HIGH COURT OF SWAZILAND
PANEL BEATERS & SPRAY PAINTERS
Case No, 2237/2003
S.B. MAPHALALA – J
the Plaintiff MR. S. SIMELANE
the Defendant MR. A LUKHELE
court is an opposed application for summary judgment where Plaintiff
is claiming for payment of E5, 047-72, interest and costs. The said
amount is in respect of certain mechanical services and repairs
carried by the Plaintiff at the instance of the Defendant.
alleges that during the period of November 2001 and March 2002 it
rendered methanical services and supplied mechanical parts to two of
the Defendant's vehicles namely, a Toyota Hilux LDV registration no.
SD 977 LG and a Toyota Camry Sedan, registration no. SD 960 KG at the
Defendant's own instance and request.
affidavit in opposition to the application raises a defence that
Defendant never dealt with the Plaintiff but one Peter Asara who was
paid in full for the work done. The work was done by the said Peter
Asara, an employee of the Plaintiff. That in fact he did not enter
into any agreement with the Plaintiff.
argument it was contended for the Plaintiff that the job card annexed
to the replying affidavit clearly shows that the Defendant has
perjured himself under oath in stating that he never had any dealings
with the Plaintiff. Therefore, in the circumstances the Defendant's
defence cannot be said to be bona fide as required by the provisions
of Rule 32 of the Rules of Court. Further that the contents of the
affidavit resisting summary judgment are a contradiction of the
parole evidence rule and are inadmissible.
were advanced au contraire that the Defendant has raised a valid and
bona fide defence to the plaintiff's claim. It was contended in this
regard that in the present case there is a dispute of fact on the
papers filed as to who carried on the work. Such a dispute cannot be
determined in a summary judgment application.
my assessment of the evidence on affidavits and the arguments
advanced for and against the application for summary judgment I am
inclined to hold that the Defendant in the present case has not put
forth a bona fide defence within the meaning of Rule 32. For the
court to make the decision whether the Defendant has set out his
defence all the Defendant needs to show is; firstly, whether the
Defendant has disclosed the nature and grounds of his or her defence;
and secondly, whether on the facts so disclosed the Defendant appears
to have, as to either the whole or part of the claim, a defence which
is bona fide and good in law (see Maharah vs Barclays National Bank
Ltd 1976 (1) S.A. 418 (A) at 427). Whether the defence is bona fide
or not depends upon the merits of that defence in the Defendant's
Pastry and Confectionary Co. (Pty) Ltd Jourbert 1972 (1) S.A. 125 (c)
at 129). '
the present case the defence advanced in Defendant's affidavit
resisting summary judgment falls far short of the requirements of the
rule. Firstly, the Defendant has not buttressed his claim that work
was done by the said Peter Asara by stating the mode and full
particulars of payment to the Peter Asara. The averments advanced in
this regard are vague and insufficient to resist summary judgment.
the averment contained in paragraph 6 of his opposing affidavit that
"at no stage did I enter into any contract with the Plaintiff as
alleged or at all" is clearly incorrect and borders on perjury
when viewed against the background of the annexed job card signed by
the Defendant himself. This document together with the invoices
annexed to the plaintiff's Particulars of Claim marked "A",
"B", "C" and "D" establishes beyond any
doubt that there was in the past a relationship between the Defendant
and the Plaintiff, For Defendant to somersault at this stage and
disown this relationship smacks of chicanery of the highest order and
calls into question his bona fides in the defence he has advanced. As
a result of this I am inclined to agree with the Plaintiff at
paragraph 3.1 where Plaintiff states that "the Defendant is
further aware that Peter Asara has since left the country and he is
now taking advantage of that situation". This appears to be the
only explanation for this blatant denial by the Defendant.
in all I am in agreement with the submissions made by Mr. Simelane
for the Plaintiff.
the result I grant judgment in favour of the Plaintiff in terms of
prayers 1, 2, and 3 of the plaintiff's declaration.