Firstrand Bank Limited t/a Wesbank v Maenet JA Attorneys Inc (8557/2021) [2021] ZAGPPHC 612 (17 September 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE No: 8557/2021

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

17 September 2021

In the matter between:

FIRSTRAND BANK LIMITED t/a WESBANK PLAINTIFF

and

MAENETJA ATTORNEYS INC DEFENDANT

JUDGMENT

BHOOLA AJ

INTRODUCTION

[1] The Summary judgment application calls for strict circumspection and Judicial oversight in balancing the rights of both the applicant and the defendant. The summary judgment proceedings have been described as drastic and robust proceedings. In Joob Joob Investments v Stocks Mavundla Zek JV [2009] All SA 407(SCA) it was held that summary judgment proceedings are no longer extraordinary and the Rule must be applied properly. The summary judgment procedure exists for the applicant to obtain a speedy judgment against the defendant in cases where the defendant has no valid defence to the claim. By short-circuiting an otherwise potentially protracted trial, the applicant avoids incurring unnecessary costs associated therewith.

[2] Naturally, summary judgment cannot be granted where it is clear that some ventilation of evidence is required in order for the Court to come to a decision. Adopting this approach, the successful defendant who demonstrates a triable defence is not excised from further anticipated litigation. Thus the defendant retains (all) his Constitutional Rights to access justice, as enshrined in section 34 of the Constitution.

[3] The applicant herein, Firstrand Bank Limited t/a WESBANK institutes summary judgment proceedings against the defendant, Maenetja Attorneys Inc.

[4] The genesis of this matter rests in the breach of a contractual installment-sale agreement concluded between the parties on the 6th November 2008. In terms of the agreement, the plaintiff sold to the defendant a Mercedes Benz G63 AMG and in exchange, the defendant

undertook to repay the plaintiff in monthly installments.

[5] Thereafter, the defendant defaulted on his payments and summons was served against him in terms of Uniform Rule 4(1)(a)(v) on the 18th February 2021.

[6] The relief sought by the plaintiff/applicant in both the summons and the summary judgment application is an order entitling the plaintiff/ applicant to take possession of the goods from the defendant and or any other person who may be in possession of such goods through the defendant. The goods in this case as alluded to above is a Mercedes- Benz G63 AMG, with engine number […] and chassis number […]. Additionally, the plaintiff claims cost as between attorney and client, to be taxed.

[7] The defendant’s appearance to defend is not uploaded on CaseLines. It is inferred that there was an appearance to defend filed because the defendant resisted the application by raising a plea on the merits as well as three special pleas which were served on the applicant on the 16th April 2021. The first special plea raised was that the plaintiff's summons was defective for want of compliance with Rule 41(A) of the Uniform Rules. The second special plea related to the issue of non-joinder and the third and final special plea was concerned with non-compliance with the provisions of sections 129 and 130 of the National Credit Act 34 of 2005. The defendant’s plea was tantamount to a bare denial.

[8] The notice of set down was served on the defendant on the 11th May 2021, for the application to be heard on the 15th June 2021. The defendant delivered its opposing affidavit on the applicant on the 9th June 2021.

[9] It is against this background that the matter has come before me.

FACTS

Admitted, Undisputed and Common Cause Facts

[10] The following is common cause between the parties:

It is common cause that both the provisional and final notices of set-down, served on the defendant on the 30th April 2021 and 11th May 2021 respectively, did not contain any affidavit in support of summary judgment.

Defendants Facts

[11] At the commencement of these proceedings, counsel for the defendant submitted that the matter could not be heard until the issue relating to service of the affidavit had been resolved.

[12] According to Counsel for the defendant’s, there was no service of the plaintiff’s affidavit in support of the summary judgment. In amplification the defendant submitted that he had addressed a letter to the applicant notifying the applicant of this, yet the applicant continued to set the matter down for hearing.

[13] The defendant, in resisting the application provided a chronology leading to the summary judgment. I do not need to outline the nature and grounds of material facts relied upon by the defendant on the merits at this stage, because the summary judgment application turns on the issue of the non-service of the affidavit in support of summary judgment in compliance with Uniform Rule 32(2).

