About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 127
|
|
Firstrand Bank Limited v Beyer (37262/2010) [2010] ZAGPPHC 127; 2011 (1) SA 196 (GNP) (29 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO.: 37262/2010
DATE:
29/09/2010
In
the matter between
FIRSTRAND
BANK
LIMITED
....................................................................................
Applicant
and
BEYER,
JAN
............................................................................................................
Respondent
CORAM
EBERSOHN AJ.
DATE
HEARD 21
st
September 2010
DATE
JUDGMENT HANDED DOWN 29
th
September 2010
REPORTABLE:
High
court-Civil proceedings-Summary judgment.-Strict compliance with
Uniform Rule 32(2) required.-Affidavit in support of
application.-Essentials
of.
JUDGMENT
EBERSOHN
AJ:
[1]
The parties will be referred to in this judgment as plaintiff and
defendant respectively.
[2]
The plaintiff bank applied for summary judgment against the defendant
in the amount of R763 043,39, an order declaring his fixed
property
executable, interest and costs.
[3]
In the simple summons appears a paragraph with the heading
"A.
Preamble:"
wherein
it is stated that the plaintiff acts as "agent" of Saambou
Bank Limited in the matter. That the plaintiff was
acting as agent in
instituting the matter was no mistake as it was reiterated in the
next paragraph of the simple summons under
the heading
"B.
Locus standi:"
wherein
the following is stated:
".....Firstrand
Bank Limited therefore being entitled to act as agent for
Saambou
Bank Limited, in relation to the bond referred to in paragraph 1
herein below....."
[4]
This court raised this issue with Mr. Botha, who appeared for the
plaintiff, and requested him to address the court on whether
the
plaintiff was entitled to be before the court as plaintiff as it was
clearly acting not as principal but as an agent of Saambou
Bank
Limited and there was nothing before the court that sanctioned
Firstrand Bank Limited to institute the action in it's own
name and
whether Saambou Bank Limited should not have instituted the action
against the defendant and not Firstrand Bank Limited
"as agent
of Saambou Bank Limited". He submitted that in terms of a scheme
sanctioned by another court in 2002 there
was an arrangement in terms
whereof Firstrand Bank Limited
"obtained
all the rights ....of Saambou Bank Limited in
relation
to the bond
....."
as was also stated in the same paragraph with the heading
"B.
Locus standi".
[5]
Neither the alleged scheme nor the alleged court order were attached
to the simple summons and there was nothing before this
court to the
effect that the agent could in this matter in its own name act as
principal. It must be pointed out that it was not
alleged by the
plaintiff that it took cession of the rights of Saambou Bank Limited,
which, in that case, would have entitled Firstrand
Bank Limited to
sue in its own name as cessionary.
[6]
Many other matters regarding the plaintiffs papers were also raised
with Mr. Botha by this court. It is only necessary, however,
to deal
with one thereof namely the affidavit filed by the plaintiff in
support of the application for summary judgment which affidavit
was
deposed to by one Sanette Johanita von Mohlman who stated that she
was in the employ of Firstrand Bank Limited and in that
capacity made
the affidavit. It must be borne in mind that the transaction between
Saambou Bank Limited and the defendant was entered
into already in
1999 according to the bond in favour of Saambou Bank Limited which
was attached to the simple summons. The affidavit
reads as follows:
"I
,
the
undersigned,
SANETTE
JOHANITA VON MOHLMAN,
do
hereby make oath and say:
1.
I
am
a major female in the employ of the Applicant as Manager
Arrears-Legal. The facts contained herein fall within my personal
knowledge,
unless the context indicates otherwise and are to the best
of my belief both true and correct.
I
am
duly authorised to act on behalf of the Applicant and to attest to
this affidavit.
2.
I
have personal knowledge of the facts and records relating to this
matter, the cause of action as well as the amount owing by the
Respondent to the Applicant. I can and do swear positively to the
facts, verify the cause of action and the amount claimed and
confirm
all such to be true and correct, i confirm that the respondent is
currently in arrears with his monthly repayments in the
amount of
R100 411.37.
