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[2013] ZAWCHC 148
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Absa Bank Ltd v Le Roux and Others (5842/13) [2013] ZAWCHC 148; 2014 (1) SA 475 (WCC) (7 October 2013)
Reportable
Republic of South
Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:
5842/13
Before: The Hon. Mr Justice Binns-Ward
In the
matter between:
ABSA
BANK LTD
..................................................................................................................
Plaintiff
and
LOUWRENS
ABRAHAM LE ROUX
......................................................................
First
Defendant
ANDRE
VAN VUUREN
.............................................................................................
Second
Defendant
PSIDEAN
FINANCIAL SERVICES (PTY) LTD
....................................................
Third
Defendant
Summary – Summary judgment – requirements for
compliance with Uniform Rule 32(2) – approach stated in
Firstrand
Bank Ltd v Huganel Trust2012 (3) SA 167 (WCC) disapproved –
ability of deponents to supporting affidavits in summary judgment
applications to rely on provisions of s 15 of Electronic
Communications and Transactions Act 25 of 2002to swear positively
to
facts considered.
JUDGMENT: DELIVERED: 7 OCTOBER 2013
BINNS-WARD
J:
The
plaintiff, which is a registered bank and credit provider,
instituted action against the three defendants, jointly and
severally,
claiming payment of the sum of R7 817 414,13,
together with interest thereon. The defendants were sued in their
capacity
as sureties for and co-principal debtors with O2 Fresh
Water Distillers (Pty) Ltd. Notice of intention to defend the action
was
given by the defendants and the plaintiff thereupon applied for
summary judgment.
The
application for summary judgment is opposed by the first and second
defendants, who are the co-directors of the third defendant.
The
second defendant has also brought an application in terms of
s 165
of the
Companies Act 71 of 2008
for leave to represent the third
defendant in opposing the application and defending the action. The
first defendant has applied
for a postponement of the application in
terms of
s 165
to enable him to deliver an answering affidavit
in those proceedings. He hasalso applied for a postponement of the
summary judgment
application against the third defendant, apparently
on the basis that that should await the determination of the
application
brought by the second defendant in terms of
s 165
of the
Companies Act. I
heard argument on the summary judgment
application together with argument on the applications for
postponement at the same time.
Hardly any time was spent in argument
on the postponement applicationsand no time at all on the
application in terms of
s 165.
Summary
judgment is regulated in terms of rule 32 of the Uniform Rules.
Sub-rule (2) provides insofar as relevant that ‘[t]
he
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
.’ The first and second
defendants have taken the point that the affidavit in support of the
application for summary judgment
does not comply with the sub-rule
in that it does not appear therefrom that the deponent is a person
able to swear positively
to the facts verifying the cause of action.
In
Fischereigesellschaft F Busse& Co Kommanditgesellschaft v
African Frozen Products (Pty) Ltd
1967 (4) SA 105
(C), at
111A-B, Theron J held –
As was pointed out in
Misid Investments (Pty.) Ltd v
Leslie
,
[1960 (4) SA 473
(W)] at p. 474, the applicant in summary
judgment proceedings must comply strictly with the requirements of
the Rules of Court.
In his judgment in this case Munnik, A.J. (as he
then was), indicated that to his mind the approach of the Court when
objections
were raised on technical groundsto an application for
summary judgment had been correctly set out by Marais, J., in
Mowschenson and Mowschenson v Mercantile Acceptance Corporation of
SA Ltd
.,
1959 (3) SA 362
(W) at p. 366, where he stated:
'The proper approach appears to me to be the one which
keeps the important fact in view that
the remedy for summary judgment is an extraordinary
remedy, and a very stringent one, in that it permits a judgment to be
given
without trial.'
I am in respectful agreement.
In the Appellate Division’s subsequent judgment in
Maharaj
v Barclays National Bank Limited
1976 (1) SA 418
(A), Corbett JA
in essence endorsed the strict approach propounded by Theron J,
stating, at 423 B-H:
Generally speaking, before a person can swear positively
to facts in legal proceedings they must be within his personal
knowledge.
