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[2016] ZAFSHC 157
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Buttertum Property Letting (Pty) Ltd v Dihlabeng Local Municipality (A260/2015) [2016] ZAFSHC 157; [2016] 4 All SA 895 (FB) (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: A260/2015
In
the matter between:
BUTTERTUM
PROPERTY LETTING (PTY) LTD
Appellant
and
DIHLABENG
LOCAL MUNICIPALITY
Respondent
CORAM:
MOLOI,
J
et
DAFFUE, J
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
12
SEPTEMBER 2016
DELIVERED
ON:
22
SEPTEMBER 2016
I
INTRODUCTION
[1]
This appeal is directed at the judgment and findings of the
magistrate of Bethlehem dated 25 March 2015 in terms whereof summary
judgment was granted in favour of the plaintiff in the amount of
R19 090.84 plus interest at the rate of prime plus 1% from
1
December 2013 to date of payment together with costs on attorney and
client scale, including preparation costs.
II
THE
PARTIES
[2]
Appellant is Buttertum Property Letting (Pty) Ltd, a private company
with principal place of business situated at 99 Malherbe
Street,
Clarens, Free State. Appellant was the unsuccessful defendant
in the court
a
quo
against whom summary judgment was granted.
[3]
Respondent is the Dihlabeng Local Municipality. It instituted
action against the defendant in the court
a
quo
and eventually obtained summary judgment as mentioned above.
[4]
For ease of reference the parties will be referred to as cited in
this court.
III
RELEVANT
AVERMENTS IN THE SUMMONS
[5]
Paragraph 1 of the summons reads as follows:
“
Payment
of the sum of R19 090.84 (nineteen thousand and ninety rand and
eighty four cents), being the amount which is due,
owing and payable
by the defendant to the plaintiff for rates and taxes imposed on erf
900, Clarens, being the property of the
defendant as well as charges
levied in respect of municipal services including sanitation to the
defendant on the latter’s
special instance and request during
the period February 2008 till November 2013 which amount is currently
due and payable and which
said sum, despite demand, remains unpaid.”
[6]
It is further alleged that respondent was entitled to levy interest
on the arrear amount at the prime interest rate plus 1%
in respect of
its by-laws read with s 98(1) of the Systems Act. This must be
a reference to the
Local Government: Municipal Systems Act, 32 of
2000
.
[7]
It is apparent from the summons that respondent relied on claiming
payment of one sum of money whilst this amount is the total
amount
allegedly due and payable in respect of different causes of action,
to wit (1) rates and taxes (2) levies for sanitation
services (3)
municipal services not described, but which could be (a) levies for
water supply, (b) levies for electricity supply,
(c) water usage and
(d) electricity usage and (4) refuse removal levies. I shall
deal with this aspect later herein.
IV
THE
SUMMARY JUDGMENT APPLICATION
[8]
The acting municipal manager of respondent deposed to an affidavit in
support of summary judgment and he
inter
alia
made the following allegations:
“
2.
I can swear positively on (sic) the facts contained herein.
3. I
confirm
the
action
as stated in the summons against the defendant as
well as the amount claimed therein. The defendant owes the
amount of R19 090.84
(nineteen thousand and ninety rand and
eighty four cents) to plaintiff together with costs with regards to
the
facts stated in the summons
.
4.
I confirm that I am truly of the opinion that there is no
bona
fide
defence against the plaintiff’s claim and that the notice of
intention to defend has been filed solely to delay this action.”
(emphasis
added)
[9]
During my discussion hereunder I shall return to the allegations
contained in paragraph three of the affidavit in order to adjudicate
whether there was compliance with the provisions of
rule 14
of the
Magistrate’s Courts’ Rules of Court.
[10]
Rule 14(2)(a)
of these Rules reads as follows:
“
The
plaintiff shall within 15 days after the date of service of notice of
intention to defend, deliver notice of application for
summary
judgment, together with an affidavit made by the plaintiff or by any
other person who can swear positively to the facts
v
erifying
the cause of action and the amount
,
if any, claimed and stating that in his or her opinion there is no
bona
fide
defence to the action and that notice of intention to defend has been
served solely for the purpose of delay.”
