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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED: YES/NO

CASE NOS: 45323/2019 and 42121/2019

 

In the matters between:-

 

ABSA BANK LIMITED                                                          Plaintiff

and

MOTSWIRI RUBENSTEIN MPHAHLELE N.O.                First Defendant

MALI ZABILON MASHININI N.O.                                      Second Defendant

MOTSWIRI RUBENSTEIN MPHAHLELE                         Third Defendant

MALI ZABILON MASHININI                                               Fourth Defendant

JUDGMENT

WANLESS, AJ

Introduction

[1]     Summary judgment has long been a part of South African civil procedure.  Encapsulated in Rule 32 of the Uniform Rules of Court, it has formed an integral part of our law. Not only has the procedure received considerable attention from our courts, it has also played an indelible part in the development of South African common law and civil procedure. At its very foundation, summary judgment was devised to entrench the admirable principle that a plaintiff’s claim, based upon certain causes of action, should not be delayed by what amounts to be an abuse of court process, namely a recalcitrant defendant, with no bona fide defence to the plaintiff’s action, entering an appearance to defend that action, merely for the purposes of delay. At the same time, summary judgment which entitles a plaintiff to apply to court to have judgment entered summarily against such a defendant, therefore putting an end to the matter and avoiding the plaintiff being put to the expense of a trial, was never intended to close the door upon a defendant who could, at the very least, show that there was a triable issue or issues, applicable to the claim. In those instances, a defendant was granted leave to defend the action and summary judgment was refused.

[2]     Prior to the 1^st of July 2019, Rule 32[1] read as follows:

“32         Summary judgment

(1)          Where the defendant has delivered notice of intention to defend, the plaintiff may apply to court for summary judgment on each of such claims in the summons as is only –

(a)          on a liquid document;

(b)          for a liquidated amount in money;

(c)           for delivery of specified movable property; or

(d)          for ejectment;

together with any claim for interest and costs.

(2)          The 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.  If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit and the notice of application for summary judgment shall state that the application will be set down for hearing on a stated day not being less than 10 days from the date of the delivery thereof.

(3)          Upon the hearing of an application for summary judgment the defendant may –

(a)          give security to the plaintiff to the satisfaction of the registrar for any judgment including costs which may be given, or

(b)          satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of himself or of any other person who can swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

(4)          No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2), nor may either party cross-examine any person who gives evidence viva voce or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it considers may elucidate the matter.

(5)          If the defendant does not find security or satisfy the court as provided in paragraph (b) of subrule (3), the court may enter summary judgment for the plaintiff. 

(6)          If on the hearing of an application made under this rule it appears –

(a)          that any defendant is entitled to defend any other defendant is not so entitled; or

(b)          that the defendant is entitled to defend as to part of the claim, the court shall –

(i)            give leave to defend to a defendant so entitled thereto and give judgment against the defendant not so entitled; or

(ii)           give leave to defend to the defendant as to party of the claim and enter judgment against him as to the balance of the claim, unless such balance has been paid to the plaintiff; or

 (iii)         make both orders mentioned in sub-paragraphs (i) and (ii).

(7)          If the defendant finds security or satisfies the court as provided in subrule (3), the court shall give leave to defend, and the action shall proceed as if no application for summary judgment had been made.

(8)          Leave to defend may be given unconditionally or subject to such terms as to security, time for delivery of pleadings, or otherwise, as the court deems fit.

(8A)       Where delivery of a declaration is required by these rules and the court, when giving leave to defend in terms of this rule, has not made an order for the delivery of such declaration within a specified time, such declaration shall be delivered within 20 days of the date leave to defend has been given.

 (9)         The court may at the hearing of such application make such order as to costs as to it may seem just: Provided that if –

(a)          the plaintiff makes an application under this rule, where the case is not within the terms of subrule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which would entitle him to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant’s costs; and may further order that such costs be taxed as between attorney and client; and

(b)          in any case in which summary judgment was refused and in which the court after trial gives judgment for the plaintiff substantially as prayed, and the court finds that summary judgment should have been granted had the defendant not raised a defence which in its opinion was unreasonable, the court may order the plaintiff’s costs of the action to be taxed as between attorney and client.”

[3]     On the 1^st of July 2019, largely unheralded and unannounced, substantial and material amendments in respect of Rule 32 came in to operation. In terms of the rule in its amended form:[2]

(a)     the plaintiff may only apply for summary judgment after the defendant has delivered a plea (subrule 1);

(b)     the plaintiff must, in the affidavit in support of summary judgment, verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial ( subrule (2)(b) );

(c)      the defendant may, in order to avoid summary judgment, give security to the satisfaction of the court, and no longer to the satisfaction of the registrar, for any judgment including costs which may be given ( subrule (3)(a) ).[3]

[4]     In the present matters before this court, under case numbers 45323/2019 and 42121/2019 respectively, ABSA BANK LIMITED (“the Plaintiff”) instituted summary judgment proceedings in terms of Rule 32 against MOTSWIRI RUBENSTEIN MPHAHLELE N.O, an adult male, in his capacity as a trustee of the MATHAMBO TRUST (“the First Defendant”); MALI  ZABILON MASHININI N.O, an adult male, in his capacity as a trustee of the MATHAMBO TRUST (“the Second Defendant”); MOTSWIRI RUBENSTEIN MPHAHLELE, an adult male, in his capacity as a surety of the MATHAMBO TRUST (“the Third Defendant” ) and MALI  ZABILON MASHININI, an adult male, in his capacity as a surety of the MATHAMBO TRUST (“the Fourth Defendant” ). For ease of reference the First, Second, Third and Fourth Defendants will be referred to herein, where applicable, collectively as “the Defendants”. Any reference to the MATHAMBO TRUST will be to “the Trust”. Since the facts of both summary judgment applications, together with the issues pertaining thereto, are, in all material respects, identical, it was agreed between the parties that they would be heard simultaneously and that this court would render a single judgment in respect thereof.