For this reason the practice has been adopted, both in
regard to the present Rule 32 and in regard to some of its provincial
predecessors
(and the similar rule in the magistrates' courts), of
requiring that a deponent to an affidavit in support of summary
judgment,
other than the plaintiff himself, should state, at least,
that the facts are within his personal knowledge (or make some
averment
to that effect), unless such direct knowledge appears from
other facts stated (see e.g.
Joel's Bargain
Store v. Shorkend Bros. (Pty.) Ltd.,
1959 (4)
SA 263
(E);
Misid Investments (Pty.) Ltd. v.
Leslie
,
1960 (4) SA 473
(W);
Sand
and Co. Ltd. v. Kollias
[1962 (2) SA 162
(W)],
supra at pp. 165-7;
Fischereigesellschaft v.
African Frozen Products
, supra at pp.
109-110;
Flamingo Knitting Mills (Pty.) Ltd.
v. Clemans
, supra at p. 694 - 5;
Barclays National Bank Ltd. v. Love
,
1975 (2) SA 514
(D) at pp. 515-6). The mere assertion by a deponent
that he 'can swear positively to the facts' (an assertion which
merely reproduces
the wording of the Rule) is not regarded as being
sufficient, unless there are good grounds for believing that the
deponent fully
appreciated the meaning of these words (see
African
Frozen Products
case, supra at p. 110;
Love'
s
case, supra at p. 515). In my view, this is a salutary practice.
While undue formalism in procedural matters is always to be eschewed,
it is important in summary judgment applications under Rule 32 that,
in substance, the plaintiff should do what is required of
him by the
Rule. The extraordinary and drastic nature of the remedy of summary
judgment in its present form has often been judicially
emphasised
(see, e.g.,
Mowschenson and Mowschenson v.
Mercantile Acceptance Corporation of SA Ltd.,
1959
(3) SA 362
(W) at p. 366;
Arend and Another v.
Astra Furnishers (Pty.) Ltd.,
1974 (1) SA 298
(C) at pp. 304-5;
Shepstone v. Shepstone
,
1974 (2) SA 462
(N) at p. 467). The grant of the remedy is based upon
the supposition that the plaintiff's claim is unimpeachable and that
the
defendant's defence is bogus or bad in law. One of the aids to
ensuring that this is the position is the affidavit filed in support
of the application; and to achieve this end it is important that the
affidavit should be deposed to either by the plaintiff himself
or by
someone who has personal knowledge of the facts.
1
It is
generally accepted that a person can swear positively to the facts
only if they are within his personal knowledge. As the
passage from
Maharaj
quoted in the preceding paragraph illustrates, it is
not enough that the supporting affidavit merely parrots the wording
of the
sub-rule. There must be enough on the papers to satisfy the
court that the deponent does indeed possess the requisite knowledge.
The
cause of action was set out as follows in the simple summons:
1.1. By virtue of the provisions of the suretyships
annexed hereto and marked B1-B3 defendant and second defendant and
third defendant
bound themselves as sureties and co-principal debtors
with O2 Fresh Water Distillers (Pty) Ltd (‘the principal
debtor’)
in an amount of R7,817,414.13 plus 16.5% interest
calculated and capitalized monthly in arrears the entire debt now
being owing,
due and payable.
1.2. As will more fully appear from the suretyships,
defendant and second defendant and third defendant have agreed that
their liability
in accordance with the suretyship are individually
and jointly with the principal debtor; in respect of all its
liabilities inclusive
of interest and costs and that a certificate,
signed by a manager of the plaintiff, shall be prima facie proof of
the amount owing
to the plaintiff; the interest rate payable and any
other fact relating to the claim. A manager of the plaintiff has
certified
that the defendants are indebted in the amounts claimed as
is evident from the annexed certificates, marked C1.
2. By virtue of the provisions of Section 4(1)(a) of the
National Credit Act, 34 of 2005 (“the Act”) the Act has
no
application as the principle debtor’s turnover exceeded R1
million at the time the credit agreement was entered into.