(emphasis
added)
V
BRIEF
HISTORY OF THE LITIGATION
[11]
Although I am of the opinion that the appeal can be disposed of by
simply considering the summons and founding affidavit of
respondent’s
deponent in support of the summary judgment application, it is deemed
necessary to set out the history of the
litigation between the
parties as this will have a bearing on the costs orders to be made.
[12]
Action was instituted on 9 April 2014 and the summons was served on 6
May 2014 by affixing a copy thereof to the
“
outer
or principal door”
of
the appellant’s address, to wit 99 Malherbe Street, Clarens.
[13]
On 5 June 2014 a notice of intention to defend was served which
caused respondent to issue an application for summary judgment
which
was served on appellant’s attorneys on 26 June 2014, the date
of hearing indicated to be 30 July 2014.
[14]
On 30 July 2014 the magistrate removed the application for summary
judgment from the roll, alleging that a so-called
“
short
form”
was
used. No doubt this was clearly a mistake as this has been the
method used to apply for summary judgment over decades.
The
magistrate should have dealt with the application for summary
judgment there and then. At that stage no answering affidavit
was filed on behalf of the appellant.
[15]
On 2 October 2014 Messrs Breytenbach Mafuso Inc, attorneys of
Bethlehem, filed a notice indicating that they would from then
onwards act on behalf of respondent. Prior thereto the
respondent’s officials were driving the litigating in that no
practising attorney represented respondent with the issuing of
summons and the application for summary judgment to be heard on
30
July 2014.
[16]
Respondent’s attorneys caused a notice of set down to be served
and filed for the summary judgment application to be
heard on 12
November 2014. Appellant’s attorney was not satisfied
with this procedure and filed a notice in terms of
rule 60A
,
incorrectly alleging that the notice was served
“
before
litis
contestatio
has occurred in terms of
rule 21A
and therefore
(respondent)
has
committed an irregular step.”
The
matter did not proceed on 12 November as it was postponed by
agreement to 26 November 2014 for opposition of the summary judgment
application. The
rule 60A
application was removed from the
roll. It should be noted that appellant’s answering
affidavit in terms of
rule 14
was served on respondent’s
attorneys on 25 November 2014 at 14h44 and only thereafter filed with
the clerk of the court.
The filing was at least 2¾ hours
late in that
rule 14(3)(b)
stipulates that the defendant opposing an
application for summary judgment must deliver his/her affidavit
before noon on the court
day but one preceding the day on which the
application is to be heard. Thus, instead of filing the
answering affidavit before
12 noon on the 25
th
,
it was served 2¾ hours late.
[17]
In its answering affidavit appellant’s deponent stated that the
amount claimed was incorrectly calculated in the summons
and summary
judgment application and that the deponent had made several
unsuccessful attempts at the offices of respondent to correct
the
amount. It was further alleged that respondent had not provided
any documentation to prove the amount claimed in the
summons and that
the amount claimed was disputed.
[18]
On 26 November 2014 the matter was postponed to 21 January 2015.
On 20 January 2015 appellant caused a supplementary
affidavit to be
filed and on 21 January the matter was postponed for a week to 28
January 2015. Again, as in the first two
instances, appellant
waited until the day before the hearing to file a further
supplementary affidavit which was done on 27
January
2015. On 28 January 2015 the matter was postponed to 25 March
2015.
[19]
On 25 March 2015 appellant’s attorney argued the matter and
indicated from the bar that summons had been issued against
appellant
for outstanding rates and taxes in respect of erf 900, Clarens whilst
appellant was not even the owner thereof.
According to him a
sectional title complex was erected on erf 900. He then asked
for postponement to ensure that a supplementary
affidavit indicating
the appellant’s defences be placed before the court. It
is unclear why he decided upon that route
as he should have brought
an application for condonation for the late filing of the affidavits
and/or for leave to file the supplementary
affidavits which dealt
with the issues raised in oral argument. Respondent’s
attorney argued that appellant’s
answering affidavit had to be
filed before 12 noon on 29 July 2014, the court day but one preceding
the day on which the application
was to be heard initially, but that
it failed to do so. Therefore appellant’s attorney should
not even be heard by
the court as there was no valid opposition of
the application for summary judgment. Consequently judgment was
granted as
mentioned above.