[5]     Both summary judgment applications were instituted after the 1^st of July 2019 (on or about the 16^th of September 2019). In the premises (and this is common cause between the parties) they fall to be decided in terms of Rule 32 in its amended form. For ease of reference, Rule 32 in its original and amended forms will be referred to as such throughout the remainder of this judgment.

The facts

[6]     The Plaintiff’s cause of action in both Summary Judgment applications is based upon the failure of the Defendants to comply with their payment obligations in terms of written Mortgage Loan Agreements (“the Loan Agreements”) which were entered into between the Plaintiff and the Trust, duly represented by “the authorised Trustees of the Trust”. In terms of the Loan Agreements monies were loaned to the Trust. These amounts (“the capital amounts”) together with further sums of money (“the additional amounts”) were secured by the registration of mortgage bonds (“the mortgage bonds”) over certain immovable properties situated at Paradiso Township, Gauteng (“the properties”). The Third Defendant and the Fourth Defendant bound themselves respectively as sureties and co-principal debtors to the Plaintiff in respect of the Trust’s aforesaid indebtedness to the Plaintiff.

[7]     The relief sought by the Plaintiff in respect of the applications for summary judgment is against the Defendants, jointly and severally, the one paying the other to be absolved, for payment of an amount (subrules 1(a) and (b) of Rule 32 in both its original and amended forms); interest thereon and costs of suit on the scale as between attorney and client.[4] At the same time that the Plaintiff instituted both Summary Judgment applications the Plaintiff also instituted applications in terms of subrules 46(1)(a)(ii) and 46A(8)(e) for, inter alia,  orders declaring the properties specially executable and directing the Registrar to issue warrants of execution against the properties. Such applications were obviously necessary in order for the Plaintiff to perfect its security in terms of the mortgage bonds.

[8]     In the affidavits in support of the applications for summary judgment the deponent thereto, as required to do in terms of subrule (2)(b) of Rule 32 in its amended form, seeks to explain why, in the deponent’s opinion, the issues as pleaded by the Defendants do not raise any issues for trial.[5] In support thereof the Plaintiff attached, as annexures to the said affidavits, a copy of the Deed of Trust in respect of the Trust; a Power of Attorney to pass a Mortgage Bond and Letters of Authority[6]. In opposition to the applications for summary judgment the Defendants elected to file affidavits in terms of subrule (3)(b) of Rule 32 in its amended form. In these affidavits the Defendants aver, inter alia, that in terms of subrule (2)(b) thereof the Plaintiff is restricted, in its affidavits in support of summary judgment, to providing the court with an explanation as to why the defence, as pleaded, does not raise any issue for trial. Following thereon, it is averred by the Defendants that the Plaintiff is not entitled to furnish either supplementary facts or rely on further causes of action which are not contained in the Plaintiff’s Particulars of Claim. In addition, the Defendants state that the Plaintiff is not entitled to supplement the Particulars of Claim (and therefore, by implication, the Plaintiff’s cause of action as set out therein) by adducing evidence (including documentary evidence such as that attached as annexures to the Plaintiff’s Affidavits in support of Summary Judgment).[7] Arising therefrom and at the hearing of these applications, both parties requested this court to deliver a judgment dealing with these issues and which would provide guidance on the interpretation of Rule 32 in its amended form. This request is a reasonable one in the absence of any practice directions being published in this Division pertaining to Rule 32 in its amended form or any judgments having been delivered in respect of the issues raised in the present matters, at the time of the hearing of these applications.

[9]     In order to do so, it is necessary for this court to consider, inter alia, events giving rise to the amendments to the rule; the reasons for effecting the said amendments and the intention behind the manner and form in which those amendments were effected.

The investigation carried out by the Superior Courts Task Team of the Rules Board for Courts of Law

[10]   The amendments to Rule 32 were preceded by an investigation by the Superior Courts Task Team of the Rules Board for Courts of Law.[8]

The Task Team concluded (at paragraph 3 of the Task Team’s Memorandum to Role-Players in Respect of Proposed Changes to the Summary Judgment Rule (Rule 32), distributed to role-players under cover of a letter of the Secretary of the Rules Board for Courts of Law dated 27 June 2016) that the summary judgment procedure was unsatisfactory for a number of reasons and, in particular, the following:

(a)     deserving plaintiffs were frequently unable to obtain expeditious relief because of an inability to expose bogus defences (either in their founding affidavit or in any further affidavit – further affidavits not being permitted);

(b)     opportunistic plaintiffs were able to use the procedure to get the defendant to commit to a version on oath and thus obtain a tactical advantage for a trial in due course; and

(c)      a burden of proof was arguably shifted to the defendant which was not only unfair but led to the kinds of constitutional challenges which have emanated in the High Court.

