Brief Summary

Summary Judgment — Application for summary judgment — Requirements of Rule 14 of the Magistrates’ Court Rules — Respondent's attorney deposing to affidavit without personal knowledge of facts — Insufficient basis for summary judgment due to reliance on hearsay and lack of personal knowledge — Appeal against summary judgment granted.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the High Court (Eastern Cape Local Division, Mthatha) against a magistrate’s order granting summary judgment in the Magistrates’ Court for the District of Butterworth. The judgment was delivered by Brooks AJ (with Dawood J concurring). The appeal was unopposed.

The appellant, Ntombizanele Florence Makinana, was the defendant in the magistrates’ court action. The respondent, James Matanzima, was the plaintiff in that action and had brought an opposed application for summary judgment in terms of Rule 14 of the Magistrates’ Court Rules.

The procedural history was that, on 7 December 2012, after considering affidavits filed in the summary judgment proceedings, the magistrate granted summary judgment against the appellant. The appellant then noted an appeal to the High Court, where the correctness of granting summary judgment was reconsidered.

The general subject-matter of the underlying dispute concerned an alleged oral lease agreement relating to immovable property, with the respondent seeking (among other relief) payment of arrear rental and ejectment. The appeal, however, was directed to the procedural and evidentiary sufficiency of the summary judgment application, particularly the adequacy of the supporting affidavit and the propriety of considering a document filed outside the framework contemplated by Rule 14.

2. Material Facts

The respondent issued summons in the magistrates’ court claiming R15 195,12 as unpaid rental allegedly due under a lease, together with ejectment, leave to apply for repair costs for alleged damage, and costs. The summons pleaded that the respondent was the owner of the immovable property, and that the appellant took occupation during August 2003 pursuant to an oral lease agreement concluded in that month. The summons also set out the material terms of the oral lease and alleged breach and damages.

In the subsequent summary judgment proceedings, the respondent’s supporting affidavit was not deposed to by the respondent personally, but by his attorney of record. The attorney stated that he was authorised to depose to the affidavit because he was “conversant with the facts herein”, and he indicated that he had possession and control of the respondent’s files and records and had familiarised himself with their contents. The affidavit concluded with the assertion that the attorney “verily believe[d]” that the defendant had no bona fide defence and that appearance to defend was entered for purposes of delay.

A further chronological fact material to the appeal was that the summary judgment affidavit (deposed to on 14 May 2012 and filed on 22 May 2012) made no reference to annexures, and no annexure was attached to it. Thereafter, on 29 May 2012, the respondent filed a deed of transfer under cover of a “notice of filing”, stating that it was filed in support of the summary judgment application. The deed of transfer was not annexed to the summons and had not been annexed to or referred to in the supporting affidavit.

The High Court noted from the magistrate’s written reasons that the magistrate had regard to the deed of transfer in deciding to grant summary judgment. The High Court treated this as a material feature for evaluating whether the summary judgment procedure had been properly applied.

3. Legal Issues

The appeal raised two central legal questions, both concerned with the application of law to fact within the summary judgment procedure, and with the trial court’s evaluation of the evidentiary material placed before it.

The first question was whether it was sufficient, for purposes of Rule 14(2) of the Magistrates’ Court Rules, for the respondent to rely on a supporting affidavit deposed to by the respondent’s attorney, rather than by the respondent or by a person shown to be able to swear positively to the facts verifying the cause of action and amount claimed.

The second question was whether it was competent for the magistrate to have regard, when considering the summary judgment application, to a deed of transfer that was neither annexed to the summons nor annexed to the supporting affidavit, and which was filed separately without any express procedural basis in Rule 14 and without agreement between the parties.

4. Court’s Reasoning

The court began by setting out the relevant requirements of Rule 14, emphasising that summary judgment may only be sought in specified claim categories and, critically for this matter, that the plaintiff must deliver a notice of application together with an affidavit “made by plaintiff 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 (in the deponent’s opinion) that there is no bona fide defence and that appearance to defend was entered solely for delay. The rule also requires that, where a claim is founded on a liquid document, a copy must be annexed to the affidavit.

In addressing the competence of the attorney as deponent, the court applied established principles that, generally, a deponent who swears positively to the facts in a supporting affidavit should at least indicate that those facts are within the deponent’s personal knowledge, and that where the deponent is not the plaintiff, such personal knowledge must be stated unless it is apparent from the facts. The court treated it as insufficient for a deponent merely to reproduce the formula that they can swear positively to the facts, without demonstrating a basis for personal knowledge. Closely connected to this was the principle that affidavits based on “information and belief” are insufficient for summary judgment, because the procedure is stringent and designed to protect defendants.

The court reasoned that these requirements are stringent safeguards and cannot be relaxed in a manner that would undermine the protections built into the rule for defendants. It drew support from authority dealing with Rule 32(2) of the Uniform Rules of Court, holding that while courts may condone merely technical non-compliance, they may not condone non-compliance with the safeguards embedded in the supporting affidavit requirement (particularly where the effect would be to allow hearsay or dilute the court’s ability to make a factual finding that the deponent was properly qualified to swear positively to the facts).

Against that framework, the court examined the content of the summons and the attorney’s affidavit. It considered it significant that the cause of action pleaded by the respondent was an oral lease agreement, with pleaded terms, breach, occupation, and rental arrears. In the absence of some explanation to the contrary, the court regarded it as reasonable to infer that the respondent would have been personally involved in concluding the oral lease, and would therefore be the person with direct knowledge of the negotiations and terms, as well as the circumstances of occupation and alleged breach. On that approach, the court considered it telling that the respondent did not depose to the affidavit and that the attorney gave no reason explaining why the respondent did not do so.

