SWAZILAND
HIGH COURT
Held
at Mbabane
Civil
Case No. 58/2004
In
the matter between
RUMDEL
MTHUNZI JOINT VENTURE Plaintiff
Vs
MUSA
MAGONGO 1st Respondent
MTHUNZI
CONSTRUCTION 2nd Respondent
Coram
Annandale, ACJ
For
Plaintiff Adv. P. Flynn (Instructed by Robinson Bertram)
For
Respondents Mr. L.R. Mamba
JUDGMENT
7
October 2004
2
In
an application for summary judgment, which was set down for argument
to be heard on the merits, the respondents raised as an objection in
limine, their objections to the plaintiff's replying affidavit which
was placed before the court on the grounds that it was filed without
leave having been sought or granted; that it was filed without it
having been served on the defendants; and that it was filed out of
time.
The
matter arises from an allegation that the defendants, acting in
concert, unlawfully and intentionally stole from the plaintiff an
amount close to E790 000 or alternatively, that a duty of care to
plaintiff was breached in the course of a joint venture whereby
monies owed to the plaintiff for work performed by it was collected
on its behalf by the defendants but not paid over to it, resulting in
damages to the extent of the collected amount.
Notice
of intention to defend the claim was filed, followed by a special
plea that the plaintiff is not a company registered in terms of the
laws of Swaziland as alleged and accordingly has no locus standi to
bring the proceedings. Subsequently notice was given to amend the
citation and description of the plaintiff, to vary it from being
termed an "Associated" (sic) duly constituted, to an
"Association" duly constituted, with its same
3
given
address. An amended summons was then filed, following on the heels of
an objection to the proposed notice to amend, on the stated ground
that ".. .the proposed amendment introduces a new party to the
action."
There
is no indication on the court file that this frivolous objection was
ruled upon by the court.
Thereafter,
notice was given that summary judgment would be applied for, which
was supported by an affidavit of a Mr. Martin, who states himself to
be chairman of plaintiff's management board. He made the usual
averments about the verification of the cause of action and amounts
claimed, as well as his opinion (not belief) that there is no bona
fide defence to the action and that a delay is the only purpose of
filing an intention to defend the action.
To
this, the first defendant, stating himself also to be the managing
Director of the second defendant, filed his affidavit to resist
summary judgment. Therein, he takes the position in limine that the
plaintiff lacks locus standi pointing out that its constitution was
not filed as proof of its existence and capacity to litigate, that
the action is thus mala fide, that it should be dismissed, and that
costs de bonis propriis should be awarded
4
against
the deponent Martin, on the attorney and own client scale. Further
problems are stated, varying between allegations of two mutually
destructive causes of action, that summary judgment proceedings are
not competent, that the summons itself is vague and embarrassing,
etcetera. On the merits, exception is taken against alleged
defamatory allegations and stating the "true position", as
according to the defendant, ending with the proposition that the
second defendant will pay the claimed amount on condition that Rumdel
construction pays close to 3 million Emalangeni into a joint account
to be operated by their respective attorneys. He concludes by stating
that ".. .an order for costs against the present plaintiff would
be meaningless as it does not have assets and that costs on an
attorney and own client scale should therefore be awarded against
him."
None
of the above issues have yet been argued or considered. This is due
to an effort by Martin to file a replying affidavit, to respond to
the allegations made by the first defendant in his affidavit
resisting summary judgment. The affidavit further seeks to bring in a
"joint venture agreement" between Rumdel Construction
(Swaziland) (Pty) Ltd and Mthunzi Construction (Pty) Ltd., pertaining
to remediation of unstable slopes on the MR3 road between Ka-Khoza
and Manzini, an aspect raised by the
5
defendant
in his resisting affidavit. It also has as further annexures copies
of what is termed as a resolution of the management board of the
Rumdel Mthunzi Joint Venture, as well as a bank statement and a fax
from the bank concerning authorised signatories.
It
is this intended replying affidavit by Martin that forms the subject
matter of the present ruling. The issue to decide is whether the
replying affidavit should be allowed to form part of the papers, or
not.
The
basis of the argument by Mr. Mamba, acting for the defendants, is
that no leave has been obtained to file a replying affidavit, as
stated above.
Rule
32 which governs applications for summary judgment provides for the
filing of a replying affidavit. Rule 32(5)(a) reads that:
"A
defendant may show cause against an application under sub-rule (1) by
affidavit or otherwise to the satisfaction of the court and, with
leave of the court, the plaintiff may deliver an affidavit in reply.(
my underlining);"
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The
gist of the objection is that the application for summary judgment
has been set down for hearing, with the plaintiff taking the liberty
to enclose its replying affidavit in its book of pleadings, to be
considered as part of the proceedings, without it first having
obtained leave of court to do so. The
plaintiff's
counsel has argued that it has become established procedure to do as
it did, i.e. to file a replying affidavit as a matter of course if it
wishes to, then to seek leave of court to file or deliver it on the
date of the hearing, from the bar, and not to first seek and obtain
leave to do it prior to filing of same.
