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[2019] ZAGPPHC 281
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Intergral Networking (Pty) Ltd v Efkon South Africa (Pty) Ltd (2653/18) [2019] ZAGPPHC 281 (24 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 2653/18
In
the matter between:
INTERGRAL
NETWORKING (PTY) LTD
Plaintiff / Applicant
and
EFKON
SOUTH AFRICA (PTY) LTD
Defendant
I
Respondent
JUDGMENT
MAKHUVELE
J
Introduction
and brief background facts
[1]
This is an application for summary judgment. I will refer to the
Plaintiff/ applicant
as
'lntergral or applicant'
and the
Defendant /
respondent as
'Efkon or respondent'.
[2]
Intergral instuted an application against Efkon and sought amongst
others an order
for payment of an amount of Two Million Sixty
Thousand Three Hundred and Sixty Three Rand Ninety Seven Rand (R2 060
363. 97).
[3]
The relief sought was based on
allegations of breach of a written Maintennce Agreement
[4]
Opposing and replying affidavits as well
as heads of argument were subsequently filed and the matter was
enrolled for hearing in
the opposed motion court.
[5]
The matter came before Kuny AJ on 19
October 2018. There is no written judgment or record of proceedings,
however, it is common
cause between the parties that there were
factual disputes that were not capable of resolution in motion
proceedings, and in this
regard, the matter was referred to trial.
The court order in the following terms was issued;
1.
The disputes between the parties
are referred to trial;
2.
The applicant's founding
affidavit would stand as
a
simple
summons;
3.
The respondents answering
affidavit would stand as a notice of intention to oppose.
4.
The applicant lntergral shall
file
a
declaration
within 15 days of the order; and
5.
Thereafter, the rules of court
relating to trial actions will apply to the conduct of the matter.
6.
The costs of this application
shall be costs in the cause.
The
simultaneous filing of the declaration and application for summary
judgment
[6]
lntergral delivered the declaration on 9 November 2019 and later on
the same day it
delivered the summary judgment application that is
before me.
[7]
The declaration is in excess of 100
pages. The terms of the agreement were pleaded in full and copies of
invoices and other documents
were attached.
[8]
It is not necessary for me to outline
the nature of the claims and the terms of the agreement because the
summary judgment application
turns on the point in limine that were
raised in the affidavit resisting the application.
The affidavit resisting
summary judgment
[9]
To say that Efkon was annoyed by
Integral's filing of the application for summary judgment under the
circumstances where the matter
was referred for trial would be an
understament. The summary judgment application was labelled as an
abuse and lntergral was reminded
of the circumstances under which the
matter was referred to trial. It was further submitted that lntergral
was looking for a
'proverbial second
bite at the cherry. The reason being that it now, for the second
time, wants this court (but an alternative presiding
officer) to
again entertain its alleged claim on application'.
[10]
Efkon further submitted that the circumstances under which this
summary judgment application
was filed deserve an order against
lntergral as contemplated in Rule 32(9).
[11]
It was further submitted that Efkon has
bona fide
defences to
the claims which are known to lntergral.
[12]
The defences raised are as follows;
[12.1] The application
is fatally flawed because the motion court has already
'considered,
adjudicated and pronounced upon the issue as to whether a triable
issue
of fact exists regarding the claim that lntergral
attempts to enforce against Efkon'
[12.2] With reference
to Rule 32, Efkon argued that the summary judgment application was
fatally flawed on two grounds;
the first being that it was filed late
because Rule 32 provides that it should be filed within 15 days of
filing of the notice
of intention to defend. In the second place, an
application for summary judgment cannot be made after filing of a
declaration because
rule 32(4) provides that no additional evidence
may be adduced.
[12.3] The application
for summary judgment is out of time when one has regard to the dates
oh which the documents in
the application were filed.
[12.4] The cause of
action verified in the application for summary judgment refers to the
declaration. This is incorrect.
It should have referred to the simple
summons, being the founding affidavit, the contents of which have
already been declared to
constitute factual disputes, thus rendering
it impossible for Efkon to obtain the relief on summary judgment
application.
[12.5] There are no
Jurisdictional pillars'
to support the application for summary
judgment, these being an instituted action and a notice of intention
to oppose.
[12.6] On the merits,
it was submitted on behalf of Efkon that the court should take into
account the defences that
it has raised in the answering affidavit
that has been converted into a notice of intention to defend.
Issues for decision
[13]
From a procedural point of view, the
issue for decision is whether summary judgment proceedings are
competent after delivery of
a declaration. In the second place,
whether summary judgment was competent after a matter was referred to
trial due to factual
disputes that could not be adjudicated on
affidavits.
