IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Case No: 72/12
In the appeal between:
DULUX PRINTERS (PTY) LTD APPELLANT
VS
APOLLO SERVICES (PTY) LTD RESPONDENT
Neutral citation: Dulux Printers (PTY) Ltdvs Apollo Services (PTY) Ltd (72/12) [2013] SZSC19 (31 May 2013)
CORAM: DR. S. TWUM, JA
M.C.B. MAPHALALA, JA
E.A. OTA, JA
Heard : 09 May 2013
Delivered : 31May 2013
Summary
Civil Procedure – application for summary judgment – essential requirements there of discussed –a technical point of law raised that summons don’t comply with Rule 18 (6) discussed – affidavit resisting summary judgment don’t disclose a bona fide defence – but a denial – application granted.
JUDGMENT
M.C.B. MAPHALALA JA
[1] The respondent sought and was granted summary judgment against the appellant in the court a quo on the basis that the appellant did not have a bona fide defence to the action. The appellant contends that the court misdirected itself in granting the summary judgment for the following reasons; first, that the invoices and statement upon which the action was based do not constitute a liquid document; secondly that the respondent failed to plead in accordance with the peremptory requirements of Rule 18 of the High Court Rules; thirdly, that the defence advanced by the appellant that it had paid all monies owed to the respondent constituted a bona fide defence and did not amount to a bare denial.
[2] The facts in this matter are common cause. The respondent sold and delivered to the appellant certain printing materials and stationery to the appellant pursuant to an oral contract between the parties. This took place between the 5th August 2006 and 25th June 2007. The purchase price of the goods was E94 481.49 (ninety four thousand four hundred and eight one emalangeni forty nine cent). A statement of account was annexed to the summons detailing the goods delivered, the dates of delivery as well as the purchase price of each consignment. The purchase price of each consignment was payable within thirty days of delivery.
[3] After filing a Notice to Defend the appellant filed a Notice in Terms of Rule 7 (1) challenging the authority of the attorney representing the respondent in the proceedings as well as the resolution of the directors of the respondent to institute the proceedings. The respondent subsequently filed with the court a quo both the Special Power of Attorney as well as the Resolution of the Board of Directors as required.
[4] On the 28th April 2011 at 1516 hours the respondent filed and served upon the appellant an application for summary judgment on the basis that the appellant did not have a bona fide defence to the action. Later that day at 1530 hours the appellant filed and served upon the respondent a Notice of Exception in terms of Rule 23 on the basis that the Combined Summons does not comply with Rule 18 (6) of the Rules of the High Court. Rule 18 (6) provides as follows:
“18 (6) A party who in his pleadings relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of part relied on in the pleading shall be annexed to the pleading.”
[5] In particular the appellant stated that paragraph of the particulars of Claim contravened Rule 18 for the following grounds; first, that it does not state whether the court a quo has jurisdiction over the matter, and if so, the basis of the jurisdiction; secondly, whether or not contract was in writing; thirdly, the place where the contract was concluded; fourthly, who represented the parties when the contract was concluded given that they are juristic persons; fifthly, the identity of the printing material, the quantity, the purchase price and the person who accepted delivery of the printing material; sixthly, that it is not clear whether the contract was for a cash or credit sale.
[6] The Notice of Exception as filed by the appellant constitutes an irregular step or proceeding on the basis that the respondent had already filed and served upon the appellant as application in terms of Rule 32 of the High Court Rules. The appellant was not entitled to file and/or pursue the Notice of Exception in the face of an application for summary judgment. Similarly, the appellant was not so entitled in the circumstances to raise the contents and substance of the Notice of Exception as a Preliminary Objection and/or a Point of Law in its Affidavit Resisting Summary Judgment for the same reason that it had been preceded by the application for summary judgment. The appellant was obliged in terms of Rule 32 to deal with the summary judgment application.
[7] The appellant has argued that the court a quo misdirected itself in holding that the statement annexed to the summons constitutes a liquid document. To that end it argued that it was wrong for the court a quo to conclude that the respondent had a good cause of action in the absence of proper particularisation of the clan in the particulars of claim. There is no misdirection in this regard by the trial court. Paragraph 3 of the particulars of claim states the cause of action clearly without ambiguity as follows:
“3. Between the 5th of August 2006 to the 25th June 2007 plaintiff
sold and delivered certain printing materials and stationery to Defendant at the Defendant’s special instance and request in the total sum of E94 481.49 (ninety four thousand four hundred and eight one emalangeni forty nine cent) a copy of the statement is attached hereto and marked Annexure “A”.”
