IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 19455/2023
In the matter between:
ETHAN LOTTS Respondent / Plaintiff
And
NMI DURBAN SOUTH MOTORS (PTY) LTD
t/a BARONS BELLVILLE Applicant / Defendant
Coram: Parker, AJ
Matter heard on Thursday 08 August 2024
Judgment delivered on Friday 30 August 2024, electronically by circulation to the
parties’ representatives via email.
JUDGMENT
PARKER, AJ
Introduction
[1] The Plaintiff instituted action against the Defendant arising out of a sale of a
motor vehicle purchased on 10 November 2022 financed by Standard Bank of South
Africa Ltd (“SBSA”). After Plaintiff took delivery , numerous defects emanated from 11
November 2022, until Plaintiff finally returned the motor vehicle to defendant on 13 July
2023. Plaintiff claims positive malperformance, and issued summons on 1 November
2023 claiming inter alia:
1.1 Defendant breached the agreement, entitling him to a refund of the
purchase price in the amount of R1 186 810.02.
1.2 Alternatively the delivery of a replacement vehicle as well as a monetary
payment equal to the difference in value between the present value of
such vehicle and the original purchase price of the current vehicle.
1.3 Plaintiff claims damages in the amount of R461 465.87 as compensation
for the damages suffered by the plaintiff as a result of having to pay for
vehicle financing whilst being depri ved of the possession and use of the
vehicle as a direct result of the wilful or negligent conduct of the
defendant.
[2] Pursuant to defendant’s plea on 18 December 2023 , the plaintiff served the
defendant with the application for summary judgment on 5 February set down for
hearing for 19 March 2024. On 19 Fe bruary 2024, the defendant delivered a notice in
terms of Rule 30 and Rule 30A on the basis that the summary judgment application
constitutes an irregular step as it does not comply with Rule 32(2)(a), in that it was filed
outside the timeframe prescribed by the Rules of Court. On 11 March 2024 the
defendant delivered an application in terms of Rule 30(1) culminating in the hearing on
8 August 2024.
The issues for determination
[3] The issues to be determined are:
3.1 whether the application by defendant in terms of Rule 30, to set aside the
plaintiff’s summary judgment application is an irregular step , pertinently
whether the dies non, as provided for in Rule 6(5)(b)(iii)(aa), is applicable
to summary judgment applications;
3.2 whether there was compliance with Rule 32(2)(a), and,
3.3 if the summary judgment application has been filed outside the time frame
prescribed by the Rules, w hether the plaintiff has successfully complied
with a condonation application for the late filing of the summary judgment
application, and, if granted,
3.4 whether the summary judgment application complies with Rule 32(1).
Submissions by parties
[4] In support of the irregular step, defendant contends that the summary judgment
was not filed within t he 15 day period provided for in Rule 32 and that the plaintiff's
reliance on Rule 6(5)(b)(iii)(aa) is misplaced because of the provisions of Rule 32.
[5] On the contrary, the onus is on plaintiff to properly comprehend and interpret
Rule 6(5)(b)(iii)(aa) by taking into account the provisions of Rule 6(5)(b)(iii)(bb).
[6] The defendant rejected this argument on the grounds tha t if the plaintiff’s
argument regarding the applicability of Rule 6(5)(b)(iii)(aa) to the summary judgment
application is correct, this does not assist the plaintiff because the application for
summary judgment is not only made on an affidavit, but has to be made b y way of a
Notice of Application for Summary Judgment.
[7] On the other hand the plaintiff submits that the upon a proper interpretation of
Rule 6(5)(b)(iii)(aa) read with Rule 32(2)(a), the time period within which an applicant
may apply for summary judgment is subject to the exclusion of dies non.
[8] The plaintiff further submits that the ordinary Rule of interpretation must be
applied to determine the applicability of Rule 6(5 )(b)(iii)(aa) to its application for
summary judgment . Accordingly, plaintiff contends that there is a uniform approach,
regarding the Magistrate Court Rules, Supreme Court of Appeal Rules and
Constitutional Court's Practice Directives, to adopt dies non in respect of all applications
supported by affidavits, save for urgent applications and interim matrimonial rel ief. This
therefore, in plaintiff’s view, enjoined the court to find that upon a proper interpretation of
Rule 6(5)(b)(iii)(aa), summary judgment applications are not excluded and that the
plaintiff’s summary judgment application was made within the 15 -day period prescribed
by Rule 32, read with Rule 6(5)(b)(iii)(aa).
[9] The plaintiff submits in its heads of argument that in the event that the court find
that the summary judgment application was an irregular step because it was instituted
out of time, it’s application should be condoned because the defendant stands to suffer
no prejudice. However, no reasons for the delay was provided by the plaintiff as to his
explanation for the delay in support of condonation, for the out of time application.
[10] However the defendant stands firm that the claims against it does not fall within
the ambit of Rule 32 (1) and accordingly the summary judgment application falls to be
dismissed. I will deal with these submissions in the analysis which follows.