[11]   The Task team accordingly recommended amendments to rule 32 on the following basis:[9]

11.1   A plaintiff at present does not have to indicate what exactly its cause of action is, or what facts it relies on, or why a defendant does not have a defence.  Instead, the plaintiff is merely required (and permitted) to file a brief affidavit, taken from a template, “verifying the cause of action” in the vaguest possible way, opining that the defendant has no bona fide defence, and stating that “a notice of intention to defend has been delivered solely for the purpose of delay” ( rule 32(2) ).  This formulaic affidavit is unsatisfactory in many respects.

11.1.1         The plaintiff, when deposing to its affidavit under the current rule, may well not be aware what defence the defendant is intending to advance.

11.1.2         The deponent of the affidavit (who could, for example, be an accounts manager in a bank) is also likely to have little idea as to why exactly the defendant is opposing: the defendant could for example believe (wrongly) that it has a viable defence, or that there is some impediment to the plaintiff succeeding irrespective of the merits (e.g. prescription, jurisdiction or lack of standing), or that the equities are such that a court could well be minded not to grant judgment for the plaintiff.

11.1.3         The current founding affidavit in summary judgment proceedings therefore invariably involves speculation on the part of the plaintiff’s deponent.  The lack of specificity as to the plaintiff’s claim, and the complete lack of detail as to why the defendant’s envisaged defence is bogus, coupled with the absence of any replying affidavit, also means that the plaintiff can easily be frustrated by a defendant who is prepared to construct or contrive a defence, or rely on technical points.

11.2   The best way of addressing these shortcomings would seem to be to require the founding affidavit in support of summary judgment to be filed at a time when the defendant’s defence to the action is apparent, by virtue of having been set out in a plea.  This course is better than allowing a replying affidavit to be filed (as was suggested by a report prepared a few decades ago by the Galgut Commission).  Merely including provision for a replying affidavit would not address the problems with the formulaic nature of the founding affidavit, and the speculation inevitably contained therein.

11.3   In the event of a plaintiff applying for summary judgment after the delivery of a defendant’s plea, the plaintiff would be able to explain briefly in its founding affidavit why the defences proffered by the defendant do not raise a triable issue; and should indeed be required to do so in order that the question of whether there is a bona fide defence which is capable of being sustained could be considered by the Court in a meaningful way.  Requiring the plaintiff to set out why, in its view, it has a valid claim and why the defendant’s defence is unsustainable, would also remove the criticism that the defendant is being required to commit itself to a version when the plaintiff is not similarly burdened.  Obliging the plaintiff to engage meaningfully with the case in its founding affidavit would moreover have the added benefit of reducing the temptation for a plaintiff to seek summary judgment as a tactical move (and as a way of forcing the defendant to commit to a version on oath, which can be subsequently used in cross examination to discredit a witness of the defendant).

11.4   A stipulation that a plaintiff can only apply for summary judgment after delivery of a plea (rather than a notice of intention to defend) would also mean that the summary judgment application would be adjudicated on the basis of the defendant’s pleaded defence and thus hopefully avoid a situation (such as not infrequently occurs under the current rule) where a defendant’s version in its opposing summary judgment application diverges materially from its subsequently-delivered plea.  The summary judgment debate will thus hopefully be a more informed, and less artificial one, and engage with the real issues in the matter.

11.5   Although foreign practice must be viewed with caution given the differences between countries and their procedural systems, it is notable, too, that the other jurisdictions considered by the Task Team - the United Kingdom, Canada, Australia and the U.S.A. – all permit summary judgment only after a plea has been filed (and indeed after pleadings have closed).  The summary judgment procedure was seemingly introduced in South Africa on the basis of its use in England and Scotland.  The fact that summary judgment is only competent in those jurisdictions after at least a plea has been filed (and would thus be premature after merely a notice of intention to defend has been delivered) is thus reassuring, and indicative of the merits of the proposed change.

11.6   If the summary judgment procedure is changed as proposed, the Task Team does not believe that a replying affidavit would either be necessary or appropriate.  A plaintiff would have had a chance to address the averments in the defendant’s plea in its founding affidavit in support of summary judgment.  If the defendant has a further rebuttal in its answering affidavit, then, if that is credible, the summary judgment application would be defeated; but that is not necessarily inappropriate as the matter would then presumably have complexities which render it ill-suited to the summary judgment remedy.  For a similar reason, a referral to oral evidence (also mooted in the Galgut Commission report) seems inadvisable.

11.7   The Task Team debated whether, as in the comparative jurisdictions consulted, summary judgment should potentially be available for any kind of claim (including illiquid claims for damages).  It was concluded that this would not be appropriate, and that summary judgment could justifiably be confined to the kind of matters referred to in section 32(1).

11.8   The Task Team also debated whether, if summary judgment should no longer be brought after delivery of a notice of intention to amend, it should be allowed only after close of pleadings.  It was however decided against requiring a plaintiff to wait until after any replication, rejoinder or rebuttal had been filed.  While such a rule would ensure that the debate was fully informed, and based on all pleaded defences and ripostes, it was thought that the speediness of the remedy could be compromised, and also that, as the objective behind summary judgment was to allow judgment to be obtained expeditiously in clearly deserving cases, a matter in which there were replications, rebuttals and the like was probably one ill-suited to summary judgment.