3.
I
verify
that the Respondent is indebted to the Applicant as set out in the
summons.
I
verify
the cause of action on which the Applicant's claim against the
Respondent is based as set out in the summons.
4.
In
my belief and opinion there is no bona fide defence to the claim as
set out in the summons and appearance to defend has been
delivered by
the Respondent solely for the purpose of delaying the action."
[7]
Uniform Court rule 32(2) reads as follows:
"The
plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, deliver notice of application
for summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the cause of
action and the amount, if any, claimed and stating that in his
opinion there is no
hona
firie
defence to the action and that notice of intention to defend has been
delivered solely for the purpose of delay. If the claim is
founded on
a liquid document a copy of the document shall be annexed to such
affidavit and the notice of application for summary
judgment shall
state that the application will be set down for hearing on a stated
day not being less than 10 days from the date
of the delivery
thereof."
[8]
It seems to me, from the many similarly worded affidavits filed in
support of applications for summary judgment which come before
this
motion court, that plaintiffs nowadays apparently are of the opinion
that an affidavit deposed to by anybody in the employ
of a plaintiff
firm, who mechanically goes through the motions and make an affidavit
"verifying" the cause of action
and amount owing, would
suffice to obtain summary judgment. The tragedy is that such
plaintiffs often get away with it and obtain
summary judgments on the
strength of such lacking affidavits.
[9]
An analysis and consideration of Rule 32(2) clearly shows that the
court must, from the facts set out in the affidavit itself,
before it
can grant summary judgment, be able to make a factual finding that
the person who deposed to the affidavit, was able
to swear positively
to the facts alleged in the summons and annexures thereto and be able
to verify the cause of action and the
amount claimed, if any, and was
able to form the opinion that there was no
bona
fide
defence available to the defendant and that the notice of intention
to defend was given solely for the purpose of delay.
[10]
The affidavit deposed to by von Mohlman lacks the necessary
evidential materia! from which the court could make a finding that
it
suffices as far as Rule 32(2) requires. Although she refers to her
knowledge of "records" the records are not identified
at
all and one is left with doubt whether it is the records of Firstrand
Bank Limited or Saambou Bank Limited and whether the records
were
complete or not.
[11]
It is clear that strict compliance with the provisions of Rule 32(2)
is required for a summary judgment becomes a final judgment
unless
reversed on appeal. A summary judgment is an extremely extraordinary
and drastic remedy, often referred to as a draconian
measure. It
shuts the mouth of the defendant finally. A party who seeks to avail
himself of this drastic remedy, must in my view,
strictly comply with
the requirements of the Rule.
[12]
In
Joel's
Bargain Store v Shorkend Bros (Pty) Ltd.
1959
(4) SA 263
(E) De Villiers JP stated the following:
"I
fully agree with the remarks of Marais J., in the case of Mowschenson
and Mowschenson v Mercantile Acceptance Corporation
of SA Ltd.
1959
(3) SA 362
(W). In that case the affidavit in support of the
application for summary-judgment was made by one Myers who stated in
his affidavit:
'I
am the plaintiff attorney in the above suit. The facts stated in the
plaintiffs summons are positively within my own knowledge'.
In
answer to this allegation a spokesman for the defendant company
stated on affidavit inter alia:
'I
furthermore deny that the said Myers has any personal knowledge of
the facts deposed to and/or verified by him and further state
that
the defendant company has had no dealings with the said Myers
in
regard
to the transactions on which the summons was based nor was the said
Myers a party thereto. I submit that such information
and knowledge
as the said Myers may have can only be hearsay... .'
Marais
J., first referred to the case, in the Court of Appeal, of Symon &
Co v Palmer's Stores Ltd.