[20]
A request for reasons was made on 9 April 2015 to which the
magistrate replied. A notice of appeal was filed on 30 June
2015 whereupon the magistrate filed additional reasons to deal with
all the grounds of appeal. The first ground in the notice
of
appeal reads
verbatim
as
follows:
“
The
Honourable Magistrate erred in granting the summary judgment in the
application where the founding affidavit deposed to on behalf
of the
Respondent failed to verify the cause of action, thus not complying
with the Court’s rules.”
[21]
In the additional reasons the magistrate mentioned that this aspect
was not raised as a defence in the answering affidavit
of the
appellant and that the attorney also did not make any submission in
this regard to the court. The magistrate relied
on
Jacobson
Van den Berg SA (Pty) Ltd v Triton Yachting Supplies
1974 (2) SA 584
(OPD). Erasmus J found at pp. 586H - 587A of
this judgment that although a
“…
claim
for a balance due and in arrear (sic) on an open account over a
stated period the Courts are invariably dealing with numerous
separate causes of action, it is generally looked at as a combined
cause of action and an affidavit verifying the ‘cause
of action
based on the grounds referred to in the summons,’ or words to
that effect, should in my judgment prove to be sufficient
verification for purposes of
Rule 32(2)
(of
the Uniform Rules of Court)
.”
The
court
a
quo
was
correct in finding that a deponent does not have to repeat the
allegations in the summons, but as mentioned, the cause of action
must be verified. No verification can be found
in
casu.
I
shall deal with the court
a
quo’s
reasons and the
dictum
of Erasmus J later herein.
[22]
The appellant did not prosecute the appeal in accordance with the
Uniform Rules of Court and consequently a condonation application
was
required. This was filed on 27 November 2015 in terms whereof
appellant seeks that condonation be granted for its non-compliance
with the rules of court and furthermore that leave be granted to
extend the grounds of appeal. The application was not formally
opposed, but during oral argument respondent’s counsel made
certain submissions why condonation should not be granted.
He
submitted that appellant failed to explain the reasons for
non-compliance with the rules fully.
[23]
The appeal was set down for hearing on 18 April 2016. Three
days prior to the hearing respondent filed an application
for leave
to introduce new evidence. Respondent considered that the
appeal became moot in that the matter was settled insofar
as
appellant had paid the capital of the claim in full. This
caused the appeal to be removed from the roll.
[24]
The matter was again set down for hearing of the appeal on 12
September 2016. The original answering affidavit in respect
of
the application for leave to introduce new evidence was filed on 19
Augusts 2016 although copies thereof had been filed as long
ago as 15
April 2016. In response to respondent’s version appellant
indicated that the offer made to respondent was
without prejudice,
that the settlement offer was never accepted and therefore the
information could not be placed before the court.
It was also
denied that appellant acquiesced in the summary judgment and that the
offer was made for that reason.
VI
THE
AUTHORITIES IN RESPECT OF SUMMARY JUDGMENT APPLICATIONS
[25]
The authorities referred to herein dealt with rule 32 of the Uniform
Rules of Court in respect of the practice in the High
Court, but
these authorities are equally applicable to rule 14 of the rules of
the Magistrates’ Courts. The
locus
classicus
is certainly
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(AD). Corbett JA, writing for a unanimous
court, confirmed the correctness of the requirements set out in
previous judgments
pertaining to rule 32(2) of the Uniform Rules of
Court and in regard to the second requirement relevant
in
casu
,
he explained the reliance on verification or
“
verifying”
from
422B and I quote from 422E-H the following:
“
Moreover,
the word 'verifying' cannot be taken to qualify the word 'facts' and
to be part of the definition of the 'any other person'
who may make
the affidavit,… since this would run counter to the meaning of
the word 'verifying' and the grammatical construction
of the sentence
in which these words occur. The relevant meanings of 'verify' in the
Short Oxford English Dictionary are:
'to
testify or affirm formally or upon oath;... to testify to, to assert
as true or certain'.
Clearly
facts do not verify; a person verifies an alleged state of facts. And
where the verification takes the form of a sworn affidavit
it may be
said, figuratively, that the affidavit verifies the facts. In
addition, the words 'and stating', appearing later in the
same
sentence as 'verifying', qualify the same subject-matter. Were this
not so the word 'and' linking the two participles would
be
inappropriate and redundant. It can hardly be suggested that the word
'stating’, and what follows thereon as to what must
be stated,
can have reference to anything but the content of the affidavit. It
is, therefore, plain that the words 'verifying the
cause of action
and the amount, if any, claimed...' also refer to the content of the
affidavit.
