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[2019] ZAECMHC 10
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Lessing v Quanza Holdings (PTY) LTD (2362/2018) [2019] ZAECMHC 10 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION :
MTHATHA)
CASE
NUMBER: 2362/2018
In
the matter between:
QUENTIN
LESSING
Applicant
and
QUANZA
HOLDINGS (PTY)
LTD
Respondent
JUDGMENT
NDAMASE,
AJ:
[1]
This is an interlocutory application in which the applicant seeks
leave to deliver an affidavit to supplement
that delivered in
opposition to a summary judgment application.
[2]
By way of background, the respondent who is the plaintiff in the main
action issued summons against
the applicant, the defendant in the
main action, on 25 May 2018. For ease of reference, I shall continue
referring to the parties
as they are referred to in the present
proceedings.
[1]
Subsequent
to the entry of an appearance to defend, the respondent launched an
application for summary judgment in terms of rule
32 of the Uniform
Rules of the Superior Court Practice,
[2]
on
the 11 July 2018.
[3]
It is averred in the particulars of claim that the
parties concluded a written lease agreement in respect of commercial
premises situated in Mthatha from which the applicant conducts the
business of tyre and exhaust fitment and repair centre. The
respondent is seeking to recover rental allegedly due and payable by
the applicant over 10 (ten) months, from 01 August 2017 to
01 May
2018, totaling R588 659. 98.
[4]
The applicant filed an affidavit resisting summary judgment in which
he sought to challenge the respondent’s
lack of ownership over
the premises. In disclosing his
bona
fide
defence he annexed the title deed
showing that the respondent is not the owner of the premises. He
further attached a letter from
the attorneys acting on behalf of one
Yoliswa Dweba who is an executrix of the estate of the late Daniel
Dweba, the apparent title
holder of the premises, threatening to
evict the applicant from the said premises. It is accordingly this
opposing affidavit which
the applicant now seeks leave to supplement.
[5]
The grounds set out by the applicant as to why the supplementary
affidavit should be allowed are-
[5.1]
The applicant’s quest is to place
additional information before Court to explain why
the respondent in
his particulars of claims relies on the terms of the Court Order
granted on 23 September 2016 under case no.
3347/2017 of this Court,
in addition to the aforesaid lease agreement.
[5.2]
Subsequent to the filing of the affidavit in opposition to the
summary judgment application,
it seems the applicant was, on 05
September 2018, served with eviction proceedings from the executrix
of the estate of the late
owner of the premises and for the same
period upon which the respondent
’
s
claim is based. The applicant has attached eviction papers served
upon him in substantiating the reasons for the last hour need
to
supplement his affidavit.
[5.3]
Subsequent to the delivery of the opposing affidavit the executrix of
the estate of the
late owner of the premises served both the
applicant and the respondent with summons for recovery of rent in
respect of the
same premises on 05 September 2018. Again, the
applicant has attached the copy of summons to substantiate the
reasons for bringing
this application. Both the action and
applications referred to above were, however, later withdrawn on the
16 November 2018.
[5.4]
As the respondent
’
s claim in the main
action is founded largely on arrear rent, the application seems to
contain information relating to payments
purportedly made to both the
executrix and the respondent in respect of the same premises and
purportedly in accordance with some
agreement concluded between and
among the parties on 15 February 2018 in the presence of the parties’
legal representatives.
This is the basis for seeking permission to
file a supplementary affidavit.
[6]
The respondent is opposed to the application to file a supplementary
affidavit.
[7]
The opposition hinges largely on rule 6 (5) (e)
which establishes that the delivery of further affidavits
in motion
proceedings is only permissible with the indulgence of the court. It
avers that it is only in exceptional circumstances
where something
unexpected or new emerges, that the filing of further affidavits is
permitted and that, even so, there should be
a proper explanation
which negates
mala
fides
or
culpable remissness as to why the information was not placed before
court earlier by a party.
[3]
[8]
The respondent’s main contention is that the alleged subsequent
events relating to eviction action
and application proceedings
against both the applicant and the respondent have nothing to do with
the main action forming the subject
of the summary judgment
application. Further it is the respondent’s position that the
issues raised in the applicant’s
affidavit fall within the
realm of the Administration of the Deceased Estates Act 66 of 1965
and are yet to be determined by the
Master of the High Court, Mthatha
where the Estate of the late Daniel Dweba is registered.
[9]
Summary judgment proceedings are relatively an expeditious way of
resolving disputes. In
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[4]
,
Navsa JA set out a brief history of the summary judgment procedure
and pointed out that:
“…
[T]he
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 but
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 endeavoring to enforce their rights.”
[5]
[10]
Rule 32 (3)
(b)
obliges
a respondent in summary judgment proceedings to adduce a
bona
fide
defence to the action which is
good in law by way of an affidavit which discloses fully the nature
and grounds of the defence and
the material facts relied upon
therefor. A court which is satisfied that this threshold has been
crossed is then bound to refuse
summary judgment.
