1
IN
THE HIGH COURT OF SWAZILAND
a:Ruth
CASE
NO. 2415/96
IN
THE MATTER BETWEEN:
ASIKHUTULISANE
SAVINGS & CREDIT PLAINTIFF
CO-OPERATIVE
SOCIETY LIMITED
VS
RUTH
MAKHOSAZANA DLAMINI DEFENDANT
CORAM: S.B.
MAPHALALA
-
A
J
FOR
PLAINTIFF: MR
MAVUSO
FOR
DEFENDANT: MR ANDRIAS LUKHELE
JUDGEMENT
Before
me is an application for summary judgement for an order in the
following terms:
a) Payment
of the sun of E152,537-17.
b) Interest
thereon at the rate of 9% per annum a tempore morae.
c) Another
declaring that the defendant's shares and savings in the sum of
E35.000 be forfeited to the plaintiff,
d) Collection
commission
e) Costs
on the Attorney and client scale,
f) Further
and/or alternative relief.
The
defendant has filed a notice of intention to defend.
The
matter came before me on the contested roll of the 24th October, 1997
and I reserved judgement after hearing submissions for and against
the application.
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a
Ruth
The
brief history of the matter is that on the 8th November, 1996 the
plaintiff and the defendant entered into a written loan agreement the
terms of which, inter alia, the plaintiff loaned and advanced a sum
of E 108,386-33 to the defendant at the defendant's special instance
and request. That the loan agreement was subject to the plaintiff's
constitution and bye-laws. That the loan would be repaid over a
period of three years in monthly instalments of E4,276 commencing on
the 3oth November, 1996. The defendant pledged her shares and savings
in the sum of E35,200 as collateral security for the loan. As
additional security for the loan defendant signed another written
agreement in terms whereof she pledges her two motor vehicle namely a
Toyota Cressida bearing registration number SD 103 EG and a Toyota
Corolla bearing registration number SD 748 DG.
In
terms of the plaintiffs constitution and bye-laws the loan generates
interest at the rate of 1.17% per month, defendant also incurs
penalties in the event that she fails to make repayments in terms of
the loan agreement. It was further agreed that in the event of any
amount being claimed from the defendant by the plaintiff under the
loan agreement a certificate by the treasurer or secretary of the
plaintiff shall be sufficient and conclusive evidence as to the
amount of the defendant's liability for the purpose of enabling
judgement to be obtained against defendant in any court of law.
The
defendant also accepted liability to pay interest, penalties,
collection commission and plaintiffs legal costs on the attorney and
client scale.
The
defendant opposes the application for summary judgement and has filed
an affidavit in opposition. She raised a point "in limine"
that as a woman married in community of property she has no locus
standi in judicio.
On
the merits she admits that during. 1996 she obtained a loan from the
plaintiff. However, denies that plaintiff advanced and loaned her the
sum of E108,386-33. She only applied for and was granted a loan of
the sum of E35,000 as seen in her application from annexed and marked
Annexure
"A".
That her collateral for such a loan were her shares valued at E35,000
which she had with the plaintiff. As additional security she offered
her two motor vehicles to be sold in the event she failed to repay
the said loan. She was to repay the loan by way of monthly
instalments of E4,276. She denies that the agreement signed by her
and the plaintiff provides that she pay interest, penalties,
collection commission and plaintiff's legal costs at attorney and
client scale.
She
denies further that she only paid two instalments to the plaintiff
and that she was in arrears with her payments. That she is presently
up to date with her payments. She denies that she is presently
indebted to the plaintiff in the sum of E152,537-17 as alleged or at
all. She challenges the accuracy and corrections of the certificate
of the treasurer on the grounds that the original loan granted to her
was not the sum of E108,386-33 and that the computation of the
original interest and penalty interest is based upon false and/or
erroneous criteria contrary to law, equity and the agreement between
the parties. As such by virtue of the false and erroneous computation
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a:Ruth
the
amount hereof is false and/or erroneous.
In
the premises she admits that the plaintiff's claim is grossly
overstated, and determination of the amount claimed by the plaintiff,
if any, requires trail of issues involved.
Mr
Mavuso for the plaintiff contended that it is abundantly clear from
the papers before court that the is an equivocal acknowledgement of
receipt of the money. That defendant was opposing this application
merely to buy time and thus delay the proceedings.
Mr
Lukhele for the crown on the other hand argued that plaintiffs claim
is not provided by Rule 32 (1) of the High Court Rules, It is not a
liquidated amount in money. His client challenges Annexure "c"
being the treasurer's certificate. The loan agreement does not
reflect the rate of interest. The computation of the interest is
being disputed. That there are numerous disputes of facts and that
this matter should go to oral evidence.
These
are the issues before me. It is trite that the summary judgement
procedure as provided by the rules has always been regarded as one
with a limited objective 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. The courts have in innumerable decisions
stressed the fact that the remedy provided by this rule is an
extraordinary one which is "Very stringent" in that it
closes the door to the defendant, and which will thus be accorded
only to a plaintiff who has, in effect, an unanswerable case. (see
Herbstein and Van Winsen the Civil Practice of the Supreme Court of
South Africa (4th ED) at page 434).
In
the case in casu it is my considered view that the liquidity of the
document the plaintiff is relying on is questionable. There are
numerous disputes of facts which can best be addressed in a full
blown trial. Annexure "c" does not state what the rate of
interest is and thus the computation to the figure of El 52,537-17 is
highly suspect.
I
thus rule that the plaintiff was not prove a case for summary
judgement to be granted. The application is dismissed with costs.
S.B.
MAPHALALA
ACTING
JUDGE
