Gilinsky and Another v Superb Launderers and Dry Cleaners (Pty) Ltd

• Jurisdiction: South Africa
• Judgment Date: 15 December 1977
• Citation: 1978 (3) SA 807 (C)

Gilinsky and Another v Superb Launderers and Dry Cleaners (Pty) Ltd
1978 (3) SA 807 (C)

1978 (3) SA p807

Citation	1978 (3) SA 807 (C)
Court	Cape Provincial Division
Judge	Van Winsen J, Burger J and Vivier J
Heard	October 31, 1977
Judgment	December 15, 1977

Flynote : Sleutelwoorde B

Practice — Judgments and orders — Summary Judgment — Defendant not complying with Rule of Court 32 (3) — Defendant's affidavit containing information that plaintiff's case not unanswerable — Summary judgment C should be refused.

Practice — Judgments and orders — Summary judgment — Appeal from judgment granting summary judgment — On appeal Court holding that defence pursued D in a supine manner — Appeal allowed but no order made as to costs of appeal.

Headnote : Kopnota

A decision as to whether, in an application for summary judgment under Rule of Court 32, the plaintiff's case is unanswerable or not must be founded on information before the Court dealing with the application. It would be inappropriate to allow speculation and conjecture as to the nature of and ground of the defence to constitute a substitute for real information as to those matters. On the other hand, even if a Court E considers that such information as is disclosed by the defendant in his affidavit is not sufficient compliance with the provisions of Rule of Court 32 (3) it may nevertheless consider that it is sufficient to raise a doubt as to whether plaintiff's case can be characterised as unanswerable. In that case the Court would, in the exercise of its discretion, refuse the application for summary judgment.

Respondent had claimed from the appellants (a) the payment of R5 000 in terms of a deed of sale in respect of a laundry business and (b) delivery of a schedule showing the gross turnover and payment of 5 per cent thereof F in terms of the deed of sale. The appellants had entered appearance to defend. In an application for summary judgment each of the appellants had filed an affidavit emphatically denying in respect of prayer (a) "that I indebted to plaintiff in an amount of R5 000 or in respect of any other amount whatsoever. All amounts in terms of the agreement of sale have been paid by cheque". Para 4 read as follows: "I respectfully submit that is G clear from that which is hereinbefore set forth that I have a proper and valid and bona fide defence instituted by plaintiff against me in that the money claimed by the plaintiff has already been paid". With reference to claim (b) the appellants stated that that prayer did not fall within the ambit of Rule of Court 32. At the hearing the appellants did not appear. The Court granted judgment on prayer (a) and in respect of prayer (b) it granted leave to defend. In an appeal,

Held, that the appellants' affidavits did not comply with the requirements of Rule of Court 32 (3).

H Held, further, on the information before the Court, that the respondent's case was not unanswerable and, accordingly, the Court a quo should not have granted summary judgment.

Held, further, having regard to the supine manner in which the defence case was pursued and the failure to comply with the requirements of the Rule, that this demanded a censure by the Court. Accordingly there should be no order as to costs of the appeal.

Case Information

Appeal from a decision of ROSE INNES AJ. The facts appear from the reasons for judgment.

1978 (3) SA p808

R S Black for the appellants.

A A Purcell for the respondent.

Cur adv vult. A

Postea (December 15).

Judgment

Van Winsen J:

Appellants are the defendants in an action in which B plaintiff, respondent on appeal, had sought judgment against appellants on the following claims:

"(a)

Payment of the sum of R5 000 by defendants jointly being an amount due and payable on 1 October 1976 in terms of a written deed of sale dated 22 April 1976 in terms whereof plaintiff sold to first and second defendants a certain laundry business in Warrington Street, Claremont.

(b)

C Delivery of a schedule showing the gross turnover of the said business during the period 1 May 1976 to 1 February 1977 and payment of the sum of 5 per cent thereof which amount is due and payable in terms of the written deed of sale referred to in claim (a) above.

(c)

D Interest a tempore morae.

(d)

............

(e)

Costs of suit."

After defendants had given notice of intention to defend plaintiff company E applied for summary judgment on the claims aforesaid on the ground that defendants had no bona fide defence and had given the aforesaid notice solely for the purpose of delay. Both defendants field affidavits in indentical terms opposing the granting of summary judgment.

With regard to claim (a) above, both defendants in their respective affidavits founded their opposition to the granting of summary judgment on the following allegations:

"3.

F I emphatically deny that I am indebted to plaintiff in an amount of R5 000 or in respect of any other amount whatsoever. All amounts in terms of the agreement of sale dated 22 April 1976 have been paid by cheque.

4.

I therefore respectfully submit that it is clear from that which is hereinbefore set forth that I have a proper and valid...