[26]
At 423E-H of the judgment in
Maharaj
Corbett JA stated the following:
“
While
undue formalism in procedural matters is always to be eschewed, it is
important in summary judgment applications under Rule
32 that, in
substance, the
plaintiff
should do what is required of him by the Rule
.
The extraordinary and drastic nature of the remedy of summary
judgment in its present form has often been judicially emphasised
…
The grant of the remedy is based upon the supposition that the
plaintiff's claim is unimpeachable and that the defendant's
defence
is bogus or bad in law.”
(emphasis
added)
[27]
Navsa JA recently stated the following in
Joop
Joop Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA) at para [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
(‘extraordinary’
and ‘drastic’)
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.”
It
is to be noted that the court was at that stage concerned with
whether the defendant presented a sustainable defence or triable
issue in order to prevent summary judgment being granted against it.
Navsa JA did not deal with the
dicta
of
Corbett JA quoted above. Insofar as the court
a
quo
relied
on
Jacobsen
van den Berg
supra,
that
judgment is not only distinguishable from the case
in
casu,
but
appears to be clearly wrong if the first quotation of Corbett JA is
considered. It is unclear what Erasmus J meant when
he referred
to
“
or
words to that effect”
as
an alternative to
“
verify”
,
but that
dictum,
not
being part of the
ratio
decidendi,
should
not be followed
.
In
that matter the claim was based on amounts due on an open account,
whilst
in
casu
the
claims are founded on two different Acts as will be shown later.
[28]
In
Gulf
Steel (Pty) Ltd v Rack-Rite Bob (Pty) Ltd and Another
1998 (1) SA 679
(OPD) the court found at 683H – 684B that there
were two basic requirements that the plaintiff had to meet in summary
judgment
applications, namely a claim clearly established and
pleadings which are technically correct before the court. The
court
went so far to state that if either of these two requirements
is not met, it is obliged to refuse summary judgment, even if a
defendant
fails to put up any defence or puts up a defence which does
not meet the standard required to resist summary judgment. See
also
Absa
Bank Ltd v Coventry
1998 (4) SA 351
(NPD) at 353D and further. Meskin J relied on a
dictum
in
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
1959 (3) SA 362
(W) and found that if
ex
facie
the founding affidavit the requisite verification of the cause of
action has not occurred, the court would not have jurisdiction
to
grant summary judgment.
[29]
In
Standard
Bank of South Africa Ltd v Roestof
2004 (2) 492 (WLD) at 496F – H the court found that a plaintiff
should not be non-suited if the papers are not technically
correct
due to obvious and manifest errors, causing no prejudice to the
defendant, especially such as in that case where the defendant
set
out what he perceived to be an answer to the plaintiff’s case
as required by rule 32. The court proceeded at 498C
and stated
that the papers as a whole must be looked at in order for a court to
come to a conclusion as to whether leave to defend
should be granted
to a defendant or not and it is not the function of the court to
protect dishonest defendants because a plaintiff’s
pleadings
are less than perfect. The court criticised the judgments in
Coventry
and
Gulf
Steel
supra
which emphasised the technical correctness of the plaintiff’s
pleadings as a prerequisite for granting summary judgment as
unjustified.
[30]
I am of the view that the court in
Gulf
Steel
supra
has put the bar a bit too high for a plaintiff. I refer to pars
[13] – [15] of my unreported judgment in
Absa
Bank Ltd v René Haynes NO and Others
,
case number 3619/2013 delivered on 12 December 2013. Although I
reject reliance on unnecessary formalism, the underlying
principles
set out by the courts as indicated herein should be applied.
[31]
In
Coetzee
and Others v Nassimov
2010 (4) SA 400
(WCC) the court preferred the view expressed in
Roestof
supra
above that in
Coventry
supra
.
In that case three defendants were cited in the summons and in the
heading of the summary judgment application, but in the
founding
affidavit the deponent referred to
“
defendant”
in the
singular instead of
“
defendants.”