[14] The defendant’s version is that the plaintiff did not deny the non-service of the affidavit in support of summary judgment, and relied on the fact that the plaintiff had invited the defendant to Caselines.

[15] Furthermore, the defendant submitted that the applicant’s approach is that the filing of documents on CaseLines is to supersede the fundamental requirement of service in terms of the Uniform Rules of Court. According to the defendant, this averment goes against the principles of service as stated in Rule 4(aA) and 4A of the Uniform Rules of this Court. Counsel for the defendant submitted that these two provisions do not speak about the service of documents by uploading them on Caselines or through any other form not mentioned in the Rules.

[16] The defendant submits that CaseLines remains the platform for filing documents once they are served. This he submitted is in accordance with clause 3.5 of the Judge President’s Practice Directive 1 of 2020.

[17] The defendant challenged the applicant to provide proof of service of the affidavit in support of its application for summary judgment and to indicate when such affidavit was served. According to the defendant the only notices served on them by the applicant are the notice in terms of Rule 41A of the Uniform Rules of Court which was served on the 23rd April 2021, the “blank’ notice of set down which was served on the 30th April 2021, and the notice of set-down for the 15th June 2021, which was served on the 11th May 2021. All of these notices were served in accordance with Rule 4A (c) of the Uniform Rules which is by “ (c) facsimile or electronic mail to the respective addresses provided”

[18] The defendant submits further that the approach adopted by the plaintiff amounts to nothing more than a procedural shortcut and the underlying expectation that the application will be rubber-stamped by the court. It is not in the interest of justice for this court to entertain the summary judgment application when it is clear that there was no service of the affidavit in support of summary judgment and that the court should exercise its discretion and either dismiss the application for summary judgment or consider an order under Rule 4(10) of the Uniform Rules of Court.

Applicants Response

[19] In rejecting the arguments of the defence, the applicant submits that as the defendant was invited to CaseLines, and as the affidavit in support of summary judgment was uploaded on CaseLines and which was accessible therefrom, that the defendant was aware of the affidavit in question.

[20] The Applicant further submitted that the issue of non-compliance relating to service is a delaying tactic by the defendant in that he is in breach of the agreement and has no plausible defence before the Court.

ISSUE/ DISPUTED FACTS

[21] The crisp issue for determination is whether an invitation to CaseLines for purposes of service is compatible with Rule 32(2) of the Uniform Rules of Court.

LAW

[22] Rule 32 (2) provides

“ (a) within 15 days after the date of [delivery of the plea], the plaintiff [shall] deliver a notice of application for summary judgment, [together with an affidavit] made by the plaintiff or by any other person who can swear positively to the facts.

(b) the plaintiff shall in the affidavit referred to in subrule (2)(a), [ 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].

(c) 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 less than 15 days from the date of the delivery thereof.” [my emphasis]

[23] The following areas of law need to be considered:

[23.1] What are the applicant's requirements for summary judgment in terms of Uniform Rule 32(2)(a) summary judgment?

[23.2] What procedure governs the service of summary judgment applications? and;

[23.3] Whether CaseLines is a platform for the service of documents?

What are the applicant’s requirements for summary judgment in terms of Uniform Rule 32(2)(a)

[24] Rule 32(2)(a)provides

“ Within 15 days after the date of delivery of the plea, the plaintiff [shall] deliver a notice of application for summary judgment, [together with an affidavit] made by the plaintiff or by any other person who can swear positively to the facts.[my emphasis]”

[25] An analysis of the aforesaid Rule simply provides the following.

(i) Subrule 2(a) provides after the plea is delivered by the defendant, the plaintiff shall deliver a notice of application for summary judgment together with an affidavit by the plaintiff within 15 days. This then will meet the requirements of subrule (2(a). [1]

(ii) The use of the word “shall” makes compliance with subrule (2)(a) prescriptive and peremptory.

