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[2022] ZAGPJHC 81
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City Square Trading 522 (Pty) Limited v Gunzenhauser Attorneys (Pty) Ltd and Another (27365/2021) [2022] ZAGPJHC 81; 2022 (3) SA 458 (GJ) (18 February 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
27365/2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
NO
2/17/2022
In
the matter between:
CITY
SQUARE TRADING 522 (PTY) LIMITED
Plaintiff
And,
GUNZENHAUSER
ATTORNEYS (PTY) LTD
First Defendant
(Registration
Number:2018/225530/07)
MAXINE
GUNZENHAUSER
Second Defendant
JUDGMENT
Summary:
Civil
Procedure – summary judgment: –
rule 32(4)
does not deprive the plaintiff of its rights under rule 28(8) to make
consequential adjustments to its affidavit filed
in terms of rule
32(2) pursuant to the amendment of the plea; rule 32(4) is a
prohibition against the introduction of factual matter
which is of
the nature of a reply or rejoinder to the defendant’s case.
FISHER
J:
Introduction
[1]
This is a summary
judgment application. Interlocutory hereto, there has been
an
application in terms of rule 30 by the defendant to set aside the
filing of a further affidavit by the plaintiff. This affidavit
was
filed for the purposes of supplementing the plaintiff’s
founding affidavit consequent upon an amendment of the defendant’s

plea effected after the filing of the application for summary
judgment.
[2]
The determination of
the rule 30 application is fundamental to the summary
judgment
application and it was agreed that it should be determined before
argument of the summary judgment application.
[3]
The crisp
question in the rule 30 application is whether it is permissible
for
the plaintiff to file the further affidavit in the circumstances.
Procedural
history
[4]
The summons was
delivered on 14 June 2021 for payment of R503 305.6 together
with
interest and costs. The cause of action pleaded against the first
defendant is for outstanding rental under two lease agreements
and
the cause of action pleaded against the second defendant is for the
same indebtedness on the basis of her being a guarantor
for such
indebtedness.
[5]
The first defendant
filed a special plea of non-joinder and both defendants
filed a plea
which read as follows:
‘
AD PARAGAPH 1, 2
AND 3 THEREOF:
The contents of
these paragraphs are denied, and the Plaintiff is put to the proof
thereof.
AD PARAGAPH 4 —18
AND THE SUBPARAGRAPHS THEREOF:
Each and every
allegation contained in these paragraphs are denied and the Plaintiff
is put to the proof thereof.
WHEREFORE THE
DEFENDANTS PRAY THAT THE PLAINTIFF'S CLAIM BE DISMMISSED ON A SCALE
AS BETWEEN ATTORNEY AND CLIENT’
[6]
A scanter denial
could hardly be imagined. The plaintiff thus issued the summary

