Summary of Judgment

1. Introduction

This judgment concerns an application for summary judgment brought in the High Court of South Africa, Northern Cape Division, Kimberley. The proceedings arose after the plaintiff had issued summons and, following the defendant’s notice of intention to defend, sought to obtain final relief without a trial under Uniform Rule 32.

The parties were ABSA Bank Limited (the applicant in the summary judgment proceedings and plaintiff in the action) and Woulec Toerusting Trust (the respondent in the summary judgment proceedings and defendant in the action). The defendant is a trust, and the litigation engaged questions both about the form of citation of a trust and the manner in which a trust acts through its trustees in court proceedings.

Procedurally, ABSA issued summons seeking relief based on a written credit agreement, and thereafter applied for summary judgment. The defendant opposed the application and raised a range of preliminary defences (points in limine), as well as defences directed at the merits. The court dealt first with the preliminary objections before turning to whether the defendant had disclosed a bona fide defence sufficient to resist summary judgment.

The general subject-matter of the dispute was ABSA’s claim for the delivery of movable property, namely 110 chemical toilets, said to be due to ABSA under the credit agreement. The court characterised the substance of the claim as akin to the rei vindicatio, which requires the property sought to be recovered to be identifiable.

2. Material Facts

ABSA’s summons sought the delivery of 110 chemical toilets. The claim was founded on a credit agreement annexed to the particulars of claim (Annexure B). A further annexure (Annexure A) contained a description of the goods.

An important undisputed procedural fact was that the defendant had delivered a notice of intention to defend, after which ABSA set its summary judgment application down for hearing nine days after delivery of the notice of application for summary judgment, rather than the minimum ten days stipulated in Uniform Rule 32(2). ABSA placed before the court an explanation that an attempt to deliver the application earlier was unsuccessful because the defendant’s attorneys’ office was closed, and it was therefore delivered on the next occasion.

A central factual feature relied on by the court was the description of the goods in the summons and the supporting documentation. The goods were described in Annexure A to the summons as: “2006 110 CHEMIESE TOILETTE” with “SERIAL NUMBER: TBA”. In the tax invoice associated with the credit agreement (Annexure B), the goods were similarly described as “110 CHEMIESE TOILETTE”, with “jaar van eerste registrasie: 2006” and “reeksnommer: TBA”. The court treated this description as materially relevant because the enforceability of a delivery claim in summary judgment proceedings depends on whether the movable property is identified with sufficient particularity.

The defendant raised an objection relating to its citation, contending that ABSA ought to have cited the trustees for the time being rather than the trust itself. In the opposing affidavit, however, the deponent (a trustee) stated under oath that he was duly authorised to oppose the application and depose to the affidavit on behalf of the trust, and he attached letters of authority from the Master showing that the trust had two trustees.

On the merits, the defendant’s affidavit raised disputes and allegations including that the authority of the person who concluded the agreement with ABSA was disputed, that proof of delivery was lacking or unclear, and that goods delivered were allegedly defective, giving rise to a potential counterclaim. A defence based on the National Credit Act 34 of 2005 was raised but was expressly abandoned.

The court also treated as material a procedural aspect about the way the defendant presented its case: it advanced certain submissions in heads of argument and oral argument that were not contained in the opposing affidavit. The court regarded this as significant because Uniform Rule 32(3)(b) requires a defendant to satisfy the court by affidavit of the nature and grounds of its defence.

3. Legal Issues

The court was required to determine multiple issues arising from both procedure and substance.

A first issue was a procedural question of law and discretion, namely whether the court should condone non-compliance with the time-period for set-down in Uniform Rule 32(2) where the application was set down one day short of the ten-day minimum.

A second issue concerned the application of law to facts, namely whether the description of the movable goods in the summons complied with the requirement in Uniform Rule 32(1)(c) that movable property sought to be delivered must be specified with sufficient particularity to enable identification. This issue overlapped with substantive property-law requirements for a vindicatory-type claim, because the court regarded identifiability as a basic requirement where delivery of specific movables is sought.

A third issue concerned a question of law applied to the facts of citation and authority, namely whether citing the trust by name (rather than citing trustees) was permissible, and whether the defendant could sustain a point in limine about citation in circumstances where the opposing affidavit asserted trustee authority to act for the trust.