[12]   An issue floated, but not finally decided, at the meeting of the Task Team was whether there should be a limit on the length of a founding affidavit in a summary judgment application brought under the proposed amended rule.  (There could be no limit on a defendant’s answering affidavit, as the defendant is, after all, facing final judgment.  By contrast, the plaintiff would, if unsuccessful, merely be required to proceed with its action in the normal course.)  The Task Team’s chair was of the view that there is something to be said for a page limit (of, say, ten or fifteen pages) in a summary judgment founding affidavit; for otherwise there is a danger that an action could involve a lengthy application in which the plaintiff seeks immediate (or summary) relief, followed, if that is unsuccessful, by a trial; and that could impose an intolerable burden on the administration of justice, and also drive up costs for the parties.  However, other Task Team members were not convinced that such a restriction should be imposed.

[13]   Against this background, it is necessary for this court to consider the amendments effected to Rule 32 insofar as they are applicable to the issues raised by the parties in both applications by the Plaintiff for summary judgment. In this regard, subrules (1) and (2)(b) of Rule 32, in its amended form, are relevant. Subrule (3)(a) is not and accordingly will not be dealt with in this judgment.[10]

Subrule (1) of the amended Rule 32

[14]   In terms of this subrule of Rule 32 in its unamended form, a notice of intention to defend by the defendant was a prerequisite to an application for summary judgment. The delivery of a plea is now a prerequisite to an application for summary judgment under Rule 32(1) in its amended form. The significance of this amendment must be considered in light of, inter alia, the investigations carried out by the Task Team and the reasons of the Rules Board effecting this amendment to Rule 32, as dealt with above.

Subrule (2)(b) of the amended Rule 32

[15]   It is the amendment of this subrule which has arguably had the most significant effect on the procedure of summary judgment in our law. In the premises, it is fitting that the issues raised by the parties in the Summary Judgment applications before this court are governed primarily by this subrule. Moreover, it is appropriate that this judgment deal therewith. From an analysis of the amended subrule, it is clear that in order for the affidavit in support of summary judgment to comply therewith, that affidavit must contain a verification of the cause of action and the amount, if any, claimed; an identification of any point of law relied upon; an identification of the facts upon which the plaintiff’s claim is based and a brief explanation as to why the defence as pleaded does not raise any issue for trial. The learned authors in Erasmus[11] submit that a court will have to be satisfied that each of these requirements has been fulfilled before it can hold that there has been proper compliance with subrule (2)(b). This submission is accepted by this court as being correct.  Each subrule of a rule must be read in the context of the entire rule and in the context of the other subrules contained in that rule. The same must apply to each requirement as set out in a single subrule. In the premises, it is appropriate to examine each requirement of this subrule in the correct context.

Verification of the cause of action and the amount, if any, claimed

[16]   This requirement, which was a requirement in subrule (2) of Rule 32 in its original form, has been retained in subrule (2)(b) of Rule 32 in its original form. The remaining three (3) requirements, which form part of amended (2)(b) of Rule 32 in its amended form, did not form part of subrule (2) of Rule 32 in its original form. So, whilst the requirement of verification has been retained (in substantially identical wording), it must, as already stated, be read in the context of the entire rule as amended and in the context of subrule (2)(b) of Rule 32 in its amended form.

[17]   In this light, it is important to bear in mind that what must be verified are the facts as alleged in the summons.[12] Further, the deponent to the affidavit in support of the application for summary judgment must verify what has been referred to as a complete or perfected cause of action.[13] From the aforegoing, it is clear that this requirement of the subrule does not provide for a verification of evidence or the supplementing of a cause of action with evidence. It is confined solely to those facts which are already present and as pleaded in the plaintiff’s summons (it being trite that a plaintiff in summary judgment proceedings is prohibited from taking a further procedural step in the proceedings by, for example, amending the particulars of claim and then seeking to claim summary judgment).

Identification of any point of law relied upon

[18]   Clearly, this requirement must refer to an identification of a point of law relied upon in relation to the claim upon which summary judgment is sought and not in relation to the defence as pleaded by the defendant. This should be clear from an ordinary grammatical reading of the words setting out this requirement with particular reference to the words “relied upon” and, once again, the context in which these words appear, namely the identification of any points of law relied upon in support of the plaintiff’s cause of action. Further, not only is this view fortified by the wording of the third requirement, namely “…and the facts upon which the plaintiff’s claim is based” but it is also trite that a pleader’s duty includes the duty to set out separately the conclusions of law which the pleader claims follow from the pleaded facts.[14] In addition thereto, had the Rules Board wished this requirement to apply to the defence as pleaded by the defendant, it would simply have said so in this subrule of Rule 32 in its amended form, alternatively, inserted same in a separate subrule when effecting amendments to Rule 32. Finally, it is important to note that the identification of any point of law relied upon by the plaintiff in the affidavit in support of the application for summary judgment does not, either directly or by implication, include an identification of evidence in support of that point of law.

