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[2023] ZAECQBHC 43
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Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd (359/2022) [2023] ZAECQBHC 43; 2024 (1) SA 149 (ECGq) (8 August 2023)
IN
THE
HIGH
COURT OF SOUTH
AFRICA
EASTERN
CAPE
DIVISION,
GQEBERHA
Case
No.:
359/2022
Date
Heard:
11 May 2023
Date
Delivered:
8 August 2023
In
the matter between:
HENNIE
EHLERS
BOERDERY
CC
Appplicant/Defendant
and
APL
CARTONS (PTY) LTD
Respondent/Plaintiff
JUDGMENT
RONAASEN
AJ:
Introduction
General
[1]
This judgment relates to an application in terms of rule 30
of the
Uniform Rules of Court (“rule 30"). The application (“the
rule 30 application") was brought against
the background of the
facts set out, below. The defendant, by way of the rule 30
application, seeks to have declared irregular
the plaintiff's
affidavit filed in support of an application for summary judgment
(the defendant is the applicant and the plaintiff
the respondent in
the rule 30 application).
[2]
The summary judgment procedure, currently embodied in rule
32 of the
Uniform Rules ("rule 32") has been part of our civil
procedure since the middle of the previous century. Substantial
amendments to rule 32 took effect on 1 July 2019. It is the
application of the rule in its amended form which is the focus of the
rule 30 application.
[3]
Shortly after the introduction of summary judgment into our
country
the procedure was described (in terms which remain equally apt today
in respect of the regime which applies at present
under rule 32 in
its amended form) as follows in
Meek
v
Kruger
1958 (3) SA 154
at 157A:
"This
new procedure was not intended to 'shut (a defendant) out from
defending' unless it was very clear indeed that he had
no case in the
action. It was intended to prevent sham defences from defeating the
rights of parties by delay, and at the same
time causing great loss
to plaintiffs who were endeavouring to enforce their rights."
[case references omitted]
[4]
Rule 32, as amended, is intended to be a refinement made in
a
continued effort to achieve the goal set out in the above-mentioned
quotation namely, to establish whether a defendant has disclosed
a
bona fide
defence
to a plaintiff's claim in the form of a triable issue.
[5]
In terms of the amended sub-rule 32(1) a plaintiff may now only bring
an application for summary judgment after the defendant has delivered
a plea.
The
amended sub-rule 32(2)(b)
[6]
It is particularly the requirements of the amended sub-rule
32(2)(b)
which are central to the issues I must determine. I commence by
associating myself with the remarks of the author DE Van
Loggerenberg
in the second edition of
Erasmus
-
Superior Court Practice
at
RS 18, 2022, D1-386 to the
effect
that the rule in its amended form is
not a model of clarity and is likely to increase the workload of
judges as well as costs for
parties, which creates an unsatisfactory
situation. As will become clear this matter is no exception.
[7]
Sub-rule 32(2)(b) as amended requires a more detailed
affidavit to be
filed in support of an application for summary judgment (as opposed
to the formulaic supporting affidavit previously
allowed) and is
framed in the following terms:
"The
plaintiff shall in the affidavit referred to in sub-rule (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
plaintiff's claim is based, and explain briefly why the
defence as
pleaded does not raise any issue for trial."
[8]
Thus, in terms of the amended sub-rule 32(2)(b), broken down
into its
component parts, the affidavit supporting the application for summary
judgement must contain:
8.1.
a verification of the cause of action and the amount,
if any,
claimed;
8.2.
an identification of any point of law relied upon;
8.3.
an identification of the facts upon which the plaintiff's
claim is
based; and
8.4.
a brief explanation as to why the defence as pleaded
does not raise
any issue for trial. According to the defendant the plaintiff's
alleged failure to comply with the brevity qualification
attached to
this final requirement is at the core of the dispute between the
parties.
Litigation
history
[9]
The plaintiff instituted action against the defendant
in February
2022 in which it sought payment from the defendant of the sum of R9
144 961.22 and ancillary relief in respect of fruit
packaging cartons
it had allegedly sold and delivered to the defendant, pursuant to a
partially written, partially oral agreement
concluded between them.
The sum claimed is the balance allegedly owing by the defendant, the
total sum due having been reduced
by a payment made by the defendant.
[10]
The defendant, in April 2022, pleaded to the particulars of claim and
contemporaneously
delivered a claim in reconvention. In its plea the
defendant admitted to the conclusion of an agreement with the
plaintiff and
the delivery of packaging cartons but, in summary,
raised the following main defences:
10.1.
the agreement between the parties was not in the terms alleged by the
plaintiff; and
10.2.
the plaintiff had delivered the wrong or defective packaging cartons,
resulting in the defendant
suffering damages, hence its claim in
reconvention.
