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[2021] ZAGPJHC 778
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Phoenix International Logistics (Pty) Ltd v QD Cellular (Pty) Ltd and Another (3288/20) [2021] ZAGPJHC 778 (4 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 3288/20
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
6/8/21
In
the matter between:
PHOENIX
INTERNATIONAL LOGISTICS (PTY) LTD
(Registration
Number: 2005/009035/07)
Applicant/Plaintiff
And
QD
CELLULAR (PTY) LTD
(Registration
Number: 1998/012714/07)
First Respondent/ First Defendant
MICHAEL
MAURICE ROSS
(Identity
Number: [....])
Second Respondent/ Second Defendant
Summary
:
Application
for summary judgment against Second Defendant after plea in terms of
Rule 32(a) – After delivering affidavit resisting
summary
judgment, Second Defendant giving notice of intention to amend plea
to introduce additional defence – proposed amendment
not
opposed – effect hereof that in respect of newly introduced
defence by amendment to plea, application for summary judgment
not
compliant with peremptory requirement in Rule 32(2)(b) that Plaintiff
furnish brief explanation why defence as pleaded does
not raise an
issue for trial – further effect of additional defence in plea
as amended is that Second Defendant no longer
compliant with
requirement that affidavit resisting summary judgment be in harmony
with plea due to additional defence in amended
plea not constituting
one of the defences covered in affidavit resisting summary judgment
Stalemate
through no fault of the parties – Second Defendant attempts to
break stalemate by delivering an unsolicited supplementary
affidavit
resisting summary judgment containing additional defence from amended
plea – no consent by Plaintiff to supplementary
affidavit -
stalemate persists
Draftsman
of new regime under Rule 32 could not have intended that Second
Defendant through unopposed notice to amend plea able
to frustrate
Plaintiff’s right to procedural advantage of extant summary
judgment application
But
draftsman could also not have intended by extending summary judgment
to after the plea to be constraining unqualified right
to amend plea
enshrined in Rule 28
No
provision in amended Rule 32 of steps available to Plaintiff in
response to amendment to plea after affidavit resisting summary
judgment – lacuna in Rule 32
In
casu lacuna overcome by grant of leave to Plaintiff to withdraw
application for summary judgment at Second Defendant’s
cost and
to re-initiate proceedings for summary judgment afresh - Second
Defendant ordered to pay the wasted costs (excluding the
costs of the
opposed argument) occasioned by the withdrawal of the summary
judgment proceedings pursuant to standard obligation
to pay wasted
costs occasioned by amendments
The
Plaintiff applied for summary judgment after receipt of the Second
Defendant’s plea. In response, the Second Defendant
delivered
an affidavit resisting summary judgment based on the plea, but later
amended his plea by the introduction of an additional
defence.
Besides the absence of the required harmony between the amended plea
and the affidavit resisting summary judgment, the
additional defence
introduced by the amendment was not included in the Plaintiff’s
peremptory brief explanation in its founding
affidavit as required by
Rule 32(2)(b) why the defence does not raise an issue for trial.
Both
parties therefore found themselves non-compliant with Rule 32 without
having contravened the Uniform Rules in any way. The
Second Defendant
invited the Plaintiff to withdraw the application at his cost and to
reinstitute the application based on his
amended plea. The Plaintiff
declined the invitation. The Second Defendant then delivered an
unsolicited supplementary affidavit
resisting summary judgment in
harmony with his amended plea.
The
Plaintiff ignored the supplementary affidavit resisting summary
judgment and enrolled the application for summary judgment.
In
argument it pointed to the disharmony between the amended plea and
the first affidavit resisting summary judgment and sought
to persuade
the Court to reject the Second Defendant’s defence on this
basis alone. Not to be outdone, the Second Defendant
sought summary
dismissal of the application due to the absence of his additional
defence in his plea as amended from the Plaintiff’s
brief
explanation in its founding affidavit required by Rule 32(2)(b) as to
why this additional defence does not raise an issue
for trial.
The
Court rejected both these overly formalistic attempts to exploit
lacunas in a new and developing procedure by granting leave
to the
Plaintiff to withdraw the summary judgment application and re-launch
the same proceedings based on the amended plea. The
Court also
ordered the Second Defendant to pay all the wasted costs occasioned
by the withdrawal of the application for summary
judgment, save the
costs of the opposed argument
JUDGMENT
KATZEW, AJ
[1]
This is an application for summary judgment
by Phoenix International Logistics (Pty) Ltd, the Plaintiff, against
Michael Maurice
Ross, the Second Defendant.
