Makinana v Matanzima (CA&R59/2013) [2015] ZAECMHC 79 (20 November 2015)

Makinana v Matanzima (CA&R59/2013) [2015] ZAECMHC 79 (20 November 2015)

The court held that the affidavit supporting the summary judgment application was defective because it was deposed to by the respondent's attorney, who did not possess personal knowledge of the facts underlying the claim. The attorney's assertion of being 'conversant' with the facts was insufficient to satisfy the requirements of Rule 14(2) of the Magistrates' Court Rules of Court. Furthermore, the magistrate erred by considering a deed of transfer that was not annexed to the summons or the founding affidavit, as there is no provision in the rules for the filing of additional documentation in support of a summary judgment application in such a manner. These procedural defects constituted...

Citation
[2015] ZAECMHC 79
Parties
Appellant: Ntombizanele Florence Makinana; Respondent: James Matanzima
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
20 November 2015
Case Number
CA&R59/2013
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment Granted in the Magistrate's Court
Outcome
Appeal upheld; summary judgment set aside.
Judges
RWN Brooks, FBA Dawood
Legal Topics
Summary Judgment, Affidavit Requirements, Oral Lease Agreement, Personal Knowledge, Ejectment
Civil Procedure Land and Property Summary Judgment Affidavit Requirements Oral Lease Agreement Personal Knowledge Ejectment

Case Brief

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Parties

Ntombizanele Florence Makinana

Appellant

James Matanzima

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment Granted in the Magistrate's Court

Legal Issues

  1. 1 Whether it was sufficient for the respondent to rely on an affidavit deposed to by his attorney for the purposes of Rule 14(2) of the Magistrates' Court Rules of Court.
  2. 2 Whether it was competent for the magistrate to have regard to a document not annexed to the summons or founding affidavit when considering the summary judgment application.

Ratio Decidendi

The court held that the affidavit supporting the summary judgment application was defective because it was deposed to by the respondent's attorney, who did not possess personal knowledge of the facts underlying the claim. The attorney's assertion of being 'conversant' with the facts was insufficient to satisfy the requirements of Rule 14(2) of the Magistrates' Court Rules of Court. Furthermore, the magistrate erred by considering a deed of transfer that was not annexed to the summons or the founding affidavit, as there is no provision in the rules for the filing of additional documentation in support of a summary judgment application in such a manner. These procedural defects constituted...

Court Disposition

Appeal upheld; summary judgment set aside.

Orders

  • The appeal succeeds with costs.
  • The summary judgment granted against the appellant by the magistrate on 7 December 2012 is set aside and replaced with the following order: