THE HIGH COURT OF SWAZILAND
CASE NO. 2984/00
the matter between
(PTY) LIMITED PLAINTIFF
BANK SWAZILAND LIMITED DEFENDANT
the Plaintiff MR. SIBANDZE
the Defendant MR. L. KHUMALO
is an application for summary judgement brought in terms of Rule 32
of the High Court Rules.
of E73, 400-00 being
from its account by the respondent allegedly without its authority
and/or mandate. The applicant further prays in its summons for
interest on the said sum calculated at the rate of 9% per annum a
temporae morae to date of payment; costs of suit including costs of
this application and further and alternative relief.
application is resisted by the respondent who filed an affidavit to
that effect and the matter came before court for argument.
to paragraph 4 of the plaintiff's particulars of claim the purported
cause of action is that on or about the 5th September 2000, the
defendant wrongfully and in breach of its duty to plaintiff as its
customer, passed a debit entry against its account, the effect which
plaintiff's funds in the said account were diminished by a sum of
at paragraph 6 of the particulars of claim the plaintiff avers that
by reason of the aforesaid breach, plaintiff has suffered damages in
the sum of E73, 400-00:
was submitted on behalf of the applicant that the
claim is for
a liquidated amount of money falling within the parameters of a
summary judgement application. To this
I was referred to Niekerk et al Summary Judgement: A Practical Guide
at 3.3.1. The relationship between the applicant and the respondent
(client-banker relationship) is of creditor and debtor (see
Understanding cheque Law - Sharok & Kid at page 46). The
fundamental principle is that the bank cannot debit its customers
account without due authority. To buttress this point Mr. Sibandze
referred me to the law of Negotiable Instrument by Cowan at page 365
and the case of Bib Dutchman (S.A.) (Pty) Ltd vs Barclays National
Bank Ltd 1979 (3) S.A. 267 (W) 280. It was further argued that
paragraphs 7.1, 7.2 and 7.3 of the respondent's affidavit contains
hearsay evidence and should not be permitted (see Van Winsen et al
The Civil Practice of the Supreme Court of South Africa at page 368.)
Khumalo on the other hand argued in contra. His view on the matter is
that the applicant's claim does not fall within Rule 32 (1) in that
it is not founded on a liquid document, is for a liquidated amount of
money, is for delivery of specified movable property or ejectment. On
the merits he argued that unlike the relief that the pleaded facts
may ordinary ground, the claim is for payment of money more in the
nature of a debt. It would be different if the claim were either for
specific performance or spoliation.
a claim for a debt the defence of counter-claim and set-off is
competent and sufficient to resist summary judgment. According to Mr.
Khumalo the defence is sufficiently and fully set out in defendant's
affidavit at paragraph 7.1 to 8. These alleged facts may not be shut
out by the court because when proved they shall ground a successful
counter-claim of the defendant that leads to a set-off. That these
facts are not denied by the plaintiff who has not filed a replying
it was argued on behalf of the respondent that obvious and glaring
injustice would be done if summary judgment be granted.
are the issues before me. I have read the papers file of record very
carefully and have also considered the submissions made by counsel.
An application for summary judgment is an extraordinary one which is
"very stringent" in that it closes" the door to the
defendant, and which will thus be accorded only to a plaintiff who
has, in effect, an unanswerable case. The merits and demerits of this
case ought to be determined on this premise.
and foremost, it appears to me that the application brought by the
applicant is within the purview of Rule 32. The authority cited by
Mr. Sibandze in the textbook called Understanding Cheque Law (supra)
is good law. That the customer, i.e. the account holder, is the
creditor, and the bank the debtor, in respect of any amount standing
to the credit of the customer's, account. Thus, any amount paid to
the credit of the customer, although usually called a deposit, is in
truth a loan by the customer to the bank, which it can use
immediately for its own purposes. The bank does not hold the money in
trust for the customer, it holds it in its own right and undertakes
to repay it (or any part of it) on demand (see Baylis's Trustees vs
Cape of Good Hope Bank (1886) 4 SC 439-442). In casu, what remains
for this court to decide are two issues, firstly, whether the amount
claimed is a "liquidated amount" and secondly, whether the
counter-claim advanced by the respondent is good.
the first question, my view is that the amount sought is a
"liquidated amount" within the meaning of Rule 32. Legal
authority on this point is that a liquidated amount in money is an
amount which is either agreed upon or which is capable of
and prompt ascertainment (see Erasmus "Superior Court Practice"
at B1 - 210 and cases cited thereat).
the question of the counter-claim raised by the respondent it is my
view that the defence advanced therein is competent and sufficient to
resist summary judgement. On my reading of paragraph 7. 1 to 8 of the
defendant's affidavit I am satisfied that a bona
defence has been advanced moreso these facts have not been challenged
by the applicant in a replying affidavit. Counsel for the applicant
argued facts in rebuttal from the bar. Thus leaving me with no
alternative but to accept the uncontroverted version of the
respondent in its opposing affidavit. As to their admissibility I
wish to refer to the case of Maharaj vs Barclays National Bank 1976
(1) S.A. 416 which I find apposite.
in that case expressed the following:
the defendant 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
learned judge went further to say.
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 examines it by the standards of pleading
(see Estate Potgieter vs Elliot 1948 (1) S.A. 1084 © at 1087)".
casu I am of the view that the matter goes toe trail.