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[2013] ZAGPPHC 163
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Absa Bank Ltd v Botha NO and Others (39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013)
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REPORTABLE
NORTH GAUTENG HIGH COURT, PRETORIA
CASE NO: 39228/12
DATE:07/06/2013
In the matter between:
ABSA BANK LTD
…..............................................................................................
Plaintiff
and
GERHARDUS BARTHOLOMEUS BOTHA,
NO
....................................
First
Defendant
BELINDE BOTHA, NO
…....................................................................
Second
Defendant
GERHARDUS BARTHOLOMEUS
BOTHA
...........................................
Third
Defendant
J U D G M E N T
KATHREE-SETILOANE, J
:
[1] Courts are regularly faced with affidavits, purportedly attested
to in the presence of a commissioner of oaths, where the
deponent to
the affidavit declares that she is a female, yet the commissioner of
oaths certifies that the deponent is a male. Every
so often the
commissioner of oath’s use of the pronoun “he” as
opposed to “she”, in certifying that
the deponent has
acknowledged that she understands the contents of the declaration, is
overlooked as a mere administrative error
by the commissioner of
oaths. As is clear from this matter, however, the defendants were not
prepared to overlook the commissioner
of oath’s use of the
incorrect pronoun in certifying that the deponent has acknowledged
that she,
inter alia
, understands the contents of the
declaration and they, therefore, lodged an objection in terms of Rule
30 of the Uniform Rules
of Court.
[2] The defendants’ Rule 30 objection was made against the
following backdrop. On 15 August 2012, the plaintiff made an
application for summary judgment. The defendants objected to the
application for summary judgment, in terms of Rule 30, as an
irregular proceeding on the grounds that the plaintiff’s
affidavit in support of summary judgment (‘the verifying
affidavit”) does not constitute an affidavit as contemplated in
Rule 32(2) of the Uniform Rules of Court. The plaintiff opposes
the
setting aside of the application for summary judgment as an irregular
proceeding in terms of Rule 30.
[3] The defendants’ principal ground of objection is that the
plaintiff’s purported verifying affidavit does not constitute
an affidavit as the deponent to the affidavit, Ms Suney Du Plessis,
declares that she is a female in the affidavit, yet the commissioner
of oaths certifies that she is a male. Ms Du Plessis specifically
declared, in this regard, that she is “
a major person in the
employment of the Plaintiff as a manageress of
the
Plaintiff”
,
yet the commissioner of oaths certified that “
the Deponent
acknowledged that
he
1
knows and understands the contents of this affidavit…”
The defendants contend that it is unclear from the affidavit
whether the deponent is a male or female, because although she
describes
herself as a female, by virtue of using the word
“manageress”, the commissioner of oaths certified that
the deponent
is a male. The defendants accordingly submit that the
purported verifying affidavit does not constitute an affidavit, as
contemplated
in Rule 32(2) of the Uniform Rules of Court, as it was
not commissioned in the prescribed manner, thus making it highly
probable
that the prescribed oath was not administered by the
commissioner of oaths in the presence of the deponent.
The verifying affidavit
[4] Rule 32(2) of the Uniform Rules provide:
“
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 the 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.”
[5] The verifying affidavit represents the cornerstone of the summary
judgment procedure under Rule 32(2), which permits the grant
of a
final judgment or order in a defended action without full pleadings
or a trial.
2
The deponent to the verifying affidavit is required to swear
positively to the facts verifying the cause of action, and the amount
claimed, if any, and that in his or her opinion, the defendant does
not have a
bona fide defence
to the action and, that the
notice of intention to defend has been delivered solely for purposes
of delay. The purpose of the
verifying affidavit is to satisfy the
court that the plaintiff’s cause of action is not only valid
but also unimpeachable
and, that any defence to it is likely to be
spurious and raised solely for the purpose of delay.
3
Courts are, therefore, reluctant to grant summary judgment unless
satisfied that the plaintiff has an unanswerable case.
4
[6] The verifying affidavit must satisfy the general requirements for
affidavits as contained in the Regulations
5
(“the Regulations”) promulgated in terms of the Justices
of the Peace and Commissioners of Oaths Act, 16 of 1963 (“Justices
of the Peace and Commissioners of Oaths Act”). In terms of the
Regulations the oath or affirmation is administered by a commissioner
of oaths.
6
Before a commissioner of oaths administers the prescribed oath or
affirmation, the commissioner of oaths is required to ask the
deponent:
(a) Whether he knows and understands the contents of the declaration;
(b) Whether he has any objection to taking the prescribed oath; and
(c) Whether he considers the prescribed oath to be binding on his
conscience
7
.