In
that case the defendants did not file an answering affidavit.
Cleaver, J who dealt with an application for rescission of
the
summary judgment granted, indicated that the judge dealing with the
summary judgment application and eventually granted relief,
was
clearly of the view that the application for summary judgment was
brought against all three defendants as all three were cited.
At para [8] Cleaver J held that the error in referring to only one
defendant in the affidavit did not non-suit the plaintiff.
[32]
In
Standard
Bank of SA Ltd v Naude and Another
2009 (4) SA 669
(ECP) a similar typing error as in
Nassimov
supra
occurred.
Clearly, according to the papers and the mortgage bond attached to
the summons, two respondents were correctly cited,
i.e. the husband
and wife married in community of property. In the founding
affidavit the word
“
respondents”
was
used twice, but in one paragraph there was a reference to
“
respondent”
in the
singular only. The respondents filed an answering affidavit,
but also took a point
in
limine
pertaining to the above technicality. The court found that on
the facts
Coventry
was not decided incorrectly, but could be distinguished from the
facts before it. It accepted the reasoning in
Roestof
and found that the respondents’ reliance on a technicality and
an insignificant typographical error was not justified as
respondents
were not prejudiced and the error could not mislead the court or
anybody else. The judgment is supported.
[33]
I am in respectful agreement with the following views of Wallis J, as
he then was, in
Schackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC & Another
2010 (5) SA 112
(KZP). In that case an attorney acting for the
cessionary deposed to the affidavit in support of a summary judgment
application.
The court found that the attorney did not and
could not state that he had direct and personal knowledge of the Absa
Bank claims
which were ceded to his client; that he relied on hearsay
and that rule 32(2) precluded such a person to depose to the required
affidavit. Although Wallis J made it clear that
Roestoff
was correctly decided on the particular facts of the case, he
criticised the approach of Blieden J as follows at para [25]:
“
Insofar
as the learned judge suggested that a defective application can be
cured because the defendant or defendants have dealt
in detail with
their defence to the claim set out in the summons, that is not in my
view correct. That amounts to saying that defects
will be overlooked
if the defendant deals with the merits of the defence. It requires a
defendant who wishes to contend that the
application is defective to
confine themselves to raising that point, with the concomitant risk
that if the technical point is
rejected, they have not dealt with the
merits. It will be a bold defendant that limits an opposing affidavit
in summary judgment
proceedings to technical matters when they
believe that they have a good defence on the merits. The fact that
they set out that
defence does not cure the defects in the
application, and to permit an absence of prejudice to the defendant
to provide grounds
for overlooking defects in the application itself
seems to me unsound in principle. The proper starting point is the
application.
If it is defective, then
cadit
quaestio
.
Its defects do not disappear because the respondent deals with the
merits of the claim in the summons”
[34]
Joffe
et
al,
High
Court Motion Procedure: A Practical Guide
,
at 1-58 makes the point, relying on
Naudé
and
Nassimov
supra,
that
courts should not refuse to grant orders for summary judgment on the
stroke of technical objections that are not prejudicial
to the
respondents in the summary judgment application. The authors
clearly have in mind insignificant typographical errors
when the
remainder of their text is considered.
[35]
If there is more than one cause of action in a summons the applicant
for summary judgment must take care that all causes of
action upon
which the plaintiff relies are verified. Summary judgment
cannot be granted in respect of a cause of action not
so verified.
See
Pillay
v Andermain (Pty) Ltd
1970 (1) SA 531
(TPD) at 536C-E. See also in general:
Jones
& Buckle, The Practice of the Magistrates’ Courts in South
Africa,
vol 2 at 14.20D and further.
[36]
In
Standard
Bank of SA Ltd v Secatsa Investments (Pty) Ltd
at 236I – 237A the court suggested that the case law quoted to
it all pre-dated our Constitution and whereas there was a
traditional
insistence on strict compliance with the requirements of rule 32(2),
it is at least arguable that since coming into
operation of the
Constitution this should even be more so. Section 34 of the
Constitution provides that everyone has the right
to have his/her
dispute resolved in a fair, public hearing before a court, or where
appropriate, such other forum as mentioned.