WHEREFORE PLAINTIFF prays for judgment against the
defendants, jointly and severally, the one paying the other to be
absolved, for:-
Payment of
R7,817,414.13 plus interest from 14 January 2013 at
16.5% p.a. calculated and capitalized monthly to date of payment.
Costs, as between attorney and client, to be taxed
The
body of affidavit made in support of the application for summary
judgment by one Ali read as follows:
I am a manager of the plaintiff, employed at Wholesale
Credit Restructuring and Advisory Group.
All the data and records relating to this action are
under my control and I have acquainted myself therewith. The facts
contained
herein are within my personal knowledge and are both true
and correct and I am duly authorised to make this affidavit.
I have read the summons and verify the cause of action
and the indebtedness to the plaintiff in the amounts and on the
grounds
stated in the summons.
In my opinion, there is no bona fide defence to this
action and that appearance to defend has been entered solely for the
purpose
of delay.
I accordingly submit that a proper case has been made
out for summary judgment as prayed for in the summons and as set out
in
this application.
The
supporting affidavit falls materially short of what the sub-rule
requires. The defendants did not bind themselves as sureties
and
co-principal debtors in the stipulated amounts as the affidavit read
with the summons suggests. In the case of the first
and third
defendants they bound themselves subject to a limitation that ‘the
amount that the Bank shall be entitled to
recover from me/us under
this suretyship shall be limited to the maximum of R7 500 000,00
(Seven Million Five Hundred
Thousand Rand) together with such
further amounts in respect of interest and costs as have already
accrued or which will accrue
until the date of payment of the
amount’. In the case of the second defendant liability in
terms of the annexed deed of
suretyship was unlimited.The deponent
carelessly purported to confirm the inaccurate content of a
carelessly drafted summons.
Moreover, the supporting affidavit was
deposed to in Johannesburg, which is the seat of the plaintiff’s
registered office,
andthe place, one may assume, in the absence of
any indication to the contrary,where the deponent is based. Two of
the suretyships
were executed in Hermanus, in July 2005 and August
2007, respectively, and the other in Bruma in August 2007. It is not
evident
from any of the content of the affidavit on what basis the
deponent would have had personal knowledge of the execution of these
deeds of suretyship in disparate places and different times, or of
the principal debt to which the defendants’ alleged
liability
is accessory. It appears from the ‘Certificate of Balance’
annexed to the summons, which was signed by
the same person who
deposed to the supporting affidavit in the summary judgment
application, that the principal debt relates
to the debit balance of
a specified account in the bank’s books in the name of the
principal debtor. It does not appear
at which branch of the
plaintiff bank the account is operated, or on what basis the
deponent made the certification.It is inherently
improbable on the
information before the court that the deponent has direct knowledge
of most of the salient facts. Indeed, all
that he expressly
professes personal knowledge of is ‘
the facts contained
herein
’, i.e. the facts described in the supporting
affidavit. The only facts set out in the affidavit are the
deponent’s
position in the plaintiff’s employ and his
control of and reference to the data and records relating to the
action. By
itself that is not good enough.
There
is authority that would suggest that averments of fact based
onreliance on records under the control of the deponent might,
if
weighed with other factors apparent on the papers, be sufficient
(
Standard Bank of SA Limited v Secatsa
Investments (Pty) Limited
1999 (4) SA
229
(C)
), whereas other judgments call that into question
(
Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC
and Another
2010 (5) SA 112
(KZP). In the latter case, Wallis J,
having noted the approach of van Heerden AJ in
Secatsa
, went
on to observe (at para 13) that whereas it might be the effect
of such judgments that ‘
first-hand
knowledge of every fact which goes to make up the applicant’s
cause of action is not required and that, where
the applicant is a
corporate entity, the deponent may well legitimately rely on records
in the company’s possession for
their personal knowledge of at
least certain of the relevant facts and the ability to swear
positively to such facts’
he did
not ‘
understand any of the cases
as going so far as to say that the deponent to an affidavit in
support of an application for summary
judgment can have no personal
knowledge whatsoever of the facts giving rise to the claim and rely
exclusively on the perusal
of records and documents in order to
verify the cause of action and the facts giving rise thereto.’