judgment application on the basis of this plea. The affidavit
founding the summary judgment comprehensively sets out the
plaintiff’s
case and engages to the extent required with the
then existing plea. The defendants then filed their affidavit
resisting summary
judgment. In it they raised defences which had not
been pleaded.
[7]
The defendants
thereafter sought leave to amend their plea in a bid to
bring it into
line with their affidavit resisting summary judgment.
[8]
The plaintiff did
not object to the amendment and it was duly effected. The
amended
plea seeks to plead new defences which were raised for the first time
in the affidavit resisting summary judgment. This
caused and
postponement of the summary judgment application to enable the
plaintiff to deal with the plea as amended.
[9]
The plaintiff
dealt with the new plea by filing the supplementary affidavit
in
issue.
[10]
Mr White
argues on behalf of the defendants that rules 32(2) and (4), properly
construed, prohibit the filing of a supplementary
affidavit. Mr
Hollander for the plaintiff argues that, in light of the fact that
the plea is now different, a further engagement
with the plea is
indicated and is not precluded by subrule (4). Mr White agrees that
the application for summary judgment cannot
be proceeded with in the
circumstances of the amendment of the plea with the founding
affidavit as is. He argues that a fresh application
for summary
judgment must be brought. He relies in this latter regard on the
judgment of
Belrex
95 cc v Barday.
[1]
Discussion
[11]
Rule 32(4) reads as follows in
relevant part:
‘
No
evidence may be adduced by the plaintiff otherwise than by the
affidavit referred to in subrule (2) …’
[12]
Subrule (2) reads as follows in
relevant part:
‘
(2)(a)
within 15 days after the date of delivery of the plea, the plaintiff
shall deliver a notice of application for summary judgment,
together
with an affidavit made by the plaintiff or by any other person who
can swear positively to the facts.
(b)
The plaintiff shall, in the affidavit referred to in subrule (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
plaintiffs claim is based, and explain briefly why the defence
as
pleaded does not raise any issue for trial.
(c)
…’
[13]
In
Belrex,
the court dealt with the question of whether a defendant was
precluded from amending its pleading after the delivery of an
application
for summary judgment and, correctly, found that rule 32
could not be read to preclude the amendment of the plea mid-summary
judgment
proceedings.
[2]
[14]
Having found this, the Court was
confronted by the same argument which now confronts this Court
–
being that rule 32(4) on the face of the prohibitive language used
therein precludes the tendering of evidence other than
in the
founding affidavit. The Court agreed with this interpretation which
led it to the conclusion that the only way for the process
to move
forward was for a fresh summary judgment application to be brought in
accordance with the plea as amended.
[15]
In
considering the matter the Court in
Belrex
,
again correctly, raised the concern that such a position would
provide an opportunity for the recalcitrant defendant who wishes
to
frustrate the proceedings. It concluded that this is a lacuna in rule
32 which appears to have been overlooked by those who
framed the
‘new’ rule 32.
[3]
[16]
I am inclined to a more benign view of
the assiduity of the drafters of the amendments to rule
32. Whilst it
is correct that the rule itself does not deal with what is to happen
if there is an amendment to the plea, rule 28(8),
which is a rule of
general application, takes account of the consequences of the
amendment of pleadings generally. It reads as
follows in relevant
part:
‘
28 (8) Any party affected
by an amendment may, within 15 days after the amendment has been
effected or within such other period
as the court may determine, make
consequential adjustment to the documents filed by him, ….’
[17]
Rule 28(8) is deliberately inclusive.
It does not specify that it relates only to consequential
amendment
of pleadings ( it relates to ‘documents’) and neither
does it prescribe how the ‘adjustment’
contemplated
should take place. The only constraint is that it should be
consequential on the amendment. Subrule (8), thus, expressly

precludes the raising of issues which are extraneous to the pleading
as amended. To the extent that an amendment of pleadings or
relief
other than one which is consequential is required, subrule (1) must
be used and, leave to amend must be sought.
[18]
In the case of the amendment of the
plea after the filing of a summary judgment application
the plaintiff
is decidedly ‘a party affected’ by the amendment. Thus,
the provisions of the rule 28(8) apply to it
and so afford it the
right to adjust the founding affidavit without leave, provided the
adjustment is consequential. The, consequential
adjustment in this
instance would be the amendment of the affidavit filed in terms of
rule 32(2)(a) to take account of the amendment.
I do not read rule
32(4) to preclude such adjustment.
[19]
As long as the adjustment is strictly
consequential on the amendment, there is ,to my mind,
no reason why
the affidavit, although supplemented, should not be read to conform
to the description of the subrule (2)(a) affidavit
the purpose of
which is to provide information as to the plaintiff’s case in a
way that ‘explain[s] briefly why the
defence pleaded
does not raise any issue for trial.’ (Emphasis added.)
[20]
To my mind, it stands to reason that
if the pleaded defence changes, the affidavit filed may
need to be
adjusted to deal with the new defence. The fact that a further
affidavit is necessary for the purpose of this adjustment
does not
change the nature and characterisation of the founding application.
Indeed, the adjustment may not be evidence dependent
at all and may
require only the setting out of a legal point. Such an adjustment
would not, on any interpretation, be hit by the
prohibition in
subrule (4) which applies only to ‘evidence’.
[21]
It could not have been the
intention of the drafters of the rule to allow the plaintiff
to raise
points of law arising from the amended plea but to prohibit the
raising of factual content arising therefrom. Such a distinction