VII
LEGISLATION
APPLICABLE TO MUNICIPALITIES
[37]
At least two pieces of legislation are applicable
in
casu,
to wit the Local Government: Municipal Systems Act, 32 of 2000 (“the
Systems Act”) and the Local Government: Municipal
Property
Rates Act, 6 of 2004 (“the Rates Act”).
[38]
A municipal council must, in terms of s 74 of the Systems Act, adopt
and implement a tariff policy on the levying of fees for
municipal
services provided by the municipality itself or by way of service
delivery agreements. The municipal council must
also in terms
of s 75(1) adopt by-laws to give effect to the implementation and
enforcement of its tariff policy. It is true
that s 102
stipulates that a municipality may consolidate any separate accounts
of persons liable for payment, but this does not
apply where there is
a dispute between the municipality and a person. Furthermore
the municipality must provide an owner
of property in its
jurisdiction with copies of accounts sent to the occupier of the
property for municipal services supplied if
the owner requests such
accounts in writing from the municipality. Municipal accounts
may be issued for sanitation fees,
refuse removal fees, water and
electricity levies as well as water and electricity consumption.
The usage of water and electricity
is determined by metering systems
and the amounts charged will for obvious reasons vary from month to
month.
[39]
Rates are levied on all rateable property within a municipality’s
area of jurisdiction and these rates are levied in
accordance with a
rates policy. See in general: Chapters 2 and 3 of the Rates
Act. All rateable properties in the municipality’s
jurisdiction must be valued during a general valuation to establish
the market value of the properties. See Chapter 4 of
the Rates
Act. A rate levied by the municipality on property must be an
amount in the rand on the market value of the property.
See s
11(1) of the Rates Act. Rates payable in respect of rateable
property qualify as a tax and in accordance with
s 11
of the
Prescription Act, 68 of 1969
, the prescription period is 30 years.
Contrary thereto the normal three year prescription period applies to
debts in respect
of water and electricity usage.
[40]
Although a municipality may consolidate accounts, it is evident from
a legal point of view that separate causes of action arise
in the
event of failure by a property owner to pay his or her dues to the
municipality.
VIII
EVALUATION
OF THE EVIDENCE AND SUBMISSIONS OF THE PARTIES
[41]
Respondent’s counsel vigorously argued that we should refrain
from being too technical. He emphasised that formalism
in the
manner in which the founding affidavit was formulated
“
should
sway before the meaning conveyed by the ordinary content of the
language.”
He
relied on Van Niekerk
et
al,
Summary
Judgment: A Practical Guide,
Lexis
Nexis, 5-27 in support of his argument.
[42]
In dealing with this appeal I shall not consider the defences raised
in the two supplementary affidavits filed hopelessly out
of time and
without condonation being granted by the court. A good argument
may be raised to the effect that even the first
answering affidavit,
which was supposed to be filed before noon on 29 July 2014, but
served at 14h44 on 25 November 2014, the day
before the matter was
set down for hearing of the summary judgment application, should be
ignored. My personal view is that
notwithstanding the late
filing, the matter was enrolled for 26 November 2014 by agreement
between the parties and probably to
enable appellant to file its
answering affidavit which it did, albeit 2¾ hours late, and
the magistrate could and should
have considered the defence set out
in that affidavit. However, bearing in mind my approach to the
matter, it is not even
necessary to consider the defence raised
therein.
[43]
My approach is to consider the founding affidavit in support of the
summary judgment application on its own to establish whether
a proper
case has been made out for summary judgment. Firstly, the
respondent’s deponent elected to use the word
“
confirm”
instead
of “
verify”
.
I indicated above what Corbett JA had to say in
Maharaj
supra
pertaining to the word “
verify”
.
When one considers the meanings of
“
verify”
and
“
confirm”
in the
New Shorter Oxford English Dictionary, 1993 edition, there can be no
doubt that
“
verify”
has,
generally speaking, a much stronger meaning than the word
“
confirm”
.
If the legislature would be satisfied with the use of the word
“
confirm”
,
there was no reason not to make use thereof instead of
“
verify.”
However,
if this was respondent’s only obstacle, I would probably be
inclined to find that the mistake could be condoned,
but the next
obstacle is insurmountable.
[44]
Respondent’s deponent failed to verify the separate causes of
action. In fact, he did not even verify or confirm
a cause of
action, but merely confirmed the action as stated in the summons.
