
NATIONAL SECURITY AND
FIRE (PTY) LTD
Respondent
/ Defendant
JUDGMENT
(Application for leave to appeal)
(Transmitted
by email to the parties’ legal representatives and release to
SAFLII.
The
judgment shall be deemed to have been handed down at 10h00 on
Monday,
15 June 2020)
BINNS-WARD J
[1]
The
defendant in case no.s 3670/2019 and 3671/2019, National Security and
Fire (Pty) Ltd, has applied for leave to appeal against
the judgment
of this court handed down on 30 April 2020, in which summary judgment
was granted against it in favour of each of
the plaintiffs in those
actions. I shall not rehearse here what the claims were about.
That may be ascertained from
the principal judgment.
[1]
[2]
The test in such applications is set out
in
s 17(1)(a)
of the
Superior Courts Act 10 of 2013
. I am enjoined to grant leave
only if I form the opinion that the contemplated appeal would have a
reasonable prospect of
success, or that there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter
under consideration.
[3]
Mr
Oosthuizen
SC, who led Mr
Abrahams
in the
application for leave to appeal but had not appeared for the
defendants when the applications for summary judgment were
heard,
argued three issues in support of his contention that leave should be
granted. He submitted (i) that there was
a reasonable
prospect that another court might hold that the plaintiffs had failed
to comply with the requirements of
rule 32(2)(b)
in respect of the
content of their supporting affidavits in the summary judgment
applications, (ii) that the claims concerned
were not for ‘a
liquidated amount in money’ within the meaning of
rule 32(1)(b)
, and (iii) that the novelty of the procedures
under the amended
rule 32
afforded a compelling reason why the
matters should be reconsidered on appeal.
[4]
Mr
Oosthuizen
submitted, quite correctly in my view, that if the supporting
affidavits had failed to comply with
rule 32(2)(b)
, the applications
for summary judgment should have failed at the first hurdle and the
court should not have even reached the stage
of considering them on
their merits.
[2]
Equally
correctly, however, he conceded the authority of the appeal court’s
judgment in
Maharaj
,
in which it was held that the adequacy of the averments in the
supporting affidavit fall to be assessed with regard to the papers
before the court considered as a whole.
[3]
This obviously includes the pleadings. The respect in
which Mr
Oosthuizen
argued that the supporting affidavits fell short was that, in his
submission, they failed to ‘
identify
the facts upon which the plaintiff’s claim is based
’.
When pressed during argument on the nature of the alleged deficiency
being contended for, he submitted, if I understood
him correctly,
that they should have provided particularity of the clients involved
and, in respect of each of them, stated the
amounts of each of the
recurring commissions involved. This was not a point taken in
the defendant’s opposing affidavits
in the summary judgment
applications, nor, to the best of my recollection, was it a
contention advanced in argument when the applications
were heard.
[5]
The deponents to each of the supporting affidavits
addressed the
relevant requirement in
rule 32(2)(b)
by making the following
averments:
‘
The plaintiff’s
claim is based on the facts set out in its Particulars of Claim, in
particular that the defendant terminated
the agreement between the
parties (“the Agreement”) in terms of clause 6.1 thereof,
that the plaintiff remains entitled
to the payment of commission and
that the defendant has breached the Agreement by failing and/or
refusing to pay such commission
to the plaintiff.’
[6]
I discussed this requirement of the amended
subrule at paragraphs
17-20 of the principal judgment. In paragraphs 19-20 I summed
up my view of the position as follows:
[19]
Is
the deponent to the supporting affidavit then required to repeat in
narrative form what should already be apparent from the plaintiff’s
pleadings? Or is he or she expected to set out the
facta
probantia
in
elaboration of the
facta
probanda
alleged
in the pleadings? Having regard to the purpose of summary
judgment proceedings, which is to prevent matters in which
the
defendant
does
not appear to have a bona fide
defence
having
to go to trial, no obvious point is served by an elaborate supporting
affidavit concerning the merits of the
plaintiff
’
s
pleaded
claim
.
[20] I
think that it would be desirable therefore if plaintiffs were
encouraged to confirm what should already be apparent
from their
pleaded case as succinctly as possible. No purpose will be
served by a laborious repetition of what the judge
and the defendant
should be able to discern independently from the pleaded claim.
No harm will be done by using a ‘formulaic’
[4]
mode of expression if it serves the purpose; which, it seems to me,
it would do in most matters.
[7]
On
rereading the section on summary judgment in the most recent edition
of
Erasmus,
Superior Court Practice
,
it came as little surprise to see that the learned commentators have
taken essentially the same view; viz. that if the rules of
court with
regard to pleading have been complied with, the facts relied upon by
the plaintiff will already be apparent on the papers
when the
supporting affidavit is deposed to.
[5]
As the commentators also observe, the requirement does not call for
or permit the supporting affidavit in a summary judgment
application
to be used by a plaintiff to ‘
amplify
’
its case.
[6]
Yet this,
apparently, is what Mr
Oosthuizen
contends the plaintiffs should have done in these cases. I am
not persuaded by the argument; more pertinently, I am also
of the
opinion that there is not a reasonable prospect that another court
might be won over by it on appeal. After all, the
word
‘identify’ denotes pointing out what is already there,
not bringing in something new or additional.