In
Secatsa
it would appear that van Heerden AJ inferred from the
deponent’s involvement in settlement negotiations referred to
in the
papers and the fact that he had signed the certificate of
balance that he had sufficient first hand knowledge of the facts for
his affidavit, in which he expressly purported to positively swear
to the facts verifying the cause of action, to pass muster.
It is
quite clear from the seminal judgment in
Maharaj
that personal
or direct or first hand knowledge of the salient facts is generally
expected from the deponent to the supporting
affidavit in summary
judgment applications. The approach in cases like
Secatsa
does not purport to derogate from that requirement. What the courts
do on the
Secatsa
approach is to look at the papers as a
whole to ascertain whether there is sufficient assurance to be
derived therefrom that
the deponent’s averment that he is able
to positively swear to the facts so as to be able to verify the
cause of action
and profess the belief that the defendant has no
bona fide
defence is well-founded. It is an approach that
mirrors that adopted by Corbett JA in
Maharaj
; that is
it entails determining on the probabilities, as they may be assessed
on the papers read as a whole (‘at the end
of the day’
as Corbett JA put it, quoting from Trollip J’s
judgment in
Sand and Co. Ltd. v. Kollias
), whether the
deponent did indeed have sufficient direct knowledge of the facts.
The
approach manifested in a recent judgment of this court seems,
however, if I have correctly understood its import, to take
a new
and quite different tack. After a review of what appear to have
beeninconsistent approaches taken in a number of judgments
given in
recent years on the requirements of the sub-rule,
2
it
was held as follows in
Firstrand Bank Ltd v Huganel Trust
2012 (3) SA 167
(WCC)at 176 I – 177E:
What is one to make of these conflicting judgments which
all followed from that of
Maharaj
? It appears to me that there
are at least three important points that should be emphasised.
1. While summary judgment is an order which will prevent
a defendant from having his day in court, there are many cases where
the
plaintiff is entitled to relief on the basis that,
ex facie
the papers which have been filed, there is no justification for
concluding that opposition can be regarded as anything other than
a
delaying tactic.
2. As Corbett JA emphasised in
Maharaj
, excessive
formalism should be eschewed. Hence the substance of the dispute,
together with the purpose of summary judgment, needs
to be taken into
account during the evaluation of the papers which have been placed
before court in order to determine whether
the summary form of relief
should be justified.
3. While a measure of commercial pragmatism needs to be
taken into account, in that many of these summary judgment
applications
are brought by large corporations and, accordingly, it
may well be that first-hand knowledge of every fact cannot and should
not
be required, each case must be assessed on the facts which were
placed before the court. It follows therefore that the nature of
the
defence becomes the starting point. For example, in
Maharaj
's
case Corbett JA found that it was a borderline case but one
which fell on the right side of the border insofar as the
plaintiff/applicant
was concerned. On an evaluation of both the claim
and the defence, it could be concluded with justification that the
deponent had
sufficient knowledge to depose to the affidavit, which
formed the basis of the factual matrix to sustain an application for
summary
judgment.
By contrast, there will be cases where, given the
defence raised, some further knowledge is required beyond an
examination of the
documentation. In other words, knowledge of a
personal nature may be required if it is relevant to the contractual
relationship
as alleged by the defendant and, if the defendant's
version is proved, could constitute an adequate defence to the claim.
It
seems to me, with respect, that although there might be something to
be said from a pragmatic perspective for the approach
commended in
HuganelTrust
and (it is the words in the last part of the
quoted passage that are of particular interest), it is nevertheless
not one that
accords either with the wording of the sub-rule, or the
approach to the application of the sub-rule explained in
Maharaj
.