[14]
On the merits, the question is whether
the issues raised in the answering affidavit (which has been
converted to a notice of intention
to defend), but not specifically
pleaded in the affidavit to resist summary judgment should be taken
into account when considering
whether Efkon has raised bona fide
defences.
[15]
The other issue on the merits is whether
the disputes in the motion application would constitute bona fide
defences in a summary
judgment application.
Filing of supplementary
heads of argument
[16]
Summary judgment applications in this
division are enrolled in the unopposed motion roll with amongst
others, Rule 43, default judgments
and many other applications, which
by nature, even though not opposed, require much attention due to the
intricacies of the issues
under consideration. Opposed summary
judgments and Rule 43 applications are often heard late in the day,
and if there are two or
three of them, it is impossible to finalize
them in one day. This means a postponement or rolling over to the
next court date,
where they also stand in a long queue.
[17]
I heard this matter on 11 February in
the late afternoon and again in the afternoon of 13 February 2019. On
the last mentioned date,
counsel for the applicant, Mr Van der Merwe,
handed up the judgment of Kemp AJ in the matter of
Nursing
Services of South Africa v The MEC for the Department of
Health-Eastern Cape 2009 JDR 071O (ECB)
(Nursing
Services judgment) as authority to counter one the respondent's
points in limine to the effect that the applicant was not
entitled to
bring the summary judgment application after filing a declaration.
The judgment is marked
'reportable'.
[17.1] The plaintiff
in the matter before Kemp AJ had sued on a simple summons. After
notice to defend was filed, the
plaintiff filed a summary judgment
application. The defendant did not file an affidavit to resist the
application, but instead
filed a counter-application to declare the
summary judgment as an irregular step on the basis that the plaintiff
should have filed
a declaration within 15 days of receipt of the
notice to defend. The plaintiff's apprehension was that filing a
declaration was
not allowed as it would constitute taking of a
further step, which was not allowed according to earlier authority in
the matter
of Esso Standard South Africa (Pty) Ltd v Virginia Oils
and Chemicals Co (Pty) ltd
1972 (2) SA 81
(o). Kemp AJ was of the
view that this matter was incorrectly decided and held that the
plaintiff would not have waived its right
to file for summary
judgment.
[18]
I am taking an issue with the sudden
handing up of the Nursing Services judgment because until then, the
applicant appeared not
to seriously contend the respondent's
submissions to the effect that in terms of Rules 32(2) and (4) it was
not entitled to file
a declaration and thereafter apply for summary
judgment.
[19]
In fact, in response to this particular ground of defence, Mr Van
-der Merwe made the following
submissions in paragraph 45 of the
applicant's heads of argument dated 8 February 2018;
"Without conceding that
this submission is correct, on the Respondent's version of the
application for
summary
judgment should
then be considered on the founding affidavit and the answering
affidavit in the motion proceedings only''
[20]
In paragraph 46 he made the following
submission;
"Should the Honourable
Court accept the submissions of the Respondent in this regard the
Respondent
is
invited to
indicate to the Honourable Court where on its answering affidavit in
the motion proceedings, bona tides defence is disclosed"
[21]
Under protest and agitation due to
Integral's reliance on a judgment and point of law that was not
timeously disclosed, counsel
for the respondent, Mr Lourens, also
handed up and referred to the judgment of Froneman J in the matter of
Steeldale Reinforcing (Cape) v HO HU
Corporation
2012 (2) SA 580
(Steeldale
judgment) to support the submission that filing a summary judgment
application after a declaration amounts to amplification
of the
simple summons, which is prohibited by Rule 32.
[21.1] In this matter, the
plaintiff had sued by simple summons that were issued on 20 April
2009. The defendant entered appearance
to defend on 11 May 2009,
whereafter the plaintiff delivered a declaration on 22 May 2009 and a
summary judgment application on
26 May 2009.
[21.2] The defendant did not
file an affidavit to resist the summary judgment application but
simply handed up a notice of
intention to oppose on the date of
hearing and raised issues relating to legal standing and other
defects in the confirmatory affidavit.
[21.3] Froneman J made a
finding that in a case where the action was instituted by a simple
summons, after appearance to defend
has been entered, the plaintiff
had a choice to either deliver a declaration or to apply for summary
judgment. If he chooses to
file a declaration, the defendant must
file a plea within 20 days. If the plaintiff chooses to file a
summary judgment application,
the defendant may resist the order by
giving security or filing an affidavit in terms of Rule 32(3) (b).