[2]
On 20 April 2020 the Plaintiff obtained
judgment by default against the First Defendant, QD Cellular (Pty)
Ltd, for the amount claimed
in the summons, namely R2 718 738.58,
plus interest and costs.
[3]
The Plaintiff’s cause of action for
its claim against the Second Defendant is based on a suretyship by
the Second Defendant
covering the First Defendant’s
indebtedness to the Plaintiff. The Plaintiff’s claim against
the Second Defendant is
for R2 718 738.58 plus interest and costs,
which is co-extensive with the amount of the Plaintiff’s
judgment against the
First Defendant.
[4]
The Plaintiff’ application for
summary judgment against the Second Defendant is in terms of Uniform
Rule Of Court 32 as amended
on 1 July 2019. Accordingly, in terms of
Uniform Rule Of Court 32(2)(a), the application for summary judgment
was delivered after
the Second Defendant delivered his
Second
Defendant’s
Plea
.
[5]
The evolution of the application through
the recently amended Uniform Rule Of Court 32 has brought about a
stalemate in the proceedings
due to what appears to be a lacuna in
the amended rule.
[6]
The passage of the matter that led to the
stalemate is as follows:
[6.1]
The Second Defendant delivered
Second
Defendant’s
Plea
on 23
March 2020.
[6.2]
The Plaintiff delivered its
Notice
Of
Application
For
Summary
Judgment
In
Terms
Of
Rule
32
on 12
May 2020.
[6.3]
The Second Defendant delivered
Second
Respondent’s
Affidavit
Resisting
Summary
Judgment
on 17 June 2020.
[6.4]
The Second Defendant delivered
Second
Defendant’s
Notice
To
Amend [Plea]
In
Terms
Of
Rule
28
on 1
July 2020, whereto there was no objection by the Plaintiff.
[6.5]
The Second Defendant delivered
Second
Defendant’s
Amended
Plea
on 23
July 2020.
[6.6]
The Second Defendant delivered
Second
Respondent’s
Supplementary
Affidavit
Resisting
Summary
Judgment
on 31 August 2020 in order to harmonise the defences in the affidavit
resisting summary judgment with the defences in the amended
plea.
[7]
The stalemate has resulted from the
omission from the
Founding
Affidavit: Summary
Judgment
of the brief explanation as to why the additional defence pleaded by
the Second Defendant in the amended plea does not raise an
issue for
trial, which is a requirement of Uniform Rule Of Court 32(2)(b).
[8]
Notwithstanding this defect in its
Founding
Affidavit: Summary
Judgment
,
on 15 March 2021 the Plaintiff delivered a
Notice
Of
Set
Down
of
the opposed application for summary judgment on the opposed motion
roll for 19 April 2021.
[9]
During argument in the week of 19 April
2021, Ms Blumenthal for the Plaintiff submitted that the Court must
ignore the supplementary
affidavit resisting summary judgment and
must dispose of the application for summary judgment on the basis of
the first affidavit
resisting summary judgment, which is not in
harmony with the amended plea. For this reason alone, the argument
went, summary judgment
should be granted as prayed.
[10]
Mr Scholtz for the Second Defendant
contended that the application for summary judgment is fatally flawed
due to the omission from
the
Founding
Affidavit: Summary
Judgment
of the brief explanation required by Uniform Rule Of Court 32(2)(b)
why the additional defence pleaded in the amended plea does
not raise
any issue for trial. On this score alone, Mr. Scholtz contented, the
application for summary judgment should be dismissed
and the Second
Defendant must be granted leave to defend.
[11]
Although both arguments are technically
sustainable on a strictly literal interpretation of Uniform Rule Of
Court 32, neither of
the arguments are judiciously tenable.
[12]
Ms. Blumenthal argued in the alternative
(from the Bar – not in her heads) that if the Court is inclined
to have regard to
Second
Respondent’s
Supplementary
Affidavit
Resisting
Summary
Judgment
wherein the additional defence raised in the amended plea is
canvassed, the brief explanation in the
Founding
Affidavit: Summary
Judgment
why the defences pleaded in the first plea do not raise an issue for
trial is wide enough to cover the additional defence raised
in the
amended plea and in
Second
Respondent’s
Supplementary
Affidavit
Resisting
Summary
Judgment
.