[11]
The defendant admits making payment to the plaintiff of the sum of R6
968 751.93,
which it avers is the full extent of its indebtedness to
the plaintiff. The plaintiff contends that the payment was made in
reduction
of a larger sum due and that the sum of R9 144 961.22 is
the balance owing by the defendant.
[12]
Consonant with the amended sub-rule 32(1), after delivery of the
plea, the
plaintiff applied for summary judgment, in April 2022. In
purported compliance with sub-rule 32(2)(b) its application was
supported
by an affidavit comprising some 20 pages and annexures of
14 pages.
[13]
In response to the application for summary judgment the defendant, in
June
2022, launched the rule 30 application, contending that the
affidavit filed by the plaintiff in support of its application for
summary judgment was an irregular step, on grounds with which I shall
deal more fully, below.
[14]
In terms of the rule 30 application the defendant seeks an order
declaring
that the plaintiff's affidavit supporting its summary
judgment application is irregular and that the entire affidavit be
set aside.
It further asks that the plaintiff be directed to file a
supporting affidavit complying with sub-rule 32(2)(b).
The
issues to be determined
[15]
The rule 30 application raises the following issues for
determination:
15.1.
whether rule 30 is the appropriate procedural mechanism to challenge
an affidavit supporting
an application for summary judgment for its
alleged want of compliance with sub-rule 32(2)(b); and
15.2.
if so, does the affidavit filed by the plaintiff, as currently
formulated, fall to be declared
irregular and set aside for want of
such application?
[16]
Obviously if the former of the two above-mentioned questions is
decided against the
defendant, that would be dispositive of the rule
30 application.
Is
rule 30 the appropriate procedural mechanism in the circumstances
The
defendant's complaint
[17]
The defendant's complaint against the plaintiff's affidavit
supporting its application
for summary judgment is introduced as
follows in its founding affidavit in the rule 30 application:
"16.
The Respondent's affidavit in support of the Summary Judgement
application fails to meet the jurisdictional requirement
of Uniform
Rule 32(2)(b) in that instead of providing a brief explanation as to
why the defence pleaded does not raise an issue
for trial, the
Respondent has filed an affidavit which is 20 pages long (which
evidently has already been condensed in spacing
to reduce the amount
of pages) consisting of no less than 76 paragraphs into its 16 pages
of annexures are attached (36 pages in
total).
17.
In addition, the Respondent has sought to introduce new evidence,
either by way of emails which it has attached to its affidavit
(which
emails are not attached to its Particulars of Claim) or by way of
allegations made in its affidavit (not made in its Particulars
of
Claim)."
The
application of rule 30 generally
[18]
The rule 30 application was argued on the basis of an acceptance by
the parties
of the principle that rule 30 applies only to
irregularities of form and not matters of substance.
Erasmus
RS 2022, D1-351 and the authorities
referred to there.
[19]
This immediately raises the question as to whether compliance with
what the
defendant describes as the jurisdictional requirements of
sub-rule 32(2)(b) is a matter of form or substance - more about this
aspect later.
Relevant
legal principles applicable to the provisions of sub-rule 32(2)(b)
[20]
In respect of the requirement that a plaintiff applying for summary
judgment
must, in the supporting affidavit, set out the facts on
which the plaintiff's case is based our courts, in interpreting the
amended
rule 32, have in general terms held that a plaintiff should
not be entitled to introduce evidence of facts that do not appear in
the particulars of claim or declaration.
Absa
Bank Ltd v Mphahlele N.O. and Others
[2020]
ZAGPPHC 257 (26 March 2020) at [32] and
Morgan
Cargo
(Pty)
Ltd
v
EV
Zakharov
[2022] ZAWCHC 132
(4 July 2022) at [20].
[21]
As to the requirement relating to
"the
brief explanation as to why the defence as pleaded does not raise any
issue for trial'
it has also been
held in general terms that in meeting this requirement a plaintiff is
not entitled to introduce new evidence as
to why, at summary judgment
stage, a defendant should not be given leave to defend an action and
to attempt to show that the plaintiff
has an unanswerable case.
Mphahlele
at
[33].
[22]
General principles, however, must be applied to the factual situation
which
prevails in a specific case. In this regard I align myself with
the approach suggested in
Absa Bank
Ltd v
Sable
Hills Waterfront Estates CC
and
Others
2022 JDR 0742 (GP), as
follows:
"[18]
I do not find it necessary in the present circumstances to delineate
the precise ambit of what is permissible in this
portion of Rule
32(2)(b) which requires the plaintiff in its affidavit to identify
'the facts upon which the plaintiffs claim is based and to explain
briefly why the defence, as pleaded, does not raise any issue
for
trial.
I accept that the plaintiff should, by and large be
restricted to the facts are set out in its particulars of claim. But
there
may well be circumstances in which a factual matter raised in
the particulars of claim or pleaded in the plea may permissibly be
clarified or elucidated without advancing a new factual premise for
the claim or seeking to introduce substantial, supplementary
facts.