[21.4] He went on to state
the following at 5831-5848:
"It appears to
me
that the normal
an unexceptional process envisaged by the rule is for summary
judgment to be applied for by the plaintiff within
15 days of
delivery of the defendant's notice of intention to defend, whether
the action was commenced by way of simple or combined
summons. The
application must be accompanied by an affidavit that must verify the
cause of action and the amount claimed, nothing
more,
or Jess, in
respect of those aspects. The rule itself does not provide for
'amplification' of the cause of action as set out in
the summons, be
it
a
simple
or combined summons, in the verifying affidavit (see Maharaj v
Barclays National Bank Ltd
1976 (1)
SA
418(A)
at 422A-D;
Forlamel (pty) Ltd v Maddison
1977 (1)
SA
333
(A) at
346B-C; Harms Civil Procedure in the Superior Courts para
B32.6,pB212-213), nor does it envisage any amplification of either
form of the summons in some other way (compare Essa Standard South
Africa (pty) Ltd v Virginia Oils and Chemical
Co
(pty) Ltd
1972
(2) SA 81
(0) at 83A-B; Jacobs v FPJ Finans (Edms) Bpk
1975 (3)
SA
345
(0)."
[21.5] He went on to
discuss cases where courts have allowed amplication of original
summons for various reasons. One
of the judgments is that of Tebbut J
in the matter of BW Kuttle & Association Inc v O'Connel Manthe
and Partners Inc
1984 (2) SA 665
© at 668F where the judge had
said ;
"
I cannot
see
no
reason why
a
plaintiff who wishes to obtain summary judgment
on
a
simple summons cannot, after appearance to defend
has
been entered, file
a
declaration in amplification of his
cause of action. If he can amplify his cause of action in his
verifying affidavit, and does
not thereby waive his right to claim
summary judgment, I find it difficult to see how he can be said to
have waived that right
if he amplifies his simple summons by filing
a
declaration.'
[21.6] He disagreed
with the cases where amplification of the cause of action was allowed
because, according to him,
that
is 'contrary to the express
wording of rule 32(2) and (4), as well as the binding authority of
the Maharaj and Fourlanel
cases
(referred to in [9] above).
O'Connel Manthe, above, was of course decided after these cases, but
it
seems
to me that its reasoning and outcome cannot survive
them.'(at 585A-B)
[21.7] At paragraph
585C-D he stated the following;
'The present matter deals with
a
simple
summons. Setting out
a
cause of action
in concise form in a simple summons is not an onerous task. Without
doing so it is difficult to envisage
a
plaintiff being
granted judgment in any kind of proceedings. If the case the
defendant has to meet cannot be gleaned from the particulars
in the
summons, that fact would, on its own, probably be sufficient to
constitute
a
bona fide defence
for
a
defendant
faced with an application for summary judgment (compare Maharaj,
above, at 427E-G). it appears to
me,
with respect that
the past underlying justification for allowing amplification of the
summons [either in the verifying affidavit,
or by delivering
a
declaration, or
by delivering further particulars for the purpose of pleading,)
namely that it allows for
a
more
comprehensive exposition of the case the defendant has to
meet,
and thus leads to
a
better
assessment of whether defendant has disclosed
a
bona fide
defence,
is
countenance neither bk'. the wording of rule 32(2) and (4), nor by
present binding authority
.
Summary judgment has repeatedly been described as an extraordinary
and stringent rem ed y, (see Maharaj, above, at 425H; Tesven
CC
and Another v
South African Bank of Athens 2000(1) SA 268 (SCA)
....
and there
seems to
me
to
be little remaining reason for extending its scope by allowing
'amplification', in whatever form, of the cause of action
as
set
out in either form of summons.'
'(Highlighted
for emphasis)
[22]
The manner in which the Nursing Services
judgment was presented was not only an ambush on the respondent, but
also to me. The purpose
of heads of argument and particularly
reference to law and authorities is to enable the Judge to anticipate
the nature of the disputes
and to read the authorities in time.
[23] I
allowed filing of further heads of argument because I was told that
there are no judgments on the
exact question relating to whether
filing of a summary judgment after delivery of a declaration
constituted amplification of the
cause of action and that my decision
in this regard may be reportable.
[24] Well,
as it will appear hereunder, our courts have already considered this
issue. Each case comes with
its own unique facts. The common thread
in all the matters being procedure for applying summary judgment.
Most of the earlier authorities
that Mr Van der Merwe has attached in
his heads of argument deal with furnishing of further particulars,
and whether this constitute
a further step that would disentitle an
applicant from applying for summary judgment. This procedure (request
of further particulars
for purposes of pleading) is no longer
available in the High courts. Where relevant, these were held to be
part of the summons
and not next step.
