Firstrand Bank Limited v Jacobus NO and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Leech AJ
• Judgment Date: 10 July 2023
• Citation: 2023 JDR 2521 (GJ)
• Hearing Date: 20 April 2023
• Docket Number: 2022/5936
• Court: Gauteng Local Division, Johannesburg

Leech AJ:

1.

I received the file in this application for summary judgment at the end of a motion court week on the day prior to the hearing. This case delivered the expectation in Propell Specialised Finance (Pty) Ltd v Point Bay Body Corporate SS493/2008 and Another, [1] that, “the papers in opposed summary judgment applications may now be expected to often be more voluminous than used to be the case”, and the prediction by the authors of Erasmus, Superior Court Practice, [2] that, “[r]ule 32 in its amended form . . . will probably increase the workload of judges as well as the costs for parties.” [3] The difficulties experienced by practitioners in understanding the requirements of the amended rule 32 resulted, in this matter, in papers in excess of 950 pages. The majority of the material consists of annexures to pleadings and affidavits in the summary judgment application. The summary judgment application papers alone are over 600 pages. The attachments to the affidavits supporting and opposing summary judgment include the papers in another summary judgment application, and a full set of affidavits and the judgment in a previous application between the parties. The approach I should adopt to this material is unsettled. As stated in Tumileng Trading CC v National Security and Fire (Pty) Ltd, [4] “[i]t is . . . not self-evident how the courts are expected to deal with the extra material, in many cases disputatious material, that will now be put before them in such applications, in determining whether a defendant has

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shown that it has a bona fide defence.” [5] Counsel adopted markedly different approaches. Counsel for the applicant submitted that there was no authority which precluded the additional material. Counsel for the respondents submitted that the additional material should be ignored.

The affidavits

2.

The affidavits in this matter strain the meaning to be attributed to the requirements of rule 32. Rule 32(4) states that, “[n]o evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2)”. Rule 32(2)(b) requires that plaintiffs, “verify the cause of action”, “identify . . . the facts upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.” Rule 32(3)(b requires that defendants, “disclose fully the nature and grounds of the defence and the material facts relied upon therefor.“

3.

The amendment to rule 32 was preceded by an investigation by the superior courts task team of the rules board for courts of law. The task team recommended and motivated the amendment in a memorandum. The memorandum of the task team, as quoted in Erasmus supra, [6] indicates that to a certain degree the inclusion of evidence is permitted in the affidavit supporting the summary judgment application. In para. 8.1 of the memorandum the task team states, referring to the rule prior to amendment, that, “[a] plaintiff at present does not have to indicate what exactly its cause of action is, or what facts it relies on, or why a defendant does not have a defence.” Although I disagree with aspects of this statement, paragraph 8.1, read with the paragraphs that follow, indicates an intention to provide an opportunity to plaintiffs to bolster the prospect of obtaining summary judgment. Para. 8.1.3 includes the statement that, “[t]he lack of specificity as to the plaintiff’s claim, . . . coupled with the absence of any replying affidavit, also means that the plaintiff can easily be frustrated by a defendant who is prepared to construct or contrive a defence . . .”. And, para. 8.3 states that under the amended rule,

“. . . the plaintiff would be able to explain briefly in its founding affidavit why the defences proffered by the defendant do not raise a triable issue . . . Requiring the plaintiff to set out why, in its view, it has a valid claim and why the defendant’s defence is unsustainable, would also remove

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the criticism that the defendant is being required to commit itself to a version when the plaintiff is not similarly burdened. Obliging the plaintiff to engage meaningfully with the case in its founding affidavit would moreover have the added benefit of reducing the temptation for a plaintiff to seek summary judgment as a tactical move (and as a way of forcing the defendant to commit to a version on oath, which can be subsequently used in cross- examination to discredit a witness of the defendant).”

4.

