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[2017] ZAGPPHC 391
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Development Bank of Southern Africa v Muller (49303/2016) [2017] ZAGPPHC 391 (28 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
SOUTH DIVISION,
PRETORIA
CASE
NO: 49303/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:
28/3/2017
In
the matter between
THE
DEVELOPMENT BANK OF
APPLICANT
SOUTHERN
AFRICA
AND
NICHOLAS
PHILIPPUS
MULLER RESPONDANT
Heard
on: 01 November 2016
Delivered:
28 March 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application for summary judgment in terms of which
an order is sought to direct the defendant to pay the plaintiff an
amount of R719 474.53 including he prescribed the rate of interest.
The application is opposed by the defendant on the basis that
the
plaintiff has failed to comply with the requirements of rule 32 of
the Uniform Rules of the Court (the Rules).
[2]
The plaintiff avers in the particulars of claim that it made
two payments in the amounts of R575 579.62 and R143 894.90 into the
bank account of the defendant on 15 April 2014 and 1 July 2013
respectively. Both payments were made were according to the plaintiff
made into the bank account in the
bona fide
but mistaken
belief that payment was made into the bank account of Kellog Brown
and Root South Africa (RF) (ty) Ltd (Kellog). The
payment was made to
settle the debt which the plaintiff had with of Kellog.
[3]
In his affidavit opposing the summary judgment the defendant
stated the following:
"4
The deponent to the affidavit simply states that she verifies the
"relief sought,"
This falls short of what is required to be
verified in terms of the rules of the court and as such the
application should be dismissed."
5
The deponent to the affidavit further does not provide a proper
factual basis to confirm even the
relief sought or that she has
personal knowledge of the matter and it is denied that she has."
The
legal principles
[4]
An application for a summary judgment is governed by the
provisions of rule 32(2) of the Rules which amongst other things
requires
that the deponent to the affidavit in support of such
application to positively swear to the facts verifying the cause of
action
for the plaintiff's claim.
[5]
The
purpose of
a
summary
judgment is
stated
in
Joob
Joob (Pty) Ltd
v
Mavundla
Zek
Venture,
[1]
as follows:
"[31]
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.
[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."
[6]
It is trite that an application for summary judgment in terms
of rule 32 of the Rules has to be accompanied by a supporting
affidavit
wherein plaintiff or someone acting on its behalf deals
with the following:
1.
Wears positively to the facts verifying the cause of action and the
amount and the amount, if any, claimed
2.
Stating that in his or her opinion there is no bona fide defence to
the action, and
3.
That the intention to defend was delivered solely for the purposes
of
delay,
4.
On its behalf swears positively to the facts verifying the cause of
action and the amount claimed."
[7]
The plaintiff would be entitled to the summary judgment once
the above requirements have been satisfied.
[8]
In order to mount a successful defence to a summary judgment
application the defendant has to file an opposing affidavit wherein
himself/herself or any other person on his/her behalf deals with the
following in the opposing affidavit:
1.
Swear positively to the fact that he /she has a bona fide defence
to
the action,
2.
Discloses fully the nature and the grounds of the defence and the
material facts
relied upon therefor.
[9]
The essence of the defendant's defence in the present matter
is set out in the affidavit resisting summary judgment in the
following
terms:
"4
The Applicant's application for summary judgment is fatally defective
and stands to be dismissed
for this reason alone.
5.
The deponent to the affidavit simply states that she verifies "relief
sought". This falls short
of what is to be verified in terms of
the rules of court and such application should be dismissed.
6.
The deponent to the affidavit further does not provide a factual
basis to confirm even the relief
sought or that she has personal
knowledge of the matter and it is denied that she has."
[10]
The above defence in my view bears no merit when regard is had to the
proper approach when dealing with technical defects in
an affidavit
in support of a summary judgment. It is generally accepted that
technical defects or errors in an affidavit will sustain
as a defence
where it is shown that the defendant is prejudiced by such defects or
errors. The test to apply in determining whether
summary judgment
should be granted in the face of an error or defect in a supporting
affidavit is whether there has been substantial
compliance with the
requirements of the rule. The key issue is whether the defendant can,
from the reading of the plaintiff's particulars
of claim be able to
appreciate what case he or she has to answer to. In other words, can
the defendant discern from the plaintiff's
particulars of claim what
case he or she has to answer to.