[8] Rule 32 provides the following:
“32. (1) Where in an action to which this rule applies and a combined
summons has been served on a defendant or a declaration has been delivered to him and that defendant has delivered notice of intention to defend, the plaintiff may, on the ground that the defendant has no defence to a claim included in the summons, or to a particular part of such a claim, apply to the court for summary judgment against that defendant.
(2) This rule applies to such claims in the summons as is only-
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) ejectment;
(3) (a) An application under sub-rule (1) shall be made on notice to
the defendant accompanied by an affidavit verifying the facts on which the claim, or the part of the claim, to which the application relates is based and stating that in the deponent’s belief there is no defence to that claim or part, as the case may be and such affidavit may in addition set out any evidence material to the claim.”
[9] In addition the trial learned judge at paragraph 13 of her judgment had this to say:
“The notice of application, a copy of the affidavit is support there to deposed to by Mandla Elias Mncina, together with a Statement of Credits and Debits (Annexure “A”) and a letter dated 25th June 2007 (Annexure “B”) were served on the Defendant. A close examination of the Statement of Credits and Debits which was issued by the plaintiff on the 30th March 2001 shows details of dates when orders were made and invoice numbers of amounts of each invoice. The last columns show the balances outstanding each time an order is placed. The credit columns show the amounts paid. As on the 13th April 2007 the balance owing is reflected as E94 481.49 (ninety four thousand four hundred and eight one emalangeni forty nine cent).”
[10] From the aforegoing it is clear that the summons does disclose a cause of action. In addition the claim is for a liquidated amount of money as envisaged by Rule 32 (2) (b). A liquidated amount in money is an amount which is either agreed upon or which is capable of speedy and prompt ascertainment: superior court practice B1 – 210; Harms: Civil Procedure in the Supreme Court p. 315. Herbstein and Van Winsen; the Civil Practice of the Supreme Court of South Africa, 4th edition, Van Winsen et al, Juta Publishers, 1997 at pp 435-436 defines a liquidated amount as an amount based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a matter of mere calculation. There is no doubt that the calculation of the amount in Annexure “A” is capable of speedy and prompt ascertainment. The next question for consideration is whether the appellant has a bona fide defence to the action. Rule 32 (4) (a) provides the following:
“32. (4) (a) unless on the hearing of an application under sub-rule (1) either the court dismisses the application or the defendant satisfies the court with respect to the claim, or part of the claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the court may give such judgment or the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.
....
(5) (a) A defendant may show cause against an application under sub-rule (1) by affidavit or otherwise to the satisfaction of the court and, with the leave of the court, the plaintiff may deliver an affidavit in reply.”
[11] The purpose of the summary judgment procedure is to enable a plaintiff with a clear case to obtain swift enforcement of his claim against a defendant who has no real defence to that claim. See Herbstein and Winsen (supra) at pp 435-436. This is understandable because the remedy is final in nature and closes the door to the defendant without trial. Ramodibedi JA, as he then was, in the case of Zanele Zwane v. Lewis Stores (PTY) Ltd t/a Best Electric Civil Appeal No. 222007 stated the following:
“8. It is well-recognised that summary judgment is an extra-ordinary 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 arbitration discretion.”
[12] It is apparent from the Affidavit Resisting Summary Judgment that the appellant doesn’t deny concluding the contract with the respondent. The appellant doesn’t deny receiving the goods but claims to have paid the purchase price in full. However, no documentary evidence is annexed to the affidavit proving payment of the purchase price.
[13] At paragraph 13 of the affidavit resisting summary judgment states the following:
“While admitting that plaintiff may have, during the said period, sold items to it, defendant pleads specifically that the plaintiff was paid and in full for any and such services as it provided to defendant. The defendant therefore denies being indebted to the plaintiff in the sum sought or at all.”
[14] The affidavit clearly does not raise any triable issue to warrant the refusal of summary judgment. In addition Annexure “B” is a letter from the trustees of the appellant dated 25th June 2007 and addressed to the Manager of the respondent. The letter states in part as follows:
“We write as the Trustees of Deluxe Printers, an entity that was under the Directors who were entrusted with the day to day operations of the company.
We have since realised as Trustees that all has not gone well in the management of the company. We therefore write to appeal for your co-operation as we try to put our house in order and further request your good company to allow us to enter into an agreement for the payment of what the company owes.
We would like to maintain a good working relationship with your esteemed company.”
[15] The appellant doesn’t deny writing this letter to the respondent admitting its indebtedness and asking for an indulgence to settle this debt after putting their house in order. This letter cannot be ignored as the appellant suggests; it is part of the pleadings. The letter that the parties not only concluded the contract but that the appellant is still indebted to the amount claims.