[8]
I also do not think that there is a reasonable
prospect that another
court would be persuaded that the claim for the payment of the
accumulated arrears on recurring commissions
was not a claim for ‘a
liquidated amount in money’.
[9]
It is
evident from the facts alleged in the particulars of claim that the
commissions concerned would have been recurring commissions
being
paid monthly by the defendant to the plaintiff at the time of the
termination of the agency agreements. The amounts
involved
would have been established at that time and therefore in all
probability readily identifiable in both parties’
financial
records. The defendant’s principal defence in both
actions does not go to the amount of the claim;
[7]
rather, it is that the contracts were terminated in terms of clause
6.3.4 thereof, and not in terms of clause 6.1, as pleaded by
the
plaintiffs.
[8]
It pleaded
that the plaintiffs had brought the defendant into disrepute because
their ‘
workmanship
and product installations were defective and/or of an inferior
quality which has caused the Defendant to suffer reputational
harm
’.
No particulars of the defective workmanship or the reputational harm
were provided in either its pleas or the affidavits
made by its
attorney in opposition to the summary judgment application. In
the alternative, it averred in its opposing affidavits
that if the
contracts had been terminated in terms of clause 6.1 (which
presupposes a finding that it had not cancelled them by
reason of
defective workmanship or reputational harm), then the conditions to
which the plaintiffs’ entitlement to payment
of the recurring
commissions was subject had not been satisfied. Again, no
meaningful particularity was provided. It
is furthermore
notable that the alternative defence raised in the opposing
affidavits does not appear in the defendant’s
pleas.
[10]
I think that it is clear in the circumstances that the amount of
the
alleged debt would be readily ascertainable and capable of speedy and
prompt ascertainment, which is the nub of the concept
of ‘a
liquidated amount in money’. Moreover, nothing in the
content of the defendant’s pleas or its opposing
affidavits
detracts from this assessment. I dealt with this at paragraph
49 of the principal judgment. I am not persuaded
that there is
a reasonable prospect that another court would hold differently.
[11]
As to the last of the three points argued on behalf of the defendant,
it is true that there is no other jurisprudence on the import of the
amendments to
rule 32
that anyone in these cases could find.
That does not, in itself, make it a matter deserving, much less
‘compelling’,
the attention of another court on appeal.
As Mr
van der Merwe
, counsel for the plaintiffs, aptly
stressed, the position might be different if there were conflicting
judgments on the operation
of the amended rule. There are not.
[12]
Importantly, Mr
Oosthuizen
conceded, as he was bound to, that
the test for determining whether summary judgment should be given
remains unaffected by the
amendments; viz. that derived from
rule
32(3)(b)
, which he acknowledged remains substantively unaltered. A
defendant is able to defeat an application for summary judgment
by
showing that it has a bona fide defence. It does that by doing
what the subrule enjoins: disclosing ‘
fully the nature and
grounds of the defence and the material facts relied upon therefor
’.
What that entails in practice was set out in Colman J’s
classical formulation in
Breitenbach v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T), at 228B-H, which has been consistently endorsed by
the late Appellate Division and the Supreme Court of Appeal. Mr
Oosthuizen
, realistically, did not even attempt to argue that
the opposing affidavits had met those requirements.
[13]
Granting the defendant leave to appeal merely because aspects of
the
amended procedure are novel would therefore clearly visit an
injustice on the plaintiffs in these cases. It would, without
good reason, negate the advantage, reduced though it has been by the
cost and time delaying effects of the rule amendments, that
the
remedy of summary judgment was intended to afford them.
[14]
In the result, the applications for leave to appeal are refused
with
costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
The
principal judgment is listed on SAFLII as
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
[2020] ZAWCHC 28
(30 April 2020).
[2]
Cf.
Absa
Bank Ltd v Le Roux and Others
[2013] ZAWCHC 148
(7 October
2013); 2014 (1) SA 475
(WCC) at para 15
and
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC
[2010] ZAKZPHC 15 (4 May
2010); 2010 (5) SA 112
(KZP);
[2011] 1
All SA 427
(KZP) at para 25.
[3]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 423.
[4]
The adjective used in paras 8.1 and 8.2 of the Rules Board Task
Team’s memorandum; see the principal judgment at paras
7 and
8.
[5]
DE van Loggerenberg,
Erasmus,
Superior Court Practice
2ed (Juta), vol. 2 at D1-405 -D1-406 [Service 11, 2019].
[6]
Id.
[7]
It opaquely pleaded ‘no knowledge’.
[8]
The
significance of clauses 6.1 and 6.3 of the contracts is explained in
the principal judgment at paragraphs 30-39. The
plaintiffs
would not be entitled to the payment of recurring commissions if the
contract had been cancelled in terms of clause
6.3.4 by reason of
their having brought the defendant into disrepute. By
contrast, they would be entitled to continuing
payment, subject to
the conditions set out in sub-clauses 8.3.3.1 to 8.3.3.4 if the
contract were terminated on 60 days’
notice in terms of clause
6.1. The defendant’s notice of termination is quoted in
full at paragraph 31 of the principal
judgment.