Breitenbach v Fiat SA (Edms) Bpk

• Jurisdiction: South Africa
• Judge: Colman J, Nicholas J and Eloff J
• Judgment Date: 25 November 1975
• Court: Transvaal Provincial Division
• Hearing Date: 25 November 1975
• Citation: 1976 (2) SA 226 (T)

Colman, J.:

This is an appeal against the grant, by a single Judge sitting in the Witwatersrand Local Division, of summary judgment in favour of the present respondent, whom I shall refer to as the plaintiff, against the present appellant, whom I shall call the defendant.

The defendant opposed the plaintiff's application for summary G judgment and filed an affidavit in which, after denying the averments that he was defending the action solely for purposes of delay, and that he had no bona fide defence to the plaintiff's claim, went on to state briefly the defence whereby he proposed to answer the plaintiff's claim. The learned Judge in the Court a quo was, however, of the opinion H that the defendant's affidavit was so vague that the Court could not ascertain from it whether or not there was a bona fide defence to the claim, as required by Rule of Court 32 (3) (b). Accordingly summary judgment was granted as prayed, with costs.

It will be necessary, later in this judgment, to deal with the contents of the defendant's affidavit, and with other documents which were before the Court of first instance. It will be conducive to clarity, however, if before I do that, I say something about the relevant sub-rules, which are Rules 32 (3), (4) and (5) of the Uniform Supreme Court Rules.

It is there provided that a defendant who wishes to resist an application

Colman J

for summary judgment must (unless he furnishes security or is given leave to adduce oral evidence):

'Satisfy the Court by affidavit... that he has a bona fide defence to the action: such affidavit... shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.'

Sub-rule (4) provides that the plaintiff may adduce no A evidence, except in the form of the brief formal affidavit referred to in sub-rule (2), and that neither party may cross-examine any person who deposes to an affidavit or gives viva voce evidence. In sub-rule (5) it is provided that if the defendant does not find security or satisfy the Court as provided in sub-rule (3) (b), the Court may enter summary B judgment for the plaintiff.

The purpose of the procedure known as summary judgment is well recognised. It is, indeed, implicit in the portion of Rule 32 which prescribes the contents of the affidavit which must be filed on behalf of the plaintiff. It is a procedure aimed at the defendant, who, although he as no bona fide defence to the action brought against him, gives notice of intention to defend solely in order to delay the grant of judgment in favour of C plaintiff. In a case where that is what the defendant has done, the summary judgment procedure serves a socially and commercially useful purpose. The relevant Rule should, therefore, not be interpreted with such liberality to defendants that purpose is defeated.

It is, however, even more important to guard against injustice D to the defendant, who is called upon, at short notice, and without the benefit of further particulars, discovery or cross-examination, to satisfy the Court in terms of sub-rule (3) (b). If the requirements of that sub-rule are too stringently applied, a defendant who has a defence to the action brought against him may be denied, unjustly, an opportunity of establishing that defence by the ordinary E procedure of a civil suit. It was because of that that MARAIS, J., in Mowschenson and Mowschenson v. Mercantile Acceptance Corporation of SA Ltd., 1959 (3) SA 362 (W), went so far as to say that the doors of the Court should be closed to a defendant only if,

'there is no doubt but that the plaintiff has an unanswerable case'.

That is a dictum, which, if I may say so with respect, seems to F me to go too far in favour of defendants; but it embodies a necessary and important warning for the guidance of Courts which have to determine the rights of litigants in applications for summary judgments. I shall return later to that aspect of the matter.

One of the things clearly required of a defendant by Rule 32 (3) (b) is that he set out in his affidavit facts which, if G proved at the trial, will constitute an answer to the plaintiff's claim. If he does not do that, he can hardly satisfy the Court that he has a defence. The sub-rule, however, requires that the Court be satisfied that there is a bona fide defence, and the qualification gives use to some difficulty. On the face of it, bona fides is a separate element relating to H the state of the defendant's mind. A man may believe in perfect good faith that he has a defence, and may state honestly the facts which he relies upon, yet the law may be against him, or he may be honestly mistaken about the facts. He is bona fide, but he has no defence. Another man may make...