Summary of Judgment

1. Introduction

This matter concerned an application for summary judgment brought in the Free State High Court, Bloemfontein. The applicant/plaintiff was Delta Crane & Plant Hire, and the respondents/defendants were Jabulani Reuben Mpembe N.O. (first defendant), Kwanaze Martha Mpembe N.O. (second defendant), Henning Johannes Smit N.O. (third defendant), and Jabulani Reuben Mpembe N.O. (fourth defendant).

The procedural posture was that the plaintiff had issued summons against all four defendants claiming payment for the leasing and supply of goods. All defendants entered an appearance to defend, whereafter the plaintiff proceeded with an application for summary judgment.

The general subject-matter of the dispute was the plaintiff’s claim for a liquidated amount allegedly due under a leasing/supply transaction, and whether the defendants had disclosed a bona fide defence sufficient to resist summary judgment under the Uniform Rules of Court.

2. Material Facts

The plaintiff instituted action against the defendants for payment in the amount of R294 259,20, arising from the leasing of goods and the supply thereof. The plaintiff’s claim was said to have been preceded by a credit application that incorporated a deed of suretyship.

In terms of that deed of suretyship, the fourth defendant undertook liability for the obligations of the trust to the plaintiff. The judgment records that the maximum credit applied for in the deed of suretyship was R120 000,00.

All four defendants entered an appearance to defend. However, in the summary judgment proceedings, the court noted that, ex facie the documents filed, the first to third defendants did not oppose the application. Notwithstanding counsel’s submission that all four defendants opposed and that the fourth defendant’s affidavit covered all defendants, the court found there was no indication in the affidavit that it was deposed to on behalf of the other defendants, nor any statement of authorisation to do so.

As to the substance of the defence presented, the court recorded that it was not denied (by the fourth defendant) that there had been leasing and supply of goods to the defendants. The principal contention raised was that the credit limit was not to exceed R120 000,00, and that there were allegedly no invoices sent between February 2012 and 31 July 2012, when an invoice for R294 259,20 was sent, which was said to create “suspicion” about the claim.

The defendants further contended that they were not placed in mora, and that summons was therefore premature. The plaintiff’s position, accepted by the court, was that the issue of summons constitutes a demand.

3. Legal Issues

The central legal question was whether the defendants had met the requirements to resist summary judgment by disclosing a bona fide defence and the full nature and grounds of that defence as required by Rule 32(3) of the Uniform Rules of Court.

This was primarily a dispute concerning the application of law to the facts disclosed in the opposing affidavit(s), namely whether the disclosed material amounted to a sufficiently particularised defence that was both genuine (bona fide) and good in law. It also entailed an evaluative determination of whether the appearance to defend had been entered for purposes of delay rather than to advance a real defence.

4. Court’s Reasoning

The court approached the matter through the framework of Rule 32(3) and the established requirements for opposing summary judgment. It emphasised that a defendant must disclose a bona fide defence and the full nature and grounds of that defence. Relying on Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A), the court identified two primary considerations: whether there has been sufficient disclosure of the nature and grounds of the defence and the facts upon which it is founded, and whether the defence disclosed is both bona fide and good in law.

Turning to the affidavits and opposition before it, the court did not accept the submission that the fourth defendant’s affidavit stood for all defendants. The court’s reasoning on this aspect was grounded in what was actually contained in the affidavit: there was no statement that it was made on behalf of the other defendants, and no allegation of authority to depose on their behalf. The court also criticised the attempt by defence counsel to introduce and rely on a deed of trust that was not part of the papers before court, describing this as a highly irregular procedure.

On the substantive defences raised, the court found the defendants’ contentions inadequate for the purpose of Rule 32(3). First, the assertion that the credit limit was not to exceed R120 000,00 was held not to constitute sufficient disclosure of a defence as required by the rule. The court recorded that the fourth defendant did not deny that leasing and supply took place; the opposition was framed instead as a limitation argument, which, as presented, did not sufficiently disclose the defence’s nature and grounds in the manner required by Maharaj.

Secondly, the court rejected the “invoice suspicion” contention as insufficient. It held that it is not enough for a defendant merely to state that they have no knowledge of the allegations in the plaintiff’s summons, relying on Border Concrete Engineering Co (Pty) Ltd v Knickelbein 1982 (2) SA 648 (E). Similarly, the court held that it is not enough simply to assert that the plaintiff’s allegations must be treated with grave suspicion, relying on Western Province Hardware and Timber Co (Pty) Ltd v Frank Fletcher 1971 (2) PH F77.

Thirdly, on the mora argument, the court accepted the plaintiff’s submission that the issue of summons constitutes a demand, and therefore did not accept that the summons was premature on the basis alleged by the defendants.

On the totality of the material before it, the court concluded that the defendants had failed to disclose a bona fide defence, and that the appearance to defend had been entered solely for purposes of delaying the action.

5. Outcome and Relief

The court granted summary judgment in favour of the plaintiff against all four defendants, jointly and severally, with the usual provision that payment by one would absolve the others.

Judgment was granted in the amount of R294 259,20, together with interest at 15,5% per annum calculated from the date of service of summons to the date of payment.

The court further ordered the defendants to pay the costs of suit on the attorney and client scale.

Cases Cited

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

Border Concrete Engineering Co (Pty) Ltd v Knickelbein 1982 (2) SA 648 (E).

Western Province Hardware and Timber Co (Pty) Ltd v Frank Fletcher 1971 (2) PH F77.

Legislation Cited

No specific legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 32(3).

Held

The court held that the defendants failed to comply with the requirements of Rule 32(3) because they did not sufficiently disclose the nature and grounds of a defence and the facts upon which it was founded. The court further held that the defendants’ contentions, including the credit limit assertion, the invoice-based suspicion, and the mora argument, did not amount to a bona fide defence that was good in law on the papers presented.

On this basis, the court held that the appearance to defend had been entered for purposes of delay, and it granted summary judgment for the plaintiff for R294 259,20, interest at 15,5% per annum from service of summons, and attorney-and-client costs.

LEGAL PRINCIPLES

Summary judgment under Uniform Rule 32(3) requires a defendant who resists the application to disclose a bona fide defence, including the full nature and grounds of the defence and the material facts upon which it rests, in a manner that enables the court to assess both genuineness and legal sufficiency.

In assessing opposition to summary judgment, the court applies the dual enquiry articulated in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A), namely whether there has been sufficient disclosure of the defence and whether the defence so disclosed is bona fide and good in law.

A defendant’s opposition is inadequate where it amounts merely to an assertion of lack of knowledge of the plaintiff’s allegations or a statement that the claim is subject to suspicion, without proper disclosure of a defence grounded in facts, as reflected in the court’s reliance on Border Concrete Engineering Co (Pty) Ltd v Knickelbein 1982 (2) SA 648 (E) and Western Province Hardware and Timber Co (Pty) Ltd v Frank Fletcher 1971 (2) PH F77.

For purposes of the mora-related contention in this matter, the court accepted that the issue of summons constitutes a demand, and thus rejected the argument that summons was premature due to an absence of prior demand.