(iii) Section 1 of the Uniform Rule provides that “deliver” “shall mean to serve copies on all parties and file the original with the registrar”. It was also defined in an unreported case of National Union of Mineworkers and Others v Aluminium and Shades (Pty) Ltd t/a Procon Interios[2] as

“[13] a delivery (both serving a respondent and filing with the registrar), is one of the requirements which determine if a court has jurisdiction or not”

(iv) The usual practice has been to require the receipt of a copy of a document that has been delivered to the opposing litigant and which is acknowledged on the original document, to be filed with the registrar.

[26] A perusal of the proof of service in terms of Rule 4(A) dated the 11th May 2021 reveals that the only attachment served was the notice of set down. Service of the accompanying affidavit is an indespensible condition and failure to serve the affidavit renders the summary judgment application defective.[3] In Absa Bank Ltd v Botha NO and Others 2013(5) SA 563 (GNP), Kathree- Setloane J stated the following:

“[11] Rule 32(2) places the burden of proof squarely upon the shoulders of an applicant, who elects to proceed through a summary judgment application, to demonstrate that the document is an affidavit[4] because the verifying affidavit in a summary judgment application is an indispensible condition for such an application. In Engineering

Requisites (Pty) Ltd v Adam[5] Erasmus J described the status of a verifying affidavit as to the sine qua non to the summary judgment procedure:

“It can also truly be said that the affidavit required by Rule 32(2) is the sine qua non to an application for summary judgment and there should be no room left for speculation by an applicant utilising such proceedings as to whether the document accompanying this notice of application is an affidavit or not.”

What procedure governs the service of Summary Judgment applications?

[27] Dr Harms (Civil Procedure: Superior Courts)[6] , stated:

“…A cornerstone of our legal system is that a person is entitled to notice of the institution of proceedings against him or her. Legal

proceedings cannot, in general, commence unless the party against whom relief is claimed (and any other party with an interest in the matter) is notified of the initiating process by means of service. When proceedings have begun without any notice, the subsequent

proceedings are null and void and may be disregarded or set aside at the option of the other party. However, if the initiating document such as the summons was served incorrectly, the subsequent proceedings are not void, but maybe voided: the summons may be set aside as an irregular step although the court may condone the irregularity."

[28] The Uniform Rule 4(aA) provides

“ [w]here the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.”[ ] my emphasis.[7]

[29] According to Rule 32(2)(a), the summary judgment application is initiated by the delivery of a notice of an application for summary judgment together with an affidavit made by the plaintiff.[8]

[30] An application for summary judgment is not a court process; consequently, the Sheriff need not execute it.

[31] Rule 4A which concerns with delivery of documents and notices provides

“(1) Service of all subsequent documents and notices, not falling under rule 4(1)(a), in any proceedings on any other party to the litigation may be effected by one or more of the following manners to the address or addresses provided by that party under rules 6(5)(b), 6(5)(d)(i),17(3), 19(3) or 34(8), by

(a) hand at the physical address for service provided, or

(b) registered post to the postal address provided, or

(c) facsimile or electronic mail to the respective addresses provided.’’

Whether CaseLines is a platform for the service of documents?

THE JUDGE PRESIDENT’S DIRECTIVES

Directive 1 of 2020 dated the 10th January 2020 Re: Implementation of the CaseLines System in the Gauteng Division of the High Court, Pretoria and Johannesburg.

[32] The purpose of CaseLines, according to the aforesaid Directives, was to give the full implementation of a digital/electronic case management and litigation system, which is part of the Office of the Chief Justice’s Court Online Project. The system broadly functions by way of case creation, party/legal representative invitation, document filing, and uploading, and case presentation. It enables litigants to file and upload pleadings and other documents electronically and to present their case and argument during Court proceedings. The full implementation of the CaseLines digital/electronic system in Gauteng took effect from 27 January 2020. [my emphasis]

[33] Clause 3.5 of the aforesaid Directives, provide

“3.5 The responsibility to upload pleadings and other relevant documents, in cases issued from the beginning of Term 1 of 2020, save for cases initiated in the Urgent Court roll, shall lie with the party responsible for each particular pleading/document in line with the Rules of Court. Electronic uploading of pleadings and other relevant documents in terms of this clause shall amount to filing as contemplated in the Rules of Court. Consequently, from the commencement of Term 1 2020, the filing of pleadings and other

relevant documents shall be by way of the uploading of the said pleadings and other relevant documents on the CaseLines system. NO hardcopy pleadings and other relevant documents shall be allowed on all cases designated for handling through the CaseLines system and created on the system. The exception shall be where the party(s) is unrepresented.”