The issues that requires
consideration are whether summary judgment is competent on a matter
that has been referred to trial due
to disputes of fact that cannot
be resolved on affidavits.
[25]
Both Nursing Services and Steeldale
judgments are from the same division and were issued almost at the
same time.
The arguments before me centred
around which one is correct and which one was followed In subsequent
decisions and is authority
on the correct interpretation of the rules
32(2) and (4). None of the counsel had immediate answers to the
questions. I then adjourned
the Proceedings and requested the parties
to submit further heads of argument to address the lingering question
relating to competency
of summary judgment after filing of a
declaration. This question must be answered in the context of the
order of referral to trial.
[26]
I received the supplementary heads of
argument about two weeks later. I do not intend to burden this
judgment with an analysis of
the fifteen
(15)
judgments (including Nursing Services and Steeldale) that were
attached to Mr Van Der Merwe's supplementary heads of argument,
which, in the main, are cases where the authorities in the Nursing
Services judgment were referred to. They are all not helpful.
[27]
Perhaps the most disturbing part of the
supplementary heads of argument filed on behalf of the applicant is
the submission that
seeks to minimize the importance of the Steeldale
judgment.
[28]
In paragraph 18, Mr Van der Merwe made
amongst others, a submission that the Steeldale judgment, though
reported in 2010,
"has never
even been referred to by any other court"
[29]
In paragraph 19 of the heads of argument
he went on to submit as follows;
"It
is
respectfully
submitted that the reason why there has been no referral to the
aforesaid matter speaks for itself and it can hardly
be said that the
aforesaid matter is the locus classicus on the point'.
[30]
I conducted my own research and I came
across may judgments that have referenced the Steeldale judgment on
the very issue before
me.
[30.1] In this division,
Msimeki J , in the matter of
Business Venture Investments NO 1360
(Pty) Ltd v Soft Coffee (Pty) Ltd t/a Hard Rock Cafe and Others
(57868/17} [20181 SAGPPHC 776
(23 February 2018).
This was a summary judgment
application and one of the issues under consideration was whether a
subsequent amendment of the particulars
of claim rendered the
application incompetent and thereby entitling the defendant to leave
to defend the action. He referred to
paragraph [15] p.585C-D of the
judgment of Froneman to come to a conclusion that the amendment was
not permissible as it would
constitute amplification of the summons.
[30.2] In the Namibian High
Court. Case No 11762/2011. Corbet JA had to deal with an application
to strike out certain parts
of the verifying affidavit for
non-compliance with Rule 32(4) as it was amplifying the summons.
[31]
The context may be different but the
principle is the same. The cause of action must appear in the
summons. be it simple or combined.
Once a litigant makes an election
to file a declaration, the next step in terms of the Rules of Court
is filing of the plea.
[32]
It is not necessary for me to refer to
the many cases attached to the supplementary heads of argument
because most of the issues
arising from there were dealt with in the
judgment of Froneman J. The applicant's contentions was that this
judgment has not dealt
with certain issues and has not considered
certain judgments referred to in the Nursing Services judgment. This
is simply incorrect.
The relevant Rules of Court
and their application in this matter
[33]
Rule 6 (5) (g) reads as follows
'Where an application cannot
properly be decided on affidavit the court may
dismiss
the application or make such order as to it seems meet with
a
view to ensuring
a
just
and expeditious decision. In particular, but without affecting the
generality of the aforegoing, it may direct that oral evidence
be
heard on specified issues with
a
view to resolving
any dispute of fact and to that end may order any deponent to appear
personally or grant leave for him or any
other person to be
subpoenaed to appear and be examined and cross examined as a
witness
or it
may
refer the
matter to trial with appropriate directions as to pleadings or
definition of issues, or otherwise.
(Highlighted for emphasis)
[34]
The order of Kuny AJ did not define the Issues that were referred to
trial. This is possibly the reason behind the controversies
in this
matter.
[35]
One can accept that the issues in
dispute were too wide-ranging for resolution by way of referral to
oral evidence, hence they were
referred to trial.
Erasmus
'Syperior Court Practice', Service 4, 2017 at 01-79-
,
referring to authorities cited therein, states that
'It is essential that the
issues be defined. It is an alternative procedure
to
dismissal of the
application in such circumstances, and is appropriate where the
applicant when launching his application could
not reasonably have
foreseen that a serious dispute of fact, incapable of resolution on
the papers, was bound
to
develop'
[36]
Rule 20: Declaration
(1)
In all actions in which the
plaintiff's claim is for a debt or liquidated demand and the
defendant has delivered notice of intention
to defend, the plaintiff
shall, except in the case of
a
combined summons, within fifteen days
after his receipt thereof, deliver
a
declaration.
