Maharaj v Barclays National Bank Ltd

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA, Trollip JA, Corbett JA and Galgut AJA
• Judgment Date: 18 November 1975
• Citation: 1976 (1) SA 418 (A)
• Hearing Date: 07 November 1975
• Court: Appellate Division

Maharaj v Barclays National Bank Ltd
1976 (1) SA 418 (A)

1976 (1) SA p418

Citation	1976 (1) SA 418 (A)
Court	Appellate Division
Judge	Holmes JA, Wessels JA, Trollip JA, Corbett JA and Galgut AJA
Heard	November 7, 1975
Judgment	November 18, 1975

Flynote : Sleutelwoorde

Practice — Judgments and orders — Summary judgment — Rule of Court 32 (2) — Requirements of — What B affidavit of deponent should contain — 'Fully' — Meaning of in Rule of Court 32 (3) (b) — What defendant's affidavit should contain.

Headnote : Kopnota

In an application for summary judgment the requirements of sub-rule (2) of Rule of Court 32 are (a) that the affidavit should be made by the plaintiff himself or by any other person who can swear positively to the facts; (b) that it must be an affidavit verifying the cause of action and the amount, if any, C claimed and (c) that it must contain a statement by the deponent that in his opinion there is no bona fide defence to the action and that the notice of intention to defend has been delivered solely for the purpose of delay.

As to (a), supra, the mere assertion by a deponent that he can swear positively to the facts' is not regarded as being sufficient, unless there are good grounds for believing that the deponent fully appreciated the meaning of these words.

D The word 'fully' in Rule 32 (3) (b) connotes that while the deponent need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence. At the same time the defendant is not expected to formulate his opposition to the claim with the precision that would be required of a plea; nor does the Court examine it by E the standards of pleading.

The decision in the Durban and Coast Local Division in Barclays National Bank Ltd. v. Maharaj, reversed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (KRIEK, J.). The facts appear from the judgment of CORBETT, J.A.

H. E. Mall, for the appellant: The requirements of Rule 32 (2) are set out in Fischereigesellschaft F. Busse & Co. Kommanditgesellschaft v. African Frozen Products (Pty.) Ltd., 1967 (4) SA at p. 108; Flamingo Knitting Mills (Pty.) Ltd. v. Clemans, 1972 (3) S. A. at p. 694. A deponent's ability to swear positively to the facts is a sine qua non to the effectiveness, for purposes of a summary judgment, of any G deposition he may make. Barclays National Bank Ltd. v. Love, 1975 (2) SA at p. 515H; Fischereigesellschaft's case, supra at p. 108. Only a person who has personal knowledge of the facts can swear positively to them. Misid Investments (Pty.) Ltd. v. Leslie, 1960 (4) SA at p. 473F - G. See also Joel's Bargain Stores v. Shorkend Bros. (Pty.) Ltd., 1959 (4) SA H 263. It is advisable for the deponent to use words such as 'own', 'personal' or 'direct' to emphasise that he can swear positively to the facts. Sand & Co. Ltd. v. Kollias, 1962 (2) SA at p. 166F - H; Fischereigesellschaft's case, supra at p. 109; Flamingo Knitting Mills (Pty.) Ltd. v. Clemans, 1972 (3) SA 692.

The affidavit of William John Mason does not satisfy the above requirements; see Lagos v. Grunwaldt, (1910) 1 K.B. 42; Barclays National Bank Ltd. v. Love, supra at p. 515H.

The facts on which a defendant relies for his defence must be set out in such a manner that the Court is able to say that if they are established they

1976 (1) SA p419

will constitute a defence to the action or to some part of it. Caltex Oil (S.A.) Ltd. v. Webb and Another, 1965 (2) SA at p. 915C; Trust Bank of Africa Ltd. v. Wassenaar, 1972 (3) SA at p. 144C; Herb Dyers (Pty.) Ltd. v. Mahomed, 1965 (1) SA 31; Shepstone v. Shepstone, 1974 (2) SA 462.

A bona fide defence means a defence set up bona fide or A honestly, which if proved, would constitute a defence to plaintiff's claim. See Bentley Maudsley & Co. Ltd. v. Carburol (Pty.) Ltd. and Another, 1949 (4) SA at p. 874; Wright v. Van Zyl, 1951 (3) S. A. at p. 492A - B; Lombard v. Van der Westhuizen, 1953 (4) SA at pp. 88A - 89A; Arend and Another v. Astra Furnishers (Pty.) Ltd., 1974 (1) SA at p. 303H; B Shepstone v. Shepstone, supra at pp. 466H - 467H; Appliance Hire (Natal) (Pty.) Ltd. v. Natal Fruit Juices (Pty.) Ltd., 1974 (2) SA at p. 290H; Edwards v. Menezes, 1973 (1) SA at pp. 304B - 305A. It is only when plaintiff has an 'overwhelming' or 'unanswerable' case that summary judgment should be granted. See Shepstone v. Shepstone, supra; Edwards v. Menezes, supra; Arend and Another v. Astra Furnishers (Pty.) C Ltd., supra. The Court must look at the way in which plaintiff's cause of action is formulated in order to decide whether the defendant's affidavit has disclosed a sufficient defence. Gruhn v. M. Pupkewitz & Sons (Pty.) Ltd., 1973 (3) SA at p. 56G. In any case it is not incumbent on a defendant in formulating his opposition to summary judgment proceedings D to do so with the precision that would be required in a plea. Estate Potgieter v. Elliott, 1948 (1) SA at p. 1087; Herb Dyers (Pty.) Ltd. v. Mahomed, supra at p. 32C.