Judge President’s Consolidated Directives dated 18th September 2020

[34] Paragraph 11 of the aforesaid directives provide that

“Service of process in terms of the Uniform Rules of Court remains strictly enforceable. Practitioners are referred to in paragraphs 196 to 200 below. Electronic uploading of properly served pleadings/ notices/ legal process shall be regarded as compliant filing as contemplated in the Rules of Court. Such filing by uploading of served pleadings/ documents /process must strictly comply with the Rules of Court as to time limit and time of day on that Court day. NO filing of hardcopy pleadings and other documents shall be allowed. The exception shall be where the Party(s) is unrepresented or in respect of urgent applications, as more fully set out herein below or in the Tax Court wherein the provisions of the Tax Administration Act (TAA) read with the Uniform Rules of Court apply.”

[35] Paragraphs 196- 200 which is headed “ FILING AND SERVICE” provides

“196 As regards filing of notices or process, Uniform Rule 3 stipulates that filing may take place between 09:00 to 13:00 and 14:00 to 15:00 on Court days, apart from in exceptional circumstances or when so directed by a Judge. Practitioners are therefore required to file notices and process by uploading to CaseLines only on court days and only between the hours of 09:00 and 15:00.”

“197. Practitioners must adhere to the Uniform Rules of Court as it relates to service of notices and processes. Thus, the uploading of notices or processes to CaseLines will be regarded as compliant with the Rules of Court as the effective date of proper filing of the document, but not the service of same. Service should still be effected in terms of Rule 4 or 4A, as the case may be.”

"198. Originals of documents for filing shall be uploaded to the electronic case file on CaseLines in satisfaction of the provisions of Rule 4A(5). Any Party may be called upon at any time by the Registrar or by a Judge to produce the original document so uploaded.”

“199. Litigants are advised that they may invite the office of the relevant Sheriff to CaseLines to afford remote access to the papers.”

‘200. In the event of non-compliance or partial compliance with any provision in a statute or by a Rule of Court to serve and file Court process and/or deliver any document ancillary thereto during the National State of Disaster, and which is attributable to the strictures imposed by the National State of Disaster and its implications for the litigant or the litigant’s legal representatives, condonation, where required, shall be granted by a Court in respect of any shortcomings in compliance attributable to the national state of disaster.”

APPLICATION OF LAW TO FACTS

Argument by Applicant

[36] The applicant argues that the defendant is aware of the affidavit and therefore the application must be postponed to provide the defendant the necessary time period to respond. In the alternative, the plaintiff submits that the defendant’s filing of his opposing affidavit proves his awareness of the application.

[37] By the filing of the defendant’s opposing affidavit, as well as receipt of the applicant’s letter dated 25th May 2021, the applicant sought to convey to the court that the defendant had effectively waived compliance regarding service, I find from the applicant’s letter dated 25th May 2021, that Counsel for the applicant was adamant that they were proceeding with the application on the 15th June 2021 and requested that the defendant file his opposing affidavit. It was always the defendant’s stance that there was

no proper application before the court as there was no service of the affidavit in support of the summary judgment application. In spite of the applicant being notified of the position by correspondence, the plaintiff ignored the warning and persisted in its application for summary judgment.

[38] The applicant maintained that the application must be postponed so that the defendant could file his opposing affidavit and then the matter may be argued. I am not in agreement with the applicant’s submission, simply because this will not cure the defect that there was non - compliance with Rule 32(2) of the Uniform Rules of Court, which is peremptory. The applicant is simply out of time to serve the affidavit in support of the summary judgment. There is simply no latitude with the Rules when it comes to the summary judgment applications. There must be strict compliance. There were sufficient warnings given to the applicant to rectify the situation which was ignored.

