HIGH COURT OF SWAZILAND
the matter between:
PAULOS MHLANGA Plaintiff
: MASUKU J.
the Plaintiff : Mr M. Mabila
the Defendant : Mr T.A. Dlamini
15th June 2004
is an application for Summary Judgement and in terms of which the
Plaintiff claims the following: -
of the sum of E29, 000.00
thereon at the rate of 9% per annum, calculated from date of Summons
to date of final payment
claim arises from an agreement allegedly entered into between the
parties and in terms of which the parties entered into an oral
agreement on the 18th April, 2001, at Ntfonjeni, for the sale of a
Toyota .Dyna 4 Ton truck to the Plaintiff by the Defendant. The
pretium was E29, 000.00, which was paid in the following manner; two
payments of E13, 000.00 on the 18th April and June, 2001,
respectively, into the Defendant's bank account with Standard
Swaziland Limited, Pigg's Peak Branch. A further cash payment of
E3,000.00 was given directly to the Defendant by the Plaintiff.
Plaintiff alleges that notwithstanding his compliance with his part
of the agreement, the Defendant failed to deliver the motor vehicle
and in that light, the Plaintiff accepted repudiation and claimed a
return of the amount paid to the Defendant.
opposing the application for summary judgement, the Defendant deposed
to the following allegations:- That he was approached by the
Plaintiff in March, 2001, seeking to purchase the vehicle described
above. He advised the Plaintiff that he had applied for a loan and
had put up the vehicle in question as security and the sale of the
vehicle to the Plaintiff would therefor be conditional upon the loan
not being approved. Before the bank could advise on the success or
otherwise of the loan, the Plaintiff made the first payment of
E13,000.00 into the Defendant's account. The bank later approved the
loan, with the vehicle put up as security. It is the Defendant's case
that he unsuccessfully tried to advise the Plaintiff of these
developments but could not locate him until the second instalment of
E 13,000.00 had been made.
view of these developments, the Defendant claims that he thereupon
purchased a truck from a Mr Moses Motsa, for E15,000.00, repaired it
for an amount of E3,000.00. He alleges that the Plaintiff was offered
this truck and he liked it and as a result, signed the job card in
respect of the repairs referred to above. The Plaintiff later
somersaulted, claiming that he did not want the Nissan any more on
account of advice that the Nissan is prone to mechanical troubles.
Defendant further stated that he had paid an amount of E10,000.00
back to the Plaintiff, an allegation that is not denied. He denies
being liable for the balance of E18,000.00 spent on the truck by him
in view of the allegations appearing above in relation to the Nissan
judgement, it has been recognised is a drastic remedy, which must
only be granted where the Court is convinced that the Plaintiff has
an unanswerable case and that the
has filed the Notice to Defend solely, for purpose of delaying the
Plaintiff in enjoying the fruits of the judgement.
MUSA MAGONGO VS FIRST NATIONAL BANK OF SWAZILAND APP. CASE NO.39/99,
Tebbutt J.A, had this cautionary word to say about Summary Judgement
and the most anxious consideration the Court must exercise in
deciding to grant the remedy:-
this is a summary Judgement in which, if it is granted, the door is
finally and irrevocably closed to the defendant. It has been held
time and again in the Courts of this Country that in view of the
extraordinary and stringent nature of Summary Judgement proceedings,
the Court will be slow to close the door to a defendant if a
reasonable possibility exists that an injustice may be done if
judgement is granted."
BARCLAYS BANK LTD VS SMITH 1975 (4) SA 765 (D & DLD) at 684,
Booysen J. outlined the duty of the Defendant in seeking to avoid the
granting of the remedy. He stated the following:-
is clear that a defendant in summary judgement proceedings need not
satisfy the Court on a balance of probabilities that he has a defence
but merely has to raise a fairly triable and arguable issue. "
the law to the facts
question for determination is whether the facts alleged by the
Defendant in casu, do constitute a fairly triable and arguable issue.
It is clear from the Defendant's affidavit that he alleges that there
was a new agreement in terms of which the Plaintiff abandoned his
interest in the earlier truck and exhibited an interest in the Nissan
truck. It is alleged that he viewed it, was happy therewith and
eventually signed the job card in respect of the repairs effected
thereon, an inducium so the Defendant alleges, that the Plaintiff was
prepared to accept the Nissan truck in the place of the Toyota Dyna.
terms of the provisions of Rule 32 (5) (a), the Plaintiff may, with
the leave of Court deliver an affidavit in reply. There are pertinent
and triable issues raised by the Defendant in casu
which the Plaintiff did not seek to deny by asking for leave to file
a replying affidavit In particular, the fact that the Plaintiff saw
the later truck, was happy with it and also signed the job card in
respect of the repairs are telling and merited, a reply in the
absence of which I am satisfied that the Defendant has raised a
fairly triable issue and which carries a prospect of success at
trial. A valid and bona fide defence has thus been disclosed by the
Defendant in casu.
is however worth noting that whatever defence the Defendant may have
relates to the amount of E18,000.00. It is common cause that an
amount of E10,000.00 was refunded to him by the Defendant. It is
clear in the premises that the Defendant has no bona fide defence in
relation to an amount of E1,000.00.
therefor grant summary judgement to the Plaintiff in respect of the
said amount of El,000.00 but order, the balance of the claim to be
ventilated in a trial and in respect of which the Defendant be and is
hereby granted leave to defend.
the plaintiff's limited success in this matter, I order that the
costs be reserved for determination by the trial Court.