[16] In her judgment the trial judge acknowledged that after pursuant to Annexure “B” the appellant made certain payments which reduced the original debt from E94 481.49 (ninety four thousand four hundred and eight one emalangeni forty nine cent) to E69 794.13 (sixty nine thousand seven hundred and ninety four emalangeni thirteen cent). Understandably, the appellant doesn’t take issue with this reconciliation because it is to its benefit. However, it is not clear from the record where the trial judge obtained this piece of evidence because the Annexure “A” the statement doesn’t reflect any credit amount.
[17] Dunn AJ, as the then was, in the case of the Bank of Credit and Commerce International (Swaziland) Ltd v. Swaziland Consolidated Investment Corporation Ltd and Another 1982-1986 SLR 406 (HC) at p. 407 stated:
“It is not enough for a defendant simply to allege that he has a bona fide defence to the plaintiff’s action. He must allege the facts upon which he relies to establish his defence. When this has been done, it is for the court to decide whether such facts, it proved would in law constitute a defence to the plaintiff’s claim and also whether they satisfy the court that the defendant is alleging such facts to acting bona fide.”
[18] Similarly, Corbett JA in the case of Maharaj v. Barclays National Bank 1976 (1) SA 418 (A) at 426 A-E stated the following:
“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court by affidavit that he has a bona fide defence to the claim where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summary or combined summons, are disputed or new facts are alleged constituting a defence, the court does not attempt to decide these issue or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the court requires into is: (a) whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to whether the whole or part of the claim, a defence which is both bona fide and good in law. If satisfied on these matters the court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully” ... connotes in my view that while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them he must at least, disclose his defence and the material facts upon which it is based with sufficient particulars and completeness to enable the court to decide whether the affidavit disclosed a bona fide defence”.
[18.1]The Maharaj case (supra) was approved and applied by the Court of Appeal of Swaziland as it then was, in the case of Variety Investments (PTY) Ltd v. Motsa 1982-1986 SLR 77 (CA) at p. 80 A-E; the Court held that theMaharaj case reflects out law in this country.
[19] Over the years the Courts have warned that the remedy for summary judgment is stringent and extraordinary since it closes the doors of the courts to the defendant and permit a judgment to the given without a trial. The courts have insisted that the remedy should be confined to the clearest of cases where the defendant has no bona fide defence and where the appearance to defence has been made solely for the purpose of delay. The courts have further warned that this remedy has the potential to become a weapon of injustice unless it is properly handled.
See the cases of Zanele Zwane v. Lewis Store (PTY) Ltd t/a Best Electric Civil Appeal No. 22/2007, Fikile Mthembu v. Standard Bank Swaziland Ltd Civil Appeal No. 3/2009, Shelton Mandla Tsabedze v. Standard Bank of Swaziland Civil Appeal No. 4/2006, Mater Dolorosa High School v. P.M.J. Stationery (PTY) Ltd Civil Appeal No. 50/2003; Musa Magongo v. First National Bank (Swaziland) Appeal No. 38/1999 and David Chester v. Central Bank of Swaziland Civil Appeal No. 50/2003????
[20] A closer look at Rule 32 shows that the remedy for summary judgment is not a weapon for injustice because it does not close the doors to a defendant issue who can show that there is an issue or question in dispute which ought to be tried of that reason to be a trial of that claim. Courts should not be sceptical of this remedy when considering that its purpose is to enable a plaintiff with a clear case to obtain swift enforcement of his claim against a defendant who has no real defence to that claim.
[21] Justice Navsa in Joob Joob Investments (PTY) Ltd v. Stocks Mavundla Zek Joint Venture 2009 (5) SA (1) SCA at para 32-33 does expostulate the view that this remedy does not close the doors to a defendant with a triable issue and who can show that he has a bona fide defence to the action. At para 32-33 His Lordship stated the following:
“The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of his or her day in court. After almost a century or successful applications in our courts, summary judgement proceedings can hardly continue to be described as extraordinary. Out courts, both first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out....
Having regard to its purpose and its proper application, summary judgment proceedings only hold terror and are drastic for a defendant who has no defence. Perhaps the time has come to discard these labels and to concentrate rather on the proper application of the rule as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425-426 E.”
[22] The appellant has failed to show that it has a triable issue or a sustainable defence. Accordingly, the appeal is dismissed with costs.
M.C.B. MAPHALALA
JUSTICE OF APPEAL
I agree DR. S. TWUM JUSTICE OF APPEAL
I agree E.A. OTA JUSTICE OF APPEAL
For Applicant Attorney M. Ndlovu
For Respondent Attorney E. Maziya
DELIVERED IN OPEN COURT ON 31 MAY 2013.
