IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
Case No.: 1697/2024
In the matter between:
TOM CAMPHER MOTORS (PTY) LTD
t/a TOM CAMPHER VOLVO CARS, JOHANNESBURG Plaintiff
and
PAUL JACQUES ANDRE Defendant
JUDGMENT - REASONS FOR ORDER
RONAASEN AJ:
Introduction
The order of 22 October 2024
[1] At the instance of the plaintiff, I granted an order for summary judgment (“the
order”) against the defendant, on 22 October 2024, as follows:
1. Summary judgment is granted against the defendant:
1.1 In respect of the BMW:
1.1.1 Payment in the sum of R830 000.00 together with interest at
the rate of 1 1.75% per annum a tempore morae from 22
June 2024 (being the date of service of summons) until the
date of payment.
1.1.2 In the event that the defendant fails to make payment
referred to in paragraph 1.1.1 above within 5 (five) days of
service on the defendant of the court order, the Sheriff is
authorised to attach the BMW where ver he may find it and
deliver it to the plaintiff who shall have the BMW valued by a
sworn valuator and ther eafter set off the valuation against
the sum referred to in paragraph 1.1.1 above.
1.2 In respect of the Audi:
1.2.1 Payment in the sums of R140 000.00 and R1 501.45,
totalling R141 501.45 together with interest at the rate of
11.75% per annum a tempore morae from 22 June 2024
(being the date of service of summons) until the da te of
payment.
1.2.2 In the event that the defendant fails to make the total
payment referred to in paragraph 1.2.1 above within 5 (five)
days of service on the defendant of the court order, the
Sheriff is authorised to attach the Audi wherever he may find
it an d deliver it to the plaintiff who shall have the Audi
valued by a sworn valuator and thereafter set off the
valuation against the sum referred to in paragraph 1.2.1
above.
2. Costs of the action.
[2] I invited the parties to request reasons for my granting the order. Th ese
reasons are provided, pursuant to such a request by the defendant.
Litigation history
[3] On 10 May 2024 the plaintiff instituted action against the defendant. The relief
sought by the plaintiff foreshadowed the relief granted in terms of the order.
[4] The combined summons and accompanying particulars of claim were served
on the defendant on 24 June 2024.
[5] The defendant delivered a plea and claim in reconvention on 24 August 2024 ,
only after a notice of bar had been served on 6 August 2024.
[6] The delivery of the plea prompted an application for summary judgment by the
plaintiff, which was launched on 10 September 2024.
[7] The defendant failed to respond to the application for summary judgment,
which was enrolled for hearing on 8 October 2024. On that date the application
for summary judgment was postponed , at the cost of the defendant, to 22
October 2024. The defendant, furthermore, was directed by this court to deliver
its affidavit opposing summary judgment by 15 October 2024.
[8] The defendant did not deliver an affidavit opposing the application for summary
judgment as directed or at all , but rather, on 22 October 2024, the date on
which the application for summary judgment was enrolled for hearing , delivered
a notice of intention to amend its plea , as contemplated in rule 28 as well as a
so-called “explanatory affidavit” (to which I shall revert, below).
The proceedings on 22 October 2024
[9] When the matter was called on 22 October 2024, counsel for the def endant
applied from the bar for a postponement of the application to allow the
defendant to file an a ffidavit in opposition to the application for summary
judgment. This application was resisted by the plaintiff.
[10] In motivating for a postponement, the defe ndant’s counsel relied on the
explanatory affidavi t, although no reference to a postponement was made in
the affidavit.
[11] After hearing the parties on the application for postponement I adjourned to
consider that application. After due consideration I refused the application for a
postponement for the following reasons:
11.1. the explanatory affidavit did not contain a request for a postponement ,
but simply suggested that the summary judgment application would
proceed at some unspecified futur e time after the proposed
amendment had been effected;
11.2. there was no application for condonation for the failure to comply with
the order directing the filing of an opposing affidavit by a specified date
contained in the explanatory affi davit, nor was a further extension
sought for its later delivery;
11.3. the defendant, in the explanatory affidavit , offer ed no plausible
explanation as to why an affidavit opposing summary judgment , which
was in harmony with the proposed amendment, could not be filed at the
same time as the notice of amendment;
11.4. the defendant rather sought to prescribe a procedure , of its own
making, for the further conduct of the summary judgment application.