The phraseology used by a defendant who seeks to avert the extraordinary procedure of summary judgment should not be placed under a microscope. Wilson v. Hoffman and Another, 1974 (2) SA at p. 45B. If it is held that the affidavit does not E adequately set out a defence, the Court ought to exercise its discretion and give appellant an opportunity to defend the action. Gruhn v. M. Pupkewitz & Sons (Pty.) Ltd., supra at p. 58D - E; Arend and Another v. Astra Furnishers (Pty.) Ltd., supra at pp. 304D - 305H; Shepstone v. Shepstone, supra at pp. F 466H - 467F; Edwards v. Menezes, supra at pp. 304D - 305A.

A. Findlay, for the respondent: Rule 32 (2) requires that a deponent, not being a plaintiff personally, should (a) assert that the facts are within his knowledge, (b) allege some facts which would demonstrate an opportunity on his part of having been in a position to acquire such knowledge. Barclays National Bank Ltd. v. Love, 1975 (2) SA at p. 516; Barclays National Bank Ltd. v. Smith, 1975 (2) P. H. F71. A deponent is required G to state that the facts are within his personal knowledge unless it appears from other facts stated. Joel's Bargain Stores v. Shorkend Bros. (Pty.) Ltd., 1959 (4) S. A. at p. 266; Sand & Co. Ltd. v. Kollias, 1962 (2) SA at p. 166F-H; Fischereigesellschaft F. Busse & Co. Kommanditgesellschaft v. African Frozen Products (Pty.) Ltd., 1967 (4) SA at p. 109H. H The Court should not accept words such as 'can swear positively to the facts' as sufficient unless there are good grounds for thinking that the deponent fully appreciated their meaning. See Fischereigesellschaft's case, supra at p. 110A - B; Love's case, supra at p. 516C; Sand's case, supra. The deponent has alleged that he is able to swear positively and verifies the cause of action which is sufficient compliance. Strydom v. Kruger, 1968 (2) SA at p. 227A. As to the competence of the deponent to make the affidavit; see Sekretaris van Landboukrediet en Grondbesit v. Loots, 1973 (3) SA at p. 298D; W. M.

1976 (1) SA p420

Mentz & Seuns (Edms.) Bpk. v. Katzake, 1969 (3) SA 306; A Flamingo Knitting Mills (Pty.) Ltd. v. Clemans, 1972 (3) S. A. at p. 694F - G. The most important elements of any application for summary judgment are the claim and the defence, see Gruhn v. M. Pupkewitz & Sons (Pty.) Ltd., 1973 (3) SA at p. 56G. Alternatively, even if the affidavit is technically defective such defect can be cured by reference to the other documents properly before the Court. Mowschenson & Mowschenson v. Mercantile Acceptance Corporation of SA Ltd., 1959 (3) SA 362; Sand's case, supra at p. 165C - G. Further, alternatively, summary judgment should not be refused if the defendant has no defence on the merits and he relies upon a B technical defect in the application since there is no danger of prejudice or injustice as this issue is common cause. Loots' case, supra at p. 298E - G; Edwards v. Menezes, 1973 (1) SA 299; Mentz's case, supra at pp. 311 A - C, 314B - C: cf. Jno. G. Teale & Sons (Pty.) Ltd. v. Vrystaatse Plantediens (Pty.) Ltd., 1968 (4) SA at p. 374G.

C Although in satisfying the Court the defendant bears a very light or no onus (a) his defence must be bona fide and not merely appear to be so; Arend & Another v. Astra Furnishers (Pty.) Ltd., 1974 (1) SA at pp. 303 - 4; Jacobsen Van der Berg SA (Pty.) Ltd. v. Triton Yachting Supplies, 1974 (2) SA at pp. 586 - 7; (b) where based on fact he must: (i) D disclose and set out all the material facts upon which it is based; see Herb Dyers (Pty.) Ltd. v. Mahomed, 1965 (1) S. A. at p. 31H; Caltex Oil (S.A.) Ltd. v. Webb, 1965 (2) SA at p. 917B - C; Evelyn Haddon & Co. Ltd. v. Leojanko, 1967 (1) SA at p. 627G - H; cf Soorju v. Pillay, 1962 (3) SA at p. 908H; E (ii) do so in wide terms; Central News Agency Ltd. v. Cilliers, 1971 (4) S. A. at p. 353A; (iii) in addition disclose the nature and grounds of his defence; Central News Agency case, supra at 353H. In considering whether the defendant is bona fide and has made a proper and adequate disclosure (a) the word 'fully' in Rule 32 (3) (b) must be given effect to; see Herb Dyers' case, supra at p. 31H; Caltex Oil case, supra at p. 917B - C; (b) the defendant must make a full disclosure of all F material facts; Arend's case, supra at p. 304A; cf. Herb Dyers' case, supra at p. 32H; Chambers v. Jonker, 1952 (4) SA at p. 638B - C; (c) the absence of any detail may result in the Court not being satisfied as to the defendant being bona fide; Traut v. Du Toit, 1966 (1) SA at p. 71; Frank Keevey (Pty.) Ltd. v. Koos van der Merwe Beleggings (Kroonstad) (Edms.) Bpk., 1970 (3) SA at p. 432, especially where there G...