The judgment in
Maharaj
held that the court could obtain
assurance that the deponent to the supporting affidavit had the
requisite direct knowledge of
the facts from the content of the
papers as a whole, and not just from the content of the affidavit
read on its own. That is
evident from the following dictum at p. 423
in fine
of the judgment: ‘
Where the affidavit fails
to measure up to these requirements
[i.e. where it fails to
comply strictly with the requirements of the sub-rule]
, the
defect may, nevertheless, be cured by reference to other documents
relating to the proceedings which are properly before
the Court (see
Sand and Co. Ltd. v. Kollias
, supra at p. 165).
The principle is that, in deciding whether or not to grant summary
judgment, the Court looks at the matter
'at the end of the day' on
all the documents that are properly before it (ibid. at p. 165).
’
The judgment did not hold, however, that direct knowledge by the
deponent to the supporting affidavit was not necessary,
or might be
overlooked unless the defendant’s answering affidavit raised
an issue that made his apparent lack of direct
knowledge
relevant.
3
It
is not the allegations which the defendant puts in issue that
determine the extent of the knowledge that the deponent to the
supporting affidavit must have. The deponent must have direct
knowledge of most, if not all, of the facts that the plaintiff
will
have to prove to establish its claim in the action.
In
noting the policy of the courts to eschew undue formalism,
Corbett JA did not intend to suggest that substantive
non-compliance
with the requirements of the sub-rule could be
overlooked; on the contrary, the learned judge of appeal emphasised
that ‘
in substance, the plaintiff should do what is
required of him by the Rule
’. As apparent from the passage
from the judgment quoted in paragraph , above, he went on to state
‘
The grant of the remedy is based upon the supposition that
the plaintiff's claim is unimpeachable and that the defendant's
defence
is bogus or bad in law. One of the aids to ensuring that
this is the position is the affidavit filed in support of the
application;
and to achieve this end it is important that the
affidavit should be deposed to either by the plaintiff himself or by
someone
who has personal knowledge of the facts
’. (The
learned judge of appeal had no cause to consider whether reliance by
a deponent on admissible hearsay evidence might
in certain
circumstances qualify the deponent to swear ‘positively’
to the facts evinced by such evidence, something
about which I shall
say more later.)
In
the result it follows on the construction of the sub-rule given in
Maharaj
that unless it appears from a consideration of the
papers as a whole that the deponent to the supporting affidavit
probably did
have sufficient direct knowledge of the salient facts
to be able to swear positively to them and verify the cause of
action,
the application for summary judgment is fatally defective
and the court will not even reach the question whether the defendant
has made out a
bona fide
defence. That is why a contention by
a defendant that the supporting affidavit in a summary judgment
application is non-compliant
with the requirements of sub-rule 32(2)
is properly characterised and dealt with as a point
in limine
in such applications.
Reverting
to the detail of the current case, differing in this respect from
the conclusion van Heerden AJ was able to reach in
Secatsa
, I
find no assurance of direct knowledge of the facts in the signature
by the deponent to the supporting affidavit of the certificate
of
balance attached as an annexure to the summons. The certificate was
drawn pursuant to the provisions of clause 13 of
the deeds of
suretyship, which in the English version provides as follows:
A certificate signed by any manager of the Bank shall be
sufficient proof of any applicable rate of interest and of the amount
owing
in terms hereof or of any other fact relating to the suretyship
for the purposes of judgement, including provisional sentence and
summary judgement, proof of claims against insolvent and deceased
estates or otherwise and if I/we dispute the correctness of such
certificate, I/we shall bear the onus of proving the contrary. It
shall not be necessary to prove in such a certificate the appointment
or capacity of the person signing such certificate.
The
purpose of the certificate is to create an evidential onus on the
surety to negate the bank’s allegations as to the quantum
and
the cause of any debt in any proceedings in which it seeks to make a
recovery against the surety. The certificate stands as
prima facie
proof of the substance of its contents in any litigation to exact
payment under the deeds of suretyship; cf.
