IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
CASE NO. 1363/93
In
the matter between:
NATIONAL
MOTOR COMPANY LIMITED PLAINTIFF
AND
MOSES
M. DLAMINI DEFENDANT
CORAM
: DUNN J.
FOR
THE PLAINTIFF : MR KHUMALO
FOR
THE DEFENDANT : MR G.B. SIMELANE
JUDGMENT
29
APRIL.1994
This
is an opposed application for summary judgment. The plaintiff issued
summons against the defendant claiming payment of the sum of
E41.783.80 together with interest and costs. The plaintiff's claim is
based on an acknowledgment of debt signed by the defendant on the
17th July 1990. The acknowledgment bears the signatures of two
witnesses. The defendant admits his signature on the document.
The
defendant explains in his opposing affidavit that he purchased a bus
from the plaintiff for the sum of E170,000.00. The plaintiff accepted
the defendant's bus valued at E50,000.00 as part payment of the
purchase price. The defendant states that the balance of the purchase
price was paid by Union Bank. According to the defendant when he took
delivery of the bus he was made to sign "a bulk of blank forms"
and he sincerely believes that was the time when he signed the
acknowledgement of debt. There is no allegation that the defendant
did not realise that he was signing an acknowledgement of debt. The
document is clearly headed as such in bold type.
2
No
explanation is given by the defendant for having signed the document
in the light of the allegation that the bus he purchased was fully
paid for. Certain correspondence between the attorneys for the
parties is attached to the opposing affidavit, reflecting a request
which was made on behalf of the defendant for the original
acknowledgment of debt to be made availabe for forensic examination.
The defendant avers that such request was refused by the plaintiff
and submits that "the reason why the plaintiff is reluctant to
furnish my attorneys with the original acknowledgment of debt is
because they are aware that the Forensic Expert would tell that the
ackowledgment of debt was completed after I signed the blank form."
The defendant contends that he is entitled and should be allowed to
defend the matter in order to test the plaintiff's allegations under
cross-examination.
Prior
to the amendment of Rule 32 in May 1990 a defendant who opposed a
summary judgment application could under rule 3-
Give
security to the plaintiff to the satisfaction of the registrar for
any judgment including costs which may be given, or
Satisfy
the court by affidavit (which shall be deliverd before noon on the
court day but one preceding the day on which the application is to
be heard) or with the leave of the court by oral evidence of himself
or of any other person who can swear positively to the fact that he
has a bona fide defence to the action;such affidavit or evidence
shall disclose fully the nature and grounds of the defence and the
material facts relied upon therefor.
3
The
effect of this sub-rule has been the subject of numerous decisions of
this court and the courts of South Africa where an identical Rule
applies. See THE UNIFORM RULES OF COURT 3rd Edition 196 and the
authorities there Cited; VARIETY INVESTMENTS (PTY) LTD v MOTSA 1982-6
SLR 77; BANK OF CREDIT AND COMMERCE INTERNATIONAL (SWAZILAND) LTD V.
SWAZILAND CONSOLIDATED INVESTMENT CORPORATION AND ANOTHER 1982-6 SLR
40. In one of the leading cases, MAHARAJ v. BARCLAYS NATIONAL BANK
LTD 1976 (1) SA 418 (A),( referred to in the authorities just cited,)
Corbett J.A. (as he then was) stated at 426 A-E
Where
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff in his summons, or combined summons, are
disputed or new facts are alleged constituting a defence, the Court
does not attempt to decide these issues or to determine whether or
not there is a balance of probabilities in favour of the one party or
the other. All that the Court enquires into is: (a) whether the
defendant has fully disclosed the , nature and grounds of his defence
and the material facts upon which it is founded, and (b) 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 both bona fide and
good in law. If satisfied on these matters the Court must refuse
summary judgment, either wholly or in part, as the case may be. The
word fully, as used in the context of the Rule (and its
predecessors), has been the cause of some judicial controversy in the
past. It connotes, in my view, that, while the defendant need not
deal exhaustively with the facts and the evidence relied upon to
substantiate them, he must at least
4
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 fide defence. (See
generally, Herb Dyers (PTY) Ltd v. Mohamed and Another, 1965(1) SA 31
(T); Caltex Oil (SA) Ltd v Webb and Another, 1965(2) SA 914(N); Arend
and Another v Astra Furnishers (PTY) Ltd, 1974 (1) SA 298 (C) at pp.
303-4; Shepstone v Shepstone, 1974(2) SA 462 (N). At 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 examine it by the standards of pleading. (See Estate
Potgieter v. Elliot,1948(1) SA 1048(C) at p. 1087; Herb Dyers case
supra at 32).
The
amended Rule 32 is taken from the English Supreme Court Rules 1965.
The Rule is almost identical to Order 14 of the English Rules.
