GWK Limited v Viljoen N.O. and Others (2304/2017) [2017] ZAECGHC 82 (13 July 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 2304/2017

In the matter between:

GWK LIMITED (Reg No 9997/022252/06)

Plaintiff

And

SYLVIA ANNELIA VILJOEN N.O.

First Defendant

CLARENCE STANDER N.O. Second

Defendant

JACOBUS FREDERICK VILJOEN N.O. Third Defendant

JACOBUS FREDERICK VILJOEN

Fourth Defendant

SYLVIA ANNELIA VILJOEN

Fifth Defendant

JUDGMENT

BESHE J:

[1] This is an application for summary judgment.

[2] The defendants oppose the application having filed a “Notice of objection to summary judgment”. The notice records that the application is opposed 1. On the merits; and

2. On the following point in limine:

The plaintiff’s affidavit in support of the summary judgment is fatally defective and cannot in law in this division of the high court succeed in obtaining summary judgment due to the following:

The affidavit does not comply with Rule 32 (2) in that (in paragraph 7 of the affidavit) the deponent states … “I verily believe that the respondent / defendants have no bona fide defence … …”

The rule and court authorities in this division require that the worDing of the rule i.e. “… in his opinion must strictly be adhered to failing which summary judgment shall be refused”.

[3] No opposing affidavit was however filed by the defendants. Defendants stated that they will seek leave to file an opposing affidavit in the event of the point in limine being dismissed.

[4] Rule 32 (3) (b) of the Uniform Rules of Court makes it plain that a defendant is required to satisfy the court by affidavit (which shall be delivered before noon on the court day but one on which the application is to be heard) or with the leave of the court by oral evidence of himself or any other person who can swear positively to the fact that he has a bona fide defence to the action and that such evidence of affidavit shall disclose fully the nature and grounds of the defence and the material

facts relied upon therefor.

[5] The point raised by the defendants regarding the wording used in relation to one of the averments that must be contained in the affidavit in support of summary judgment was considered by the Full Bench of the WLD (as it then was ). This was in the matter of Standard Bank of South Africs Limited v Carpots for Africa CC and Others [1998] 3 All SA (W). In this matter the court examined the provisions of the Magistrates’ Court Rule that governs summary judgment. The English version of which requires the plaintiff to use the word “in his belief” yet the Afrikaans version used words identical to ones used in Rule 32 (2) of the Uniform Rules of this Court. It was held that there is no logical reason why the practice in the High Court should differ from that of the Magistrates’ Court on this point. Cloete J went on to say “The distinction between the English version of the rules in the High Court and the Magistrates’ Court is in my view one without a difference: if “in his belief” is the equivalent of “na sy mening” (as in the Magistrates’

Court) and “na sy mening” is the equivalent of “in his opinion” (as in the High Court), then (in the absence of any reason why the practice in the two courts should differ), common sense and basic principle of logic dictate that “in his belief” should be taken as equivalent of “in his opinion”. A deponent in summary judgment proceedings who says “I believe” (whether or not he adds the word “verily”) must in my judgment be taken to mean that what he states as his belief has received his consideration and that he would be able to demonstrate the factual basis and justification for his belief if called upon to do so.”[1]

In my view this puts paid to the argument that plaintiff’s affidavit in support of summary judgment is flawed in the manner complained of by the defendants. In my view to hold otherwise would be tantamount to allowing form to triumph over substance. What is important is that the deponent to the affidavit in support of summary judgment should express his opinion based on the facts at his disposal that defendant does not have a bona fide defence to the claim.

[6] Defendant’s point in limine is dismissed.

[7] I have already alluded to the fact that no opposing affidavit was filed by the defendant as required by Rule 32 (3) (b). There is at the same time no application for condonation or leave to belatedly file an opposing affidavit. It is trite that in an application for condonation, defendants would be obliged to aver that they have a good defence on the merits. In the absence of good cause being shown for failure to address the merits of the application for summary judgment, and any indication that defendants are possessed of a bona fide defence, there is no reason why the application for summary judgment cannot be granted.

[8] Accordingly, summary judgment is granted in favour of the plaintiff as prayed for in prayers 1, 1.1, 1.2, 2, 3, 4 and 5.

_______________

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Plaintiff :

Adv: De La Harpe

Instructed by :

WERKMANS ATTORNEYS

C/o WHEELDON RUSHMERE & COLE INC.

119 High Street

GRAHAMSTOWN

Tel.: 046 – 622 7005

Ref.: M Van Der Veen/Michelle/S20177

For the Defendants :

Adv: Knott

Instructed by :

JR BESTER & ASSOCIATES INC.

C/o CLOETE & COMPANY

112A High Street

Tel.: 046 – 622 2563

Ref.: S Beukes/LF/VILJ

Date Heard : 11 July 2017

Date Reserved : 11 July 2017

Date Delivered : 13 July 2017

[1] Page 40 f – i.