Phumelela Local Municipality v Telkom SA SOC Limited (5327/2022) [2023] ZAFSHC 204 (31 May 2023)

Phumelela Local Municipality v Telkom SA SOC Limited (5327/2022) [2023] ZAFSHC 204 (31 May 2023)

The court found that the founding affidavit attached to the respondent's summary judgment application did not meet the requirements to constitute either an affidavit or an affirmation as prescribed by the relevant regulations. The heading referred to an oath, but the commissioner attested to an affirmation, and there was no evidence that the commissioner ascertained whether the deponent wished to swear an oath or affirm the truth of the declaration. This procedural defect was material and could not be condoned, as it undermined the reliability of the evidence presented in support of the summary judgment application. The court held that the respondent failed to comply with Rules 32(2)(a),...

Citation
[2023] ZAFSHC 204
Parties
Applicant: Phumelela Local Municipality; Respondent: Telkom SA SOC Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
31 May 2023
Case Number
5327/2022
Procedural Posture
Civil Application / Rule 30 a Application to Strike Out Summary Judgment
Outcome
The respondent's application for summary judgment is struck out due to non-compliance with affidavit requirements.
Judges
AP Berry
Legal Topics
Affidavit Requirements, Summary Judgment, Commissioner of Oaths, Uniform Rules of Court
Civil Procedure Affidavit Requirements Summary Judgment Commissioner of Oaths Uniform Rules of Court

Case Brief

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Parties

Phumelela Local Municipality

Applicant

Telkom SA SOC Limited

Respondent

Procedural Posture

Civil Application / Rule 30 a Application to Strike Out Summary Judgment

Legal Issues

  1. 1 Whether the founding affidavit attached to the respondent's summary judgment application complies with the requirements of an affidavit or affirmation under the relevant regulations.
  2. 2 Whether the summary judgment application can be sustained in the absence of a valid affidavit or affirmation.

Ratio Decidendi

The court found that the founding affidavit attached to the respondent's summary judgment application did not meet the requirements to constitute either an affidavit or an affirmation as prescribed by the relevant regulations. The heading referred to an oath, but the commissioner attested to an affirmation, and there was no evidence that the commissioner ascertained whether the deponent wished to swear an oath or affirm the truth of the declaration. This procedural defect was material and could not be condoned, as it undermined the reliability of the evidence presented in support of the summary judgment application. The court held that the respondent failed to comply with Rules 32(2)(a),...

Court Disposition

The respondent's application for summary judgment is struck out due to non-compliance with affidavit requirements.

Orders

  • The founding affidavit attached to the respondent's application for summary judgment delivered on 7 March 2023 does not meet the requirements to constitute an affidavit or an affirmation.
  • The respondent's application for summary judgment is struck out.