Encumbering proceedings for the plaintiffs –

recent changes to the summary judgment procedure

By Eugene Dlamini

The origins of the summary judgment as a procedural remedy is well entrenched within our current legal system, and can be traced back to 1855 when the British parliament enacted Order XIV under the Judicature Acts, in order to grant plaintiffs speedy relief against defendants who did not have a bona fide defence to claims (see Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at para 29; see also SJ Van Niekerk, HF Geyer and ARG Mundell Summary Judgment – A Procedural Guide (Durban: LexisNexis 2012) at 1 – 6). The summary judgment procedure was first introduced into the South African statutory law by the Magistrates’ Courts Act 32 of 1917, and later, by the Cape Supreme Court r 593 (which became r 22: See Wright v Mcguinness 1956 (3) SA 184 (C) at 186 – 187), and received in the Transvaal through r 42 on 17 May 1957 in GN 687 GG 687/17-5-1957. Summary judgment procedures, however, only became available in the Orange Free State in 1965. Despite summary judgment being statutorily entrenched in the magistrates’ courts, its introduction in the Superior Courts was rather fragmented and its application lacked uniformity (Van Niekerk et al (supra) 2 – 8). Uniformity of application of the summary judgment procedure in the High Courts throughout South Africa was only achieved through r 32 when the Uniform Rules of Court (High Court Rules) were promulgated on 12 January 1965 (P Farlan & DE van Loggerenberg Erasmus: Superior Court Practice (Cape Town: Juta 2011) at B1 – 4).

With the above background, it is necessary to mirror the recent amendments to the summary judgment procedure in r 14 of the Rules Regulating the Conduct of Proceedings of the Magistrates’ Courts of South Africa (Magistrates’ Court Rules), which came into effect on 22 May 2015, as introduced by the Rules Board for Courts of Law Act 107 of 1985 in GN R318 GG38694/17-4-2015. Rule 14 of the Magistrates’ Court Rules, prior to the amendment, was not substantially distinct in formulation from r 32 of the High Court Rules. Accordingly, most High Court decisions on r 32 find application in the Magistrates’ Court. However, as will be seen below, the amendments to r 14 in Magistrates’ Courts significantly depart from the summary judgment procedure as it applies in the High Courts, which, I submit, has the potential to encumber proceedings for the plaintiffs/applicants.

Defendant required to ‘serve’ a notice to defend as opposed to ‘deliver’ 

In terms of the old r 14(1) and (2) of the Magistrates’ Court Rules, a defendant was required to ‘deliver’ a notice of intention to defend before the plaintiff could apply for summary judgment. The same wording is found in High Court Rule 32. The verb ‘deliver’ is defined in both r 2 of the Magistrates’ Court Rules and r 1 of the High Court as serving a copy on the opposite party and filing same with the registrar or clerk of the court, as the case may be in the circumstances. ‘Serving’ a document essentially entails furnishing a copy of the relevant court document to a party who must acknowledge receipt thereof. ‘Filing’ occurs where the served document is handed to the clerk of court or the registrar and the said document is stamped by the clerk of court or the registrar as the case may be in the circumstances.

In terms of the amendment to r 14(1) and (2) a defendant is now only required to ‘serve’ the notice to defend before a plaintiff is entitled to apply for summary judgment. In other words, it is no longer a requirement for a defendant to file the notice of intention to defend with the clerk of court or the registrar, before a plaintiff is entitled to proceed to apply for summary judgment. It may be that the amendment dispenses with the requirement to file the notice of intention to defend before the plaintiff can apply for summary judgment to obviate the situation where the defendant has not filed their notice of intention to defend, or what is more often the case, has filed it but the notice has not found its way into the court file before the application for summary judgment is heard. To avoid any doubt in the court’s mind, the plaintiff/applicant merely attaches the copy of the served notice to defend to the application to avoid the court questioning whether or not the action has been defended. The question is why a plaintiff would launch an application for summary judgment, when the matter has not been defended, as opposed to filing a request for default judgment. Could it be that the court will scrutinise a request for default judgment a lot more closely than an application for summary judgment, especially when the latter is unopposed? The rationale for dispensing with filing the notice to defend after having serving a copy of the notice on the plaintiff is not clear.

The procedure for bringing the notice to defend to the attention of the court is a departure from the practice in the High Court Rules. I submit that the amendment to r 14(1) and (2) was unnecessary as the plaintiff would have to be served with a notice to defend before moving a summary judgment application, as was required under the old r 14(1) and (2). The amendment has resulted in the lack of uniformity in the application of the summary judgment procedure in the magistrate’s court and High Court. 