[39] Furthermore, the applicant seems to have a disregard for the Rules of this Court as well as the Practice Directives of this Court. The applicant finds himself in double jeopardy in that on the date that the matter was set down for hearing, there was non-compliance with the Directive Compliance Declaration Affidavit. The matter had to stand down for the applicant's attorney to comply with the Practice Directives before the summary judgment matter was to proceed to hearing. It is important to note Practice Directives and The Rules of Court are there to ensure efficient and effective service delivery by the Judiciary and all its stakeholders. The delays in this matter were simply caused by non-compliance with such Rules and or Practice Directives.

Argument by the Defendant

[40] The defendant submitted extensive heads of argument on the issue of non-service I do not intend to repeat the argument save to say Counsel submitted, in the absence of the opposing affidavit been properly delivered, there is no application before this court and the application must either be dismissed or in the alternative, the court may grant an order in terms of Rule 4(10) of the Uniform Rules.

Evaluation of Evidence

[41] In evaluating the evidence, I have considered the applicable law as well as the facts before me

Concerning the first area of law: What are the requirements for summary judgment under Rule 32(2)?

[42] It is common cause between the parties that the applicant delivered a notice of application for summary judgment on the defendant and such notice was not accompanied by an affidavit in support of the application for summary judgment.

[43] The plaintiff’s argument is that they have invited the defendant to CaseLines, by which the defendant is granted access to the affidavit and is therefore aware of it. The applicants submit that this amounts to proper service and the defendant is once again delaying the matter.

[44] It is common cause, that the plea was served on the 16th April 2021, and the dies, excluding Saturday, Sunday and public holidays expired on the 11th May 2021, fifteen (15) days later.

[45] From perusing the proof of service in terms of Rule 4(A) on the 11th May 2021 it is apparent that the only attachment served on that day was the notice of set down.

[46] Rule 32(2) is peremptory, the notice of the application of summary judgment shall be delivered together with an affidavit within 15 days from the date of service of the plea. These 15 days for service, expired on the 16th April 2021. This means that the applicant is out of time in serving its opposing affidavit.

[47] Consequently, the affidavit was not delivered within 15 days from the date of service of the plea which expired on the 16th April 2021. This means that the applicant is out of time in serving its affidavit and there is non-compliance with Rule 32(2)(a).

Concerning the second area of Law: What procedure governs the service of summary judgment applications?

[48] It is common cause that the applicant elected to effect service of the summary judgment application by way of

“(c) facsimile or electronic mail to the respective addresses provided.”

[49] This is apparent from the service of all the notices by the applicant to the defendant. It is common cause that the application for summary judgment is not a process of court and therefore does not require to be served by the sheriff in accordance with Uniform Rule 4(1)(a) in one of the manners as set out in sub-rule 1(a)(i) to (ix).

[50] It is trite law that one of the cornerstones of our legal system is that a party is entitled to proper notice of legal proceedings against such party, alternatively which affects them. [9] Without due notice, subsequent proceedings are null and void and may be disregarded or set aside at the option of the other party.

[51] The relevant legislation in this matter is Sub-rule 4(1)(aA) which regulates the service of a document initiating application proceedings where a party is already represented by an attorney of record. The sub-rules provide that such a document may be served on the attorney by the party initiating such proceedings. It is apparent, the applicable manner of service in this instance is Rule 4A which regulates service of all subsequent documents and notices, not falling under Rule 4(1)(a).

[52] In the present matter, It is common cause that the applicant has elected the option of electronic mail through CaseLines. This approach is not without its known fallibility in that the affidavit in support of the application for summary judgment, was simply not attached to any of the notices that were served on the defendant’s notices to the application for summary judgment. It is clear that both the parties, have themselves, elected to receive further service of processes in the matter, by way of electronic service.