(2)
The declaration shall set forth
the nature of the claim, the conclusions of law which the plaintiff
shall be entitled to deduce
from the facts stated therein
,
and
a
prayer for the relief claimed.
(3)
Where the plaintiff seeks relief
in respect of several distinct claims founded upon separate and
distinct facts, such claims and
facts shall be separately and
distinctly stated.
[37]
Rule 22: Plea
(1)
Where
a
defendant has
delivered notice of intention to defend,
he
shall within
twenty days after the service upon him of
a
declaration or
within twenty days after delivery of such notice in respect of
a
combined summons,
deliver
a
plea
with or without
a
claim in
reconvention, or an exception with or without application to strike
out.
(2)
The defendant
shall In his plea either admit or deny or confess and avoid
a//
the material
facts alleged in the combined summons or declaration or state which
of the said facts are not admitted and to what
extent, and shall
clearly and concisely
state
all material
facts upon which he relies"
[38]
Following the sequence and consequences
of the rules, it is clear, as Froneman J has stated. that the step
that follows a declaration
is a plea. This is also logical, when
reading the order of Kuny AJ.
[39]
Rule 30(1) reads as follows: Irregular
Proceedings
'(1)
a party to a cause in which an irregular step has been taken by any
other party may apply
to court to set it aside.
'
[40]
The order of Kuny AJ did not define the
issues that were being referred to trial as contemplated in Rule 6(5)
(g), but only indicated
conversion of the documents filed and filing
of further pleadings.
[41]
The simultaneous filing of the
declaration (Rule 20) and summary judgment application (Rule 32)
created the current controversy
in my view. However, this not being
an appeal. I am not at liberty to question the manner in which the
order was drafted. The parties
are happy and between the themselves,
they are satisfied that it is what it is.
A relevant question to be asked
though is whether this simultaneous service of the notices was
regular and whether Efkon has responded
in a proper manner as
contemplated in the Rules.
[42]
In principle, one notice does not
suspend operation of the other as there are different sanctions and
remedies attached to each.
(Potpale
Investments (Pty) Ltd v Mkhize (1711/2014) ZAKZPHC 55;
2016 (5) SA 96
(KZP) (15 December 2015).
A party
confronted with a pleading must exercise a choice afforded in terms
thereof. A declaraiton requires a defendant to file
a plea. A summary
judgment application requires the respondent (defendant) to file an
affidavit to resist the application.
[43]
The outcome would probably have been the same because the irregular
step notice (rule 30) and
summary judgment (Rule 32) applications
would have been heard together.
[44]
Rule 32: Summary Judgment
(1)
Where the defendant has delivered
notice of intention to defend, the plaintiff may apply to court for
summary judgment on each of
such claims in the summons as is only-
(a)
on
a
liquid document;
(b)
for
a
liquidated amount in money;
(c)
for delivery of specified movable
property; or
(d)
for ejectment;
together with any claim for
interest and costs.
(2)
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 bona fide
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.
(3)
Upon the hearing of an
application for summary judgment the defendant may-
(a)
give security to the plaintiff to
the satisfaction of the registrar for any judgment including
costs
which may be given, or
(b)
satisfy the court by affidavit
(which shall be delivered before noon on the court day but one
preceding the day on which the application
is
to be heard) or with the leave of the
court by oral evidence of himself or of any other person who can
swear positively to the fact
that he has
a
bona fide defence to the action; such
affidavit or evidence shall disclose fully the nature and grounds of
the defence and the material
facts relied upon therefor.
(4)
No evidence may be adduced by the
plaintiff otherwise than by the affidavit referred to in subrule (2),
nor may either party cross-examine
any person who gives evidence viva
voce or on affidavit: Provided that the court may put to any person
who gives oral evidence
such questions as ft considers may elucidate
the matter.
(5)
If the defendant does not find
security or satisfy the court
as
provided in paragraph (b) of subrule
(3), the court may enter summary judgment for the plaintiff.
(6)
If on the hearing of an
application made under this rule it appears-
(a)
that any defendant
is
entitled to defend and any other
defendant is not so entitled; or
(b)
that the defendant is entitled to
defend as to part of the claim, the court shall-
(i)
give leave to defend to
a
defendant so entitled thereto and
give judgment against the defendant not so entitled; or
(ii)
give leave to defend to the
defendant
as
to
part of the claim and enter judgment against him
as
to the balance of the claim, unless
such balance has been paid to the plaintiff; or
(iii)
make both orders mentioned in
sub-paragraphs (i) and (ii).
(7)
If the defendant finds security
or satisfies the court as provided in subrule (3), the court shall
give leave to defend, and the
action shall proceed
as
if no application for summary
Judgment had been made.