The court scrutinised the attorney’s assertion that he was authorised because he was “conversant with the facts herein.” It held that “conversant” could not be equated with having personal knowledge of the relevant underlying facts. It also regarded the attorney’s claim of personal knowledge as being framed in a limited way (confined to “the facts herein”, i.e., within the affidavit itself), rather than demonstrating direct knowledge of the salient facts pleaded in the summons that would need to be proved at trial.

The court further analysed the attorney’s reference to having the plaintiff’s files and records and having familiarised himself with them. Given that the claim was based on an oral lease, and absent specific allegations that a written record existed capturing the terms, the court considered it unlikely that these files and records could be the source of the attorney’s direct personal knowledge of the core contractual facts. The court treated this as reinforcing the conclusion that the affidavit did not establish the attorney as a qualified deponent who could swear positively to the facts verifying the cause of action.

In addition, the court considered the concluding formulation used by the attorney—“I verily believe”—in relation to the lack of a bona fide defence and the allegation of delay. It referred to authority holding that “verily believe” has been treated as insufficient and that the wording requiring an expression “in my opinion” should be adhered to, while also noting authority suggesting that distinguishing between the phrases might be over-technical. The court nevertheless preferred a strict approach in this context, reasoning that a more flexible approach risked subtle reliance on belief (potentially derived from information received) rather than an opinion grounded in a careful analysis of facts within the deponent’s personal knowledge. The court linked this to the broader policy of summary judgment rules as safeguards for defendants.

The court adopted and applied the approach articulated in ABSA Bank Ltd v Le Roux and Others, emphasising that the deponent must have direct knowledge of most, if not all, of the facts the plaintiff would have to prove, and that unless it appears from the papers as a whole that the deponent probably had sufficient direct knowledge to swear positively, the application is fatally defective and the court should not even reach the separate inquiry into whether the defendant has disclosed a bona fide defence. On that basis, the court concluded that reliance on the attorney’s affidavit was insufficient in the circumstances to ground summary judgment.

Turning to the deed of transfer, the court reasoned that the magistrate misdirected himself by having regard to it. The deed of transfer was not part of the summons, was not annexed to the supporting affidavit, and was not referred to in either. The court held that Rule 14 makes no provision for the filing of additional documents in support of summary judgment in the manner attempted, and that, absent agreement between the parties, the magistrate should not have taken the deed into account.

Having found both that the supporting affidavit was defective and that the magistrate improperly considered the deed of transfer, the court held that the summary judgment should not have been granted.

5. Outcome and Relief

The High Court upheld the appeal and ordered that the appeal succeed with costs.

It set aside the magistrate’s summary judgment order of 7 December 2012 and replaced it with an order dismissing the summary judgment application, granting the defendant leave to defend the action, and directing the plaintiff to pay the costs of the summary judgment application.

Cases Cited

Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)

Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC 2010 (5) SA 112 (KZP)

Fischereigesellschaft F Busse & Co KG v African Frozen Products (Pty) Ltd 1967 (4) SA 105 (C)

FirstRand Bank Ltd v Beyer 2011 (1) SA 196 (GNP)

Afcol Manufacturing Ltd v Pillay: Afcol Manufacturing Ltd v Buo [1996] 1 All SA 426 (SE)

Wonder Flooring v Northwest Development Corporation Ltd 1997 (1) SA 476 (BSC)

H K Gokal (Pty) Ltd v Muthambi 1967 (3) SA 89 (T)

ABSA Bank Ltd v Le Roux and Others 2014 (1) SA 475 (WCC)

Legislation Cited

No legislation was cited in the judgment beyond the rules of court.

Rules of Court Cited

Rule 14 of the Magistrates’ Court Rules of Court

Rule 32(2) of the Uniform Rules of Court

Held

The court held that, on the facts presented, the respondent’s summary judgment application was procedurally defective because the supporting affidavit was deposed to by the respondent’s attorney without a sufficient demonstration that the attorney had direct personal knowledge of the salient facts necessary to verify the cause of action founded on an oral lease.

The court further held that the magistrate misdirected himself by having regard to a deed of transfer that was not annexed to the summons or the supporting affidavit and was filed separately in a manner not contemplated by Rule 14, without agreement between the parties.

As a result, the court held that the summary judgment ought not to have been granted, set it aside, dismissed the summary judgment application, granted leave to defend, and made adverse costs orders against the plaintiff both on appeal and in relation to the summary judgment application.

LEGAL PRINCIPLES

Summary judgment under Rule 14 requires strict adherence to the safeguard that the supporting affidavit be made by the plaintiff or another person who can swear positively to the facts, meaning that the deponent must be shown, on the papers, to have direct personal knowledge of the salient facts necessary to verify the cause of action and the amount claimed.

A supporting affidavit that is effectively based on information and belief, or that does not adequately establish how the deponent has personal knowledge of the material facts, is insufficient to ground summary judgment, given the stringent nature of the remedy and its protective purpose for defendants.

While courts may condone mere technical non-compliance with formal requirements, they cannot condone non-compliance with the substantive safeguards embedded in the summary judgment rules, including safeguards designed to exclude hearsay and to ensure the court can properly determine that the deponent is qualified to verify the claim.

In summary judgment proceedings, a court should not have regard to documents filed outside the rule’s contemplated procedures, particularly where the document is neither annexed to the summons nor annexed to the supporting affidavit, and where there is no procedural entitlement or agreement permitting its introduction in that manner.

Makinana v Matanzima (CA&R59/2013) [2015] ZAECMHC 79 (20 November 2015)