[13]
This would have been the perfect solution
to the conundrum had the brief explanation overlapped the additional
defence. Careful
scrutiny of both, however, reveals otherwise.
[14]
The additional defence pleaded in the
amended plea, namely that Mr. Melnick on behalf of the Plaintiff in
the principal agreement
owed a legal duty to the Second Defendant to
limit the credit limits of the First Defendant to R250 000.00,
alternatively to R1.5
million, and thereby limit the Second
Defendant’s co-extensive exposure to the Plaintiff, is an
additional and/or alternative
defence to the Second Defendant’s
main plea on the merits that he signed the application for credit in
a representative capacity
for the First Defendant mistakenly not
realizing due to misrepresentation that the document contained a
suretyship.
[15]
The Second Defendant has maintained this
main plea on the merits through the first plea and first affidavit
resisting summary judgment
right through to the amended plea and
supplementary affidavit resisting summary judgment.
[16]
This main defence on the merits by the
Second Defendant, underscored by absence of any knowledge of the
suretyship on the part of
the Second Defendant, is in direct conflict
with the Second Defendant’s additional alternative defence
introduced in his
amended plea and supplementary affidavit resisting
summary judgment that his personal liability in terms of the
suretyship was
premised on the First Defendant’s credit limit
being limited to either R250 000.00 or R1.5 million which amounts
were, in
the alternative, in the contemplation of the First Defendant
(which of course predicates his personal knowledge in contrast with
his erstwhile no knowledge of the suretyship) and Mr. Melnick on
behalf of the Plaintiff at the time they concluded the suretyship
agreement, together with the legal duty owed to the Second Defendant
by Mr. Melnick to maintain those limits, in the alternative.
[17]
If,
hypothetically, this Court were to rely on the judgment of the
Honourable Blieden, J in
Standard
Bank
Of
South
Africa
Ltd
v
Roestof
[1]
and find that no prejudice has been caused to the Second Defendant by
the technical flaw in the
Founding
Affidavit:
Summary
Judgment
with the necessary corollary that the technical flaw in the
Founding
Affidavit:
Summary
Judgment
has been cured by the Second Defendant’s delivery of his
supplementary affidavit resisting summary judgment with the objective
of harmonizing the affidavit with the amended plea, and were to find
further that the Second Defendant has furnished two mutually
destructive versions under oath and on that basis hold that
Second
Respondent’s
Supplementary
Affidavit
Resisting
Summary
Judgment
does not raise an issue for trial and grant summary judgment as
prayed, it is not unlikely that the Second Defendant will cry foul
due to prejudice caused to him by the omission from the
Founding
Affidavit:
Summary
Judgment
of the required brief explanation on the merits of the additional
defence, which, he may conceivably say, would have alerted him
to an
apparent weakness in the amended plea, to which he may have had an
answer in the supplementary affidavit resisting summary
judgment.
[18]
The requirement of the brief explanation
why the pleaded defence does not raise any issue for trial is
precisely to require a plaintiff
to identify an issue against a
defence in a plea to afford the defendant an opportunity of joining
issue with this criticism and
of offering a tenable explanation in
the affidavit resisting summary judgment.
[19]
A
fortiori
if the Court relaxes this requirement in any conceivable way, the
Second Defendant would be correct in adopting the cry foul approach
from a strictly procedural point of view.
[20]
The Court is therefore not disposed to
making an order on the summary judgment application. The Court rather
sees itself as required
to make, or adopt, certain findings on
Uniform Rule Of Court 32 in order to guide the parties in the further
conduct of this matter.
[21]
During
May of 2021, a month after this Court reserved judgment in the
matter, the case of
Belrex
95 CC v Barday
[2]
appeared in the May 2021 volume of the South African Law Reports. The
Honourable Henney, J is reported as follows therein at 186I-187A:
“
[31]
The mere fact that, in terms of the amended rule, a plaintiff can
only proceed with summary judgment after the defendant has
delivered
the plea, does not preclude the defendant from amending his plea
after the plaintiff has proceeded with an application
for summary
judgment. This is a lacuna which can be used as a stratagem by a
defendant wishing to frustrate a plaintiff in proceeding
with summary
judgment. It is also clearly something which the task team of the
Rules Board may not have considered.”