Senekal v Trust
Bank of Africa Ltd
1978 (3) SA 375
(A) at 381H - 383A. It has
that effect not as an incident of any law of general application, but
only because the parties have
agreed in their contract that it should
do. There is no requirement in the current matter that the manager
who signs such a certificate
must have direct knowledge of the
matters to which it pertains. There would thus be nothing untoward or
remiss in any manager of
the bank signing such a certificate on the
basis of his perusal and
bona fide
acceptance of the
correctness of the relevant information in the bank’s records,
as distinct from having direct knowledge
of the matters in question.
In other words the manager could legitimately execute such a
certificate in circumstances in which,
on the approach described in
Shackleton Credit Management
(which in my view faithfully
follows that stated in
Maharaj
), he could not properly depose
to an affidavit in support of a summary judgment application.
Signature of such a certificate therefore
is no warrant of the
ability of the signatory to positively swear to the facts.
[17] The
plaintiff’s counsel also sought a cure for the deficiency in
the supporting affidavit in the averments at para 16
of the
second defendant’s opposing affidavit. Second defendant
averred:
As will be elaborated upon herein below at all material
times prior to the beginning of this year, and after this dispute
with the
plaintiff had already arisen I dealt with Corrie Coetzee,
the relationship executive: Commercial Business – ABSA Retail
and
Business Banking, a certain Tobi Botes and an Elize van Breda in
regard to the account relevant to this matter. I had a brief
telephonic
discussion with Ali [the deponent to the supporting
affidavit] during the beginning of this year when Ali phoned me to
try and
resolve matters since I had requested someone else at ABSA to
assist me in resolving this matter. Those discussions were short
lived as Ali insisted on a meeting in the Cape with the first
defendant and attorneys representing the plaintiff, but the first
defendant refused to meet around a table with me.
The
plaintiff’s counsel submitted that this passage in the opposing
affidavit afforded sufficient assurance of the deponent’s
direct knowledge of the facts and served to cure any deficiency in
the supporting affidavit. I do not agree. All that it shows
is that
Ali felt it necessary to meet the parties. That, to my mind, is more
indicative of a need by him to investigate the facts
so as to be
qualify himself to deal with the matter in the place of Coetzee,
Botes and van Breda, who were the bank officials who
had previously
been handling it.
[18] The
plaintiff’s counsel furthermore submitted that some of the
second defendant’s defences were demonstrably contrived.
He
supported this submission by referring to what he characterised as
contradictory averments concerning the indebtedness of O2
Fresh Water
Distillers (Pty) Ltd to the plaintiff in affidavits made by the
second defendant in support of applications for the
business rescue
of two companies in which the first and second defendant held an
interest. The founding affidavits in the business
rescue applications
had been annexed to the second defendant’s opposing affidavit
in the summary judgment application and
the content thereof
incorporated in the opposing affidavit by reference. As I understood
the argument it was to the effect that
if it appeared that the
defendants’ defence was bad, or not advanced
bona fide
,
that should militate in favour of overlooking any shortcoming in the
supporting affidavit. The argument came down to a plea that
substance
should be placed before form. It should be clear from what has been
said earlier that the argument cannot prevail in
the face of an
incurable non-compliance with the provisions of rule 32(2). As noted
earlier, sufficient compliance by the plaintiff
with the requirements
of sub-rule 32(2) on the papers considered as a whole is a
sine
qua non
to the court’s ability to enter into the
application.
4
[19] The
requirements of rule 32(2) might, on the basis of the approach laid
explained in
Maharaj
, and applied in cases such as
Shackleton
Credit Management
and
Han-RitBoerdery
, appear on their
face to place an impossible burden on institutional plaintiffs such
as banks, particularly in the modern age in
which much of their
business is conducted facelessly on computer networks and recorded
electronically. This much was in fact suggested
in so many words by
Monama J in
Firstrand Bank Ltd t/a Wesbank
v Ego Specialised Services CC and Others
[2012]
ZAGPJHC 47 (3 April 2012) at para 8-11
. I do not
believe, however, that this is necessarily so. Electronically stored
data falling within the defined meaning of ‘
data message
’
in
s 1
of the
Electronic Communications and Transactions Act 25
of 2002
5
is admissible in evidence in terms of s 15 of the Act.