[7] If the deponent answers these questions in the affirmative, the
commissioner of oaths must administer the oath
8
.
The deponent is required to sign the statement in the presence of the
commissioner of oaths
9
and, if unable to write, he or she must affix his mark in the
presence of the commissioner of oaths at the foot of the statement.
10
In terms of Regulation 4 (1) the commissioner of oaths is required to
certify that the deponent has acknowledged that he or she
knows and
understands the contents of the declaration. Regulation 4(1) reads as
follows:
“
Below the deponent’s
signature or mark the commissioner of oaths shall certify that the
deponent has acknowledged that he
knows and understands the contents
of the declaration and he is required to state the manner, place and
date of taking the declaration.”
The commissioner of oaths is, thereafter, required to sign the
declaration, print his full name and business address below his
signature, and state his designation and the area for which he holds
his appointment or his office if he has been appointed
ex officio.
[8] Although Rule 32(2) expressly requires that an affidavit
accompany an application for summary judgement, a statement which
was
merely affirmed in accordance with the Regulations also complies with
the requirements of Rule 32(2). Subject to whether there
has been
substantial compliance with the Regulations, the court has a
discretion to refuse an affidavit which does not comply with
the
Regulations. Should a commissioner of oaths not certify that the
verifying affidavit in a summary judgment application had
been sworn
to or affirmed, the court will be reluctant to apply the maxim o
mnia
praesumuntur rite esse acta donec probetur in contrarium
11
,
also known as the “presumption of regularity”,
for
purposes of making the assumption that the document had, in fact,
been sworn to (or affirmed) and signed in the presence of
the
commissioner of oaths.
“
He” means “she”
[9] The plaintiff contends that because Regulation 4(1) uses the
pronoun “he” to describe the deponent, there was nothing
irregular in the commissioner of oaths describing the deponent as
“he” as opposed to “she”. Section 6 of
the
Interpretation Act, 33 of 1957 provides that:
“
In every law, unless the contrary intention appears−
Words importing the masculine gender includes females;
…”
Relying for support on s 6 of the Interpretation Act, the plaintiff
contends that because Regulation 4(1) contemplates the word
“he”
to include both the male and female genders, it is of no significance
that the deponent is certified by the commissioner
of oaths as being
a male as opposed to a female. The plaintiff submits, in this regard,
that there can be no doubt that the deponent,
Sunel Du Plessis,
attested to the affidavit as this has been certified by the
commissioner of oaths. Thus, the plaintiff’s
contention is that
ex facie
the verifying affidavit there has been substantial
compliance with the Justices of the Peace and Commissioners of Oaths
Act and
the Regulations promulgated thereunder. Accordingly, the
plaintiff submits that the defendants’ Rule 30 objection is
frivolous
and an abuse of the court process.
[10] I do not agree. Section 6 of the Interpretation Act makes it
clear that the words importing the masculine gender also include
the
feminine. It follows that if, in legislation (including sub-ordinate
legislation) the masculine gender is used then it includes
the female
gender. Thus, where the pronoun “he” is used, as in the
case of Regulation 4(1), then it includes reference
to the female
pronoun “she” as well. What this means, in the context of
Regulation 4(1), is that regardless of whether
the deponent is male
or female, the commissioner of oaths is required to certify below the
deponent’s signature or mark that
the deponent has acknowledged
that he (where the deponent is a male), or she (where the deponent is
a female) understands the contents
of the declaration and that he or
she (depending on the gender of the deponent) has stated the manner,
place and date of taking
the declaration. Thus, if the deponent is a
female, the commissioner of oaths would be required to use the
pronoun “she”,
and if the deponent is a male, the
commissioner of oaths would be required to use the pronoun “he”.
In a case, such
as this, where the commissioner of oaths certifies
that the deponent has acknowledged that “he” knows and
understands
the contents of the declaration, but from the declaration
itself it is apparent that the deponent is a female, because she
declares
as much, then the Court would be unable to place reliance on
the certification of the commissioner of oaths because
ex facie
the affidavit it would be unclear whether the deponent is a male or a
female. Hence, the Court would be unable give effect to the
“presumption of regularity” for purposes of assuming that
the declaration was sworn to (or affirmed) and signed in
the presence
of the commissioner of oaths.