[53] I have considered the heads of argument on behalf of the applicant and the defendant. The crisp issue is that there is non-compliance with Rule 32(2)(a) in that the affidavit in support of the application for summary judgment was never served on the defendant. In the absence of any agreement between the parties to effect service in any manner other than that prescribed by the Court Rules, the affidavit herein cannot be considered to be effective service, more so in summary judgment applications. I accordingly find that the affidavit in support of summary judgment application could only be served as prescribed by the aforesaid Uniform Rules and I make the finding that there was no service of the affidavit in support of summary judgment on the defendant, for want of compliance with Rule 32(2)(a).

This then leads me to consider the third consideration: Whether CaseLines is a platform for service.

[54] Both the Directives by Judge President Mlambo, Directive 1 of 2020 dated the 10 January 2020 (Implementation of the CaseLines System in the Gauteng Division of the High Court, Pretoria, and Johannesburg) and the Judge Presidents Consolidated Directives dated 18th September 2020 (18th September 2020 Consolidated Directive) discuss in detail the purpose and operations of CaseLines and court procedures.

[55] Paragraphs 1 and 35 of Directive 1 of 2020, make it clear that the purpose of the CaseLines system is the implementation of a digital/electronic case management and litigation system. The system broadly functions by way of case creation, party/legal representative invitation, document filing, and uploading, and case presentation. It enables litigants to file and upload pleadings and other documents electronically and to present their case and argument during Court proceedings.

[56] According to the 18th September 2020 Consolidated Directive, paragraphs 11 and 196 to 200 regulates the filing and service of documents. Of particular importance is paragraph 197 which captures the entire issue in this matter.

“Practitioners must adhere to the Uniform Rules of Court as it relates to service of notices and process. Thus, the uploading of notices or processes to CaseLines will be regarded as compliant with the Rules of Court as the effective date of proper filing of the document, but not the service of same. Service should still be effected in terms of Rule 4 or 4A, as the case may be.”

[57] The issue of the Directives arose by the applicant in response to correspondence from the defendant dated 24th May 2021, to the applicant. In reply to the defendant's letter, the applicant in a letter dated the 25th May 2021, amongst other things responded as follows: -

"……….. 4. Your reference to the "purported" application for summary judgment is completely misconstrued and without merit. In this regard, we confirm that we invited you on CaseLines…….”

[58] The defendant submitted what is apparent from the above is the fact that the applicant considers CaseLines as a platform for service. He submitted that the aforesaid Practice Directives did not at any stage intend to use CaseLines as a medium or platform for service. I agree with the defendant's attorney in this regard.

[59] Paragraphs 11 and 197 of the Consolidated Directives dated 18th September 2020, crystalises the issue regarding filing and service. The Directives makes it clear that practitioners must adhere to the Uniform Rules of Court as it relates to service of notices and processes. It is also very clear that uploading of notices or processes to CaseLines was never intended to replace service in accordance with the Rules of Court. I accordingly find that CaseLines was never intended to replace and trump the Uniform Rules of Court concerning service of processes and notices. In this regard, I find uploading and inviting a practitioner to CaseLines does not mean that "service" is complied with and that the Rules of Court did not need to be complied with in terms of the Uniform Rules of Court.

[60] I have considered the heads of arguments of both counsels as well as oral submissions. The question is not whether the service of the applications was “ valid", but whether there was actual service of the affidavit in support of the summary judgment application. Given the facts of the present application, as well as the relevant legislation and Court Directives, I am not satisfied that there was any service or effective service of the affidavit in support of the summary judgment application. Taking procedural shortcuts and expecting the court to rubber-stamp such an approach shows disregard for the Directives and Court Rules. Summary judgment is a robust application and the Rules in terms of Uniform Rule 32 regulates its own procedure which must be strictly complied with. It is not in the interests of justice to condone non-compliance with the aforesaid procedures.

[61] I am mindful of clause 200 of the Consolidated Directive dated 18th September 2020 which provides

‘200. In the event of non-compliance or partial compliance with any provision in a statute or by a Rule of Court to serve and file Court process and/or deliver any document ancillary thereto during the National State of Disaster, and which is attributable to the strictures imposed by the National State of Disaster and its implications for the litigant or the litigant’s legal representatives, condonation, where required, shall be granted by a Court in respect of any shortcomings in compliance attributable to the national state of disaster.”