(8)
Leave to defend may be given
unconditionally or subject to such terms
as
to security, time for delivery of
pleadings, or otherwise, as the court deems fit.
(8A)
Where delivery of a declaration is required by these Rules and the
court, when giving leave to defend
in terms of this rule, has not
made an order for the delivery of such declaration within a specified
time, such declaration shall
be delivered within 20 days of the date
leave to defend has been given.
(9)
The court may at the hearing of
such application make such order as to
costs
as to it may seem just: Provided that
if-
(a)
the plaintiff makes an
application under this rule, where the case is not within the terms
of subrule (1) or where the plaintiff,
in the opinion of the court,
knew that the defendant relied an
a
contention which would entitle him to
leave to defend, the court may order that the action be stayed until
the plaintiff has paid
the defendant's costs; and may further order
that such costs be taxed as between attorney and client; and
(b)
in any case in which summary
judgment was refused and in which the court after trial gives
judgment for the plaintiff substantially
as prayed, and the court
finds that summary judgment should have been granted had the
defendant not raised a defence which in its
opinion was unreasonable,
the court may order the plaintiff's costs of the action to be taxed
as between attorney and client.
Conclusion
[45]
The authorities are clear with regard to
the first question. The applicant was not entitled to file a summary
judgment application
after delivery of the declaration. This fact is
clear from an ordinary reading of the rules of court.
[46]
Even if I am wrong on the first
question, the respondent is entitled to rely on the reasons for
referral of the matter to trial,
which was a mechanism to assist the
applicant to convert the application to action proceedings.
[47]
The existence of disputes of fact is indicative of the fact that
there are some triable issues.
[48]
Efkon submitted that the motion court
has already adjudicated the matter and found that there are disputes
of fact that cannot be
properly decided on affidavit. Whilst agreeing
with this submission, counsel for lntergral submitted that the court
did not decide
whether those disputes would constitute defences to
ward off a summary judgment application. The latter's attitude is
disingenuous.
The opposed motion court could not have made rulings as
if it was considering an application for summary judgment. It is
inconceivable
that a factual dispute on the issues that have been
pleaded would not constitute a defence as contemplated in Rule 32.
[49]
The last issue for consideration is
whether there is any defence raised on the merits in the affidavit to
resist summary judgment.
The respondent has simply stated that its
answering affidavit (notice of intention to defend) must be taken
into account.
[50]
In the context of the totality of the
circumstances, and in view of the findings above, this issue will not
make a difference, even
if I were to address it.
[51]
In the matter of
Di
Savino v Nedbank Namibia
Ltd
[1]
,
the appeal court, per Ngcobo AJA considered the principles of summary
judgment, in particular the issue of whether the failure
of the
affidavit to measure up to the requirements of the Rule would result
in the granting of summary judgment.
Principles governing summary
judgment
23.
One of the ways in which the
defendant may successfully avoid summary judgment is by satisfying
the court by affidavit that he or
she has a bona fide defence to the
action. The defendant would normally do this by deposing to facts
which, if true, would establish
such a defence. Under Rule 32(3) (b)
the affidavit must "disclose fully the nature and grounds of the
defence and the material
facts relied upon therefor'. Where the
defence is based upon facts and the material facts alleged by the
plaintiff are disputed
or where the defendant alleges new facts, the
duty of the court is not to attempt to resolve these issues or to
determine where
the probabilities lie.
24.
The enquiry that the court must
conduct is foreshadowed in Rule 32(3) (b) and it is this: first, has
the defendant "fully"
disclosed the nature and grounds of
the defence to be raised in the action and the material facts upon
which it is founded; and,
second, on the facts disclosed in the
affidavit, does the defendant appear to have, as to either the whole
or part of the claim,
a
defence
which is bona fide and good in law.
[2]
If the court is satisfied on these
matters, it must refuse summary judgment, either in relation to the
whole or part of the claim,
as the
case
may be.
25.
While the defendant is not
required
to
deal
“exhaustively with the facts and the evidence relied upon to
substantiate them”: the defendant must at least disclose
the
defence to be raised and the material facts upon which it is based
"with sufficient particularity and completeness to
enable the
Court to decide whether the affidavit discloses
a
bona fide defence."
[3]
Where the statements of fact are ambiguous or fail to canvass matters
essential to the defence raised, then the affidavit does
not comply
with the Rule.
[4]
26.
Where the defence is based on the
interpretation of an agreement, the court does not attempt to
determine whether or not the interpretation
contended for by the
defendant is correct. What the court enquires into is whether the
defendant has put forward a triable and
arguable issue in the sense
that there is a reasonable possibility that the interpretation
contended for by the defendant may succeed
at trial, and, if
successful, will establish a defence that is good in law.