[11] Rule 32(2) places the burden of proof squarely upon the
shoulders of an applicant, who elects to proceed by means of a
summary
judgement application, to demonstrate that the document is an
affidavit
12
because the verifying affidavit in a summary judgment application is
an indispensible condition for such an application. In
Engineering
Requisites (Pty) Ltd v Adam
13
Erasmus J described the status of a verifying affidavit as the
sine
qua non
to the summary judgment procedure:
“
It can also truly be
said that the affidavit required by Rule 32(2) is the
sine
qua non
to an
application for summary judgment and there should be no room left for
speculation by an applicant utilising such proceedings
as to whether
the document accompanying this notice of application is an affidavit
or not.”
[12] It is a basic requirement of an affidavit that it must be signed
by the deponent in the presence of the commissioner of oaths.
14
However, in the application for summary judgment which is the subject
matter of these proceedings, it cannot be said that the plaintiff’s
verifying affidavit complies with this requirement, because although
the deponent unambiguously describes herself as a “manageress”,
which undeniably means that she is a female,
15
the commissioner of oaths certified that the deponent to the
affidavit, who purportedly signed it in his presence, is a male −
clearly this could not have been the deponent. Perhaps the
commissioner of oaths was mistaken. But that is not the case made out
by the plaintiff. Neither, for that matter, is there a supporting
affidavit from either the commissioner of oaths or the deponent
to
the verifying affidavit confirming that the verifying affidavit was
signed by the deponent in the presence of the commissioner
of oaths.
The omission thus justifies the inference that the deponent had not
signed the verifying affidavit in the presence of
the commissioner of
oaths.
[13] The situation is compounded
by the reference in the certificate of balance to the deponent as a
manager. The certificate of
balance is attached to the plaintiff’s
particulars of claim in the action. Are both the certificate and the
commissioner
of oaths wrong? Or is the title “manageress”
inappropriate? What is the court to believe? The Court should not be
placed
in a situation where it is required to speculate as to the
gender of the deponent to an affidavit and, more particularly,
whether
the deponent had, in fact, sworn to and signed the affidavit
in the presence of the commissioner of oaths. Simply put, the Court
should not be called upon to speculate on the question of whether the
verifying affidavit, in an application for summary judgment,
is an
affidavit or not. Accordingly, on the face of it, the plaintiff’s
verifying affidavit is inherently contradictory and
irregular, and
for that reason I find that it does not constitute an affidavit as
contemplated in Rule 32(2) of the Uniform Rules
of Court.
[14] It is settled law that a
Rule 30 application will only be granted where the irregular step
would cause prejudice to the applicant
seeking to set it aside.
16
In
Afrisun Mpumalanga
(Pty) Ltd v Kunene NO and Others
17
the Court held that:
“
The prejudice that is
referred to is prejudice which will be experienced in the further
conduct of the case if the irregular step
is not set aside. There is
no prejudice if the further conduct of the case is not affected by
the irregular step and the irregular
step can be simply ignored.”
This cannot be said to be the situation in the summary judgment
application of the plaintiff. Prejudice to the defendants in the
further conduct of the case arises from the fact that they are faced
with the obligation of either putting up security or disclosing
their
defence in the circumstances where the cause of action of the
plaintiff is not verified by dint of a verifying affidavit,
which is
ostensibly irregular for want of being attested to in the presence of
the commissioner of oaths.
Liquid document
.
[15] A further ground of
objection raised by the applicant in these proceedings is that the
plaintiff has failed to attach the liquid
document, upon which it
bases its claim, to its verifying affidavit.
18
It is common cause between the parties that although the liquid
document, upon which the plaintiff bases its claim, is not attached
to the verifying affidavit, it has been attached to the plaintiff’s
summons.
[16] Rule 32(2) of the Uniform
Rules requires the plaintiff, in an application for summary judgment,
to attach a copy of the liquid
document upon which it bases its claim
to its verifying affidavit, the purpose of which is to ensure that a
defendant against whom
the remedy is sought should be allowed, at
least, to see the document upon which the plaintiff founds its
claim.
19
Thus, where the plaintiff’s claim is based on a liquid
document, but the plaintiff omits to attach a copy of the liquid
document to its verifying affidavit, the application is defective and
summary judgement cannot be entered. However, should the
liquid
document relied upon be attached to the summons, having been verified
in the summary judgment application, the omission
to again
superfluously attach it to the summary judgement application cannot
prejudice the defendant and would, therefore, not
be fatal to the
application. The omission to attach a copy of the liquid document to
the verifying affidavit, where it has already
been attached to the
summons is, however, condonable
20
.
