IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1685/93
In
the matter between:
Gilbert
Maseko Plaintiff
And
Nkombosi
Kopi Kunene Defendant
CORAM :
Hull, CJ.
FOR
PLAINTIFF Mr. Madau
FOE
DEFENDANT Mr. Fine
Order
(21/2/94).
This
is an application for summary judgment.
The
plaintiff's claim is that on 18th October 19G3 at Fkufikeni he agreed
to buy a Toyota 4 x 4 van, having the registered number SD 691 YH,
from the defendant for E14 000. He alleges that in terms of the
agreement, he paid that amount to the defendant on that day, and that
the latter war. to deliver the vehicle to him on or before 30th
October 13S3. The defendant did not do so. On 9th November 19S3 he
cancelled the agreement, orally, and demanded the refund of the
purchase price. The defendant has failed to give it back and the
plaintiff accordingly seeks to recover it in this action
He
had filed an affidavit verifying there facts, and the cause of
action, in support of his application for summary judgment.
The
defendant, seeking leave to defend, has filed an affidavit asserting
that he has a bona fide defence. It is perhaps an unusual defence. He
says that he was the
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plaintiff's
agent in the illegal Sale of marijuana worth E14 000 and that when he
reported back to him that a prospective buyer rejected it because of
its quality, the plaintiff took the view that the defendant had
cheated him. He took forcefully from the defendant the blue book for
the vehicle.
He
also says that when he collected the bags from the plaintiff, the
latter made him sign an acknowledgement of debt for E.14 000, to be
repaid by the end of October 1993. The defendant says that this was
by way of security in the illegal transaction. He denies that it
related to the sale of his vehicle.
He
also says that the plaintiff reported the matter to the police, to
whom the two men went on 7th December, and that there he explained
the transactions to the police, in the presence of the plaintiff who
did not deny them. The police took the view that the matter should
await the outcome of the present hearing.
Before
the application for summary judgment came on for hearing the
plaintiff lodged in the court registry replying affidavits by himself
and Sub-Inspector Charles Ndlovu. In applications of this nature,
affidavits in reply may only he filed with the leave of the Court:
see rule 32(5)(a) of the High Court Rules. At the hearing however,
leave to rely on these affidavits was granted as Mr. Fine did not
oppose this.
In
his further affidavit, the plaintiff denies the allegations
concerning marijuana and says that the defendant voluntarily gave him
the blue book at the time when he paid him E.14 000. He admits that
there had been an acknowledgement of debt but says that this was in
respect of the purchase pries for the vehicle. He confirms that he
reported the matter to the police who considered that the present
case should be first resolved, but says he denied strenuously the
defendant's allegations about marijuana and
3
that
the defendant told the police that he had given him the blue book
voluntarily. In his affidavit, Sub-Inspector Ndlovu supports these
assertions by the plaintiff.
The
issue, on the present application for summary judgment, is whether
the defendant has satisfied the court that there is an issue or
question in dispute which ought to be tried or that there ought for
some other reason to be a trial. The defendant here is saying that he
has a genuine, if unusual defence. The court has to consider whether,
if the facts alleged by him are true, they would constitute a
defence. If so, he will be given leave to defend.
The
objection which is taken by the plaintiff is that the defence that
has been put forward is lacking in detail.
Where
a defendant seeks leave to defend on the basis that he has a good
defence, he is not obliged to set out exhaustively the facts on which
he relies, but he is bound to set it out sufficiently so as to enable
the court to decide the issue (on the application for summary
judgment) that I have already referred to. In England this is
sometimes expressed, somewhat quaintly, as a requirement that the
defendant must condescend upon detail".