The test in this regard will depend on the particular facts and will
no doubt be developed over time.................................
[19]
The contentions regarding the prohibition against the plaintiff
gaining a tactical advantage are formulaic when stated in such
general terms and lack factual foundation. The new summary judgment
procedure is implicitly aimed at exposing the defendants pleaded
defence to the scrutiny of the plaintiff and the court; no procedural
unfairness arises from this………………………".
[23]
The above-quoted passages encapsulate the respective contentions in
this application
which, in a nutshell, are to the following effect:
23.1.
the defendant in the rule 30 application relies on the abovementioned
general principles (whilst
endeavouring to apply them to the facts of
this case) in contending that the plaintiff's affidavit supporting
its application for
summary judgment goes beyond the scope of the
pleadings and what is intended by sub rule 32(2)(b); and
23.2.
the plaintiff, on the other hand, maintains that there are two
principal issues flowing from
its particulars of claim, namely,
first, the precise terms of the agreement between itself and the
defendant and, second, whether
it complied with the terms of the
agreement by delivering fruit packaging cartons to the defendant
which were fit for purpose.
It then submits that the facts put up in
the summary judgment affidavit are there to elucidate those basic
premises rather than
to establish new factual premises by introducing
substantial supplementary facts.
[24]
It is against this background that I must determine whether the rule
30 application
is the appropriate procedural mechanism to resolve
these disputes. As stated, this raises the question as to whether the
requirements
with which an affidavit supporting an application for
summary judgment, as set out in sub-rule 32(2)(b), must comply are
formal
or substantive in nature.
[25]
In my view the requirements which an affidavit supporting an
application for summary
judgment has to meet are substantive in
nature rather than formal, as:
25.1.
the intention with the amended rule was to do away with a formulaic
supporting
affidavit;
25.2.
the plaintiff, in a lucid manner, is required to identify any point
of law
relied upon, as well as the facts upon which the plaintiff's
claim is based and to furnish a brief explanation as to why the
defence
as pleaded does not raise any issue for trial - clearly these
requirements are substantive rather than merely formal. The intention
of the procedure is to expose both the claim and the defence to the
scrutiny of the court for it to be in a position to determine
whether
the defendant has raised a triable issue;
25.3.
the necessity of dealing with the defence raised and furnishing an
explanation as to why it
does not raise a triable issue cannot but be
a substantive requirement. It obliges the plaintiff to come to grips
with the substantive
elements of the pleaded defence and set out why,
having regard to those substantive elements, the defence does not
constitute a
bona fide
defence; and
25.4.
the brevity qualification attached to the explanation is relative and
the extent of the explanation
will in the first place be dependent on
the extent and nature of the substantive elements of the defence
raised in the plea. Compliance
with the brevity requirement cannot
therefore necessarily be judged solely on the number of pages or
paragraphs the explanation
encompasses. Each case will depend on its
own circumstances.
[26]
In assessing compliance with the requirements of sub-rule 32(2)(b)
comparisons
with judgments dealing with overly voluminous
applications in terms of Uniform Rule 43 ("rule 43") are
not of assistance.
The requirements in applications in terms of rule
43 that the founding and opposing affidavit must be in the form,
respectively,
of a declaration and a plea are formal in nature. Rule
43 envisages various types of relief in pending matrimonial actions
but
does not seek in any way to deal with or prescribe the
substantive jurisdictional requirements necessary to obtain such
relief.
Conclusion
on
the
question
as to whether
rule
30 is the
appropriate
procedural
mechanism
in the circumstances
[27]
In the three judgments referred to above the disputes as to the
precise ambit of what was permissible content in
the affidavits
supporting summary judgment were all determined by the courts hearing
the applications for summary judgment and
not as part of a separate
procedure as to the regularity of the affidavits. In the
Mphahlele
and
Morgan Cargo
matters the approach adopted was to
ignore the offending portions of the supporting affidavits. I refer
to paragraphs [38] and [20]
of the respective judgments.
[28]
The court in the matter of
T-Systems
(Pty) Ltd v BDM Technology Services (Pty)
Ltd
2020 JDR 2086 (GJ) also had to deal with an application in terms of
rule 30, where it was sought to set aside a summary judgment
application,
inter-alia,
on
the basis that the affidavit supporting the application for summary
judgment had exceeded its permissible ambit. In dismissing
the
application, the court expressed itself as follows:
"[38]
I disagree that the Rule 30 application is a suitable means of
addressing the irregularities complained about. Although
dressed up
as procedural issues, the objections are substantial in nature. I do
not believe the approach is consistent with the
purpose of Rule 30.
It would
undermine the essence of the
summary judgment procedure. I would discourage this approach, which
delays the resolution of summary
judgment applications in real-time."