1912 (1) K.B. 259
, (not 1921 as stated in
the report)where it was pointed out that the verifying affidavit in
an application for summary judgment
goes to the question of the
Court's jurisdiction. If the affidavit does not comply with the
requirements of the Rule (which in
England is substantially the same
as here) the Court would have no jurisdiction to grant summary
judgment; and if material allegations
in the affidavit are hearsay,
the affidavit is defective and the application bad.
The
judgment of Marais J., then proceeds:
'It
is, therefore, open to a respondent in summary judgment proceedings
to attack the validity of the application on any aspect,
including
the admissibility of the evidence tendered in the verifying
affidavit. The approach suggested by Mr. Goldsmid is not
the proper
one.
The
proper approach appears to me to be the one which keeps the important
fact in view that the remedy for summary judgment is an
extraordinary
remedy, and a very stringent one, in that it permits
a
judgment
to be given without trial. It closes the door of the Court to the
defendant {see the case of Symon & Co., supra). That
can only be
done if there is no doubt but that the plaintiff has an unanswerable
case. If it is reasonably possible that the plaintiffs
application is
defective or that the defendant has a good defence, the issue must,
in my view, be decided in favour of the defendant.'
Two
other cases may with advantage be considered. In Raphael & Co v
Standard Produce Co. (Pty.) Ltd.,
1951 (4) SA 244
(C), Van Zyl
J.,
held
that it was not sufficient for a deponent, other than a plaintiff, to
state that the facts are within his own knowledge,
unless
from the
nature
of his evidence this appears to he the case, hut that he should
state
the circumstances so that the Court can satisfy itself that the
facts
are within the deponent'
s
own knowledg
e.
At p. 245 of the judgment the learned Judge is reported as follows:
'In
this instance the affidavit is made by the attorney of record in Cape
Town. There is nothing from the circumstances of his making
this
affidavit which can lead the Court to the conclusion that it is
within his knowledge.The ordinary presumption wouid be that
they are
facts which have come within his knowledge through his acting for the
plaintiffs in this matter. If the attorney of record
wishes to make
such an affidavit, he must either set out the circumstances from
which the Court would be justified in coming to
the conclusion that
the facts are within his knowledge, or it must appear from the nature
of his evidence that the facts are within
his knowledge. The Court is
not a rubber stamp for anybody who in summary judgment proceedings,
merely states that the facts are
within his knowledge. It is
something which the Court has to be satisfied upon from the evidence
tendered.'" (My underlining)."
[13]
I am in respectful agreement with the authorities quoted in paragraph
[12].
[14]
I
must,
however, also refer to the judgment of Herbstein J
.,
in
Wright
v
McGuinnes.
1956
(3) SA 184
(C), which some courts and practitioners described as an
"establishment"
judgment, wherein Herbstein J. held that where a deponent states
under oath that the facts alleged in
the declaration on which the
plaintiffs claim is based were within his own personal knowledge he
need not go into any further details
as to the source of his
knowledge. This approach opened up all sorts of possibilities of
malpractice and may seriously and irreparably
prejudice defendants
who are entitled to rely on the protection of the court and which
approach tends to negative the safeguards
of defendants built into
the wording of Rule 32(2) and I am not in agreement with the judgment
of Herbstein J.
[15]
It must be noted, in any case, that Herbstein J. handed his judgment
down more than half a century ago when everybody more
or less knew
everybody else, when there were no computers and where bookkeeping
was done manually or by simplified bookkeeping
machines. In those
days there was no real danger of defendants being prejudiced. Since
then, however, companies have proliferated
and large companies like
banks, have thousands of employees and manage literally millions of
accounts on computers. The principles
enunciated in the Wright case
may have sufficed in those pre-modern times but are clearly outdated
and should no longer be applied
in the light of the stringent
provisions of Rule 32(2).
[16]
This court must lastly refer to the passage on page B-212(1) in
Harms' Civil Procedure in the Superior Courts, which reads
as
follows:
"Although
the application must formally fall squarely within the scope of the
rule, any technicality that may be set up by
way of objection ought
not to succeed. Substantial compliance will suffice since the court
has the power to condone non-compliance,
especially where the
objections are purely technical and the defendant is not prejudiced."
