Nursing Services of South Africa (Pty) Ltd v MEC for the Department of Health- Eastern Cape (896/08) [2009] ZAECBHC 8 (16 July 2009)

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, BHISHO JUDGMENT

PARTIES: NURSING SERVICES OF SOUTH AFRICA APPLICANT AND THE MEC FOR DEPARTMENT OF HEALTH RESPONDENT EASTERN CAPE

1. Registrar:

2. Magistrate:

3. High Court: EASTERN CAPE HIGH COURT, BHISHO

DATE HEARD: 11 June 2009

DATE DELIVERED: 16th July 2009

JUDGE(S): ACTING JUDGE KEMP

LEGAL REPRESENTATIVES –

Appearances:

For the Applicant: Adv Schultz Instructed by Gravett Schoeman Van Rensburg & Moodley Incorporated 41 Arthur Street King William’s Town Counsel for the Respondent Adv Sishuba Instructed by State Attorney c/o Shared Legal Services Office of the Premier 32 Alexandra Road King William’s Town

CASE INFORMATION –

1. Nature of proceedings: This is an application for summary Judgment.

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE: BHISHO

REPORTABLE

CASE NO: 896/08

In the matter between:

NURSING SERVICES OF SOUTH AFRICA (PTY) LTD Applicant And THE MEC FOR DEPARTMENT OF HEALTH – EASTERN CAPE Respondent

JUDGMENT

KEMP AJ

[1] This matter concerns an application for summary judgment. The applicant sued the respondent on a simple summons for the payment of R956 831.56; being the balance of monies owed in respect of nursing services rendered in and during the period of April 2008 to September 2008, and also claimed an amount in respect of interest on the capital amount.

[2] After an appearance to defend was entered on the 2nd April 2009, the applicant launched an application for summary judgment on the 24th April 2009, fifteen court days later. The respondent opposed the application but did not file an opposing affidavit. The respondent instead brought a counter application in terms of Rule 30 of the Uniform Rules of Court to have it declared irregular and to have it set aside on the basis that the applicant should, in terms of Rule 20(1) have filed a declaration within 15 days of receipt of the appearance to defend, and took the view that the application for summary judgment was thus an irregular step.

[3] The relevant part of the Rule 30 notice read as follows:

The step taken by the plaintiff of delivering a notice of application for summary judgement is prejudicial to the defendant as the simple summons as they presently stand do not give the defendant an opportunity to, with clarity know the case he is facing and / or the basis of the amount claimed (sic)

[4] Mr Sishuba, for the respondent, argued that the respondent was unable to plead to the summons without the benefit of the information which the respondent anticipated it would find in the declaration.

[5] There was in fact further information contained in the application for summary judgment. As well as the customary affidavit confirming inter alia the cause of action, the applicant also annexed a certificate of indebtedness, confirming the amount outstanding, and another affidavit by the same person who had deposed to the customary affidavit, indicating that the original contract had been lost or misplaced and annexing a copy of the written contract between the parties, including a credit application form appearing to indicate where the services were to be rendered.[1]

[6] Mr Schultz, for the applicant, argued that the applicant had been precluded from filing it’s declaration as to do so would have fallen foul of what he submitted was a rule against taking a further step in the action pending an application for summary judgment, and relied for his submission on Erasmus,[2] which in turn relied upon the judgment of Esso Standard South Africa (Pty) Ltd v Virginia Oils and Chemicals Co (Pty) Ltd,[3] as authority for the proposition that filing a declaration would preclude a plaintiff from bringing an application for summary judgment.

[7] It appears to me however with respect, that Esso was incorrectly decided, although it was followed in Jacobs v FPJ Finans (Edms) Bpk,[4] where Kloppper AJP (as he then was) followed his earlier views in Esso. Mr Schultz also referred me to an unreported judgment by Ebrahim J,[5] where the learned judge referred with approval to the Esso judgment. It appears however, with the greatest respect to Ebrahim J, that he appears not to have considered the subsequent judgments that criticised Esso and Jacobs.

