IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CIVIL APPEAL NO. 27/11
In the matter between
TEE AND JAY WOODWORKS APPELLANT
AND
EUREKA DIY SOLUTIONS (PTY) LIMITED RESPONDENT
CORAM : RAMODIBEDI CJ
DR. TWUM JA
MCB MAPHALALA JA
HEARD : 23 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Civil procedure – Summary judgment – Principles involved – Where, as in the present case, it is reasonably possible that the defendant has a good defence, summary judgment ought to be refused – Accordingly, appeal against summary judgment upheld with costs.
RAMODIBEDI CJ
[1] The appeal in this matter is brought to this Court against a decision of the High Court granting summary judgment to the respondent as plaintiff and against the appellant as defendant. Henceforth I shall refer to the parties as plaintiff and defendant respectively.
[2] The claim forming the subject matter of this appeal arose from a credit facility which the plaintiff had allegedly granted the defendant on or about 11 September 2008. The plaintiff’s case as pleaded in its particulars of claim was that, pursuant to the credit facility in question, it sold and delivered goods to the defendant in the amount of E 87,960.12. It further alleged that, notwithstanding demand, the defendant had failed, refused and/or neglected to pay this amount.
[3] In response to the plaintiff’s summons, the defendant filed a notice of intention to defend. Thereafter, the plaintiff filed a notice of application for summary judgment. Similarly, it filed an affidavit of its Credit Controller, Marzaan Barnard, in which he verified the facts, the cause of action and the amount claimed. In particular, he averred that the defendant had not a bona fide defence to the claim and that the notice of intention to defend had been filed solely for purposes of delaying the action.
[4] In due course, the defendant filed an affidavit of its Director, Thembinkosi Mndzebele (“Mndzebele”), resisting summary judgment. He averred that the defendant had a bona fide defence. Such defence may be summarised as follows:-
(1) That the plaintiff supplied goods which were defective. This fact was, according to the defendant, duly communicated to the plaintiff’s representative who agreed with the plaintiff that the goods would be removed from the defendant’s shelves and returned to the plaintiff. The latter would then replace them. Mndzebele averred that the plaintiff’s representative “disappeared, only to resurface [in] the present action.”
(2) That the initial arrangement which worked well for the parties was for the plaintiff to sell goods at a certain price and at a particular mark up. According to Mndzebele, however, the plaintiff unilaterally changed this arrangement in October 2009 by charging the defendant tax in the sum of
E 19, 241.10 which the latter disputed. The defendant felt that either the plaintiff should cancel the tax amount of E 19, 241.10 in question or it should take its goods back. Mndzebele further confirmed that these goods were currently kept in its warehouse “waiting for the plaintiff to collect same.”
(3) Finally, Mndzebele averred that the defendant never signed the agreement on which the plaintiff relied for its claim.
[5] The principles applicable in summary judgment proceedings are well-known in this jurisdiction. See, for example, Zanele Zwane v Lewis Stores (Pty) Ltd t/a Best Electric, Civil Appeal No. 22/2007 in which I had occasion to state the following remarks which bear repeating:-
“[8] It is well-recognised that summary judgment is an extraordinary remedy. It is a very stringent one for that matter. This is so because it closes the door to the defendant without trial. It has the potential to become a weapon of injustice unless properly handled. It is for these reasons that the courts have over the years stressed that the remedy must be confined to the clearest of cases where the defendant has no bona fide defence and where the appearance to defend has been made solely for the purpose of delay. The true import of the remedy lies in the fact that it is designed to provide a speedy and inexpensive enforcement of a plaintiff’s claim against a defendant to which there is clearly no valid defence. See for example Maharaj v Barclays National bank Ltd 1976 (1) SA 418 (A); David Chester v Central Bank of Swaziland CA 50/03.
Each case must obviously be judged in the light of its own merits, bearing in mind always that the court has a judicial discretion whether or not to grant summary judgment. Such a discretion must be exercised upon a consideration of all the relevant factors. It is as such not an arbitrary discretion.”
[6] Similarly, I discern the need to repeat the remarks which I also had occasion to make in Fikile Thalitha Mthembu v Standard Bank Swaziland Limited, Civil Appeal No. 3/09, namely:-
“[9] Undoubtedly summary judgment procedure makes grave inroads into the ordinary right of a defendant to a trial. What needs to be emphasised in a case such as this, therefore, is that where it is reasonably possible that the defendant has a good defence, summary judgment ought to be refused. It is upon these principles that I approach the matter.”
[7] It will be recalled from paragraph [4] above that the defendant raised three grounds as constituting a bona fide defence. Regrettably, however, on page 11 of its judgment the court a quo only dealt with the second ground relating to payment of tax. In my view the court was in error in doing so. The result is that the court failed to consider the defendant’s defence that the goods in question were defective and that in any event the agreement relied upon was not signed by the defendant, something that is prima facie self-evident from the agreement itself. Seemingly, the respondent concedes this point in paragraph 2.1 of its supplementary heads of argument filed on 25 November 2011. Unquestionably, these are triable issues.
[8] I should mention that in this Court Mr. Motsa for the plaintiff defended the court a quo on the ground that the only issue for determination in that court was the question of payment of tax. Mr. Mamba for the defendant vehemently disputed this. The parties are on common ground, however, that summary judgment was granted by default in the absence of Mr. Mamba. It is the latter’s submission that in treating the matter as if the only outstanding issue was the question of tax, the court a quo wrongly took into account certain correspondence between the parties made during a negotiation for an amicable settlement. Counsel submits that such correspondence, which did not even form part of the record, was made without prejudice in any event. He makes a further submission, correctly so in my view, that the court a quo was not entitled to pick and choose portions of the agreement in the circumstances of the case. Once again, I consider that this is a triable issue.
[9] Finally, it should be emphasised that we express no concluded view on the foregoing triable issues at this stage in case we are called upon to deal with them in the future.
[10] In the light of these considerations I have come to the inescapable conclusion that it is reasonably possible that the defendant has a good defence. Accordingly, summary judgment ought to have been refused.
[11] The result is that the appeal is upheld with costs. The order of the court a quo is altered to read:-
“The application for summary judgment is dismissed with costs.”
____________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I agree _____________________
DR S.TWUM
JUSTICE OF APPEAL
I agree _____________________
MCB MAPHALALA
JUSTICE OF APPEAL
For Appellant : Mr. S.P. Mamba
For Respondent : Mr. K. Motsa
