IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 4629/08
In the matter between:
THABO S. MABUZA Applicant
And
SURETY SERVICES (PTY) LIMITED Respondent
Date of hearing: 26 February, 2010
Date of judgment: 09 July, 2010
Mr. Attorney M.C. Simelane for the Applicant
Mr. Attorney N. Thwala for the Respondent
MASUKU J.
[1] By application in the long form, dated 17 November, 2008, the above-named applicant approached this Court seeking the following relief:
(a) Ordering and directing the respondent to pay the applicant the amount of E5,000.00 (Five Thousand Emalangeni) being in respect of an insurance scheme to which the applicant is a member.
(b) Interest thereon at the rate of 9% per annum a tempora morae.
(c) Costs of the suit.
[2] The relief sought is predicated on the founding affidavit of the applicant, who contends that in 2003, he entered into a written contract of insurance (funeral scheme), with the respondent, which is an insurance company. In terms of the agreement, the applicant was to pay certain installments which were to be deducted monthly from his salary. The respondent’s obligation was, in terms of the contract alleged, to pay an amount of E5,000.00, to the applicant in the event any of his duly registered dependants passed on.
[3] On 6 March, 2008, he further contends, one of his registered dependants, Nelly Mabuza, passed on, thereby entitling the applicant to lodge a claim for the aforesaid amount. The applicant did lodge his claim but same was repudiated by the respondent, ostensibly on the grounds that the applicant had not filed certain documents, including in particular, the deceased’s birth certificate, which the respondent contends should have been filed before the death of the deceased dependant.
[4] I should mention that at the hearing of the matter, the Court mero motu raised the question whether the applicant had adopted the proper proceedings by applying for the relief he sought on motion proceedings. The question was raised considering that the applicant is, in the papers applying for the payment of a claim sounding in money and based on a contract. It is also clear that the applicant also claims interest on the aforesaid amount.
[5] The respondent raised a point of law in limine to the effect that the applicant failed to comply with the requirements of Rule 18 (6) of this Court’s Rules, which require a party who intends to rely on an agreement for its claim, to state whether the said agreement was oral or written and where and by whom it was entered into. If written, there is a requirement to annex a copy thereof, or the portion relied on. This was evidently not done. The applicant’s response was that this sub-Rule is inapplicable to applications but to action proceedings. I shall not deal with this point of law presently.
[6] Regarding the question posed by the Court, Mr. Simelane argued that there was nothing untoward in his client approaching the Court on motion even in respect of a claim sounding in money and in which I may add, the breach of a contract is alleged. The kernel of his argument was that the practice that has evolved over time, is to extend rather than limit the situations in which a party can approach the Court on motion. He placed reliance on many cases including the renowned case of Roomhire Co. Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155; Aabaany Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 (2) S.A. 342 (T); Afrimeric Distributors (Pty) Ltd v E 1 Rogoff (Pty) Ltd 1948 (1) S.A. 569.
[7] In Roomhire (op cit), Murray J. P. said:
“There are, first, certain types of proceedings, for instance in connection with insolvency, in which by statute motion proceedings are specially authorized or directed. Secondly, there are certain other classes of cases, for instance matrimonial causes and illiquid claims for damages, in which motion proceedings are not permissible at all. Between these two extremes there is an area in which according to recognized practice a choice between motion proceedings and trial action is given according to whether there is or is not an absence of a real dispute of fact between the parties on any material question of fact. Where no real dispute of fact exists there is no reason for the incurrence of the delay and expense involved in a trial action and motion proceedings are generally recognized as permissible.”
[8] It may also be necessary to briefly consider what has been referred to as the rule in Plascon-Evans. This rule was stipulated by Corbett J.A. in Plascons-Evans Paints v Van Riebeceeck Paints 1984 (3) S.A. 623 (A.D.). At page 634 G-I, the learned Judge of Appeal, later Chief Justice of South Africa, said:
“It is correct that, where in proceedings on motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. . . If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court . . . and the Court is satisfied that as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to final relief which he seeks. . . Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.”
[8] The question for determination is whether in the instant case, it is proper to bring the claim for payment of an amount owing, allegedly as a result of a breach of contract, on motion proceedings. I am of the considered view that the existence of a genuine dispute of fact should not be the sole determining factor. There may be cases where the nature of the relief sought may be a determining factor in deciding whether action or application proceedings are appropriate. See Da Mata v Otto N.O. 1973 (3) 858 (A.D.) at 882 C-D. Certain averments may in certain instances need to be made and ultimately proved and where motion proceedings would inevitably prove unsuitable.