[8] Erasmus states as follows:

“It has been held that once appearance to defend has been entered and the plaintiff therafter files a declaration or takes a further procedural step, he or she thereby waives his or her right to ask for summary judgment, but not in a case where the declaration was attached to the summons for the sake of convenience only and before appearance to defend was entered. On the other hand it has been held that, by furnishing particulars to its summons (ie under rule 21 prior to its amendment), the plaintiff did not waive or abandon his or her right to claim summary judgment.” (my emphasis)

[9] Whilst it is true that it has been held that a plaintiff forfeits the right to apply for summary judgment once a declaration is filed, it is also true, as illustrated hereunder, that it has subsequently been held that the reasoning upon which those findings were made was flawed.

[10] In Hire-Purchase Discount Co (Pty) Ltd v Ryan Scholz & Co (Pty) Ltd,[6] Soloman AJ (as he then was), was of the view that the furnishing of particulars by the plaintiff could not in any way constitute a waiver or abandonment of its rights under Rule 32.

[11] The latter view was followed in Paul v Peter,[7] by Friedman J (with Thirion J concurring). Friedman J pointed out that although there were differences between Supreme Court Rule 32 and Rule 14 of the Magistrates’ Court Rules

dealing with summary judgment, that there was no merit in arguing that a plaintiff waived his or her right to summary judgment by furnishing further particulars. He found that the conclusion he reached also appeared to be consistent with the case of Northern Cape Scrap & Metals Bpk v Upington Radiators & Motor Graveyard (Edms) Bpk,[8] a decision of the Full Bench of the Northern Cape Division.

[12] The learned judge found it difficult to understand the reasoning in Esso and Jacobs, found that they were wrongly decided and preferred the judgment of Solomon AJ in Ryan Scholz.[9]

[13] In demonstrating why Esso and Jacobs were wrong, FriedmanoJ pointed out that waiver by conduct occurs where a person does something inconsistent with the exercise by him of a right which he possesses. He found that he could not see how a plaintiff, by furnishing a defendant with further particulars could have embarked upon a course of conduct which is inconsistent in any way with the exercise by the plaintiff of his right to claim summary judgment.

[14] The judgment by Brink J, (with Smuts JP concurring), in Parma Bouers v Môrelig Engineering (Edms) Bpk,[10] also appears to indicate a non alignment with the Esso judgment. Although Brink J pointed out that the decisions in Esso and Jacobs had not been followed in B W Kuttle & Association Inc v O’Connel Manthe and Partners Inc,[11] and Ryan Scholtz, he maintained that as he was dealing with Rule 14 of the magistrates court, and due to the provisions of Rule 1(1) thereof, that it was different from the Supreme Court Rules, and that he was therefore not bound by the previous decisions in his Division,[12] which related to Supreme Court Rule 32. The learned judge also referred with approval to the judgment of Paul v Peters, which expressly rejected the reasoning in Esso, in so far as it related to the alleged waiver of the right to apply for summary judgment. Brink J did not go as far as to align himself with those views, indicating merely that he was not bound to follow Esso and Jacobs, due to the fact that the rules relating to summary judgment in the Magistrates and High court, were different.

[15] Although the respondent’s counsel in Parma Bouers argued that the application for summary judgment should have been dismissed due to the fact that the applicant had responded to a request for further particulars, Brink J found for the respondent on appeal, on the basis that the magistrate should have allowed an application for a postponement.

[16] What had happened in that case is that the respondent had filed its opposing affidavit at 16:30 on the day prior to the date set down for argument of the summary judgment application instead of before 12:00 on the day but one preceding that date. The summary judgment application was then postponed, for other reasons, for about a month, and the respondent wrote to the applicant’s

attorneys, requesting condonation, failing which they would file a formal application for condonation. The applicants refused the

request, but their attorneys transmitted their letter refusing the request at a stage when it would have been impossible to bring a formal application within the time limits.