Section 15(4) of the Act provides: ‘
A data message made
by a person in the ordinary course of business, or a copy or printout
of or an extract from such data message
certified to be correct by an
officer in the service of such person, is on its mere production in
any civil, criminal, administrative
or disciplinary proceedings under
any law, the rules of a self regulatory organisation or any other law
or the common law, admissible
in evidence against any person and
rebuttable proof of the facts contained in such record, copy,
printout or extract
’.Section 15(4) has a twofold effect. It
creates a statutory exception to the hearsay rule and it gives rise
to a rebuttable
presumption in favour of the correctness of
electronic data falling within the definition of the term ‘data
message’.
[20]
Ordinarily, only a witness with direct knowledge of the facts is
competent to testify to their existence. It was for that reason
that
the word ‘positively’ has generally been construed in the
manner explained in the passage from
Maharaj
quoted earlier.
But what is the position when, by way of an exception to the general
rule, hearsay evidence is admissible to prove
the facts in issue? If
the hearsay evidence would be admissible to prove the facts at the
trial, why should a deponent who is qualified
to produce the hearsay
evidence not be able to depose to an affidavit in support of summary
judgment on the basis of such evidence?
Provided that he is
appropriately qualified to give the evidence, why should he be
regarded as disabled from swearing positively
to the facts? After
all, the evidence he could produce at the trial would,
notwithstanding its hearsay character, nevertheless
positively
establish the facts, subject, of course, to the effect of any
rebutting evidence adduced by the defendant. In my view,on
a proper
construction thereof, sub-rule 32(2) does not preclude the deponent
to the supporting affidavit from relying on hearsay
evidence to swear
positively to the facts when he could permissibly, as a matter of
law, adduce such hearsay evidence for the purpose
of proving the
facts at a trial of the action.The case in support of such a
construction is made even stronger when there is a
statutory
presumption in favour of the correctness of such evidence. Thus, if
the deponent to a supporting affidavit in summary
judgment
proceedings were to be able to aver that he is (i) an officer in
the service of the plaintiff, (ii) that the
salient facts -
which should be particularised - are electronically captured and
stored in the plaintiff’s records (iii) that
he had regard
thereto (iv) that he is authorised to certify and has executed a
certificate certifying the facts contained
in such record to be
correct and (v) on the basis thereof is able to swear positively that
the plaintiff will - having regard to
the provisions of s 15(4)
of Act 25 of 2002 - be able to prove the relevant facts at the trial
of the action by producing
the electronic record or an extract
thereof, the requirements of rule 32(2) would be satisfied. I think
that it would be salutary
for the deponent to any such affidavit also
to explain why the evidence is not being adduced by means of the
affidavit of someone
with direct personal knowledge of the facts.
[21] It is
not necessary, however, to determinatively decide whether the
Electronic Communications and Transactions Act could
have been of
assistance to the plaintiff in the current matter. The supporting
affidavit did not identify the nature and content
of the records to
which the deponent had reference. It did not identify the facts
established by reference to the records, orcontain
any averments that
would indicate the admissibility of their content in terms of
s 15
of Act 25 of 2002. As a result it was inadequate on any approach; its
content did not assure the court that the deponent could
swear
positively to the facts and verify the cause of action and the amount
claimed.
[22] In
the circumstances the application for summary judgment falls to be
dismissed by reason of the plaintiff’s non-compliance
with
sub-rule 32(2). Counsel were agreed that in that event it would not
be necessary to deal with the second defendant’s
application in
terms of
s 165
of the
Companies Act, or
the first defendant’s
application for the postponement thereof.The point
in limine
holds good for all three defendants. The application for a
postponement of the summary judgment application in respect of the
third defendant therefore obviously falls away.