[22]
Based hereon, Ms Blumenthal’s
submission that this Court must ignore
Second
Respondent’s
Supplementary
Affidavit
Resisting
Summary
Judgment
for the purpose of the summary judgment application, which by
definition means ignoring the amended plea too, seeks to impose a
limitation in Rule 32 on a defendant’s right to amend a plea,
which is not recognized in the unlimited right to amend any
time
before judgment enshrined in Rule 28. The Honourable Henney, J
pronounced hereon as follows in
Belrex
95 CC v Barday
(
supra
)
at 186G-I:
“
[30]
In terms of Rule 28(10) the court may, at any stage before judgment,
grant leave to amend any pleading or document. The defendant
in this
matter was clearly entitled to amend his plea at any stage of the
proceedings before judgment. The provisions of the amended
Rule 32 do
not prevent a defendant from amending his plea. The Rule does not
state so, and any interpretation that a defendant
may not do so is in
conflict with the provisions of Rule 28(10).”
[23]
On the other hand, Mr Scholtz’
argument that the application for summary judgment must be dismissed
with costs due to the
Plaintiff’s failure to take the steps
necessary to include in its brief explanation in terms of Uniform
Rule Of Court 32(2)(b)
the reason why the additional defence in the
amended plea does not raise any issue for trial, ignores the express
exclusion of
amendment of sworn statements from Uniform Rule Of Court
28(1) and the apparent absence of any other regulated procedure for
the
Plaintiff to have followed to achieve the amendment without
offending what appears to be a limitation to one affidavit
contemplated
in Uniform Rule Of Court 32(4).
[24]
While it is important to take note of the
Second Defendant’s suggestion in paragraphs 13.3 and 13.4 of
Second
Defendant’s
Supplementary
Affidavit
Resisting
Summary
Judgment
that the Plaintiff could withdraw this summary judgment application
at the Second Defendant’s cost and once again apply for
summary
judgment on the Second Defendant’s amended plea, the Plaintiff
cannot be faulted for not taking up this invitation.
Doing so would
have condoned the delivery of a supplementary affidavit resisting
summary judgment, a step that is not sanctioned
by Rule 32.
[25]
It must be remembered that under the
previous summary judgment regime, a defendant was only entitled to
one affidavit resisting
summary judgment. If he omitted to include a
defence in the affidavit, there was no general right available to him
to supplement
the affidavit. There is no reason why a defendant under
the new regime, where summary judgment is sought after the plea,
should
be better placed to vacillate on the formulation of his true
defence.
[26]
To that extent, the recognized limitless
freedom to amend a plea may be overstated and may require some
adjustment, via either a
more restrictive interpretation of the
interdependence of Rules 28 and 32 or by the introduction of a
workable restriction in Rule
32 on the right to amend a plea pending
resolution of a summary judgment application.
[27]
To hold otherwise opens the door to a
defendant to utilise the procedure for amendment to a plea after an
application for summary
judgment to frustrate a plaintiff’s
right, preserved in section 34 of the Constitution, to have the
summary judgment application
resolved expeditiously by application of
the law in a fair public hearing. Section 34 of the Constitution,
titled “
Access to courts”
,
provides as follows:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[28]
The
Court in
Raumix
Aggregates (Pty) Ltd v Richter Sand CC And Another, And Similar
Matters
[3]
gave expression to this right as follows at 627E-F:
“
[16]
The purpose of a summary judgment application is to allow the court
to summarily dispense with actions that ought not to proceed
to trial
because they do not raise a genuine triable issue, thereby conserving
scarce judicial resources and improving access to
justice. Once an
application for summary judgment is brought, the applicant obtains a
substantive right for the application to
be heard, and, bearing in
mind the purpose of summary judgment, that hearing should be as soon
as possible. That right is protected
under s 34 of the Constitution.”
[29]
The opportunity for resort by a defendant
to amendment processes for ulterior motives, including delay, is
therefore clearly recognizable.
[30]
This having been said, this Court intends
following the order of the Honourable Henney, J in
Belrex
95 CC v Barday
(
supra
)
with a view to instilling certainty for the parties in the further
conduct of this matter. It needs to be emphasised in this regard
that
the order of the Honourable Henney, J is quoted in full by the
learned authors of Erasmus Superior Court Practice 2
nd
Edition Van Loggerenberg at D1-416D [Service 16, 2021] in the
commentary to Uniform Rule Of Court 32, which exhibits an approval
of
the reasoning and order of the decision, which should be reassuring
to both the Plaintiff and the Second Defendant in the further
conduct
of the matter. The order of the Honourable Henney, J in
Belrex
95 CC v Barday
(
supra
)
appears at 188D-E of the judgment as follows:
“
[36]
I therefore make no order in respect of the summary judgment
application.