The plaintiff in these proceedings has, nevertheless, elected not to
seek condonation for its non-compliance with Rule 32(2) despite
being
granted an opportunity by the Court to do so at the hearing of the
matter. However, in my view, even if the plaintiff had
elected to
seek condonation for its non-compliance with Rule 32(2), there would
be no purpose in condoning the plaintiff’s
non-compliance with
the Rule because, as a consequence of the finding that the
plaintiff’s verifying affidavit is not an
affidavit, as
contemplated in Rule 32(2), the plaintiff could not have verified the
cause of action in the summons to which the
liquid document is
attached.
21
The situation in this matter is, accordingly, distinguishable from
the situation in
Nedcor
Bank Ltd v Lisinfo Trading
,
22
where the Court condoned the plaintiff’s failure to attach a
copy of the liquid document to the plaintiff’s verifying
affidavit because it had already been attached to the summons, and
the plaintiff had verified the cause of action in its verifying
affidavit. Thus to again attach a copy of the liquid document to the
verifying affidavit would have been superfluous and a duplication.
23
[17] In the circumstances, I find
that the application for summary judgment constitutes an irregular
proceeding, which falls to
be set aside on the grounds that the
plaintiff’s verifying affidavit is not an affidavit. In the
result, I make the following
order:
The plaintiff’s application for summary judgment under case
number 39228/2012 is set aside as an irregular proceeding in
terms
of Rule 30 of the Uniform Rules of Court.
The plaintiff is ordered to pay the costs of the application for
summary judgement as well as the costs of this application.
_____________________________
F KATHREE-SETILOANE
JUDGE OF THE NORTH GAUTENG
HIGH COURT, PRETORIA
Counsel for the Plaintiff/Applicant: BP Geach SC
Attorneys for the Plaintiff/Applicant: GP Venter Attorneys
Counsel for the Defendant/Respondent: J Janse Van Rensburg
Attorneys for the Defendant/Respondent: Tim du Toit & Co
Incorporated
Date of Hearing: 14 My 2013
Date of Judgment: 7 June 2013
1
Own emphasis
2
Arend v Astra Furnishers (Pty) Ltd
1974
(1) SA 298
(C)
3
Arend v Astra Furnishers (Pty) Ltd (above)
;
Beresford Land
Plan (PVT) LTD v Urquhart
1975 (3) SA 619
(RA);
Juntgen t/a
Paul Juntgen Real Estate v Nottbusch
1989 (4) SA 490
(W)
4
Fourlamel (Pty) Ltd v Maddison
1977 (1) SA 333 (A) 347H
5
Promulgated in
Government
Gazzette
3619, Government Notice R1258
of 21 July 1972 as amended by Government Notice R1648 of 19 August
1977, Government Notice R1428
of 11 July 1980 and Government Notice
R774 of 23 April 1983
6
Regulations 1(1) and 1(2)
7
Regulation 2(1)
8
If the deponent merely confirms the contents of his or
her declaration, but objects to taking the oath or does not consider
the
oath to be binding on his or her conscience, the commissioner of
oaths administers the affirmation.
9
Regulation 3(1)
10
This is subject to the proviso that, should the
commissioner of oaths have any doubt as to the deponent’s
inability to write,
he should require that such inability be
certified at the foot of the declaration by some other trustworthy
person.
11
acts are presumed to have been lawfully done until proof to the
contrary is produced
12
Engineering Requisites (Pty) Ltd v Adam
1972 (SA) 175 (OPD)at
178 A-B
13
Engineering Requisites
at 178 D-E
14
Regulation 3(1)
15
Oxford Complete Wordfinder p 927: “manageress…
a woman manager…”
16
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A)
at 276F-H; Cosani Engineering (Pty) Ltd v Anton Steinecker
Machinenfabrik GmbH 1991(1) SA 823 (T) at 842G-H
17
1999 (2) SA 599
(T) at 611D-F
18
Caltex Oil (SA) Ltd v Crescent Express (Pty)
Ltd and Others
1967 (1) SA 466
(D)
19
Credcor Bank Ltd v Thomson
1975 (3) SA 916 (D)
20
Van Niekerk, Geyer and Mundell
Summary Judgement: A Practical
Guide,
Issue 5, para 3.2, p 3-3;
Nedcor Bank Ltd v Lisinfo 61
Trading (Pty) Ltd
2005 (2) SA 432
(C) at 434D-E
21
Nedcor Bank Ltd v Lisinfo 61 Trading
(above)
22
Nedcor Bank v Lisinfo 61 Trading
(above) at 434D
23
Nedcor Bank v Lisinfo 61 Trading
(above) at 434D