A fourth and final central issue concerned the standard for resisting summary judgment, which is primarily a question of application of settled legal principles to the defendant’s affidavit. The court had to decide whether the defendant had disclosed, with sufficient particularity, a bona fide defence that is good in law, without the court undertaking a trial-like determination of probabilities.

4. Court’s Reasoning

The court began by emphasising the procedural discipline required in summary judgment proceedings. It stressed that Uniform Rule 32(3)(b) requires the defendant to satisfy the court of its defence by affidavit, and that submissions in heads of argument that are not supported by affidavit evidence must be treated as pro non scripto. On this approach, the court disregarded contentions raised only in argument and not contained in the opposing affidavit, including a complaint of prejudice from the early set-down, factual assertions about how the toilets could be identified, and an additional point in limine about the signature of the summons.

On the first preliminary point, the court accepted that ABSA had set the matter down nine days after delivery rather than ten, but held that courts have the power to condone non-compliance with the rules. Applying the reasoning in Papenfus v Nichas and Son (Pty) Ltd 1969(4) SA 234 (O), the court considered the explanation for the short set-down and focused on the absence of demonstrated prejudice to the defendant. Because the defendant did not aver prejudice in its affidavit and the shortfall was minimal, the court condoned the non-compliance with Rule 32(2).

The court then addressed the objection that the goods were not described with adequate particularity. Relying on the approach in All Purpose Space Heating Co. of SA (Pty) Ltd v Schweltzer 1970(3) SA 560 (D) concerning the requirements of Rule 32(1)(c), the court assessed the description “110 chemical toilets”, with the year “2006” and serial number “TBA”. It concluded that this description did not enable identification with sufficient certainty. The court reasoned that a sheriff executing a writ would not be able to distinguish the toilets to be attached from other similar toilets, and that “TBA” as a serial number was not helpful. It treated this as a fundamental deficiency because, in substance, the claim sought recovery of specific movables, and such a claim requires the property to be identifiable and identified.

Although the court indicated that its finding on inadequate description already disposed of the summary judgment application, it nevertheless dealt with further points for completeness. On the citation of the trust, it accepted that it is generally preferable to cite trustees, but held that there is no legal bar to citing a trust by its name, relying on I.A. Essack Family Trust v Kathree; I.A. Essack Family Trust v Soni 1974(2) SA 300 (D). The court also noted authority that trustees must be authorised, ordinarily by a resolution, referencing Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd 1989(4) SA 985 (C), Rossner v Lydia Swanepoel Trust 1998(2) SA 123 (W), and Mariola and Others v Kaye-Eddie N.O. and Others 1995(2) SA 728 (W). On the facts, however, the court found the defendant’s own affidavit self-defeating on this point because the trustee deponent swore that he was authorised to oppose the proceedings and produced letters of authority. In that context, the court held that the citation point could not succeed.

Turning to the merits and the adequacy of the defendant’s disclosed defences, the court restated the governing principles for summary judgment from Maharaj v Barclays National Bank Ltd 1976(1) SA 418 (A), including that summary judgment is an extraordinary and drastic remedy. It stressed that the court does not decide disputed facts or weigh probabilities at this stage, but considers whether the defendant has fully disclosed the nature and grounds of the defence and the material facts upon which it is founded, and whether the disclosed defence appears bona fide and good in law. The court also referred to Tesven CC and Another v South Africa Bank of Athens 2000(1) SA 268 (SCA) in support of the modern articulation of the standard.

Applying these principles, the court held that the defendant’s affidavit contained sufficient detail to “pass muster” for purposes of resisting summary judgment, even if amplification would be required at trial. It emphasised that the defendant need not persuade the court at this stage that the defence will probably succeed, referring to Eisenberg’s v OFS Textile Distributors (Pty) Ltd 1949(3) SA 1047 (O), and that an opposing affidavit is not assessed with the precision of a plea, adopting an accommodating approach consistent with Maharaj v Barclays National Bank Ltd 1976(1) SA 418 (A) and District Bank Ltd v Hoosain and Others 1984(4) SA 544 (C).

In sum, the court reasoned that, given the inadequate description of the movable property and the presence of an arguable, bona fide defence disclosed on affidavit, this was not a matter in which summary judgment should be granted, as that would effectively shut the doors of court to the defendant.