[23]
Although the application for summary judgment has failed because of
the plaintiff’s non-compliance with the rules, I
do not think
it appropriate that a costs order against the plaintiff should
necessarily follow. The object of the remedy is to
discourage
defendants who do not have a
bona fide
defence from delaying
the determination of claims. The defendants’ point
in limine
may have been good, but it is a not a point that defendants should be
encouraged to take in the abstract. A defendant who does
not have a
bona fide
defence to a plaintiff’s claim should not
profit by taking the pointfor technical reasons instead of conceding
that he has
no defence to the claim. In the circumstances I shall
direct that the costs of the summary judgment application shall be
costs
in the cause in the action.
[24] The
following orders are made:
(a) The application for summary judgment is dismissed.
(b) The defendants are given leave to defend the action.
(c) The costs of the application for summary judgment, including the
costs incurred in respect of the application for the postponement
of
the summary judgment application, shall be costs in the cause in the
action.
(d) The costs in respect of the application by the second defendant
in terms of
s 165
of the
Companies Act, 2008
and the application
by the first defendant for the postponement thereof shall stand over
for determination by the court that determines
the application in
terms of the
Companies Act.
A.G
. BINNS-WARD
Judge of the High Court
Matter
heard: 28 August 2013
Judgment
delivered: 7 October 2013
Plaintiff’s
counsel: L.M. Olivier SC
Plaintiff’s
attorneys: SandenberghNel Haggard, Bellville
Nilands,
Cape Town
First
defendant’s counsel: M. Harrington
First
defendant’s attorneys: HeroldGie Inc. Cape Town
Second
defendant’s counsel: H. Jansen van Rensburg
Second
defendant’s attorneys: Sim&BotsiAttoneys Inc. Johannesburg
Smit
Rowan Inc. Cape Town
1
The
judgment of the Supreme Court of Appeal in
Joob Joob Investments
(Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) in which it was suggested (at para 33) that perhaps the
time has come to stop describing summary judgment as a ‘drastic’
remedy did not purport to derogate from the explanation of the
proper application of
rule 32
set out in
Maharaj
. On the
contrary, Navsa JA coupled that suggestion with the enjoinder to
defendants that instead of seeking refuge under the
labels that
suggest a draconian character to the remedy in the hope of making
the courts reluctant to grant summary judgment
they should
‘
concentrate rather on the proper application of the rule,
as set out with customary clarity and elegance by Corbett JA in the
Maharaj case at 425G - 426E
’. (Corbett JA was
treating of sub-rule 32(3) at the passage referred to by Navsa JA.
Rule 32(3)
prescribes the requirements that must be satisfied by a
defendant that delivers an affidavit in opposiiton to an application
for summary judgment.)
2
Shackleton
Credit Management
supra
,
First
Rand Bank Limited v Beyer
2011(1) SA
196 (GNP),
Standard Bank Limited v
KroonhoekBoerdery CC and others
[2011]
ZAGPPHC 132 (1 August 2011)
Standard
Bank of SA Limited v Han-RitBoerderyCCand others
[2011]
ZAGPPHC 120 and
Chandler Cole (Ptv) Ltd
v Fruin
(WCC case 168504/2011).
3
To
the extent that the judgment of Hutton AJ
in
Investec
Bank Ltd v Rees and Another In re: Investec Bank Ltd v Rees and
Others
[2013] ZAGPJHC 35 (5 March 2013)at
para 27-30,
following
Firstrand Bank Ltd v Huganel Trust
,
appears
to hold differently, I respectfully differ.
4
Compare
the rejection by Roberson J of a similar argument in
Petroleum
Oil and Gas Corporation of South Africa (Pty) Ltd v Fantastic View
Properties CC
[2013] ZAECGHC 33 (5 April 2013) at
para 13-15 and compare also the approach of Southwood J in
Han-Rit Boerdery
supra.
5
‘
data
message
’
means
data generated, sent, received or stored by electronic means and
includes-
(a) voice, where the voice is used in an automated
transaction; and
(b) a stored record.
‘
Data
’
is defined as ‘electronic
representations of information in any form’.