Belrex 95 CC v Barday (4364/2020) [2020] ZAWCHC 149; 2021 (3) SA 178 (WCC) (6 November 2020)

Belrex 95 CC v Barday (4364/2020) [2020] ZAWCHC 149; 2021 (3) SA 178 (WCC) (6 November 2020)

The court held that the amended Rule 32 requires a summary judgment application to be brought after the delivery of a plea, and the supporting affidavit must address the defences pleaded. Where a defendant amends his plea after the summary judgment application has commenced, the plaintiff is prejudiced by being unable to respond to the new defences in its affidavit, as Rule 32(4) prohibits further evidence. The defendant is entitled to amend his plea at any stage before judgment, and the amended Rule 32 does not preclude such amendment. However, the amended plea was not yet effective at the time of the hearing due to non-compliance with Rule 28(2). The court found that it would be unfair...

Citation
[2020] ZAWCHC 149
Parties
Applicant: Belrex 95 CC; Respondent: Mohammed Zubair Barday
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2020
Case Number
4364/2020
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Under Amended Rule 32; Defendant Filed Amended Plea and Special Plea After Summary Judgment Application Commenced.
Outcome
No order is made in respect of the summary judgment application. The defendant's Notice of Amendment shall take effect in terms of Rule 28(2) as of the date of judgment. The plaintiff is given leave to bring a fresh application on the amended plea, should such amendment be allowed. Costs stand over for later...
Judges
R.C.A. Henney
Legal Topics
Summary Judgment, Rule 32 Amendment, Pleading Amendment, Mandate Liability, Alienation of Land Act, Statement of Account
Civil Procedure Commercial and Corporate Summary Judgment Rule 32 Amendment Pleading Amendment Mandate Liability Alienation of Land Act Statement of Account

Case Brief

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Parties

Belrex 95 CC

Applicant

Mohammed Zubair Barday

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Under Amended Rule 32; Defendant Filed Amended Plea and Special Plea After Summary Judgment Application Commenced.

Legal Issues

  1. 1 Whether a summary judgment application may be granted under amended Rule 32 when the defendant amends his plea after the application has commenced.
  2. 2 Whether the defendant's amended plea and special plea are properly before the court for purposes of summary judgment.
  3. 3 Whether the plaintiff is prejudiced by being unable to respond to the amended plea in its supporting affidavit.

Ratio Decidendi

The court held that the amended Rule 32 requires a summary judgment application to be brought after the delivery of a plea, and the supporting affidavit must address the defences pleaded. Where a defendant amends his plea after the summary judgment application has commenced, the plaintiff is prejudiced by being unable to respond to the new defences in its affidavit, as Rule 32(4) prohibits further evidence. The defendant is entitled to amend his plea at any stage before judgment, and the amended Rule 32 does not preclude such amendment. However, the amended plea was not yet effective at the time of the hearing due to non-compliance with Rule 28(2). The court found that it would be unfair...

Court Disposition

No order is made in respect of the summary judgment application. The defendant's Notice of Amendment shall take effect in terms of Rule 28(2) as of the date of judgment. The plaintiff is given leave to bring a fresh application on the amended plea, should such amendment be allowed. Costs stand over for later...

Orders

  • No order is made on the summary judgment application.
  • The defendant's Notice of Amendment takes effect as of the date of judgment for the plaintiff to exercise its rights under Rule 28(2).