Evaluation
[11] The application and the principles relevant to summary judgment applications
need not be restated , as it is well established, suffice to say that I considered Rule
31(1), Rule 32(2)(a)1, the dies non in Rule 6(5)(b)(iii)(aa) 2 as well as Rule
6(5)(b)(iii)(bb)3.
[12] Whether or not any other application, including summary judgment, other than
the ones brought under Rule 6(12) and Rule 43 find application under Rule
6(5)(b)(iii)(aa) was considered in Mobile Telephone Networks (Pty) Ltd 4. The question
that arises is why the Rules Board has only established provisions for two specifically
named exclusions, namely Rule 6(12) and Rule 43 applications, if this Rule does not
accommodate summary judgement applications and only applies to affidavits submitted
in response to a notice of intention to oppose.
[13] Plaintiff persists that in consideration of the approaches provided by the
Constitutional Court , the provisions of R ule 6(5 )(b)(iii)(aa) are specific and that the
exclusion of the period between 21 December and 7 January is applicable to the
delivery of any affidavit. “If one reads this Rule in context, which can only be with
reference to subrule 6(5)(b)(iii)(bb) ‘any’ affidavit means any affidavit subsequent to the
notice of intention to oppose, and those that are not excluded by this sub -rule, which
include affidavit/s in support of summary judgment”5. I do not agree. The argument that
this Rule is applicable to applications brought under Rule 6 only and that summary
judgment applications is brought under Rule 32, is not sustainable because Rule 43
was specifically mentioned as one of the exclusions of Rule 6(5)(b)(iii)(bb).
1 Rule 32(2)(a) “A plaintiff who pursues summary judgment shall, within 15 days after the date of delivery
of the plea by a defendant, deliver a 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.”
2 “for purposes of this subrule, the days between 21 December and 7 January, b oth inclusive, shall not
be counted in the time allowed for delivery of the notice of intention to oppose or delivery of any affidavit ”.
3 “the provisions of subparagraph (aa) shall not apply to applications brought under sub rule 6(12) of this
Rule and applications brought under Rule 43.”
4 Mobile Telephone Networks (Pty) Ltd v Sugarberry Trading 239 CC (1503/2021) [2023] ZANWHC 3 (19
January 2023) at para [24].
5 Ibid at para [25].
[14] Turning to a case relied upon by Plaintiff in Absa Bank Limited v Fumani
Shikwabana6, the Court held that : “clearly the days between 16 December and 15
January cannot be reckoned in the computation of days allowed for delivery of any
pleading as contained in the proviso in Rule 26. Any pleading ’ means just that.
Summary judgments were not made an exception ”. Plaintiff’s reliance on this case by
Plaintiff does not assist him as it is evident that summary judgement was not intended to
be excluded7.
[15] In the event that I determine that the summary judgment application does not find
application under Rule 6(5 )(b)(iii)(aa) and that the p laintiff ought to have filed his
application for summary judgment within the 15 days after the delivery of the plea, “I
must consider the plaintiff's application for condonation. It is only when I am not satisfied
with the plaintiff's application for condonation that the plaintiff's application for summary
judgment will be found to be an irregular step and set aside ” 8. No reasons for the delay
was advanced by the plaintiff other than raising it in argument. Plaintiff was required to
explain the delay and set out justifiable reasons for non-compliance in order to enable
me to exercise my discretion in his favour, judicially, having regard to the degree of the
delay, prospects of success, and importance of the case9 to plaintiff. Thus, there was no
opportunity for me to consider weighing the merits of my discretion for condonation. It is
undeniably a significant case for the plaintiff as he remains indebted to SBSA (who
financed the transaction ) moreover, he returned the motor vehicle to the defendant on
13 July 2023.
[16] Other than alleging non -compliance with Rule 32, and the failure of plaintiff to
show reasons for the late filing of the summary judgment application, for the defendant
to succeed in it s application in terms of Rule 30, the defendant must allege and prove
6 Absa Bank Limited v Fumani Shikwambana (2370/15) [2016] ZANCHC 3 (10 June 2016) Case No
(2370/15) [2016] ZANCHC 3 (10 June 2016) at para [9].
7 Mobile, supra at para [29].
8 Mobile, supra at para [31].
9 Melane v Sanlam Insurance Co Ltd 1962 (4) SA 531 (A) C – F; Foster v Stewart Scott Inc (1997) 18 ILJ
367 (LAC) page 369.
that the irregularity prejudices defendant and that it suffered harm as a result of the non-
compliance of the Rule by the plaintiff. In SA Metropolitan
Lewensversekeringsmaatskappy10, the court held that where prejudice is absent, a
decision to set the irregular proceeding aside will not be sustained and the irregularity
may be overlooked11. Consequently, had plaintiff shown its reasons for the condonation
in light of the defendant’s failure to show prejudice, the irregular step would have been
dismissed.
