Summary of Judgment

1. Introduction

The matter concerned reasons for an order granting summary judgment in favour of the applicant under the Uniform Rules of Court. The proceedings arose from an action in which the applicant sought payment of a substantial sum allegedly due for services rendered under a written contract, and then pursued summary judgment after the respondent delivered a plea.

The parties were Dithale Development Services (Pty) Ltd as applicant (plaintiff in the main action) and Mangaung Metropolitan Municipality as respondent (defendant in the main action).

Procedurally, the respondent entered an appearance to defend, delivered its plea only several months later, and the applicant then launched summary judgment proceedings. The respondent filed a notice of intention to oppose the summary judgment but did not deliver an opposing affidavit. The summary judgment application was postponed to permit the respondent to regularise its opposition. Instead of filing opposing papers, the respondent withdrew its plea and delivered an exception, prompting a Rule 30 notice from the applicant. The summary judgment application ultimately proceeded in circumstances where no opposing affidavit had been filed. After the summary judgment order was granted, the respondent sought reasons outside the time-period contemplated by Rule 49(1)(c), without a condonation application, but the court nonetheless furnished reasons given the manner in which the respondent sought to re-engage the proceedings.

The general subject matter of the dispute was the applicant’s claim for payment of unpaid invoices for work relating to the unblocking, maintenance, and replacement of manholes and sewer pipes within the Mangaung Metropolitan Municipality, allegedly performed pursuant to a written contract between the parties.

2. Material Facts

It was common cause that the respondent entered an appearance to defend the applicant’s action on 14 January 2022. The respondent delivered its plea on 20 July 2022, which in turn triggered the applicant’s ability to launch summary judgment proceedings. The applicant launched its summary judgment application on 11 August 2022.

On 22 August 2022 the respondent delivered a notice to oppose the summary judgment application but did not file an opposing affidavit. As a result, on 1 September 2022 the application was postponed to 29 September 2022, and the respondent was granted leave to file a condonation application for the late opposing affidavit and to deliver the opposing affidavit by 13 September 2022.

When the matter resumed on 29 September 2022, the respondent still had not filed any opposing papers. Instead, on 9 September 2022, it had withdrawn its plea and simultaneously delivered an exception. The applicant responded by delivering a Rule 30 notice complaining about the lateness of the exception and proceeded to set the summary judgment down for hearing, contending that the application was unopposed given the withdrawal of the plea.

As at the hearing of the summary judgment application, the respondent had still not filed its opposing affidavit and had not filed heads of argument. The respondent’s explanation was that it was uncertain how the matter would proceed in light of the pending exception and the Rule 30 step taken by the applicant.

On the merits relevant to summary judgment, the court proceeded on the applicant’s undisputed allegations that its claim was for unpaid invoices relating to work performed (unblocking, maintenance, and replacement of manholes and sewer pipes) in terms of a written contract concluded between the parties.

3. Legal Issues

The central questions the court was required to determine were whether the summary judgment application could properly be adjudicated in circumstances where the respondent had withdrawn its plea and had not delivered an opposing affidavit, and whether the respondent’s subsequent delivery of an exception (and the applicant’s Rule 30 notice directed at that exception) constituted a procedural impediment to the hearing and determination of the summary judgment application.

The dispute primarily concerned the application of procedural law to established procedural facts, together with an evaluative determination regarding the significance of the respondent’s procedural choices. It also involved a corrective issue concerning the appropriateness of a previously granted attorney-and-client costs order and whether that aspect of the order was capable of correction under Rule 42(1)(a).

4. Court’s Reasoning

The court approached the matter on the basis that a plea is a prerequisite for summary judgment proceedings. It noted the structure of the amended summary judgment procedure under Rule 32, which contemplates that the plaintiff’s supporting affidavit engages with the allegations raised in the defendant’s plea so as to demonstrate why the pleaded defence does not raise a triable issue. The court emphasised that, correspondingly, a defendant seeking to resist summary judgment must deliver an opposing affidavit setting out the nature and grounds of the defence and the material facts relied upon.