Sub-Rule (1) provides for summary judgment applications only in cases
where a notice of intention to defend is filed following the issue of
a combined summons or a declaration. Sub-Rule (3) provides that an
application under Sub-Rule (1)-
Shall
be made on notice to the defendant accompanied by an affidavit
verifying the facts on which the claim, or the part of the claim, to
which the application relates is based and stating that in the
deponent's belief there is no defence to That claim or part, as the
case may be, and such affidavit may in addition set out any evidence
material to the claim
5
Sub-Rule
(4)(a) provides-
Unless
on the hearing of an application under sub-rule(1) either the Court
dismisses the application or the defendant satisfies the Court with
respect to the claim, or the part of the claim, to which the
application relates 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 of that claim or part, the Court may-give such judgment
for the plaintiff against that defendant on that claim or part as may
be just having regard to the nature of the remedy or relief claimed.
Sub-Rule(5)
provides that a defendant in an application under sub-rule(l) may
show cause against such application by affidavit or otherwise to the
satisfaction of the Court.
Sub-Rules
1 and 3 are relatively straight forward and do not represent a major
departure from their predecessors with the exception of Sub-Rule (3)
which now permits of evidence "material to the claim" being
set out in the supporting affidavit. Sub-Rule (4)(a) introduces the
requirement of the defendant satisfying the court that there is an
issue or a question in dispute which ought to be tried or that there
ought for some other reason to be a trial. The issue or question may
be one of fact or lav;. The requirement of setting out a defence
which is both bona fide and good in law is not set out under this
Sub-Rule although the absence of such a defence is one of the
averments which a plaintiff is obliged to make under Sub-Rule 3(a).
6
The
question to be decided is as to how far a defendant need go before he
can be said to have satisfied the court under the amended Rule,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. Copied as the
amended Rule is from the English Rules I have had to look to English
texts and decisions (such as are available in the High Court Library)
for guidance.
Order
14 of the English Rules is set out and discussed in THE SUPREME COURT
PRACTICE 1991 VOL. I. p 140 paragraphs 14(1) to 14(11). The leading
decisions dealing with the Order are cited by the learned authors. In
dealing with Order 14 Rules, 3 and 4 (our sub-rules (4) and (5)) the
learned authors state that a defendant may show that he has a good
defence to the claim on the merits, or that a difficult point of law
is involved, or a dispute as to the facts which ought to be tried, or
a real dispute as to the amount due which require the taking of an
account to determine, or any other circumstances showing reasonable
grounds of a bona fide defence. The learned authors continue to
state.
"The
former Order 14 rule l(a) entitled the defendant leave to defend if
he satisfied the court 'that he had a good defence to the action on
the merits'. Rule 3(1) has replaced those words by the words 'that
there is an issue or question in dispute which ought to be tried'.
These words accurately reflect the previous
7
case
Law which, speaks of a 'triable issue' but no doubt the collocation
of words'defence on the merits' will continue to be used". (p
147)
The
learned authors assert, citing relevant decisions that-
"the
defendant's affidavit must condescend upon particulars, and should as
far as possible deal specifically with the plaintiff's claim and
affidavit and state clearly and concisely what the defence is, and
what facts are relied on to support it. It should also state whether
the defence goes to the whole or part of the claim and in the latter
case it should specify the part". ( p.148).
In
THE LADY ANNE TENNANT v ASSOCIATED NEWSPAPER GROUP LTD (1979) F.S.R.
298 (cited by the learned authors at p 148) Megarry V.C. stated "
A desire to investigate alleged obscurities and a and a hope that
something will turn up on the investigation cannot, seperately or
together, amount to sufficient reason for refusing to enter judgement
for the plaintiff. You do not get leave to defend by putting forward
a case that is all surmise and Micawberism"
The
learned authors again stress that-
In
all cases, sufficient facts and particulars must be given to show
-hat there is a triable issue (p. 148)
8
On
the English authorities available to me it is clear that the test
applied under Order 14 (from which our amended Rule 32 is copied) is
the same as that applied by this Court and the South African Courts
under the original Rule 32. It is clear from the English authorities
that despite the absence of a specific reference to a bona fide
defence under Order 14 a defendant is obliged to set out such a
defence in order to satisfy the requirements of the Sub-Rule. The
principles and approach in our decided cases must in the
circumstances, continue to apply in applications under the amended
Sub-Rule.
I
turn then to consider the defendants opposing affidavit. The
defendant makes a bare denial that he is indebted to the plaintiff in
the amount claimed. He admits his signature on the document. He does
not allege fraud on the part of the plaintiff. There is no suggestion
that he was in anyway tricked into signing what he states was a blank
form. He advances no reason whatsoever for signing a blank
acknowledgment of debt form as he states that he was not indebted to
the plaintiff, following the purchase of the bus. There can be no
basis for the defendant's averment that forensic examination of the
acknowledgment of debt would indicate that the document was completed
after the defendant appended his signature to it. The defendant is
here clearly embarking on a fishing expedition and has no answer to
the plaintiff's claim. The plaintiff is armed with a liquid document
which speaks for itself. The defendant has failed to satisfy the
Court that he has a bona fide defence or that there is a triable
issue.
Summary
judgment is granted as prayed with costs.
B.
DUNN
JUDGE
