Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd

JurisdictionSouth Africa
JudgeMarais J
Judgment Date13 January 1958
Citation1959 (3) SA 362 (W)
Hearing Date10 January 1958
CourtWitwatersrand Local Division

Marais, J.:

This is an application for summary judgment in terms of Rule 42 bis of the Rules of Court.

The terms of the power to sue, of the summons, of the affidavit in support of the application, and of the answer filed on behalf of the respondent are all relevant to the issues raised.

Marais J

The material parts of the power read:

'..... appoint Henry Barton Myers . . . to be our true and lawful attorney . . . to institute action against the above-named defendant for the recovery of £300 which the defendant owes to the plaintiffs in respect of interest, but unlawfully withholds, to brief counsel; to pay all fees of counsel and witnesses; . . . to proceed to the final end and determination thereof . . .'

The claims in the summons are:

'(a)

A the sum of £300, which the defendant company is holding on the plaintiffs' behalf in an account called 'Investors special account on call' being interest at the rate of 10% per annum which accrued to the plaintiffs on £3,000 of registered notes held by the plaintiffs in the defendant company,

(b)

interest at the rate of 51/2% per annum on the said sum of £300, reckoned on £150 thereof from the 31st day of December, 1956, to date of payment, and on £150 thereof from the 30th day of June, 1957, to date of payment,

(c)

B further or alternative relief,

(d)

costs of suit.'

Henry Barton Myers made the following affidavit in support of the application for summary judgment:

'I am the plaintiffs' attorney in the above suit. The facts stated in the plaintiffs' summons . . . are positively within my own knowledge and I am authorised to make this affidavit. I aver that the defendant is C indebted to the plaintiffs in the amounts set forth in prayers (a) (b) and (d) of the summons, on the grounds stated therein and in the proposed amendments thereto. In my opinion there is no bona fide defence to the action and appearance has been entered by the defendant solely for the purpose of delay.'

In his answer hereto a spokesman for the defendant company disputed Myers' authority to apply for summary judgment or to make the above affidavit

D 'and in this regard I particularly refer to the power of attorney filed of record and dated the 23rd November, 1957, authorising the plaintiffs' said attorney to institute the said action.'

He continues:

'I furthermore deny that the said Myers has any personal knowledge of the facts deposed to and/or verified by him and further state that the defendant company has had no dealings with the said Myers in regard to E the transaction on which summons was based nor was the said Myers a party thereto. I submit that such information or knowledge as the said Myers may have can only be hearsay. I further respectfully submit that the said Myers is in no position to form any opinion as to the bona fides of the defendant's defence to the action nor as to the purpose for which appearance has been entered to defend the action.'

F In addition to these papers there was an application for leave to amend the summons; it was, however, not proceeded with.

Mr. Morris, for the defendant, resisted the granting of summary judgment on these grounds:

(1)

If the claim is founded on liquid documents, i.e. the 'registered notes' mentioned in the summons, the application is bad for want of compliance with sub-rule (2) of the Rule.

(2)

G Myers has no authority to bring the application for summary judgment in view of the terms of the power to sue.

(3)

Myers' affidavit is based on hearsay information and therefore inadmissible.

(4)

H The summons is defective, in that it is ambiguous in regard to the cause of action, and liable to be set aside in terms of Rule 37 of the Rules of Court.

As to the first ground, Rule 42 bis (2) provides that

'If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit',

(that is, the affidavit verifying the cause of action in terms of the sub-rule).

Marais J

There is, as I understand the summons, no indication in its terms that the plaintiffs purport to found their claim on a liquid document. They are claiming the payment to them of monies allegedly held on their behalf by the defendant company. It may be that they could have sued A exclusively on what...

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111 practice notes
  • Nair v Chandler
    • South Africa
    • Invalid date
    ...Ltd 1967(1) SA 662 (O) at 666B, the Court cited the matter of Mowschenson andMowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA362 (W), where Marais J said (at 366E–F) that:‘The proper approach appears to me to be one which keeps the importantfact in view that the remedy ......
  • Van der Bank v Bosman
    • South Africa
    • Transvaal Provincial Division
    • 29 September 2003
    ...is granted. See Visser v Visser, 1937 (2) P.H. F147; Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd., 1959 (3) SA 362 (W); Fischereigesellschaft F. Busse & Co. Kommanditgesellschaft v. African Frozen Products (Pty.) Ltd., 1967 (4) SA 105 (C); Bentley Maudesley & C......
  • Rees and Another v Investec Bank Ltd
    • South Africa
    • Invalid date
    ...Bank Ltd 1976 (1) SA 418 (A): dictum at 423A – H applied Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W): referred to Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another 2010 (5) SA 112 (KZP): dictum in para [13] approve......
  • Globe Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd
    • South Africa
    • Cape Provincial Division
    • Invalid date
    ...been referred to as an unanswerable case. See such cases as Mowschenson & Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W) at 366; Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) H ; Shepstone v Shepstone 1974 (2) SA 462 (N) at 467; Arend and Another v Astr......
  • Request a trial to view additional results
111 cases
  • Nair v Chandler
    • South Africa
    • Invalid date
    ...Ltd 1967(1) SA 662 (O) at 666B, the Court cited the matter of Mowschenson andMowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA362 (W), where Marais J said (at 366E–F) that:‘The proper approach appears to me to be one which keeps the importantfact in view that the remedy ......
  • Van der Bank v Bosman
    • South Africa
    • Transvaal Provincial Division
    • 29 September 2003
    ...is granted. See Visser v Visser, 1937 (2) P.H. F147; Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd., 1959 (3) SA 362 (W); Fischereigesellschaft F. Busse & Co. Kommanditgesellschaft v. African Frozen Products (Pty.) Ltd., 1967 (4) SA 105 (C); Bentley Maudesley & C......
  • Rees and Another v Investec Bank Ltd
    • South Africa
    • Invalid date
    ...Bank Ltd 1976 (1) SA 418 (A): dictum at 423A – H applied Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W): referred to Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another 2010 (5) SA 112 (KZP): dictum in para [13] approve......
  • Globe Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd
    • South Africa
    • Cape Provincial Division
    • Invalid date
    ...been referred to as an unanswerable case. See such cases as Mowschenson & Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W) at 366; Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) H ; Shepstone v Shepstone 1974 (2) SA 462 (N) at 467; Arend and Another v Astr......
  • Request a trial to view additional results

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