[17] Although not expressly at odds with the Esso judgment, it would have been simple, if Brink J had been in favour of it, to find for the respondent on that basis. He chose however to find on the basis that the postponement should have been granted. It seems to me that what the respondent in the Parma Bouers matter did is what the respondent in the current matter should have done. If the respondent was indeed unable to ascertain from the simple summons (as amplified by the summary judgment affidavits),[13] whether they had ever contracted with the applicant, and if so whether they should have defended the matter, then they could have insisted on the furnishing of the declaration, and brought an application seeking an order compelling same, together with an application for an extention of the time limits in which to file their opposing affidavit. It seems clear that the application for summary judgment was not in itself an irregular step as envisaged in Rule 30 and that the application in terms of Rule 30 was misguided.

[18] Although the cases critical of the Esso judgment referred to above were concerned with the delivery of further particulars, B W Kuttle,[14] involved the delivery of a declaration. Tebbutt J also found that he preferred the Ryan Scholz decision to those of Esso and Jacobs.

… I can see no reason why a plaintiff who wishes to obtain summary judgment on a simple summons cannot, after appearance to defend has been entered, file a declaration in amplification of his cause of action. If he can amplify his cause of action in his verifying affidavit, and does not thereby waive his right to claim summary judgment, I find it difficult to see how he can be said to have waived that right if he amplifies his simple summons by the filing of a declaration.[15]

[19] This in my respectful view sums up the legal position. Unless the Plaintiff has waived it’s right to bring an application for summary judgment then it retains that right. The position postulated in Esso and Jacobs is not reconcilable with our law relating to waiver. The authorities dealing with the filing of further particulars, although the rule relating to the filing of further particulars has subsequently been amended, are in my respectful view still authoritative, as they all agree that the principle upon which Esso and Jacobs was decided is wrong.

[20] It was not argued, and I believe rightly so, that if I was not with the respondent on the point argued in respect of the irregular proceeding, that the Plaintiff had failed to make out a case for summary judgment. Under the circumstances, I am of the view that the application for summary judgment should succeed with costs and that the application in terms of Rule 30 should be dismissed with costs.

L D KEMP

ACTING JUDGE OF THE HIGH COURT

MATTER HEARD ON: 11th June 2009 Judgment delivered on: 16th July 2009 Counsel for the applicants: Adv Schultz Attorneys for the applicant: Gravett Schoeman Van Rensburg & Moodley Incorporated 41 Arthur Street KING WILLILAM’S TOWN Counsel for the respondent: Adv Sishuba Attorneys for the respondent: State Attorney c/o Shared Legal Services Office of the Premier 32 Alexandra Road KING WILLIAMS TOWN

[1] It is not permissible to introduce evidence by way of affidavit in the application for summary judgment. The cause of action must be apparent from the summons and if not, then it is not permissible to amplify it. The deponent may for example, add facts to clarify the quality of his personal knowledge, but no evidence is tolerated beyond what is necessarily implicit in affirming in compliance with Rule 32(2). See Trust Bank of Africa Ltd v Hansa and Another 1988 (4) SA 102 (W) at 107F-G. However, the inclusion of evidence in the affidavit will not invalidate the application, it will simply

be ignored by the court. See A E Motors (Pty) Ltd v Levitt 1972 (3) SA 658 (T).

[2] Superior Court Practice at B1-208

[3] 1972 (2) SA 81 (O)

[4] 1975 (3) SA 345 (O)

[5] Kabuso CC v MEC Education Eastern Cape and Another Unreported judgment under case no 590/07 in the Eastern Cape High Court – Bhisho handed down on 26 November 2007.

[6] 1979 (2) SA 305 (SE)

[7] 1985 (4) SA 227 (N)

[8] 1974 (3) SA 788 (NC)

[9] At 229H- 230I

[10] 1990 (4) SA 188 (O)

[11] 1984 (2) SA 665 (C)

[12] ie the Esso and Jacobs decisions.

[13] Although the court is permitted to ignore the supplementary affidavits in so far as they attempt to introduce evidence, there seems to be no reason why the respondent could not have regard to them if they are helpful in elucidating the cause of action.

[14] supra

[15] at 668 E-F . The reference to the amplification of the cause of action has, as indicated above, been criticized by Flemming J in Trust Bank v Hansa (supra).