 

Identification of facts upon which the plaintiff’s claim is based

[19]   The learned authors in Erasmus,[15] when dealing with this requirement, state that subrule (2)(b) does not provide for “amplification” of the cause of action as set out in the declaration or particulars of claim, in the plaintiff’s affidavit. It is further stated that the reasons for this would seem fairly obvious, in that, inter alia:

(a)     in terms of subrule 18(4) a plaintiff’s declaration or particulars of claim must contain a clear and concise statement of the material facts upon which the plaintiff relies for his claim, with sufficient particularity to enable the defendant to reply thereto;

(b)     as already noted above, it is trite that a pleader’s duty includes the duty to set out separately the conclusions of law which the pleader claims follow from the pleaded facts. Thus, a plaintiff’s particulars of claim must, apart from the material facts upon which the plaintiff relies for his claim, contain the relevant conclusions of law;

(c)      in terms of subrule 20(2), a plaintiff’s declaration must set forth the nature of the claim; the conclusions of law which the plaintiff shall be entitled to deduce from the facts stated therein and a prayer for the relief claimed;

(d)     in terms of subrule 18(6), a plaintiff who in his pleading (whether it be a declaration or particulars of claim) relies upon a contract must state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written, a true copy thereof or of the part relied on in the pleading must be annexed to the pleading. This subrule does not deal with whether the person entering into the contract is authorised to do so. Of course, this is a separate enquiry which may well involve evidence.

A brief explanation as to why the defence as pleaded does not raise any issue for trial

[20]   When considering this fourth and final requirement of subrule (2)(b) of Rule 32 in its amended form, it is useful, as a starting point, to consider the views expressed in relation thereto by the learned authors in Erasmus.[16] In the context of noting that this requirement imposes a duty on the plaintiff to explain briefly why the defence as pleaded does not raise any issue for trial the learned authors, citing the example of a defendant who raises the defence of reckless credit in terms of the National Credit Act 34 of 2005, conclude that the plaintiff, in terms of subrule (2)(b), will “be entitled to set out facts, supported by the necessary documents, to briefly explain why the defence as pleaded does not raise any issue for trial”.[17] However, in the very next paragraph, the same authors[18] state the following:

“Apart from the facts referred to in Verification; Identification of the facts upon which the plaintiff’s case is based and a brief explanation as to why the defence as pleaded does not raise any issue for trial above, the affidavit by the plaintiff or other person who can swear positively to the facts should therefore not set out other evidence. Rule 32(4) clearly provides that no evidence may be adduced by the plaintiff ‘otherwise than by the affidavit referred to in subrule (2)’. The inclusion of other evidence in the affidavit will not invalidate the application; such evidence will simply be ignored by the court.”[19]

[21]   The aforegoing statements would appear to contradict one another. On the one hand, citing the example as set out above, the learned authors conclude that a plaintiff would be entitled to attach, as annexures thereto, the necessary documents (thereby introducing evidence) to briefly explain why the defence as pleaded by the defendant in his plea does not raise any issue for trial. However, on the other hand, they state that, with the exception of the requirement “Identification of any point of law relied upon” the affidavit in support of summary judgment should not set out other evidence (which must include documents attached thereto as annexures).At this stage, the earlier observations of this court pertaining to context, should be borne in mind.[20]

[22]   In an attempt to reconcile this apparent contradiction, one must first consider the intentional omission, by the learned authors, of the requirement “Identification of any point of law relied upon” when concluding that “the affidavit in support of summary judgment should not set out other evidence”. By doing so, it must be accepted that what the learned authors wished to convey is that when a deponent to an affidavit in support of summary judgment identifies any point of law relied upon, it is permissible to attach the necessary documents to support the facts put forward in respect of that point of law. This is in line with earlier submissions made by the learned authors when dealing with the same requirement.[21] Those submissions (accepted by this court as being correct) were to the effect that “Identification of any point of law relied upon” refers to an identification of a point of law in relation to the plaintiff’s claim upon which summary judgment is sought and not in relation to the defence as pleaded by the defendant.  So there is no contradiction between the two statements made by the learned authors. The plaintiff is not entitled to attach documents to its Affidavit in support of Summary Judgment in respect of a point of law raised by the defendant in that defendant’s plea. On that basis the example cited by the learned authors cannot be accepted by this court to be correct. In that example the defendant raises a defence that, in terms of certain statutory provisions (“reckless credit”) the plaintiff is not entitled to its claim. More particularly, the defendant in such a case would rely thereon to avoid summary judgment in that he has raised a defence, in law, which, in turn, has given rise to a triable issue. The point of law belongs to the defendant and not to the plaintiff. In the premises, contrary to the submissions of the learned authors, the plaintiff in that example, would not be entitled to attach documents to the Affidavit in support of Summary Judgment insofar as these documents related to the point of law raised by the defendant. In terms of the subrule the plaintiff is entitled to attach documents in support of facts upon which it relies in support of that plaintiff’s cause of action with the exclusion of facts in support of points of law raised and relied upon by the defendant.

 

The submissions on behalf of the Defendants

[23]   As set out earlier in this judgment the Defendants contend that the Plaintiff is not permitted to raise new facts and, more specifically, adduce any further documentary evidence which does not form part of the case as pleaded in the Plaintiff’s Particulars of Claim.[22] In amplification thereof the Defendants point to the use of two verbs in subrule (2)(b), namely “identify” and “explain” and submit that they are crucial in the interpretation of the scope of the amended rule. It is further submitted that in the first instance the rule allows the Plaintiff to “identify” two things, namely the points of law relied upon and the facts upon which the claim is based. Secondly and after having done so, the Plaintiff should “explain”, briefly, why no issue for trial is raised. The Defendants also emphasise the fact that nowhere in the rule as amended, including subrule (2)(b), is provision made for the Plaintiff to adduce any facts or evidence not raised before. In the premises, it is submitted that the Plaintiff can only identify the facts as pleaded in the particulars of claim and nothing more.