[5]
Similarly, where the defendant relies upon a point of law, the point
raised must be arguable and establish
a
defence that is good in law.
27.
But the failure of the affidavit
to measure up to these requirements does not in itself result in the
granting of summary judgment.
The defect may, nevertheless be cured
by reference to other documents relating to the proceedings that are
properly before the
court.
[6]
In Sand and
Co.
Ltd
v Kollias the court held that the principle that is involved in
deciding whether or not to grant summary judgment is to look
at the
matter "at the end of the day" on all the documents that
are properly before the court.
[7]
Costs
[52]
I have already discussed the manner in
which the Nursing Services judgment was introduced and argued, even
to an extent of not presenting
the correct legal position in view of
obvious case references that are available, including a sequential
reading of the rules of
court.
[53]
The applicant was rescued by the motion
court as it faced a dismissal of the application by conversion of the
application to a trial,
however, it decided to take a detour by
taking a procedural step that in terms of trite principles it should
not have taken.
[54]
Furthermore, the applicant was aware
that the issues as determined in the opposed motion hearing are
disputes of fact, which, even
if the legal point was good, would have
entitled me, in the exercise of my discretion, taking into account
where the matter was
coming from, to grant the respondent leave to
defend the action.
[55]
In the matter of
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[8]
, Navsa JA
[9]
restated the origin and principles
of summary judgment and cautioned about the labelling of summary
judgment as "extraordinary".
"[29] A
summary judgment procedure was first introduced into our practice by
the Magistrate's Court Act of
1917. It was based upon
a
procedure
introduced in England by Order XIV under the Judicature Acts whereby
a plaintiff was able, by means of a summary proceeding,
to obtain a
final Judgment when there was no bona fide defence to an action.
10
[30]
In John Wallingford v The
Directors &c. of The Mutual Society
(1880)
5 AC 685
(HL)
at 699-700, Lord Hatherfey referred to the objects of the new English
procedure as follows:
'I apprehend that from the
first the objects of these short methods of procedure has been to
prevent unreasonable delay,
a
delay which was
very prejudicial to the creditors, and never, I am afraid, or rather,
I am pleased to say, can have been very beneficial
to the debtor
himself. Simply allowing legal proceedings to take place, in order
that delay may be applied to the administration
of justice as much as
possible, is not an end for which we can conceive the Legislature to
have framed the provisions which now
exist under the several
Judicature Acts. If a man really has no defence, it is better for him
as well as his creditors, and for
all the parties concerned, that the
matter should be brought to an issue as speedily as possible; and
therefore there was
a
power given in
cases in which plaintiffs might think they were entitled to use the
power by which, if it was a matter
of
account, an
account might be immediately obtained upon the filing of a bill, or,
if it was a matter in which the debt was clear
and distinct, and in
which nothing was needed
to
be said or done
to satisfy
a
Judge that there
was no real defence to the action, recourse might be had to an
immediate judgment and
to
an immediate
execution.'
[31]
So too
in
South Africa, the summary judgment 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.
[10]
[32]
The rationale for summary
judgment proceedings is impeccable.
The
procedure is not intended to deprive a defendant with a triable issue
or a sustainable defence of her/his day in court. After
almost a
century of successful application in our courts, summary Judgment
proceedings can hardly continue to be described as extraordinary.
Our
courts, both of first instance and at appellate level, have during
that time rightly been trusted to ensure that a defendant
with
a
triable Issue is not shut out
In the Maharaj case at 425G-426E, Corbett JA, was keen to ensure
first, an examination of whether
there has been sufficient disclosure
by a defendant of the nature and grounds of his defence and the facts
upon which it Is founded.
The second consideration is that the
defence
so
disclosed
must be both bona fide and good
in
law. A court which is
satisfied that this threshold has been crossed is then bound to
refuse summary judgment Corbett JA also warned
against requiring of a
defendant the precision apposite to pleadings. However, the learned
judge was equally astute to ensure that
recalcitrant debtors pay what
is due to a creditor.
(Highlighted
for emphasis)
[33]
Having regard to its purpose and
its proper application, summary judgment proceedings only hold
terrors and are 'drastic' for
a
defendant who has no defence. Perhaps
the time has come to discard these labels and to concentrate rather
on the proper application
of the rule, as set out with customary
clarity and elegance by Corbett JA in the Maharaj case at 425G-
426E.