[17] Whilst it is true that the defendant has failed to establish prejudice in its affidavit
in support of its Rule 30 application , this does not benefit plaintiff. In the circumstances
the absence of an application for condonation duly substantiated, resultantly, the
application for summary judgment is fatal12 and the irregular step is upheld.
[18] Then, plaintiff encounters another hurdle in respect of the relief claimed were
summarised in paragraph 1 above. Summary judgments are only available to a plaintiff
on very limited grounds 13. In this case, defendant advanced that the replacement
vehicle, the monetary c laim for an unspecified amount and the recovery of damages ,
are not easily ascertainable , which is not capable of being calculated, without further
evidence being produced to support the relief as prayed for in the particulars of claim.
[19] The plaintiff formulates his claim for the value of the amount he is liable to SBSA,
being the total cost of th e vehicle, since the purchase amount and/or the value is
undisputable, it is susceptible to prompt ascertai nment as stated in Thaw Trading 14.
Despite plaintiff seeking the Court to indulge the exercise of a discretion built on the
10 SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 334A.
11 Consani Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik GnbH 1991(1) SA 823 at 824 G -I
and Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466 (W).
12 First National Bank v MMD Fitment Centre CC and Others [2023] ZAGPPHC 138; 633/18 (1 March
2023).
13 Rule 32(1).
14 Thaw Trading v Central Trading 214 (Pty) Ltd (1422/2012) [2013] ZANWHC 37 (14 March 2023).
finding in Fattis15, that the claim is capable of sp eedy and prompt ascertainment as a
“debt or liquidated ”, and on, the absence of uniformity 16 in cases as to when a claim
“should be regarded as liquidated”17 arguing that it weighs in his favour, notwithstanding
the defendant’s reasons for opposing the claim. I am of the view that the dispute raised
by the defendant makes it a triable issue.
[20] Defendant has provided its reasons for opposing the summary judgment
application, arguing that the pl aintiff was attempting to recover unliquidated damages
that cannot be calculated without the plaintiff providing evidence in this regard.
Furthermore, defendant raises the defence that it disputes the breach since it does not
disclose a cause of action establishing that the malperformance caused the loss plaintiff
seeks to recover. According to Defendant, who concedes that the repair work was done
repeatedly, however, the nature of the repairs were in relation to the software of the
vehicle. No material defect had been shown.
[21] Defendant maintains t hat the summary judgment is unsustainable because it
does not comply with the limited grounds set out in Rule 32(1). Despite this plaintiff
holds out that defendant is not bona fide in its defence. Furthermore, applicant argued
that the finding in Tumileng18 as a basis for summary judgment, iscapable of being
granted on part of the undisputable claim . Upon closer scrutiny I am unable to arrive at
the same conclusion as Binns Ward, J in Tumileng. Consequently, I am unable to grant
partial success to the plaintiff on what the plaintiff alleges to be undisputable and easily
ascertainable, without diving into the merits of the plaintiff's case. I therefore , am
unable to shut the door (on part of the prayers) now, on the defendant, given the nature
of the relief sought in the face of the defences raised by defendant. It is best for the
issues to be properly ventilated at a hearing.
15 Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T).
16 Ibid at 739 A – B.
17 Ibid.
18 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC).
Conclusion
[22] The aforegoing arguments and an alysis have led me to conclude that the
summary judgment application in its entirety cannot succeed due to the following
reasons:
22.1 The dies non does not find application for summary judgment applications.
22.2 In terms of Rule 32(2)(a) the summary judgment application is out of time.
22.3 Even if the dies non applied, the summary judgment application in terms
of the time period shows that the application is in any event out of time.
22.4 As for condonation, the plaintiff fails to set forth sufficient grounds for me
to exercise a discretion to condone it.
22.5 It is trite that summary judgment applications are brought on v ery limited
grounds. Since plaintiff claims the return of the motor vehicle alternatively
a new vehicle and damages , these types of relief given the facts of the
case as pleaded, are not competent in summary judgment applications.
[23] Given that plaintiff is without the use and enjoyment of the motor vehicle for quite
some time whilst he remains tied to the indebtedness to SBSA, it is in the interest of
justice that this matter be granted a date on the semi-urgent roll for the hearing.
Costs
[24] This was not a complex matter warranting a departure from the norm in respect
of costs. I see no reason why costs occasioned by the defendant should be on a scale
higher than scale A.
[25] Having considered the submissions made, it is ordered:
(a) The application in terms of Rule 30 is upheld.
(b) The summary judgment application is dismissed.
(c) Plaintiff is liable to defendant for legal c osts including costs of counsel
where so employed, awarded on Scale A.
(d) The matter be heard on the semi-urgent roll when so enrolled.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for delivery is deemed to be 30
August 2024 at 13h00.
Appearances:
Counsel for Respondent/ Plaintiff : Adv. D Nyathi
Instructing Attorney : Mathiso Attorneys – Mr C
Counsel for Applicant/ Defendant : Adv. LN Wessels
Instructing Attorney : Smit Jones & Pratt Attorneys
c/o Jeff Gowar Attorneys – Mr S Hamer