5. Outcome and Relief

The court refused the application for summary judgment and granted the defendant leave to defend the action.

The court ordered that the costs of the summary judgment application would stand over for determination by the trial court.

Cases Cited

Papenfus v Nichas and Son (Pty) Ltd 1969(4) SA 234 (O) was cited in relation to condonation of short set-down periods in summary judgment proceedings.

All Purpose Space Heating Co. of SA (Pty) Ltd v Schweltzer 1970(3) SA 560 (D) was cited regarding the requirement that movable goods sought to be delivered must be described with sufficient particularity for identification.

I.A. Essack Family Trust v Kathree; I.A. Essack Family Trust v Soni 1974(2) SA 300 (D) was cited concerning the permissibility of citing a trust by name.

Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd 1989(4) SA 985 (C) was cited regarding trustee authority to act on behalf of a trust.

Rossner v Lydia Swanepoel Trust 1998(2) SA 123 (W) was cited regarding trustee authority in litigation.

Mariola and Others v Kaye-Eddie N.O. and Others 1995(2) SA 728 (W) was cited regarding trustee authority and proof thereof.

Maharaj v Barclays National Bank Ltd 1976(1) SA 418 (A) was cited as the leading authority on the nature of summary judgment and the requirements for a defendant to resist it by affidavit.

Tesven CC and Another v South Africa Bank of Athens 2000(1) SA 268 (SCA) was cited regarding the standard applicable to summary judgment and the assessment of a defendant’s affidavit.

Eisenberg’s v OFS Textile Distributors (Pty) Ltd 1949(3) SA 1047 (O) was cited for the proposition that the defendant need not show that the defence will probably succeed at trial.

District Bank Ltd v Hoosain and Others 1984(4) SA 544 (C) was cited regarding the accommodating approach to assessing summary judgment opposing affidavits.

Legislation Cited

The National Credit Act 34 of 2005 was referenced as having been raised as a defence and then expressly abandoned.

Rules of Court Cited

Uniform Rule 32(1)(c) was applied in relation to the requirement that movable property claimed for delivery must be described with sufficient particularity to enable identification.

Uniform Rule 32(2) was applied in relation to the required minimum set-down period for summary judgment applications, and the court condoned non-compliance.

Uniform Rule 32(3)(b) was applied to emphasise that a defendant must satisfy the court of its defence by affidavit, and that unsupported submissions in heads of argument are to be disregarded.

Held

The court held that non-compliance with the ten-day set-down requirement in Uniform Rule 32(2) could be condoned on the facts, particularly in the absence of prejudice.

The court held that the description of the goods as “110 chemical toilets” with a year reference and “serial number: TBA” did not comply with the requirement in Uniform Rule 32(1)(c) that movable property sought to be delivered must be described with sufficient particularity to enable identification, and that this deficiency was fundamental given the vindicatory nature of the relief.

The court held that citation of a trust by its name is not legally barred, and that the defendant could not successfully raise a citation point in limine where its own trustee deponent asserted authority to act on behalf of the trust and produced letters of authority.

The court held that, assessed under the principles governing summary judgment, the defendant disclosed a bona fide defence with sufficient particularity in its affidavit such that summary judgment should not be granted.

LEGAL PRINCIPLES

Summary judgment is an extraordinary and drastic remedy. In considering a summary judgment application, the court does not determine disputes of fact on probabilities but asks whether the defendant has, by affidavit, disclosed the nature and grounds of the defence and the material facts on which it rests with sufficient particularity to enable the court to decide whether the defence is bona fide and good in law.

A defendant opposing summary judgment must place the defence before the court on affidavit in compliance with Uniform Rule 32(3)(b). Submissions in heads of argument that are not supported by the opposing affidavit may be disregarded.

Non-compliance with the procedural requirements of Uniform Rule 32(2), including the minimum set-down period, may be condoned where the circumstances justify it and where prejudice is not shown.

Where delivery of specific movable property is claimed in summary judgment proceedings, Uniform Rule 32(1)(c) requires that the goods be described with sufficient particularity to enable identification. In claims vindicatory in nature, the property must be identifiable and identified.

Although it may be preferable to cite the trustees for the time being, there is no absolute bar to citing a trust by its name, and trustee authority to litigate on behalf of the trust is ordinarily required and may be demonstrated by appropriate proof such as letters of authority and averments of authorisation.