[62] There is no substantive application before me to consider any condonation application. What transpired in this matter is that there is non -compliance with Court Rules and Practice Directives. It is trite law that every legal Practitioner must familiarise oneself with the Court's Rules.[10] By implication, this also places a duty on legal practitioners to be acquainted and familiarise themselves with the relevant case law and Practice Directives relating to the Rules, especially now in Covid-19 times and the chameleonic changes in the Disaster Management Act and its Regulations.

THE COURTS DISCRETION

[63] The court has an overriding unfettered discretion which it must exercise judicially and not arbitrarily. I have the discretion to exercise whether I should on the facts averred by the plaintiff, grant summary judgment or whether, on the basis of the defence raised by the defendants, I should refuse it. If the court has any doubt as to whether the plaintiff’s case is unanswerable at trial such doubt should be exercised in favour of the defendant and summary judgment should accordingly, be refused. The court can exercise its discretion and refuse summary judgment even if the requirements resisting summary judgment have not been met[11]. Considering the extraordinary and drastic nature of the summary judgment remedy in Maharaj v Barclays National Bank Limited[12], Corbett JA stated:

“The grant of the remedy is based on the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus and bad in law”[13].

[64] The test is whether on the set of facts before me, I am able to conclude that the defence raised by the defendant is a sham, a bogus or is bad in law. What I have to decide on is whether, on the facts alleged by the applicant in its particulars of claim, I should grant summary judgment or whether the defendant’s opposing affidavit discloses such a bona fide defence that it should refuse summary judgment.

[65] Due to the peremptory nature of Rule 32, courts are extremely reluctant to grant summary judgment unless satisfied that the applicant has an unanswerable case. This is because summary judgment is a drastic and robust remedy in that it permits a judgment to be given without trial. It closes the doors of the Court to the defendant.[14] It is only when there is no doubt that the applicant has an unanswerable case that it should be granted.[15] In Shepstone v Shepstone[16], Miller J said:

“The court will not be disposed to grant summary judgment where, giving due consideration to the information before it, it is not persuaded that the plaintiff has an unanswerable case” and that… “a defendant may successfully resist summary judgment where his affidavit shows that there is a reasonable possibility that the defence he has advanced may succeed on trial”.

[66] Considering the above authorities, which established the legal principles relating to summary judgment as well as Rule 32 of the Uniform Rules of Court, I see no reason to deviate from such principles. I find that there was non-compliance by the plaintiff of Uniforms Rule 32(2)(a) and that the affidavit supporting summary judgment was not served on the defendant. The defendant is not unsuited in this matter.

RULING

[67] When I consider the definition of delivery in Uniform Rule 1, together with what is required in terms of Uniform Rule 32(2), including the and the manner of service that is required for documents and notices under Rule 4(A) read with Rule 4 (aA), I cannot accept that an invitation to CaseLines was intended to be a platform for service of documents.

[68] It is clear that the applicant was out of time and there was no delivery of the applicant's affidavit before me.

[69] I was requested to either dismiss the application alternatively to consider Rule 4(10). I considered Rule 4(10) within the context of Rule 32(2)(a). I cannot find the application of Rule 4(10) in the application for the summary judgment application before me simply because Rule 32(2)(a) is peremptory. It dictates that the notice of application for summary judgment shall be brought within 15 days after the service of the plea together with the affidavit in support of the application. To apply Rule 4(10) will be condoning a procedure contrary to the peremptory procedure as set out in Rule 32(2)(a).

[70] When I consider the application in terms of Rule 32(2) in its totality, there is no merit in the applicant’s contention of that there was proper service. Apart from the lack of due diligence displayed by the applicant in these procedures, the applicant does not remain unsuited. If the applicant anticipated the relief being granted he ought to have acted more prudently and surreptitiously.

COSTS

[71] As a general rule the award of the costs remains in the discretion of the Judge.[17] The general rule is that such costs should follow the result, being the successful litigant. being that costs are awarded to a successful litigant[18] The usual costs orders in summary judgment applications is to reserve costs for determination by the trial Court.[19]

[72] Rule 32 (9) provides that:

“(9) The court may at the hearing of such application make such order as to costs as to it seems 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) ….”

