AE Motors (Pty) Ltd v Levitt

• Jurisdiction: South Africa
• Citation: 1972 (3) SA 658 (T)

AE Motors (Pty) Ltd v Levitt
1972 (3) SA 658 (T)

1972 (3) SA p658

Citation	1972 (3) SA 658 (T)
Court	Transvaal Provincial Division
Judge	Coetzee AJ
Heard	May 16, 1972
Judgment	May 16, 1972

Flynote : Sleutelwoorde

Practice — Judgments and orders — Summary judgment — Defendant entitled to defend — Court has no discretion to grant judgment — Defendant's counterclaim based on an unliquidated amount — Such capable of being raised as a defence — Rule of Court 32 (6). B

Headnote : Kopnota

In an application for summary judgment in terms of Rule of Court 32, the Court has no discretion to grant judgment under sub-rule (6) if the defendant is otherwise entitled to defend.

It can be a defence to such an application for a defendant to allege that he has a counterclaim in an unliquidated amount which exceeds the amount of the claim. C

Case Information

Application for summary judgment. The facts appear from the reasons for judgment.

C. D. de Jager, for the plaintiff.

E. L. Goldstein, for the defendant.

Judgment

D Coetzee, A.J.:

In this matter the plaintiff sues for ejectment and for the payment of R2 400, said to be rentals due in terms of the lease of erf 259, for the period 1st October, 1971, to 31st March, 1972. E Appearance to defend was entered and the plaintiff has now applied for summary judgment. Attached to this application were copies of the lease and also of a letter of cancellation, which was apparently written by the plaintiff's attorneys to the defendant on 5th April, 1972. Defendant did not initially lodge an opposing affidavit but filed a notice of motion in which he prayed this Honourable Court to dismiss the application and the annexures on the grounds that the affidavit F incorporates documents inadmissible for purposes of the application for summary judgment.

At the hearing these points were argued in limine and I ordered that only the letter should be struck out. The lease was validly annexed under Rule 32 (2) of the Rules of Court in that it was the liquid G document on which the claim for rentals was founded, but the letter could not be described as such a document at all. There is, however, no reason why, if one of the documents annexed should not have been so annexed, the affidavit itself for that reason becomes improper and ought to be struck out. Consequently, I did not allow the striking out of the H affidavit as asked for originally by Mr. Goldstein. Thereafter he handed into Court an affidavit under Rule 32 (3) (b) of the Rules of Court. Mr. de Jager made no objection to the late handing in of this affidavit, which could not properly be received as it was not lodged with the Registrar the day before this hearing of the matter. Apparently Mr. de Jager was more concerned with this matter being heard as soon as possible and it being disposed of, but he went on to attack the contents of this affidavit as one which could not be said to disclose a bona fide defence to the action and that it did not fully disclose, in the words of the subrule,

1972 (3) SA p659

Coetzee AJ

the nature and grounds of the defence and the material facts relied upon therefor.

I shall deal firstly with the claim for ejectment. In his affidavit the defendant sets forth that the premises - apparently garage premises - were sub-let to the knowledge of the plaintiff and then goes A on to say that neither he nor any person claiming under him is in possession of the premises. There follows, however, a somewhat curious statement in that paragraph of his opposing affidavit, to the following effect:

'There are goods on the property, however, which cannot be removed because of the plaintiff's hypothec for rental in respect thereof. Further, the goods are under attachment by another creditor of Levitt's B Motors (Standerton) (Pty.) Ltd. and the sale in execution is set down for 9th May, 1972.'

As the claim for ejectment is based crisply on the owner's right to have possession of his property, it is clearly part and parcel of this cause of action that the defendant is in unlawful possession of the property. Therefore, a denial of possession of the property is indeed a denial of C one of the components of the cause of action itself. There is nevertheless the lurking suspicion upon reading this affidavit, that this is purely a technical matter. I say this because there is clearly no averment which comes to a positive statement that the defendant is entitled to possess the plaintiff's goods adversely to him, and in effect, therefore, it is mainly a matter of costs; the costs of suit in D the sense that the defendant may say at the trial: 'You have not proved that I am in possession,' or alternatively, 'You always knew that I was not in possession; it was not necessary to you to issue summons against me, and hence I am entitled to the costs of suit.' This aspect of the matter, particularly in view of the somewhat vague statement about goods E on the premises, made me wonder whether it would not be possible to give judgment now for ejectment of the defendant, and whether it would not serve justice better under these circumstances if I used the powers given to the Court under sub-rule (6) (b) (1) of Rule of Court 32, by giving the...