Dowson & Dobson Industrial Ltd v Van der Werf and Others

• Jurisdiction: South Africa
• Citation: 1981 (4) SA 417 (C)

Dowson & Dobson Industrial Ltd v Van der Werf and Others
1981 (4) SA 417 (C)

1981 (4) SA p417

Citation	1981 (4) SA 417 (C)
Court	Cape Provincial Division
Judge	Marais AJ
Heard	August 6, 1980; August 7, 1980
Judgment	June 2, 1981

Flynote : Sleutelwoorde

Practice — Judgments and orders — Summary judgment — Application for — B Requirement of Rule of Court 32 (2) that liquid document on which claim founded to be annexed to application — Surety bond for an unlimited amount — Not a liquid document — Not required to be annexed to application.

Practice — Judgments and orders — Summary judgment — Application for — Summons capable of being set aside either on exception or as an improper C or irregular proceeding in terms of Rule of Court 30 — Such a good reason for refusing summary judgment — What averments initiating summons should contain — Necessary elements of cause of action have to be verified under oath for summary judgment to be granted.

Practice — Summons — Simple summons — If capable of being set aside on exception or as an improper or irregular proceedings in terms of Rule of Court 30, summary judgment should not be granted thereon — Quaere: Whether simple summons a pleading to which exception can be taken.

Principal and surety — Action against surety — Summary judgment sought — Cause of action vis-à-vis principal debtor

E to be made out — Plaintiff must provide verification of such cause of action — If suretyship of a restricted kind, such must appear from cause of action disclosed.

Principal and surety — Action against surety — Exception non causa debiti F renounced — Scope and effect of — Principal debt for which sureties undertook liability one for goods sold and delivered — Renunciation of such exception only burdens sureties with showing that no causa debiti for goods sold and delivered existed, and not that no causa debiti whatsoever existed.

Headnote : Kopnota

A deed of suretyship or a surety bond for an unlimited amount, including future debts, is not a liquid document and a claim for provisional sentence based upon such a document is not competent, Accordingly, in a claim founded on such a document, a copy of such deed of suretyship or surety bond does not have to be annexed to the affidavit filed in support of an application for summary judgment in terms of Rule 32 (2) of the Uniform Rules of Court.

That the simple summons in respect of which summary judgment is sought is capable of being set aside on exception or as an improper or irregular step or proceeding in terms of Rule of Court 30, in either case because no cause of action is disclosed, is obviously a good reason why summary judgment should be refused. It would clearly constitute a bona fide defence.

It could never have been intended that the initiating simple summons (for summary judgment) should contain the degree of particularity which is appropriate in a declaration. But, when a Court is asked to grant summary judgment, it should not do so unless it is satisfied that the necessary

1981 (4) SA p418

elements which go to make up the cause of action have been verified under oath as being present.

Quaere: Whether a simple summons is a pleading to which an exception might be taken.

In an action based on a deed of suretyship, unless a cause of action is made out vis-à-vis the principal debtor, there can be no cause of action made out vis-à-vis the sureties. It follows that, where summary judgment is sought against a surety, the plaintiff will have to provide verification upon oath of the cause of action against the principal debtor because it is an integral element in the liability of the surety.

It may be that, if a surety has undertaken liability for all or any existing or future indebtedness of the principal debtor to the creditor, it will suffice, when setting out the investitive facts which comprise the cause of action against the surety, to allege baldly that the principal debtor is indebted in a stated sum to the plaintiff. But, if the liability undertaken by the surety is not so wide and unqualified, but is C restricted to a certain kind of indebtedness (eg an indebtedness for goods sold and delivered), it is selfevident that it must be made to appear that the indebtedness of the principal debtor is indeed of that kind. If that is not made to appear, no cause of action is disclosed.

The renunciation of the exception non causa debiti in a deed of suretyship means no more than that, when the creditor asserts a claim in terms of the suretyship, the surety will bear the onus of establishing that the principal debt for which he undertook liability does not exist. Thus, if D the principal debt, for which the sureties undertook to be liable, is a debt for goods sold and delivered, the plaintiff would be wrong to allege that the defendants (the sureties) undertook liability for all sums of money due by the principal debtor to plaintiff. It would then follow that the renunciation of the exception non causa debiti does not result in the defendants undertaking the burden of showing that no causa debiti whatsoever existed, but only that no causa debiti for goods sold and delivered existed. E

Case Information

Application for summary judgment. Facts not material to this report have been omitted from the reasons for judgment.