[11]
In
Maharaj
v Barclays National Bank Ltd
,
[6]
Corbett
JA, as he then was, emphasized that “
the
defendant is not expected to formulate his opposition to the claim
with the precision that would be required of a plea; nor
does the
court examine it by the standard of pleadings. It is sufficient that
the defendant discloses his defence 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
.”
[12]
Against this backdrop, a court seldom allows the filing of
supplementary
opposing affidavits in summary judgment proceedings. In
Gani
v Crescent Finance Corporation (Pty) Ltd
,
[7]
a
request for a postponement to enable the filing of a supplementary
affidavit was granted because of the particular circumstances
of that
case, namely, that the defendant’s affidavit was by mistake
technically defective. A court has a discretion in an
appropriate
case to allow an additional affidavit by a defendant in order to
improve a defective attempt to set out a defence to
the plaintiff’s
claim to prove his
bona
fides
.
[13]
Coming to the facts of the present case, as contended by the
respondent,
the question is whether the supplementary affidavit in
this instance is a further affidavit as contemplated in rule 6 (5)
(e)
.
The rule deals generally with the delivery of affidavits in
application proceedings. It provides:
“
6
Applications (rules of the court)
(1)Save
where proceedings by way of petition are prescribed by law, every
application shall be brought on notice of motion supported
by an
affidavit as to the facts upon which the applicant relies for relief.
(2)
…
(3)
…
(4)
…
(5)
(d) Any person opposing the grant of an order
sought in the notice of motion
shall
(i)
…
(ii)
…
..within
fifteen days of notifying the applicant of his intention to oppose
the application deliver his answering affidavit
,if any,
together with any relevant documents; and
(iii)
…
.
(e)
Within 10 days of the service upon him of the affidavit and documents
referred to in subparagraph (ii)
of paragraph (d) of sub rule (5) the
applicant may deliver a replying affidavit. The court may in its
discretion permit the filing
of further affidavits
”
[14]
From the above, it is clear that this rule 6 is applicable in
motion proceedings where only three sets of
affidavits are allowed,
being the founding affidavit, the answering affidavit and the
replying affidavit. Any other affidavit besides
these three is a
further affidavit. In my view, the essence of the respondent’s
argument in placing reliance on rule 6 (5)
(e)
in opposing the delivery of a supplementary
affidavit in the present circumstances is misplaced.
[15]
Applying the principles stated in
Gani
[8]
to
the instant matter, the procuring of additional information relevant
to the facts of what was originally contained in both the
affidavit
supporting summary judgment and the opposing affidavit, in my view
rendered the circumstances to be extra ordinary to
warrant the
augmentation of his opposing affidavit. It is of no consequence that
the intervening proceedings were subsequently
withdrawn.
Consequently, I believe that it is a correct and advisable approach
to allow the filing of a supplementary affidavit
in the interest of
justice, to enable the applicant to augment his
bona
fide
defence.
[16]
I am therefore satisfied that the explanation given by the applicant
in relation to the grounds for the filing
of the supplementary
affidavit is acceptable in the circumstances and within the context
of this matter.
[17]
It is common cause that the applicant who seeks to file a further
affidavit is seeking an indulgence from the Court.
It is trite
that an applicant for an indulgence should pay all such costs as
could reasonably be said to have been wasted because
of the
application, including the costs of such opposition as was in the
circumstances reasonable and not vexatious or frivolous.
[9]
[18]
I consider the opposition to this application as having been neither
vexatious nor frivolous, hence the general
principle should apply.
The respondent should not be obliged to pay the costs of its
unsuccessful opposition.
[19]
In the result, the following order is made:
(a)
The applicant is granted leave to
deliver a supplementary affidavit in pursuit of his opposition to the
summary judgment launched
against him by the respondent.
(b)
The applicant shall pay the
respondent’s costs, such costs to include the respondent’s
costs of opposition.
B
NDAMASE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the applicant
:
D
C Botma
Instructed
by
: Peter Allams Attorneys
C/o
Chris Bodlani Attorneys
Attorney
for respondent
:
S
C Vuthula
Instructed
by
: SC Vuthula & CO
Heard
on
: 22 November 2018
Judgment
delivered on
: 26 February 2019
[1]
The
applicant and the respondent
[2]
The
Uniform Rules of Court
[3]
Bangtoo
Bros and Others v National Transport Commission and Others
1973 (4) SA 667
(N);
Africa
Oil (Pty) Ltd v Ramadan Investment
2004 (1) SA 35
NPD at 38 I-J
[4]
2009
(5) SA 1
(SCA) at para [31]
[5]
See
Schoeman
v Newmark Ltd
1919 CPD 55
[6]
1976
(1) SA 418
(A) at 426 A-E
[7]
1961
(1) SA 222 (W)
[8]
Supra
[9]
Meyers
v Abramson
1951 (3) SA 438
(C)