This is an illogical and meaningless statement.
Even if it
could be argued that the words
“
cause
of”
were
accidentally excluded from the text due to a typographical error, and
the court
a
quo
could
have read that in, respondent’s affidavit would still not
suffice. As indicated above the respondent necessarily
had to
rely on more than one cause of action and each of these should have
been verified by its deponent in the founding affidavit.
[45]
The summons is not in order for the reasons mentioned above.
Respondent should have pleaded separate causes of action
and it was
not good enough to claim one amount, bearing in mind the allegations
made in paragraph 1 of the summons.
[46]
I therefore conclude that even if the defences raised in any of the
affidavits of appellant are ignored, the absence of a defence
did not
cure the defects in the summary judgment application read with the
summons. No grounds could be provided for overlooking
the
defects in the summons and application for summary judgment.
Wallis, J (as he then was) mentioned in
Schackleton
Credit Management
supra
that the starting point in adjudication of a summary judgment
application is the application and if that is defective, then
cadit
quaestio
.
[47]
The court
a
quo
should have found that the summary judgment application was defective
and it should have refused the summary judgment application
with
costs. The appeal must therefore succeed.
[48]
Unfortunately and notwithstanding the relatively small amount
applicable, a matter that should have been finalised in July
2014,
was only finalised after several unnecessary postponements on 25
March 2015, thereby causing unnecessary further legal costs.
In
my view the appellant should be burdened with all costs in the
magistrate’s court since 30 July 2014 and the order
to be
issued will reflect this.
[49]
Although the reasons provided by appellant’s attorney for not
prosecuting the appeal timeously were not altogether satisfactory,
I
am satisfied that condonation should be granted for the failure in
this regard, particularly insofar as appellant presented a
strong
case on the merits.
[50]
In light of the manner in which I decided to deal with this appeal,
it is not necessary to thoroughly consider the application
by
respondent for leave to introduce new evidence. What is
apparent from the documentation filed on behalf of the parties
in
this regard is that appellant offered to pay R22 544.82, being
50% of an amount due to respondent in respect of sectional
title unit
1 in the sectional title scheme erected on erf 900, Clarens.
This amount has nothing to do with respondent’s
claim
ex
facie
its summons. The offer was made without prejudice of rights and
there is no indication that the offer was accepted.
The offer,
having been made in the course of settlement negotiations, should
never have been placed before us. However, it
is apparent from
respondent’s application that appellant’s payment was
credited to an account in respect of a sectional
tile unit I, a
totally different property as the one stated in the summons, to wit
erf 900, Clarens.
[51]
The argument that the appeal became moot as a result of the offer to
pay 50% of an account in respect of a property that differs
from the
property mentioned in respondent’s summons is without
substance. Although appellant did not object to the
application
for leave to introduce new evidence and even filed an answering
affidavit, there is no reason to allow the application
and it should
be dismissed. Each party should be ordered to pay its own costs
in respect of this application.
[52]
As indicated above, the appeal was initially set down for hearing on
18 April 2016. On that day it was removed from the
roll and no
order was made in respect of costs. No argument was presented
to us by any of the parties in respect of the wasted
costs occasioned
by the removal from the roll. Therefore we shall not venture in
dealing with those costs, save to say that
it appears as if
respondent should be blamed for the removal in which event and upon
such finding, respondent should bear those
wasted costs as well.
IX
ORDERS
[53]
Consequently the following orders are made:
1.
Condonation
is granted to appellant in respect of its non-compliance with the
Uniform Rules of Court concerning the timeous prosecution
of the
appeal, the costs of the application for condonation to be paid by
appellant on an unopposed basis.
2.
The
appeal is upheld with costs.
3.
The
order of the court
a
quo
is set aside and replaced by the following order:
“
The
application for summary judgment is dismissed with costs, excluding
those costs incurred after 30 July 2014 which shall be borne
by the
respondent.”
4.
Respondent’s
application for leave to introduce new evidence is dismissed, each
party to be liable for its own costs.
_____________
J.P.
DAFFUE, J
I concur.
_____________
K.
J. MOLOI, J
On
behalf of the applicant: Adv. J. S. Rautenbach
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. J.M.C. Johnson
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
/eb