[56]
The opposition of this summary judgment
in my view is not one of those that have been described as a simple
delaying tactic. The
motion court has already ruled that there are
dispute that must be tested at the trial court. The respondent was
surprised by the
applicant's stance of pursuing a summary judgment
application after the parties were directed to proceed to trial on
the basis
of factual disputes. According to counsel for the
respondent, the applicant was requested, on numerous occasions to
withdraw this
application. The invitation was also made on record
during the hearing of this application.
[57]
Counsel for the respondent has urged me
to grant an order of costs against the applicant on a scale as
between attorney and own
client and also to exercise my discretion in
terms of Rule 32(9) and direct that the matter be stayed until such
costs , which
are to be taxed, have been paid.
[58]
The cause of action in the motion proceedings was the same agreement
that Intergral relies on
for the relief sought in the summary
judgment application before me. The fact that in the declaration more
details were pleaded,
because of the nature of action proceedings do
not make it different. The matter was referred to trial because the
motion court
could not decide on the disputes arising from the papers
filed, founding, answering and replying affidavit, even after a full
oral
argument.
[59]
Instead of taking the route to trial, as
indicated in the court order, lntergral decided to utilize a
technicality that the rules
do not specifically exclude filing of an
application for summary judgment. This despite the ruling made by the
motion court that
the disputes must be properly ventilated.
[60]
I am of the view that the conduct of the
applicant fall in the category referred to In the matter of
Ward
v Sulzer
[11]
,
where the following was stated
"for
example vexatious, unscrupulous, dilatory or mendacious conduct {this
list is not exhaustive) on the part or an unsuccessful
litigant may
render it unfair for his harassed opponent to be out of pocket in the
matter of his own attorney and client
costs".
[61]
The purpose of attorney client cost
order was explained as follows in the matter of
Nel
v LandBouwers Ko.Operative Vereeneging
1946 AD 597
"The true explanation of
awards of attorney and client costs not expressly authorised by
Statute
seems
to
be that, by reason of special considerations arising either from the
circumstances which give rise to the action or from the
conduct of
the losing party, the court in
a
particular case
considers it just, by means of such an order, to ensure more
effectually than it can do by means of
a
judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him by
the litigation.
Theoretically
a
party and party
bill taxed in accordance with the tariff will be reasonably
sufficient for that purpose. But in fact
a
party may have
incurred expense which Is reasonably necessary but is not chargeable
in
a
party
and party bill."
[62]
Having considered all the relevant
facts, I am of the view that the applicant should not only pay costs
on a punitive scale, but
that the matter as referred to trial by the
order of Kuny AJ be stayed, until the applicant has paid the costs of
this application,
which must be taxed.
Order
[63]
Under the circumstances, I make the
following order;
[63.1] The application is dismissed.
[63.2] The applicant
is ordered to pay costs on a scale as between attorney and own
client.
[[63.3] The matter as
referred to trial by order of Kuny AJ dated 19 October 2018 is stayed
until the applicant has paid the
respondent's taxed costs.
TAN
Makhuvele
Judge
of the High Court
APPEARANCES
Applicant:
Adv. AR Van der Merwe
Instructed
by:
Senekal Steyn Inc
Nieuw Muckleneuk
Pretoria
Respondent:
Adv. P. Lourens
Adams & Adams
Lynwood Manor
Pretoria
Heard
on: 11 & 13 February 2019
Heads
of argument: 27 February 2019.
Judgment
delivered on: 24 May 2019.
[1]
(SA 24/2010)
[2012] NASC 3
(21 June 2012)
[2]
Maharaj v Barclays National Bank Ltd,
1976(1) SA 418 (A)at
426A-C
[3]
Maharaj v Barclays National Bank, supra,
at 426C-D
[4]
Arend and Anotherv Astra Furnishers (Pty) Ltd,
1974(1) SA
298(C) at 304A-B
[5]
Shingadia v Shingadia,
1966(3) SA 24(R) at 26A-B;
Tesven
CC and Another v South African Bank of Athens,
2000(1) SA 268
(SCA) at para 26;
Shepstone v Shepstone,
1974(2) SA 462{N) at
467A;
Marsh and Another v Standard Bank of SA Ltd,
2000(4) SA
947(W) at 949 para 3
[6]
Sand and
Co.
Ltd v Kollias,
1962 (21SA 162
)
at 165;
Maharaj v Barclays National Bank Ltd, supra,
at
423H
[7]
Gand and Co. Ltd v Kollias, supra ,
id . (161/08)
[8]
[2009] ZASCA 23
(
27 March 2009).
[9]
Harms DP, Brand, Mhlanta JJA and Boslelo AJA concurring
[10]
1973 (3) SA (AD) at 706H
[11]
1973 (3) SA 701
(AD) at 706H