[11]
As
stated in
Standard
Bank of South Africa v Roestof,
[2]
the papers must be read in their totality and that it was not the
function of the court to protect the dishonest defendant. The
court
further held that:
"If the papers are
not technically correct due to some obvious and manifest error which
causes no prejudice to the defendant,
it is difficult to justify an
approach that refuses the application, especially in a case such as
the present one where a reading
of the
defendant's affidavit opposing
summary judgment makes it clear beyond doubt that
he knows and appreciates the
plaintiff's case against him."
[12]
In
Liberty
Group Ltd v Sighn and another,
[3]
the
court said that:
"[44] The remarks of
Myburgh J in Western Bank must however be seen in the context that
the irregularity in question was one
of a number of defects raised by
the defendant in that case. In addition, in the present case, Mr.
Tobias has not pointed to any
prejudice suffered by the defendants as
a consequence of the irregularity.
When regard is had to the
fact that the point was only seized upon by the defendant, when I
raised it at the hearing, I have no
doubt that the irregularity
should be condoned. I accordingly condone the irregularity."
[13]
In
the present matter, my view is that there is no doubt from the
reading of both the summons and the supporting affidavit for the
summary judgment that the deponent to the supporting affidavit
intended to verify the cause of action. It is in this respect clear
from the summons that the relief sought by the plaintiff is payment
of the amount of R719 474.53 by the defendant.
[4]
[14]
In considering the complaint of the defendant concerning the
technical defect that may be there in the supporting affidavit,
account
has to be taken of the fact that the defendant has not
claimed that it has suffered any prejudice as a result thereof.
[15]
The other complaint by the defendant is that the deponent to
the supporting affidavit has failed to set out the factual basis to
confirm her personal knowledge and the factual basis to confirm the
relief sought.
[16]
In terms of the rule, the deponent to the supporting affidavit
is required to "swear positively to the facts verifying the
cause of action." In my view what is required in this regard is
not evidence supporting the facts concerning the claim but
what the
deponent needs to do is to very that which is set out in the
particulars of claim.
[17]
The suggestion by the defendant that the deponent to the
supporting affidavit has no first knowledge of the facts in this
matter
bears no merit. It is in this respect trite the deponent to
the affidavit in support of the summary judgment need not necessarily
rely on direct knowledge of the facts for the purposes of being able
to positively to such facts.
[18]
In
Rees and Another v lnvesteck Bank Limited,
[5]
the
Supreme
Court of Appeal in dealing with the issue of formalism and the
requirement of direct knowledge of documents related to the
matter
held
that:
"[15] The fact that
Ms Ackermann did not sign the certificates of indebtedness nor was
present when the suretyship agreements
were concluded is of no
moment. Nor should these be elevated to essential requirements, the
absence of which is fatal to the respondent's
case. As stated in
Maharaj,
'undue formalism in procedural matters is always to
be eschewed' and must give way to commercial pragmatism. At the end
of the day,
whether or not to grant summary judgment is a fact-based
enquiry. Many summary judgment applications are brought by financial
institutions
and large corporations. First-hand knowledge of every
fact cannot and should not be required of the official who deposes to
the
affidavit on behalf of such financial institutions and large
corporations. To insist on first-hand knowledge is not consistent
with the principles espoused in
Maharaj."
[19]
It is clear in the present matter that the deponent to the
supporting affidavit acquired knowledge from the documents which were
under her control including those that she had access to for the
purposes of this matter.
[20]
In light of the above I find that the applicant has made out a
case for the summary judgment and thus its application stands to
succeed. I see no reason in the circumstances of this case why costs
should not follow the results.
Order
[21]
In the premises the following order is made:
1.
The summary judgment application is granted.
2.
The defendant is ordered to pay plaintiff the amount of R719 474.53
with interest at the
rate of 10.25°/o per annum from date of the
summons to the date of final payment.
3.
The defendant is to pay the costs of the suit.
___________________________
E
Molahlehi
Judge
of the High
Court,
Johannesburg
APPEARANCES:
For
the Plaintiff: J. M Hoffman
Instructed
by Strauss Daly Inc
For
the Defendant: W.G Pretorius
Instructed
by Lamberti Attorneys
[1]
2009 (5) SA l(SCA).
[2]
2004 (2) SA 492 (W).
[3]
2012 (5) SA 526
(KZN) at paragraph 44.
[4]
See Taxi Securitization
(Pty) Ltd
v
Mbatha
and two similar cases
2011 (1) SA 310
(GPJ) at
paragraph
11.
[5]
2014 (4) SA 220
(SCA)