J Immerman, and later H L Berman SC (with him J Immerman) for the plaintiff. F

H M Carstens for the defendants.

Cur adv vult.

Postea (June 2). G

Judgment

Marais, AJ.:

Plaintiff has applied for summary judgment against defendants. The claim is for payment of the sum of R214 125,70, interest a tempore morae at the rate of 11 per cent per annum and costs. The cause of action is founded upon a written agreement of suretyship signed by the three H defendants. They are alleged to have undertaken liability to plaintiff as sureties for, and co-principal debtors with, a company, the name of which is RPM Construction (Pty) Ltd, for all the existing and future debts of RPM Construction (Pty) Ltd to plaintiff.

The application is opposed. Defendants have filed affidavits in which they allege that they have good defences to the claims. In addition, Mr Carstens, who appeared for defendants, raised two other defences. I shall deal with them later.

1981 (4) SA p419

Marais AJ

I shall deal first with the allegations made in the affidavits filed by defendants. Do they constitute bona fide defences to plaintiff's claims? My first impression upon reading the affidavits was that the deponents A were hard pressed to formulate any coherent defences. Having listened to, and weighed, the arguments which Mr Carstens addressed to me, that remains my impression. Indeed, it has grown into a conviction. I shall explain why.

[The learned Judge then analysed the defences on the merits raised by the defences and continued.]

B In my opinion, no defence is disclosed.

In considering the affidavits filed by defendants, I have been mindful of the summary and final nature of the relief for which Rule 32 provides. I have also given due weight to the observations made in cases such as Arend and Another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C); Gilinsky and C Another v Superb Launderers and Dry Cleaners (Pty) Ltd 1978 (3) SA 807 (C) and the other cases cited to me by Mr Carstens. I think it fair to say that an ever increasing reluctance to grant summary judgment in the face of opposition is evident from the more recent decisions in South African Courts. Given the exceptional nature of the remedy and the fact that it D may result in a final judgment being given against a defendant without a full ventilation of the issues, this reluctance is entirely understandable. But the ease with which a defendant may avoid summary judgment in terms of Rule 32 is so apparent that I do not think one should balk at granting it in cases where, despite the ease with which he could have done so if a sufficient factual foundation existed, a defendant has E failed to allege any recognisable defence. In my view, this is such a case.

I am satisfied that the defendants have failed to comply with Rule 32 (3) which requires that they "disclose fully the nature and ground of the defence and the material facts relied upon therefor". In Gilinsky v Superb Launderers and Dry Cleaners (supra at 810A) VAN WINSEN J said:

"It follows, therefore, that if the allegations in the defendants' affidavit relative to these factors are equivocal or incomplete or open to conjecture then the requirements of the Rule in question have not been complied with."

Even if I am wrong in interpreting defendants' affidavits in the manner in G which I have, at best for defendants, their affidavits are equivocal or open to conjecture.

But that does not necessarily mean that summary judgment must be granted. The Court has a discretion to refuse summary judgment nonetheless. Whether it should do so will depend upon whether it has any doubt that the plaintiff's case is unanswerable. If it has, it should exercise its discretion against granting judgment. If it has not, it should grant it. H In considering this question the following remarks of VAN WINSEN J in Gilinsky v Superb Launderers and Dry Cleaners (supra) should be borne in mind:

"It is important to note that a decision as to whether a plaintiff's case is unanswerable or not must be founded on information before the Court dealing with the application. This information is derived from the plaintiff's statement of case, the defendant's affidavit or oral evidence and any documents that might properly be before the Court. It would be inappropriate to allow speculation and conjecture as to the nature and ground of the defence to constitute

1981 (4) SA p420

Marais AJ

a substitute for real information as to these matters. On the other hand, even if a Court concludes that such information as is disclosed by...