In para. 8.4, the task team expressed the hope that the debate in summary judgment applications would, as a result, be “more informed, and less artificial, . . . and engage with the real issues in the matter”. In motivating against a replying affidavit, the task team stated in para. 8.6 that, “[a] plaintiff would have had a chance to address the averments in the defendant’s plea in its founding affidavit in support of summary judgment. If the defendant has a further rebuttal in its answering affidavit, then, if that is credible, the summary judgment application would be defeated”.

5.

In summary, the task team indicated that the problems with the rule prior to amendment included inter alia a plaintiff being unable to set out, “exactly its cause of action”, “what facts it relies on”, “specificity as to the . . . claim”, “why a defendant does not have a defence” and the reasons why the defence was constructed or contrived, and the inability to expose “bogus defences”. The purpose of the amendment was to address these problems. The task team envisaged that the amended rule would require plaintiffs to set out a version on oath and the reasons why the defence does not raise a triable issue and is unsustainable, and to address the averments in the plea. This indicates an intention to permit more than the mere repetition or referencing of the facts contained in the particulars of claim or declaration.

6.

The rule prior to amendment required plaintiffs to verify the cause of action and state an opinion that there is no bona fide defence. In comparison, the amendment specifically requires plaintiffs to “verify the cause of action”, “identify the facts upon which the claim . . . is based” and “explain . . . why the defence . . . does not raise any issue for trial”. The additional requirements would be rendered superfluous and the amendment, ineffective by attributing to all the words used in the amendment a meaning that practically has the same content as the rule prior to the amendment.

7.

The rule prior and post the amendment required plaintiffs to verify the cause of action. The cause of action consists of the facts required for judgment, not the

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evidence. [7] A formulaic verification of the cause of action was accepted by our courts prior to the amendment. The deponent verified the cause of action by referring to the facts alleged in the summons, particulars of claim or declaration. The deponent did not have to repeat the facts. [8] In All Purpose Space Heating Co of SA (Pty) Ltd v Schweltzer, [9] the court held that,

“[S]uch an affidavit must verify all the facts supporting the cause of action. This includes every element of the cause of action. . . . In my view, it is permissible for a plaintiff in an affidavit filed in support of a summary judgment application, to incorporate by reference only the allegations contained in his summons.” [10]

For example, in Maharaj v Barclays National Bank Ltd, [11] the deponent said, “I hereby verify the cause of action as set forth in the summons and pray that same be read as if incorporated herein”, without any adverse comment, and in Van den Bergh v Weiner, [12] the statement that, “the first defendant is truly and lawfully indebted to the plaintiff on the grounds as set out in the summons”, was held to be in substantial compliance with the requirement prior to amendment.

8.

The task team was aware of this interpretation and the formulaic manner of its application prior to the amendment, and considered it to be unsatisfactory, as indicated in the memorandum. The requirement to verify the cause of action, and with it the established interpretation, was nevertheless retained and the amendment sought to address, “the problems with the formulaic nature of the founding affidavit”, through the introduction of the requirements to identify the facts and explain why the defence does not raise an issue for trial. These new requirements replaced the requirement to express an opinion that there is no bona fide defence. This indicates that the statement of an opinion, without the facts on which the opinion was founded, was considered to be inadequate. The amendment expressly requires the facts and an explanation.

9.

The additional requirement to identify the facts upon which the plaintiff’s claim is based has been interpreted as a reference to the facts set out in the

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particulars of claim or declaration. As a result, the authors of Erasmus say that the requirement to identify the facts, “seems to require that such facts must indeed be repeated in the affidavit or, at least, must be identified with cross-reference to the facts set out in the declaration or particulars of claim.” This appears to have been accepted in Absa Bank Limited v Mphahlele N.O and Others, [13] where it is quoted without disapproval, and near identical statements are found in Standard Bank of South Africa Limited and Another v Five Strand Media (Pty) Ltd and Others, [14] and in Saglo Auto (Pty) Ltd v Black Shades Investments (Pty) Ltd, [15] which repeats verbatim the corresponding section of the judgment in Five Strand Media supra. The particulars of claim and declaration should set out the facts required for judgment and should not contain evidence. [16] In other words, the facts which should be identified by repetition or referencing are those, and only...