[12] I then proceeded to hear the application for summary judgment. Although the
defendant’s counsel remained present throughout the hearing of the
application, he declined to address me on the merits of the application.
Discussion
[13] Rule 32(3) allows a defendant to resist summary judgment in three possible
ways, namely by providing security to the plaintiff to the satisfaction of the court
for any judgment including costs which may be given; or to satisfy the court by
affidavit or by way of oral evidence (with the leave of the court ), that the
defendant has a bona fide defence to the plaintiff’s claims.
[14] When the application was postponed on 8 October 2024, the defendant had
indicated that it wished to establish its defence by way of affidavit , and to that
end was granted a postponement and directed to file its opposing affidavit by
15 October 2024.
[15] On the dated I gave the order the defendant did not avail itself of the other
options afforded by rule 32 (3), but rather, from the bar , sought a further
postponement for the delivery of an affidavit in opposition to the application for
summary judgment. On th e date of the hearing of the summary judgment
application it delivered its notice of amendment and thus, quite obviously, in
terms of rule 28 (2 ), the time within which the plaintiff was entitled to raise an
objection to the proposed amendment had not expired.
[16] Against this background it is apposite to refer to the judgment in Belrex 95 CC v
Barday 2021 (1) SA 178 (WCC) where the following was stated:
“[32] The difficulty in this case, however, was that in terms of rule 28(2) the time
period within which the plaintiff was entitled to raise its objection and not
expired (being only 6 court days) when the application for summary judgement
was heard. The notice to amend w as served via email on 4 August 2020, as
was the filing of the special plea. The amendment therefore had not yet been
effected at the time of the hearing of the application for summary judgment. In
my view the initial plea was s till effective at the time of the hearing of the
application. Van Loggerenberg (a reference to the work Superior Court
Practice, Volume 2 (second edition) at D1 Rule 32 -72), to a certain extent
addresses the issue which this court is grappling with, where he says a court
hearing a summary judgment application is not entitled, in the absence of an
affidavit contemplated in subrule (3)(b) , to give leave to defend on the basis of
purely a plea or notice of intention to amend , because rule 32 does not provide
for such a procedure.
[33] The learned authors then pose the question as to what should transpire in
the event of the defendant giving notice of intention to amend its plea after an
application for summary judgment was delivered, and to which propo sed
amendment the plaintiff raised an objection as contemplated in rule 28(2). In
regard to this, the authors submit that a defendant must deliver an affidavit
which is in harmony with the notice to amend its plea, failing which the
summary judgment should be granted, but if the defendant delivers an affidavit
which is in harmony with the proposed amendment of the plea, which complies
with the provisions of subrule (3(b ), the application for summary judgement
should be postponed sine die in order for the de fendant to bring an application
to amend its plea.”
[17] The above-mentioned passages, in my view, are favourable to an adoption of
the course of action proposed by Van Loggerenberg in the circumstances
postulated in the passages . In any event, I find myself in respectful agreement
with the course of action proposed by Van Loggernberg in the circumstances
postulated.
[18] Applying the author’s proposals to this matter , and in the absence of the
delivery of an affidavit in harmony with the proposed a mendment,
foreshadowed in the notice of amendment delivered on the morning of the
hearing of the application , by the defendant , the plaintiff was entitled to an
order for summary judgment. I agree with the author that rule 32 does not allow
for a procedure where summary judgm ent can be resisted purely on the basis
of a plea or a notice of amendment.
Conclusion
[19] For these reasons I exercised my discretion in favour of the plaintiff and gave
the order.
__________________________________
O H RONAASEN
ACTING JUDGE OF THE HIGH COURT
The parties were represented as follows:
The plaintiff: Adv. L. Ellis;
Gerrie Nel Inc., 37 The Baid Street, Greenside,
Johannesburg c/o Joubert Galpin & Searle, 173 Cape
Road, Mill Park, Gqeberha.
The defendant: Adv. A.A. Mbenyane
Ivan Levitt Attorneys, The Leonardo, Office Level 12, 75
Maude Street, Sandown, Johannesburg c/o Rushmere
Noach Inc., 5 Ascot Office Park, Conyngham Road,
Greenacres, Gqeberha
The reasons for t he order granting summary judgment in favour of the plaintiff
on 22 October 2024 were circulated to the parties electronically on 17
December 2024.