IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Civil Appeal Case No.67/12
In the matter between:
MUSA SIFUNDZA Appellant
V
SWAZILAND DEVELOPMENT &
SAVINGS BANK Respondent
Neutral citation: Musa Sifundza vs Swaziland Development & Savings Bank (67/12) [2013] [SZSC 32] (31 May 2013)
Coram: A.M. Ebrahim JA
P. Levinsohn JA
B.J. Odoki JA
For the Appellant: N.D. Jele
For the Respondent: S. Mngomezulu
Heard: 23 May 2013
Delivered: 31 May 2013
Summary: Summary judgment - Principles involved in granting of - replying affidavit filed in terms of section 32(5) (a) High Court Rules without seeking permission of the court – pleadings formulated in a slovenly manner – appellants’ resistance to granting of summary judgment does not bear scrutiny – matter referred for trial – no order as to costs made.
JUDGMENT
EBRAHIM JA
[1] The Respondent (plaintiff in the court a quo) obtained summary judgment against the Appellant in the sum of E161 165.70.
[2] The circumstances in which the Respondent brought the action against the Appellant are as follows.
[3] The Appellant was the Managing Director of a company called Buciko Bemaswati (Pty) Ltd. On 27 July 2007 the company obtained a loan from the Respondent in the sum of E216 463.00. Certain sums were paid back, leaving an amount outstanding in the sum of E161 165.70.
[4] On the date on which the loan was obtained, the Appellant signed a document headed “Guarantee by an individual – surety and co-principal debtor”. The document recited that:
“In consideration of the Swaziland Development and Savings Bank ...allowing Musa Nkanyezane Sifundza (hereinafter called “the debtor”) such banking facilities as the said bank may in its sole discretion deem fit (either by way of the continuation of any existing facilities and/or providing new or further facilities) subject to the conditions hereinafter mentioned, I, the undersigned Musa Nkanyezane Sifundza do hereby guarantee and bind myself as surety and co-principal debtor in solidum for the repayment on demand of all the sum or sums of money which the debtor may now or from time to time hereafter owe or be indebted to the bank, its successors or assigns whether such indebtedness be incurred by the said debtor in his own name or in the name of any firm in which the said debtor may be trading either solely or jointly with others in partnership or otherwise...”.
[5] The sum guaranteed was, of course, the sum advanced to the company.
[6] The deed contained all the usual renunciations of benefits, including ordinis seu excussionis et divisionis and “de duobus vel pluribus reis debendi”, the meaning of which was explained at the end of the deed.
[7] The company defaulted on the repayments and on 18 March 2011 the Respondent obtained default judgment against the company for the balance of E161 165.70, plus interest and costs. A writ of execution was issued but no assets were found to be attached.
[8] The Respondent then instituted an action against the Appellant on the basis of the deed of suretyship signed by him. The company was joined as a co-defendant. The Appellant and the company filed a Notice of Intention to defend, and in turn the Respondent lodged an application for summary judgment, averring that there was no bona fide defence to the action.
[9] The Appellant filed an affidavit resisting summary judgment, averring that he never signed any suretyship agreement in favour of the Respondent on behalf of the company. The Appellant also argued that the matter was res judicata, summary judgment already having been granted in favour of the Respondent against the company. The Respondent filed an answering affidavit, to which the suretyship agreement referred to was annexed. It explained that the company had been joined for reasons of convenience only. It is not clear why the suretyship agreement was not made part of the original pleadings. No explanation was tendered why this was so.
[10] Of course, any claim against the company was indeed res judicata, but the claim against the Appellant was not.
[11] The court a quo, granted the application for summary judgment. It considered that the Appellant’s grounds for resisting the application were technical in nature and avoided dealing with the merits of the claim. On this aspect I respectfully agree with this view.
[12] That the suretyship deed erroneously failed to show the name of the company as being the debtor cannot be disputed. Why this error was made is not explained. This is yet another unsatisfactory feature of the Respondent’s case. To my mind there can be little doubt that the suretyship agreement signed by the Appellant was indeed in respect of the loan advanced to the company. The Appellant was the Managing Director of the company. The sum referred to in the suretyship agreement was precisely the same sum that was advanced to the company. So what else could the agreement have been for, other than to stand surety for the loan advanced to the company? Be that as it may it is disturbing that where the Respondent was seeking an “extraordinary remedy” this was another unsatisfactory feature in the way it had launched its application.
[13] In my view it seems to me that the Appellant was being untruthful when he claimed that he “never signed any suretyship agreement as alleged or at all in favour of the [bank] on behalf of the [company]”. In a sense, that is correct, but if he was not signing the agreement on behalf of the company, on whose behalf was he signing? He gave no explanation at all.
[14] The law relating to summary judgments and when such judgments may be granted were summarised by the judge a quo at pages 38 to 42 of his judgment. See also Azman Investments Ltd v The Government of Swaziland and the Attorney General, Case No.12/11 where I cited the relevant authorities pertaining to summary judgments as follows:
“In the case of Zanele Zwane and Lewis Stores (Pty) Ltd t/a Best Electric, Civil Appeal No.22/07, Ramodibedi JA (as he then was) stated:
‘[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’.
See also Fikile Thalitha Mthembu v Standard Bank Swaziland Limited, Civil Appeal No.3/09.