[24]   In support of these submissions the Defendants point to the fact that subrule (4) of the rule, in its amended form, has retained precisely the same wording as subrule (3) of the rule in its original form. The relevant subrule reads:[23]

“(4)        No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2), nor may either party cross-examine any person who gives evidence viva voce or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it considers may elucidate the matter.”

Following thereon the Defendants submit that the “evidence” referred to in subrule (4) remains limited to that as permitted in subrule (2) and has not been extended. Moreover, Counsel for the Defendants submitted that whilst it may be suggested that the said subrule provides an indication that the Plaintiff may adduce evidence the fact that it still prohibits the cross-examination of any person clearly confirms that the court is not called upon to settle disputes of fact in summary judgment applications. In this regard, Counsel referred this court to the provisions of Rule 6 of the Uniform Rules of Court and the authorities in relation thereto which, inter alia, confirm the limited scope and manner in which factual disputes are to be resolved in application proceedings on affidavit, with the general and accepted rule that genuine or bona fide factual disputes should be referred to trial or for the hearing of oral evidence. Finally, it was submitted that Rule 32 does not provide an alternative mechanism which would allow the court to resolve such disputes of fact. Hence, it was argued that Rule 32 in its amended form (like its predecessor) does not permit the introduction of new facts and/or evidentiary matter.

The submissions on behalf of the Plaintiff

[25]   When addressing this court, Counsel for the Plaintiff also focussed on the provisions of subrule (2)(b) of Rule 32 in its amended form. Furthermore, he also submitted that in interpreting same this court should look for guidance to the provisions of Rule 6 of the Uniform Rules of Court. In particular, the attention of this court was drawn to the provisions of subrule (1) of that rule where it is stated, inter alia, that “every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief”. Arising therefrom, it was submitted that the aforesaid implies that facts on affidavit in application proceedings must contain evidence in support of the application. In support of these submissions, Counsel relied on the statement and example by the learned authors in Erasmus as dealt with earlier in this judgment,[24] which example this court has held, respectfully, to be incorrect.

[26]   The Plaintiff, relying on the provisions of subrule 18(4), further submitted, in respect of a plaintiff’s particulars of claim, that the said subrule requires “a clear and concise statement of the material facts relied upon”. These material facts, argued the Plaintiff, are the facta probanda and are the facts sufficient to show or disclose a cause of action. Following thereon, the Plaintiff submits that these material facts must be clearly distinguished from the facta probantia, namely the evidence that needs to be adduced in order to prove the material facts. Hence, the Plaintiff submits that it was not necessary for the documentary evidence put up as annexures to the affidavit in support of summary judgment to form part of the particulars of claim.

Is a plaintiff in a summary judgment application entitled to introduce evidence in the affidavit in support of summary judgment in order to rebut a defence pleaded by a defendant?

[27]   The answer to the question as formulated above, is to be found in arriving at the correct balance between the well-established principles of summary judgment procedure and the reasoning behind the amendments to Rule 32. This involves a consideration of, inter alia, the following.

[28]   Summary judgment is sui generis. It has always been (and remains to this day, despite amendment) a self-contained procedure with its own well-established principles. As such, it is not bound by those principles governing other procedures as contained, inter alia, in the Uniform Rules of Court. It is for this reason that great caution should be exercised when seeking guidance, to one degree or another, from the provisions of other rules when interpreting Rule 32.

[29]   Both Counsel for the Plaintiff and the Defendants relied, to one extent or another, on the provisions of Rule 6 in support of their respective arguments presented to this court.[25] This rule deals with applications in general, both on an unopposed and opposed basis, instituted in the ordinary course and as matters of urgency, including those instituted on an ex parte basis. It is true that, as relied upon by the Plaintiff, subrule (1) provides that “every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief”. However, what the Plaintiff has chosen to ignore are certain important facts which not only illustrate a clear distinction between rules 6 and 32 but also show the very real dangers of placing any reliance on the provisions of the former when interpreting those of the latter. The first is that no reference whatsoever is made, in Rule 32, to the provisions of Rule 6 being applicable thereto. In contrast thereto, Rule 8 (Provisional sentence), also a procedure in our civil law which is sui generis and governed by its own principles, not only specifically incorporates the provisions of subrules 17(3) and (4)[26] but, in terms of subrule (5), mirrors the provisions of subrule 6(5)(e) by, inter alia, providing for the filing of a replying affidavit. In direct contrast thereto, Rule 32, in both its original and amended form, makes no reference whatsoever to the provisions of Rule 6 (or, for that matter, to any other rule). In addition, it makes no provision for the filing by the plaintiff of a replying affidavit to the affidavit of the defendant in opposition of summary judgment. This is so, despite the Task Team specifically considering whether or not, when amending Rule 32, a replying affidavit would either be necessary or appropriate[27] and the Rules Board deciding that the rule should not be amended to provide for same.