I
deviate here to record that at the time of the hearing it became
clear that perhaps the wording of the subrule is not as clear as it
should be and that consideration of an appropriate amendment might be
a solution to future sound practise. Since neither of the counsel or
attorney at the bar had prepared written heads of argument, it was
agreed that this is an appropriate matter to file written heads
afterwards, in which the possible amendment of the rule may be
canvassed, and also to refer the court to relevant authorities. These
undertakings were made well over one month ago. To date, nothing has
been received and the court cannot benefit from the inputs that was
to have come forth. It does not only cause a delay in having this
matter dealt
7
with
as well as it could but also places the burden on the court to fulfil
the role of members of the bar in developing the practise to be
followed in Swaziland. Not one of the unreported judgments that I
have been referred to in court as authority in so called long
standing practise' has been filed, nor any heads nor an explanation
as to why not. I am constrained not to pass any adverse remarks, save
the above-stated facts.
As
the rule stands, in summary judgment proceedings, it allows the
delivery of an affidavit in reply, with leave of court and not as a
matter of course. In the ordinary course of events, it would not have
been possible to file a replying affidavit but for sound reason, the
rules make it possible to do so, provided that leave of court be
obtained.
Presently,
the replying affidavit has been delivered and filed as part of the
matter which requires to be decided, but no leave of court has been
obtained to do so. Nor has it been applied for. The argument of
advocate Flynn that a party which wishes to deliver a replying
affidavit in a summary judgment application can go ahead and file,
thereafter, once the matter is to be argued, there and then seek
leave to do as it has already done, requires some scrutiny.
8
Such
a practise effectively presumes that leave of court is to be sought
ex post facto, after the event that has already occurred. This begs
the question why leave should be sought at all, if a replying
affidavit may be delivered and filed without prior leave, which then
only needs to be informally asked from the bar, afterwards.
In
applications for summary judgment, the usual practise in other
jurisdictions is that the plaintiff must stand or fall by his
verifying affidavit. See Wright v McGuiness 1956(3) SA 104(C); Trust
Bank of Africa Ltd v Hansa 1988(4) SA 102(W). In this jurisdiction,
where the rules permit further evidence to be adduced by way of a
replying affidavit, which is in itself an extraordinary modification
but which has much merit, as it enables the court to be in a better
position to properly and fairly evaluate the issues to decide whether
summary judgment should be granted or whether there is a bona fide
defence, it is my view that a stricter rather than a liassez faire
approach should be followed. If leave of court is to be sought and
obtained, it is a discretionary matter which has to be exercised
judicially. The granting of such leave must not be presumed.
9
In
order for the discretion to be judicially exercised, the applicant
that seeks leave to deliver a replying affidavit should at least
furnish the court succinctly and fairly all the information necessary
to enable the court to decide whether leave should be granted or not.
Summary
judgment is and will remain a drastic and extraordinary measure. It
is very stringent in that it permits a judgment to be given without a
trial. It closes the doors to a defendant. See for instance Maharaj
Barclays National Bank Ltd 1976(1) SA 418(A) at 423. In Dowson &
Dobson Industrial Ltd v Van der werf 1981(4) SA 417(C) it is said at
419:
"An
ever increasing reluctance to grant summary judgment in the face of
opposition is evident from the more recent decisions in the South
African courts."
Prejudice
to the defendant is one of the factors to be considered when leave to
file a supplementary affidavit in a summary judgment application is
decided. It would be in the interests of fair adjudication if he is
made aware that such leave is going to be sought, and to know the
reasons why. He can then consider his own position and if need be,
oppose it. It seems to me that
10
the
procedure as contemplated by the plaintiff herein negates these
considerations. It pre-empts the discretion yet to be exercised and
presupposes that leave will be granted as a matter of course.
It
is for the abovestated reasons that I hold the interpretation of the
plaintiff concerning rale 32(5)(a) to be incorrect. In applications
for summary judgment supplementary affidavits may be delivered, but
only with leave of court, such leave to be sought and obtained before
the supplementary affidavit is delivered and not afterwards. The
court should be furnished succinctly and fairly with the information
that is necessary to determine the issue in order to exercise its
discretion judicially. The defendant must not be prejudiced therein,
and therefore also requires to be notified and appraised that leave
is to be sought.
Accordingly,
delivery of plaintiff's replying affidavit is set aside, with costs.
Leave may be sought to admit it, as set out above.
JACOBUS
P. ANNANDALE ACTING
CHIEF
JUSTICE