In the case of Shelton Mandla Tsabedze and Standard Bank of Swaziland, Civil Appeal No.4/2006, Banda JA (as he then was) stated:
‘It is trite that the summary procedure which Rule 32 introduces into the law provides “an extraordinary and stringent remedy” which provides for final judgment. Courts, have however, been warned to be slow to close the door to the defendant if a reasonable possibility exists that an injustice may be done if judgment is granted: Mater Dolorosa High School vs RMJ Stationery (Pty) Limited, Civil Appeal No.3 of 2005 and David Chester v Central Bank of Swaziland, Civil Appeal No.50 of 2003.
Beck JAexpressed similar sentiments in the case of Mater Dolorosa High School and RMJ Stationery (Pty) Ltd., Civil Appeal No.3/2005 where he stated:
“It has been held time and again in the courts of this country in view of the extraordinary and stringent nature of summary judgment proceedings, the court will be slow to close the door to a defendant if a reasonable possibility exists that an injustice may be done if judgment is granted.
This quotation is taken from the judgment of Tebbutt JA in this Court in the case of Musa Magongo v First National Bank (Swaziland), Appeal Case No.38/1999”.
In the case of David Chester and Central of Swaziland, Civil Appeal No.50/03, Zietsman JA stated:
“The above cases also refer to the fact that the procedure of summary judgment constitutes an extraordinary and stringent remedy as it permits a final judgment to be given against a defendant without a trial. The court should therefore not grant summary judgment if there is a reasonable possibility that the plaintiff’s application is defective or that the defendant has a good defence”.
The words of Ramodibedi ACJ (as he then was) in Fikile Thalitha Mthembu v Standard Bank Swaziland Limited referred to supra are also very apposite, where he stated:
“The appellant was not called upon to “prove” her defence at the stage. In this regard I find the following remarks of Watermeyer AJ (as he then was) in Chambers v Joniker 1952(4) SA (C) at 637 compelling, namely:
“Now, it was said, in the case of Estate Potgieter v Elliott, 1948(1) SA 1084 (C), that it is not incumbent upon a defendant, in formulating his opposition to an application for summary judgment, to do so with the precision required in a plea, and a bona fide defence does not necessarily mean anything more than the substantiation of facts which, if proved would give rise to a valid legal defence.
It is true that the Rule appears to place an onusof some description on the defendant in that it requires him to satisfy the Court that he has a bona fide defence to the action, but that onus, as was pointed out in the case of de Afrikaanse Pers (Bpk.) v Neser, 1948(2) SA 295 (C), is not a heavy one”.
See also the case of Variety Investments (Pty) Ltd and Motsa (CA) SLR 1982-1986 [1] at page 77 and the cases cited therein”. (emphasis added by myself)
[15] In terms of Rule 32(5) (a) of the High Court Rules (the Rules) the Respondent was entitled to file a replying affidavit to which he attached the “guarantee” document signed by the Appellant.
[16] The High Court Rules provide as follows:
“32(1) (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”. (emphasis added)
[17] I note in particular in those rules the following words, “with the leave of the court”. No where in the record is it shown that the required leave with the leave of the court was sought to satisfy this provision of the Rule.
[18] It is patently apparent from the authorities cited in the Azman Investments (Pty) Ltd case (supra) that the relief sought in terms of a summary judgment application is an “extraordinary remedy” and any one seeking such relief needs to be stringent in its approach in obtaining such relief.
[19] In my view the Respondent has not satisfied these requirements:
-
No explanation was given why the surety agreement was not made part of the original pleadings.
-
The surety deed (agreement) failed to show the name of the company as being the debtor. Why this error was made is not explained.
-
The “leave of the court” was not sought to place before the court the surety agreement.
-
The slovenly nature of the pleadings filed by the Plaintiff is further emphasised by its continuous reference to the “Defendant” against whom it seeks relief yet in the summons filed seeking summary judgment, there are two Defendants -
headed -
Swaziland Development and Savings Banks
and
Musa Nkanyazane Sifundza 1st Defendant
Buciko Bemaswati (Pty) Ltd 2nd Defendant
The question arises, against which Defendant does it seek relief?
Furthermore in its Particulars of Claim headed -
Swaziland Development and Savings Banks
and
Musa Nkanyazane Sifundza 1st Defendant
Buciko Bemaswati (Pty) Ltd 2nd Defendant
the relief sought is pleaded as follows:
“Where Plaintiff prays for:
(1) Payment of the sum E161,165.70;
(2) Interest thereon at the rate of 9% per annum;
(3) Costs of suit;
(4) Such further and/or alternative relief”.
The question I pose, against which Defendant did the Respondent seek relief?
6. The Respondent is also at fault when as part of its pleadings is attached as annexure A, a document, to its particulars of claim describing it as being the deed of suretyship, which clearly, it is not.
[20] These unsatisfactory features viewed against the background of the stringent requirements in obtaining a summary judgment persuade me to find that the summary judgment should not have been granted on the facts of this case.
[21] I remain, sceptical too that the Appellant has raised any triable defence and I am of the view that he may fail at the trial in this matter.
[22] Be that as it may, neither party deserves any credit for their conduct in this matter and I am not prepared to circumvent the “stringent requirements” pertaining to the granting of summary judgment.
[23] Accordingly, the appeal is allowed with no order as to costs. The judgment of the court a quo is set aside and there is substituted the following order:
1. Summary judgment is refused.
2. The cited defendant Musa Sifundza is given leave to defend the action.
3. All questions relating to the costs of the application for summary judgment are reserved for the decision of the trial court hearing the action.
_________________________
A.M. EBRAHIM
JUSTICE OF APPEAL
_________________________
P. LEVINSOHN
JUSTICE OF APPEAL
_________________________
B.J. ODOKI
JUSTICE OF APPEAL