[30]   In the premises, it is clear to this court that no guidance can be obtained, when interpreting the provisions of subrule (2)(b) of Rule 32 in its amended form, by looking to the provisions of subrule 6(1). The provisions of these subrules could not be further apart. The former sets out specific requirements which the plaintiff must satisfy in its affidavit in support of summary judgment whilst the latter merely states that a founding affidavit in application proceedings must include all of the facts upon which an applicant will rely to be successful (it being trite that an applicant in motion proceedings must set out his/her cause of action fully in the founding affidavit and cannot do so, or rely on a new cause of action, in the replying affidavit).

[31]   For, inter alia, the same reasons, the Plaintiff’s reliance upon the provisions of subrule 18(4)[28] cannot assist the Plaintiff’s argument that a plaintiff is entitled to attach documents to the affidavit in support of summary judgment which were not attached to a plaintiff’s particulars of claim (or declaration). Furthermore, the argument put forward by the Plaintiff that a distinction should be drawn between the facta probanda and the facta probantia, apart from the fact that, as already noted in this judgment, there is a duty on a pleader to set out separately the conclusions of law which the pleader claims follow from the pleaded facts, does not assist the plaintiff in this matter. The real issue is whether or not, as a direct result of a defence as pleaded by a defendant in that defendant’s plea, a plaintiff is then entitled to introduce  documentary evidence in support of  averments made in a plaintiff’s affidavit in support of summary judgment. In the premises, these arguments take the matter no further.

[32]   On the other hand the submissions made on behalf of the Defendants are sound and based, inter alia, on well-established principles of our law. In particular, those submissions pertaining to, inter alia, the wording of subrule (2)(b) of Rule 32 in its amended form, read with the provisions of subrule (4) in both the original and amended forms of the rule, together with the trite principles applicable to deciding bona fide disputes of fact (in application proceedings in general and particularly in respect of summary judgment proceedings), would all  support a finding that, as a general proposition, a plaintiff should not be entitled to introduce evidence or facts which do not appear in a plaintiff’s particulars of claim or declaration.

[33]   What is apparent to this court, is the need to draw a clear distinction between points of law and the facts as envisaged in subrule (2)(b). A plaintiff is now required to “identify any point of law relied upon and the facts upon which the plaintiff’s claim is based”. These may not necessarily be related to one another.  Whether they are or not, what is abundantly clear is that the points of law relied upon by a plaintiff and the facts upon which a plaintiff’s claim is based as contemplated in the subrule, are not related to the defence of the defendant but relate solely to the plaintiff’s cause of action which has to be verified in the same affidavit and in terms of the same subrule.[29] As to the “brief explanation as to why the defence as pleaded does not raise any issue for trial”, this must be confined solely thereto. This brief explanation does not open the door to entitle a plaintiff to introduce new evidence as to why, at summary judgment stage, a defendant should not be given leave to defend an action and to attempt to show that a plaintiff has an unanswerable case. This would be contrary to the very nature of summary judgment procedure both in terms of Rule 32 in its original and amended forms.

[34]   As noted at the very outset of this judgment, summary judgment has always been regarded as a stringent remedy in that it permits a judgment to be granted in favour of a plaintiff against a defendant without a trial.[30] Hence, it is fairly trite that summary judgment should only be resorted to where the plaintiff can establish his or her claim clearly and the defendant fails, as he or she is required to do, to set out a bona fide defence.[31] Our courts have been warned to guard against injustice to the defendant who is called upon, at short notice and without the benefit of further particulars, discovery or cross-examination, to satisfy a court that such a defendant has a bona fide defence.[32] On the one hand the remedy of summary judgment should be available to a plaintiff whose right to relief is being frustrated by a defendant who does not have a defence. However, on the other hand, our courts have always been reluctant to deprive a defendant of his right to defend an action and proceed to trial, except where there is a clear case.[33] In the matter of Edwards v Menezes[34], Van den Heever J expressed a preference for the approach that it is only where the court has no reasonable doubt that the plaintiff is entitled to judgment as prayed and that the plaintiff has an unanswerable case, that summary judgment will be granted.

[35]   To this end the advantages of having the plaintiff apply for summary judgment after the delivery of a defendant’s plea and being able, as required to do so in terms of subrule (2)(b), to explain briefly in the affidavit in support of summary judgment why the defence or defences put up by a defendant do not raise a triable issue or issues are, as were recognised by the Task Team and ultimately by the Rules Board, invaluable. It is in this manner that a court is able to consider, in a truly meaningful way, whether the defendant has disclosed a bona fide defence or not. Moreover, by having the summary judgment procedure commence after the plea of a defendant should, as noted by the Task Team, ensure that the summary judgment debate will thus hopefully be a more informed and less artificial one, engaging with the real issues in the matter

[36]   These admirable considerations, largely reflected in the amendments effected to Rule 32, should not (and cannot), in the opinion of this court, overshadow or negate, in any manner whatsoever, the object of Rule 32 and summary judgment procedure. This procedure must, even in light of the said amendments and having due regard thereto, remain a speedy procedure subject to the principles as established in our law. It is, inter alia, for this reason that a plaintiff is and should be, confined to what subrule (2)(b) and Rule 32 allow; is not entitled to file a replying affidavit and is also not entitled to cross-examine the defendant or any other person who gives oral evidence. Hence, a summary judgment application in terms of Rule 32 in its amended form should never (as was the case with the procedure in terms of Rule 32 in its original form) be seen as some kind of preliminary trial of the issues involved. The nature and purpose of summary judgment procedure should never be forgotten. Not only is it a speedy procedure designed, where applicable, to give a deserving plaintiff appropriate relief but it is also one which effectively brings an end to the litigation by denying a defendant the opportunity to proceed to trial, with all the benefits thereof.