[9] It is well to consider that a claim based on the breach of an insurance contract exacts certain duties and places an onus on the claimant. According to the learned author Harms, Amler’s Precedents of Pleading, Butterworths, 2003, a plaintiff in such cases has to allege the following, inter alia:-
(i) parties to the contract – the plaintiff and defendant are parties to the contract;
(ii) representation of the parties;
(iii) place where contract was concluded;
(iv) terms – onus: a party alleging a contract must allege and prove the terms of the agreement he or she seeks to enforce. (Emphasis added).
[10] It is for that reason that Rule 18 (6) of the Rules of this Court, to which the Respondent adverted, was drafted, clearly to make provision for the allegations to be made by a party who relies on a contract. It is clear that those provisions relate to action and not motion proceedings. This must be accepted as an indicator that generally, a party who sues on a contract must do so in action and not motion proceedings.
[11] I also had occasion to consider the passages referred to by the learned author Harms (op cit) from page 201 and which deal with the requisites for a party who relies on an insurance contract on which the one in question is undoubtedly based. What is clear is that all the precedents provide for action proceedings and I have no record of a case where a party who sued alleging breach of a contract of insurance did so on motion proceedings.
[12] I asked Mr. Simelane to provide me with examples of cases or other authority where a claim sounding in contract, particularly an insurance contract was moved on motion. He failed to provide any. The cases referred to by Mr. Simelane, deal with issues such as ejectment and other matters which are generally instituted by summons but which were, on their facts accepted, though raised by motion proceedings. See for instance Frank v Cape Breweries Limited 1924 A.D. 289; Peterson v Cuthbert & Co Ltd 1945 A.D. 420 and Da Mata v Otto N.O. (op cit), (per Wessels J.A.)
[13] What is clear in any event, from the respondent’s answering affidavit, is that the claim lodged by the applicant was repudiated because it is alleged he failed to comply with certain policy terms and conditions entered into inter partes. According to the applicant, the reason cited for refusing to meet the claim do not exonerate the applicant from making payment but serve as a control mechanism during payment. This is an issue, in my view, that cannot properly be dealt with on the papers as they stand as this would involve a determination of the nature, materiality and effect of the term(s) allegedly breached by the applicant and whether same can properly found a sound basis for rejecting the claim. This renders the rule Plascon-Evans not applicable in the present case.
[14] This would, to my mind, raise a dispute which it would be impossible to settle in application proceedings. Furthermore, in such cases, and in the event action proceedings have been properly launched, the parties can be in a position to agree on the facts established and if a legal question arises which can be answered without the need to resort to oral evidence, then a stated case may properly be moved in terms of Rule 33 (6) of this Court’s Rules, as amended, thus obviating the incurrence of the delay heralded by action proceedings.
[15] I should also mention that Rule 17 (2) of this Court’s Rules stipulates that where the claim is not for a debt or a liquidated demand, there shall be annexed to the summons a statement of the material facts relied upon in support of the claim. This is, in my view, an indicator that in cases where one claims for a debt or liquidated demand, which the present claim is, the route for one to take is ordinarily one of action proceedings. It would be preposterous to say that a party suing for debt may move an application.
[16] In any event, I am of the view that the argument relating to convenience and less time consumed by motion proceedings is being unnecessarily exaggerated in certain cases because there are procedures like summary judgment and indeed default judgments when a defendant has no or a spurious defence. It would constitute an unwelcome departure from our Rules that I do not know to be followed elsewhere, to allow claims for a debt based on a contract to be applied for on motion proceedings.
[17] I am of the considered view that the applicant has, in the instant case chosen a wrong medium by which to lodge his claim in the circumstances. It will be clear that I need not, for that reason, have regard to the argument raised by the respondent relating to the provisions of Rule 18 (6) of this Court’s Rules.
[18] In the premises, I issue the following order:
[18.1] The application be and is hereby dismissed with costs.
[18.2] The applicant be and is hereby granted leave, if so advised, to bring appropriate proceedings for appropriate relief.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 09TH DAY OF JULY, 2010.
----------------------------
T. S. MASUKU
JUSTICE OF THE HIGH COURT
Messrs. Mlungisi C. Simelane & Associates for the Applicant
Messrs. Gigi A. Reid for the Respondent