[37] The defendant’s
Notice of Amendment shall take effect in terms of rule 28(2) as of
the date of this judgment, for the
plaintiff to exercise its rights
in terms of the rule.
[38] The plaintiff is
given leave to bring a fresh application on the amended plea, should
such an application for amendment be
allowed.
[39] Costs will stand
over for later determination.”
[31]
Unlike
in casu
where the Second Defendant’s plea has already been amended, the
only distinguishing feature in
Belrex
95 CC v Barday
(
supra
)
is that the time period for the plaintiff therein to object to the
defendant’s notice of intention to amend his plea still
had
some time to run. That notwithstanding, a reading of the following
final paragraph of the judgment of the Honourable Henney,
J in
Belrex
95 CC v Barday
(
supra
)
at 187H-188C indicates that the fact of a perfected amended plea as
in casu
was contemplated in the order given therein:
“
[35]
In my view, given the manner in which the application unfolded, it
would be difficult, if not impossible,
to deal with this application
in terms of the amended rule, and for the following reasons: Firstly,
the amended plea was not ripe
to be adjudicated upon, for want of
compliance with the provisions of Rule 28(2), for it to have been
considered during a summary
judgment application. Secondly, even if
the amended plea was properly before court, the plaintiff did not
deliver a supporting
affidavit to deal with any of the issues,
especially in relation to whether the defence as pleaded therein
raises any triable issue.
Thirdly, again even if the amended plea
would be considered to be properly before the court, the plaintiff
would be prohibited
from delivering any further evidence, in the form
of an affidavit, to address the question whether the defence as
pleaded raises
a triable issue. Fourthly, should the court ignore the
amended plea and ignore the opposing affidavit, because the opposing
affidavit
is not in harmony with the initial plea, it would defeat
the purpose of the amended rule, which requires that the nature and
grounds
of the defence and the material facts relied upon in the
affidavit should be in harmony with the allegations in the plea.
Fifthly,
it would be manifestly unfair and unjust to the defendant,
who has a right to amend his plea at any stage of the proceedings
before
judgment, even more so if summary judgment should be granted
in favour of the plaintiff.”
[32]
In view of the uncertainty that prevailed
before the judgment of the Honourable Henney, J in
Belrex
95
CC
v
Barday
(
supra
),
which it is not inconceivable will continue to prevail until the
application and implementation of the amended Rule 32 has become
settled through decisions of the courts and possibly even through
further amendment, this Court is disinclined to exercise its
discretion on costs as a lever to apportion any blame on the parties
for the stalemate that has arisen.
[33]
In this regard, it needs to be pointed out
that the only costs order made is not punitive. It follows the
suggestion of the Second
Defendant in his
Second
Defendant’s
Supplementary
Affidavit
Resisting
Summary
Judgment
.
[34]
In conclusion, no order is to be made on
the summary judgment application. Certain other relief is, however,
to be granted.
The
following is ordered:
1)
The Plaintiff is granted leave to withdraw this application for
summary judgment
and within 15 (fifteen) days thereafter to initiate
a fresh application for summary judgment on
Second
Defendant’s
Amended
Plea
, whereafter the provisions of Uniform Rule
Of Court 32 are to apply.
2)
The Second Defendant is to pay the costs occasioned by the withdrawal
of this
application for summary judgment, save the costs of the
opposed argument during the week of 19 April 2021, which are
reserved.
S M KATZEW
Acting
Judge of the High Court of South Africa
DATE
OF JUDGMENT
: 4 August 2021.
DATE
OF HEARING
: 19 April 2021.
APPEARANCES
:
For
Applicant:
Ms. R. Blumenthal
Instructed
by:
NVDB Attorneys (ph):011/568 3494
For
Second Respondent:
Mr. R. Scholtz
Instructed
by:
Macartney Attorneys (ph):0873302400
[1]
2004
(2) SA 492
(WLD) at 496F-I
[2]
2021
(3) SA 178 (WCC)
[3]
2020
(1) SA 623
(GJ)