Applying those principles, the court reasoned that the respondent’s position was procedurally untenable. The respondent had withdrawn its plea and had not filed the opposing affidavit that would be required to disclose a bona fide defence to summary judgment. The consequence, as accepted by the court, was that the claim stood uncontested for purposes of the summary judgment application.

The court then considered the respondent’s contention that the pending exception and the applicant’s Rule 30 notice meant summary judgment could not proceed. The court accepted the applicant’s argument that these steps did not hinder the adjudication of summary judgment in the circumstances of the case. The respondent’s delivery of an exception after the plea (and after summary judgment proceedings had already been initiated) was treated as anomalous. The court recorded that the respondent’s counsel could not point to authority suggesting an exception could be filed after a plea and, importantly, after summary judgment proceedings had commenced. The applicant’s contention that the exception was irregular for non-compliance with Rule 22(1), which requires an exception to be delivered within the time-period after the notice of intention to defend and before the plea, was accepted in substance as part of the explanation why the exception did not constitute a basis to halt summary judgment.

In evaluative terms, the court concluded that the respondent’s filing of an exception after withdrawing its plea was a delaying tactic intended to prevent the summary judgment application from being heard. In the absence of an opposing affidavit and with the plea withdrawn, the court found no procedural or substantive basis to refuse summary judgment on the material placed before it.

Finally, on costs, the court addressed the scale of costs previously awarded. Although the applicant had sought costs on an attorney-and-client scale, the court noted that the agreement between the parties did not provide for such a punitive scale. The court held that the earlier grant of attorney-and-client costs was erroneous and corrected that part of the order under Rule 42(1)(a) to reflect costs on the party-and-party scale.

5. Outcome and Relief

The court had granted summary judgment against the respondent for payment of R15 3017 302.87, together with interest and costs. In the reasons furnished, the court confirmed the basis on which summary judgment was granted, namely that the respondent had withdrawn its plea and had not delivered an opposing affidavit, with the result that the claim was treated as uncontested and the pending exception and Rule 30 step did not bar adjudication of summary judgment.

As to costs, the court corrected the costs order under Rule 42(1)(a), substituting the previously granted attorney-and-client scale with an order for costs on the party-and-party scale, on the basis that the contract did not provide for attorney-and-client costs and that scale had been erroneously awarded.

Cases Cited

No external case law was cited by name in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

The Uniform Rules of Court were relied upon, in particular Rule 49(1)(c), Rule 32(1) and Rule 32(2), Rule 32(3)(b), Rule 22(1), Rule 30, and Rule 42(1)(a).

Held

The court held that summary judgment could be granted where the respondent had withdrawn its plea and failed to deliver an opposing affidavit disclosing a bona fide defence, with the result that the applicant’s claim was uncontested for purposes of the summary judgment application. It further held that the respondent’s pending exception and the applicant’s Rule 30 step did not prevent the court from adjudicating the summary judgment application, and that the filing of an exception after withdrawal of the plea was treated as an anomalous step and a delaying tactic in the circumstances.

The court also held that the earlier award of costs on an attorney-and-client scale was erroneous because the parties’ agreement did not provide for such costs, and that the order should be corrected under Rule 42(1)(a) to reflect costs on a party-and-party scale.

LEGAL PRINCIPLES

Summary judgment under Rule 32 proceeds on the basis that the defendant has delivered a plea, and the plaintiff’s supporting affidavit must engage with the pleaded defence to explain why it does not raise a triable issue. To resist summary judgment, the defendant must deliver an opposing affidavit setting out the nature and grounds of the defence and the material facts relied upon; failure to deliver such an affidavit leaves the plaintiff’s claim effectively uncontested for purposes of the summary judgment proceedings.

Procedural steps such as an exception and a Rule 30 notice do not, without more, bar the hearing of summary judgment where the defendant has not properly placed a defence before the court in the form contemplated by Rule 32. An exception delivered after a plea (and after initiation of summary judgment proceedings) was treated in this matter as procedurally anomalous and, on the court’s assessment of the context, indicative of delay rather than a substantive impediment.

A costs order may be corrected under Rule 42(1)(a) where it was erroneously granted, including where a punitive costs scale was awarded despite there being no contractual basis for such an award on the papers before the court.