Attaching of the notice to defend to the affidavit

The old r 14(2) has been re-organised into sub-paragraphs (a) to (d). While the content of the sub-rule has been substantially maintained, it is relevant to note that a new r 14(2)(b) has been inserted. It must be highlighted that r 14(2)(b) does not have a corresponding sub-rule in 
r 32 of the High Court Rules, which requires a plaintiff to annex a copy of the served notice to defend to the affidavit in support of the application for summary judgment. Having annexed the served notice to defend, the plaintiff must go on to allege in the affidavit in support of the application that a copy of the served notice to defend is attached. The essential averments to be made in the affidavit in support of the application for summary judgment are set out in form 8 of Annexure 1 of the Magistrates’ Court Rules.

The rationale for attaching the notice to defend to the affidavit in support of the application for summary judgment in terms of r 14(2)(b) is not well understood. Rule 14(1) allows a plaintiff to apply for summary judgment only after having received a notice to defend. Rule 14(2)(b) has the potential to burden proceedings in circumstances where a plaintiff inadvertently omits to attach a copy of the notice to defend, and a defendant with no bona fide defence can now raise a ‘technical point’ of non-compliance with rules against the plaintiff. Faced with the technical point, a court may have to deal with the vexed question of whether or not failure to attach the notice constitutes ‘substantial’ non-compliance with the rules or non-compliance, which may be condoned under the new r 60(9) of the Magistrates’ Court Rules, despite the notice to defend being part of the plaintiff’s indexed and paginated bundle. 

While a plaintiff who attaches a copy of the notice to defend to the affidavit will not have difficulty in proceeding with a summary judgment application, the same cannot be said for a plaintiff who inadvertently omits to attach the notice to defend. As r 14(2)(b) has no equivalent in the High Court Rules, I submit that different magistrates throughout South Africa will exercise their discretion inconsistently in deciding whether or not failure to attach the notice to the affidavit constitutes substantial non-compliance with the rules, which may or may not be condoned under the new 
r 60(9). The application of r 14(2)(b) will in all likelihood vary from magistrate’s court to magistrate’s court. Further, defendants may abuse the sub-rule both as a delaying tactic and a tool to counteract the expeditious resolution of disputes where a defendant does not have a bona fide defence and is indeed merely defending for the sake of delaying the process. The sub-rule in its current form affords defendants ample opportunity to play for time so as to impede the administration of justice, in the process, defeating the very purpose of the summary judgment process.

Declaration under oath or affirmation

While the old form 8 limited the plaintiff to making a declaration under oath, the amended form 8 introduces a further declaration under ‘affirmation’. Perhaps the aim in making provision for an affirmation was to ensure that form 8 complies with the regulations promulgated under s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act), published under GN R1258 GG3619/21-7-1972 (see Practice Management ‘Normal practice or unsound and flawed routines’ in this issue), which govern both the administration of oaths and affirmations. Regulation 1(1) and (2) provides for two types of declarations, viz, by means of an oath, and under affirmation (see Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk 1979 (3) SA 391 (T)).

Form 8 of the Magistrates’ Court Rules is an ‘affidavit’, as read with r 14(2)(a), which provides that the plaintiff shall deliver an affidavit made by the plaintiff or by any person who can ‘swear’ positively to the facts verifying the cause of action. In Caldwell v Chelcourt Ltd 1965 (1) SA 304 (N) at 307 it was held that a document was not an affidavit as it was not a sworn document confirmed on oath. The court stated that the word ‘affidavit’ suggests a ‘sworn document’.

Bringing form 8 in line with the regulations may have created a further legal problem. A plaintiff may elect to make the declaration in the affidavit under affirmation, as opposed to a declaration under oath. In interpreting s 9 of the Act, Colman J in S v Opperman 1969 (3) SA 181 (T) at 184 held that while affirmations must be read eiusdem generis with ‘affidavit’, they relate to the statements of persons who elect not to take oaths. Accordingly, an affirmation falls foul of the provisions of r 14(2)(a), which requires a plaintiff to ‘swear’ positively to the facts verifying the cause of action. In other words, the wording in form 8 is not consistent with the provisions of r 14(2)(a).

While the attempt may have been to bring form 8 in line with the Act and regulations, the form does not accord with r 14(2)(a). I suggest that the use of r 14(2)(b) be reconsidered, and form 8 be aligned with the r 14(2)(a) in order to achieve certainty in the summary judgment process.

Eugene Dlamini LLB (UNISWA) LLM (UKZN) is a candidate attorney at Bouwer Cardona Inc in Johannesburg.