[37]   It must follow therefrom that not only do the requirements of subrule (2)(b) of Rule 32 in its amended form apply to the points of law relied upon by a plaintiff, together with the facts upon which a plaintiff’s claim is based and are not related, in any manner whatsoever,to a defence as pleaded by a defendant but these requirements should be strictly complied with before a court can be satisfied that it may, in the exercise of its discretion, grant summary judgment in favour of a plaintiff. This is underpinned by the nature of the remedy itself; the reasons for the effecting of the amendments to Rule 32 and the manner in which those amendments have been carried out. Rule 32, in its amended form, can never be construed to be a vehicle to resolve genuine disputes of fact. This is confirmed, inter alia, by the decision of the Rules Board not to make provision for any replying affidavits. In the premises, the identification of points of law and facts by a plaintiff must be confined to those as set out in a plaintiff’s particulars of claim or declaration; be set out succinctly without the introduction of any further documentary evidence and the explanation pertaining to why the defence as pleaded by a defendant does not raise any issue for trial should, as specifically required by the subrule, be brief. Certainly, this explanation, like the identification of points of law and facts, cannot be supported by a plaintiff attaching further documents to the affidavit in support of summary judgment.

Is the plaintiff in the summary judgment applications under case numbers 45323/2019 and 42121/2019  entitled to introduce evidence in the affidavit in support of summary judgment in order to rebut a defence pleaded by a defendant?

[38]   All of the documents attached to the Plaintiff’s Affidavit in support of Summary Judgment[35] relate specifically to the defence raised in the Plea[36] that the First and Second Defendants were not duly authorised to represent the Trust when entering into the Loan Agreements, alternatively, were not duly authorised to purchase immovable property on behalf of the Trust, thereby rendering the alleged Loan Agreements void ab initio. This point of law clearly belongs to the Defendants. In the premises, the Plaintiff was not entitled to attach same as annexures to the Plaintiff’s Affidavit in support of Summary Judgment. As such the contents thereof, together with the contents of those paragraphs of the said affidavit dealing therewith, will simply be ignored by this court.[37]

Should the applications for summary judgment under case numbers 45323/2019 and 42121/2019 be granted or refused?

[39]   The Defendants have raised a number of defences in the Plea read with the Affidavit resisting Summary Judgment. Since this judgment has focussed on the issue as to whether or not the Plaintiff in this matter was entitled to introduce into evidence certain documents relating to the defence of the First and Second Defendants’ alleged lack of authority to bind the Trust, this court will deal, in the first instance, with that defence.

[40]   In this regard, it is clear that there is a factual dispute as to, inter alia, whether or not the Trustees were authorised to represent the Trust when the Loan Agreements were entered into. Allied thereto, there is a factual dispute as to whether, at that time, there was one lawfully appointed Trustee of the Trust or two. If there was only one lawfully appointed Trustee at the time, there is also a dispute as to whether or not the actions of a single Trustee to purportedly bind the Trust in respect of the Loan Agreements is sufficient or whether this required two Trustees in order to do so. Furthermore, there is a dispute as to whether any authority existed to enable the Trustee or Trustees to purchase immovable property on behalf of the Trust. None of these disputes (whether or not this court is correct in finding that the Plaintiff is not entitled to attach certain documents to its Affidavit in support of Summary Judgment) are capable of being resolved by this court at summary judgment stage and without the benefit of oral evidence. Further, these defences are bona fide defences as provided for in terms of subrule (3)(b) of Rule 32 in its amended form. In addition thereto the Defendants have disclosed fully the nature and grounds of those defences and the material facts relied upon therefor. At the very least the Defendants have raised certain triable issues which should be resolved at trial. In light of this finding, it is unnecessary for this court to consider the other defences raised by the Defendants in opposition to summary judgment.

[41]   In the circumstances, summary judgment should, in the discretion of this court, be refused and the Defendants given leave to defend the actions. With regard to the issue of costs, it would be just and equitable if the costs of the applications for summary judgment (and those in respect of the ancillary applications in terms of Rule 46) be reserved for the courts (the two actions not having been consolidated at this stage) hearing the trials in these matters. These courts will be in the position to properly determine not only the merits of the actions but also the merits of the Summary Judgment applications (and ancillary applications thereto) with particular reference to the decision of the Plaintiff to institute the applications for summary judgment and the defences raised by the Defendants at that stage.

 

Order

[42]   The court makes the following order:

1.       The applications for summary judgment under case numbers 45323/2019 and 42121/2019 are dismissed and the Defendants are given leave to defend the actions under the same case numbers;

2.       The applications in terms of subrules 46(1)(a)(ii) and 46A(8)(e) under case numbers 45323/2019 and 42121/2019 are postponed sine die;

3.       The costs of the applications as set out in paragraphs 1 and 2 hereof are reserved for the decision of the courts determing the actions under case numbers 45323/2019 and 42121/2019.

BC WANLESS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

Heard on:                                 6 November 2019

For the Applicant:                    Adv PSAJ Jacobsz

Instructed by:                           Hack, Stupel & Ross Attorneys

For the Defendants:                  Adv

Instructed by:                           Tobias Bron Inc. Attorneys

Date of Judgment:                    26 March 2020

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