[17]
It is so that the court has the power to condone mere technical
non-compliance with the provisions of Uniform Rule 32(2), but
cannot
condone non-compliance with the safeguards built into Uniform Rule
32(2) for the benefit of defendants, for instance regarding
hearsay
evidence and the doing away with or the relaxation of the test to be
applied by every court considering an application
for summary
judgment to, on the evidence adduced in the affidavit, be able to
make a factual finding that the deponent was a qualified
deponent,
otherwise it would make a mockery of the said safeguards.
[18]
This judgment must not be considered as the refashioning of the law.
In
S.
v
Thebus
and Another
[2003] ZACC 12
; ,
2003
(2) SACR 319
(CC), Moseneke
J
(as
he then was) at 340f in the second part of para. [31] stated the
following:
"The
Superior Courts have always had an inherent power to refashion and
develop the common law in order to reflect the changing
social,
moral
and
economic make-up of society. That power is now constitutionally
authorised and must be exercised within the prescripts and ethos
of
the Constitution."
and
in [32] on p. 341a he also stated the following:
"...the
Court itself is obliged to adapt or develop the common law in order
to harmonise it with the constitutional norm."
This
judgment
in
casu
is rather viewing the stringent measures contained in Rule 32(2) in
the light of the contents of the Constitution and the constitutional
rights of defendants Qua the provisions of Uniform Rule 32(2).
[19]
Companies, firms and other legal personae, like the plaintiff, can
only speak and act through a representative and therefore
the
deponent on behalf of such a company or legal persona has to state
unequivocally that the facts were within his personal knowledge
and
furnish particulars as to how the knowledge was acquired by him so as
to enable the court to assess the evidence put before
it and to be
able to make a factual finding regarding the acceptability of the
supporting affidavit for summary judgment purposes.
[20]
An employee of a bank, like Von Mohlman, will clearly not acquire
personal knowledge of every one of millions of accounts with
her
employer bank and the supporting documents thereto, and would clearly
not be able to testify with regard thereto in an open
court. To
argue, that her evidence becomes relevant and acceptable just because
it is put before the court by way of an affidavit,
would be a fallacy
and unacceptable. It is thus incumbent upon the court to be strict
with regard to summary judgments and to ensure
that sufficient
positive material, and not hearsay matter, appears
ex
facie
the affidavit filed in support of an application for summary judgment
to warrant a factual finding by the court to the effect that
the
deponent happens to be a competent deponent.
[21]
If the necessary and required particulars were not provided in the
affidavit the court is obliged to
mero
motu
refuse the application for summary judgment whether it is opposed or
not.
[22]
Von Mohlman's affidavit did not impart any information regarding the
transaction between Saambou Bank Limited and the defendant
and there
is nothing contained in her affidavit upon which this court can make
a factual finding that she is a competent deponent.
[23]
Furthermore, the defendant in his answering affidavit, in any case,
raised as a defence the fact that he applied for debt counselling
and
that it was approved and was pending before the magistrate's court.
Von Mohlman was clearly unaware thereof. This illustrates
the care
courts should take with applications for summary judgment.
[24]
I am satisfied that the application is not in order and in any case
it seems to me that the defences the defendant raised are
bona
fide
defences and the matter must go on trial.
[25]
I accordingly make the following order:
1.
The
application for summary judgment is refused and leave is granted to
the defendant to defend the action.
2.
The
costs of the application will be costs in the cause.
PZ
EBERSOHN
ACTING
JUDGE
OF
THE HIGH COURT
Plaintiffs
counsel
Adv.
E. Botha
Plaintiffs
attorneys
PETZER
DU TOIT RAMULIFHO
Tel.
012 x 342 9895
Ref.
J.J. Strauss/MAT4699
Defendant's
counsel
Adv.
H.C. van Zyl
Defendant's
attorneys
GRUNDLING
& NEL ATTORNEYS
Tel.
012X 998 2810
Ref.
Not stated in the papers.