[29]
I agree with the finding in the
T-Systems
matter
.
In associating myself with the remarks in the above-quoted passage, I
add the following:
29.1.
the
T-Systems
judgment
fortifies my conclusion that the requirements of sub rule
32(2)(b) are substantive requirements and not merely formal;
29.2.
rule 30 is therefore not the appropriate procedural mechanism to
address complaints that affidavits
supporting summary judgment
applications exceed the ambit of what is the permissible content of
such affidavits;
29.3.
complaints as to whether the supporting affidavits in summary
judgment proceedings have exceeded
the permissible ambit are more
appropriately addressed when the summary judgment application is
argued. It would be open to a defendant
to apply for allegedly
offensive portions of the founding affidavit to be struck out
alternatively to submit to the court hearing
the summary judgment
application that they be ignored;
29.4.
the overriding consideration that a defendant in summary judgment
proceedings must demonstrate
the existence of a
bona
fide
defence remains unaltered by
the amended summary judgment procedure. This requires a defendant to
deal even with argumentative material
in the plaintiff's supporting
affidavit. This should not occasion a problem for a defendant with a
bona fide
defence.
If it fails to do so, it does so at its peril.
Tumileng
Trading
CC v National Security and Fire (Pty)
Ltd2020
(6) SA 624 (WCC) at [41];
29.5.
the court hearing the summary judgment application is equally, if not
better, able to discern
whether the plaintiff's supporting affidavit
amounts to an abuse of the process of the court and exceeds the
permissible ambit
of the sub-rule;
29.6.
as a matter of policy, applications brought in terms of rule 30 to
address substantive shortcomings
in a summary judgment application
must be discouraged. Such applications will interminably delay the
completion of summary judgment
applications and frustrate the purpose
of summary judgment proceedings which, in appropriate circumstances,
is to bring a speedy
conclusion to litigation in cases where
defendants have no prospects of avoiding the plaintiff's claim and
have entered an appearance
to defend merely to delay. In the context
of the present matter and from the litigation history set out above
it is apparent that
more than a year after the plaintiff instituted
its action the matter remains bogged down in an opposed interlocutory
dispute;
29.7.
the relief the defendant proposes in the rule 30 application (no
doubt so framed to address
the concern expressed in in paragraph [37)
of the
T-Systems
judgment,
where the defendant sought to bring an end to the summary judgment
application by means of a rule 30 application) is not
assured of
achieving a speedy resolution of the summary judgment application. It
is quite possible that the defendant may again
object to the
re-formulated supporting affidavit, leading to yet more delays.
[30]
Rule 30 applications were brought in two matters in the Cape Town
High Court where the
respective plaintiffs sought summary judgment in
terms of the amended rule 32. The rule 30 applications in those
matters were brought
to in an attempt to set aside the summary
judgment application as the plaintiffs in both matters,
contemporaneously with the delivery
of the summary judgment
applications, had delivered replications. The defendants contended
that the delivery of the replications
constituted a waiver of the
right to apply for summary judgment. The rule 30 applications in
those matters were not addressed at
the substantive requirements of
sub-rule 32(2)(b) and are therefore distinguishable from this matter.
Quatro
Citrus
(Pty) Ltd
v
F&E
Distributors
(Pty)
Ltd t/a
Cape Crops
[2021]
JOL 49833
(WCC) and
Ingenuity
Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd
[2023] ZAWCHC 129
(29 May 2023).
[31]
I therefore conclude that rule 30 is not the appropriate procedural
mechanism to address
complaints regarding the substantive
requirements of sub-rule 33(2)(b). My conclusion thus disposes of the
rule 30 application.
[32]
In reaching this conclusion I have deliberately not expressed any
opinion on whether the
plaintiff's affidavit supporting its summary
judgment application meets the substantive requirements of sub-rule
32(2)(b) or on
the merits of the defendant's complaints and
contentions that the affidavit does not meet those requirements.
Those issues must
be left for the determination of the court hearing
the summary judgment application.
[33]
For these reasons the rule 30 application must be dismissed with
costs. Given that
this matter raised novel issues, which were not
without complexity I consider that it was justified for the plaintiff
to employ
the services of two counsel.
Order
[34]
Thus, I make the following order:
1.
The rule 30 application is dismissed with costs, such
costs to
include the costs attendant on the employment of two counsel.
2.
The defendant is directed to deliver its affidavit opposing
the
summary judgment application within 15 days of the date of this
order.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
KD
Williams for the applicant,
Instructed
by Ryan Hall Attorneys (021 205 5320) c/o
Tim
van Rooyen Attorneys (081 787 4404)
JH
Loots
SC
and
JR
Whitaker
for
the
respondent,
Instructed
by Maserumule Attorneys (021 671 7585) c/ o
BLC
Attorneys (041 506 3719).