would be irrational.
[22]
The Rules Board for Courts of Law of
the Republic of South Africa (the Board) is the body responsible
for
the review of the rules of court and the making, amendment or repeal
of the uniform rules subject to the approval of the Minster
of
Justice and Correctional Services.
[23]
Preparatory to the possible amendment
of the summary judgment procedure, the Board appointed
a task team to
investigate and consider whether rule 32 was fit for purpose.
Pursuant to this process, the Board released a memorandum
( the
memorandum) dealing with proposed changes to rule 32 which had arisen
out of the task team’s consideration of rule
32.
[24]
In the memorandum it was raised
that the task team was of the opinion that the then existing
summary
judgment procedure was unsatisfactory in a number of respects. In
paragraph 3 of the memorandum it was said that the task
team had
raised the following main difficulties with the rule:
‘
3.1 deserving
plaintiffs were frequently unable to obtain expeditious relief
because of an inability to expose bogus defences (either
in their
founding affidavit or in any further affidavit – further
affidavits not being permitted);
3.2 opportunistic
plaintiffs were able to use the procedure to get the defendant to
commit to a version on oath and thus obtain
a tactical advantage for
trial in due course; and
3.3
a burden of proof was arguably shifted to the defendant which was not
only unfair but (sic) led
to the kinds of constitutional challenges
which have emanated in the High Court’
[25]
Central
recommendations of the task team covered in the memorandum
[4]
were that summary judgment should be applied for after the delivery
of a plea or exception and that the application for supporting
the
summary judgment should not be the
pro
forma
affidavit of the then existing rules but should instead ‘identify
any point of law relied upon and explain briefly why the
defence as
pleaded does not raise any triable issues.’
[26]
After dealing with various
shortcomings which arose due to the formulaic approach to the

founding affidavit in the then existing rule 32, the memorandum of
the Board goes on to state as follows in relation to one of
the main
bases for the task team’s recommendations:
‘
8.2
The best way of addressing these shortcomings would seem to be to
require the founding affidavit in support of summary judgment
to be
filed at a time when the defendants defence to the action is
apparent; by virtue of having been set out in a plea. This course
is
better than allowing a replying affidavit to be filed (as was
suggested by a report prepared a few decades ago by the Galgut

Commission). Merely including provision for a replying affidavit
would not address the problems with the formulaic nature of the

founding affidavit’.
[27]
It is thus clear from the memorandum
that the main purpose of the amendment to rule 32 was to
avoid the
formulaic approach of the old rule to the affidavit supporting a
summary judgment application and to allow for proper
engagement by
the parties with the pleadings.
[28]
In this context, to interpret the rule
so as to allow the amendment of the defence mid summary
judgment
proceedings but then to close the door in those proceedings to the
engagement with the very inquiry which the rule requires
would make
no sense.
Conclusion
[29]
To my mind, rule 32(4) should not be
read to deprive the plaintiff of its rights under rule
28(8) but
rather as a prohibition against introducing factual matter which is
of the nature of a reply or rejoinder to the defendant’s
case
and which is not consequential on the amendment of the plea.
[30]
I do not understand Mr White to argue
that any of the matter sought to be introduced by the
supplementary
affidavit is not purely consequential. It would, in any event, be
open for a defendant faced with such extraneous
matter to have it
struck out of the affidavit.
Order
[31]
Thus, I order as follows:
1.The application in
terms of rule 30 is dismissed.
2 The plaintiff’s
supplementary affidavit is declared to be properly filed.
3 The application for
summary judgment is postponed to a date to be arranged with the
office of Fisher J.
4. The costs are reserved
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
17 January 2022.
Judgment
Delivered:
18 February 2022.
APPEARANCES:
For
the Plaintiff:

Adv L Hollander.
Instructed
by:

Harris Incorporated.
For
the Defendants:

Mr
Jonathan White.
Instructed
by:

MG
Law Inc.
[1]
2021(3) SA 178 (WCC).
[2]
Id
at para 30.
[3]
Id at para 31.
[4]
Report: at para 4