The
defendant does not specify the data on which the plaintiff allegedly
engaged him to sell marijuana as his agent. He does not say when the
plaintiff decided that he had cheated him. Indeed he does not explain
why the plaintiff thought that. In particular he does not say what
happened to the marijuana: according 10 his affidavit the prospective
buyer had rejected it. That, to my mind, implies that the defendant
at that point retained possession of the drug. His allegation that
the plaintiff believed he had been cheated and, in effect, that the
plaintiff wished to recover E14 000 from him, implies that the
marijuana was not returned to the plaintiff. But the defendant does
not explain what became of it. He does not specify either when
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he
allegedly signed an acknowledgement of debt as security. Actually he
does not say anywhere in the affidavit, in explicit terms, that there
never was an agreement between the parties for the sale of the
vehicle which, after all, is the essence of the defence on which he
apparently seeks to rely.
Apart
from these gaps in his affidavit, the defendant's version sounds
implausible. If, as he alleges, the plaintiff forcibly took the blue
book, one might at least wonder why he did not take the vehicle as
well. Be that as it may, it seems very unlikely that a drug dealer
would go to the police in such circumstances. If he did choose to do
so, out of boldness, then it is difficult to understand why he would
have listened, without protest, to the defendant's accusations
against him, made (according to the latter) to the police in the
plaintiff's presence.
Summary
judgment, in an appropriate case, is an important remedy. Where it is
clear that a defendant has no defence, or that the defence that he
seeks to set up is misconceived, or is a sham, or is spurious, it
vindicates the legal process. It does so by providing relief for a
plaintiff in respect of perhaps the most common complaint about the
civil legal process - namely that it is susceptible to delay,
delaying tactics, and technicalities.
The
granting of such relief, in cases where the issue is whether or not
there is a defence, is not limited to the case where the defendant is
not able to set out any defence at all. It includes the case where
even if the defendant or his legal adviser may think otherwise, the
plaintiff can show that the facts relied on do not amount to a
sufficient" defence in law.
It
also includes the case,more commonly, where the defendant knows that
he has no real defence.
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It
is not necessarily enough for a defendant to go beyond a bare denial,
and set out his alleged defence in detail. Although the court will
not embark upon a trial, as such, it will if necessary look
analytically and critically at the defendant's affidavit. ''Surmise
and Micawberism' are not a sufficient basis for obtaining leave to
defend - see The Lady Anne Tennant v. Associated Newspapers Group
Limited (1979) F.S.R. 298, per Megarry V-C. A defence that is
obviously "frivolous and practically moonshine" will not be
sufficient either - see the remarks of Lord Lindley in Codd v. Delap
(1905)92 L.T.810. Both are English decisions but in my view the same
principles apply in South Africa and thus here. In an exceptional
case, the parties may be cross-examined on their affidavits.
The
court should not however reject the defendant's affidavit if, merely
because of its apparent implausibility, it finds it incredible, or
almost so.
In
the present case, notwithstanding the gaps in his affidavit, the
defendant's version is more than a bare denial. If accepted, it would
amount to a defence because he is saying, at least by clear
implication, that there never was an agreement for the sale of his
vehicle, which is the plaintiff's cause of action.
There
are, moreover, no contradictions as such in the defendant's own
version. The real reservation that I have is as to the plausibility
of the defence.
Whether
or not the discussion that the parties had at the police station was
on the lines alleged by the defendant is clearly an important feature
of his case. I have considered whether to allow cross-examination of
the deponents on this aspect of the case but on balance, I do not
think that the application can be disposed of in that way. To decide
whether his defence is probably true, it would be necessary in my
view to take into account the whole of his affidavit -and thus to
permit cross-examination by both sides on the
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whole
issue. That would be to embark upon a trial.
I
have therefore come to the view that summary judgment should not be
granted, but I do myself have sufficient doubts about the substance
of the defence to grant leave to defend conditionally on the terms
that, as soon as the pleadings have closed, the Registrar is to set
down the action for trial as a matter of priority if the plaintiff so
wishes , early in the second session of the High Court for this year.
It should be set down before another judge.
The
costs of this application are reserved.
DAVID
HULL
CHIEF
JUSTICE