[73] The purpose of the above subrule is, on the one hand, to discourage unnecessary or unjustified applications for summary judgment and, on the other hand, to discourage defendants from setting up unreasonable defences.[20]

[74] In the matter the applicant was alerted before proceeding with this application about his non-compliance with the Rules of Court and yet he continued to proceed with the matter, instead of simply reading the Rules of Court and or the Practice Directives.

[75] These cost could have been avoided by the applicant. I see no reason why the applicant should be out of pocket in this application.

ORDER

[76] In a result, I make the following order:

[76.1] The application for summary judgment is dismissed with costs.

[76.2] Such costs are to be taxed on a scale as between an attorney and client scale.

C. B. Bhoola

Acting Judge of the High Court of South Africa

Gauteng Division, Pretoria

Delivered: This judgment was prepared and authored by the Judges whose names are reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 17 September 2021.

APPEARANCES

Counsel for the Applicant :

Advocate WP Steyn

Instructed by :

Baloyi Swart & Associates

Counsel for the Respondent : Advocate CP Wesley

Instructed by :

Maenetja Attorneys

Date of Hearing (via MS Teams) : 17 June 2021

Date of Judgment :

17 September 2021

[1] FirstRand Bank Ltd v Beyer 2011 (1) SA 196 (GNP) at 200D. 99 Absa Bank Ltd v Botha NO 2013 (5) SA 563 (GNP) at 564D–56

[2] (JSO1/12) [2017] ZALCJHB

[3] Absa Bank Ltd v Botha NO and Others 2013(5) SA 563 (GNP)

[4] Engineering Requisites (Pty) Ltd v Adam 1972 (SA) 175 (OPD)at 178 A-B

[5] Engineering Requisites at 178 D-E

[6] Todt v Ipser paragraph 11, LAWSA 3rd Edition vol 4, LexisNexis, 2012 at paragraph 94

[7] It has been held that this subrule applies to proceedings already instituted, so that it in effect applies to ancillary and

interlocutory applications (BHP Billiton Energy Coal South Africa Ltd v Minister of Mineral Resources 2011 (2) SA 536 (GNP) at 542E–H, confirmed, on this point, on appeal sub nominee Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 211C–213A).

[8] Engineering Requisites (Pty) Ltd v Adam 1977 (2) SA 175 (O); Caldwell v Chelcourt Ltd 1965(1) SA 304 (N).

[9] Erasmus, Superior Court Practice, Vol. 2 (Juta) at 01-29 and the authorities cited in footnote 1. and 01 - 30, footnote 1 and 2; Harms, Civil Procedure in the superior courts, (LexisNexis) at B-12, paragraph 84.1; Herbstein & van Winsen, The Civil Practice of the High Courts of South Africa (5th edition) (Juta), Vol. 1 at 342

[10] 7 LAWSA, Vol. 3(2)r at 12, paragraph 21

[11] Mahomed Essop (Pty) Ltd v Sekhukhulu and sons 1967 (3) SA 728 D.First National Bank of South West AfricaLtd v Graap 1990 NR 9 (HC)

[12] 1976 (1) SA 418 (A)

[13] Ibid footnote 6 at 424G

[14] Evelyn Haddon & Co Ltd v Leojanko (Pty) Ltd SA 662 OPD at 666A and the authorities quoted therein

[15] Breitenbrach v Fiat S.A. (EDMS) Bpk 1976 (2) SA 226 AT 229

[16] 1974 (2) SA 462 E-H

[17] (Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69); Ward v Sulzer 1973 (3) SA 701 , Ward v Sulzer 1973 (3) SA 701 A.

[18] In Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 2003 (1) SA 204 (T)

[19] Maharaj v Barclays Bank Ltd supra at 428

[20] Vermoelen J in Foridar Construction Co (SWA) Pty Ltd v Kriess 1975 (1) SA 875 (SWA) at 878A