IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1293/93
In
the matter between:
NATFIN
LIMITED Plaintiff
And
GEORGE
SIPHAMBANO JWANKIE Defendant
CORAM :
Hull, CJ.
FOR
PLAINTIFF Mr. Khumalo
FOR
DEFENDANT Miss Mabuza
Order
(11/2/94)
This
is an application by the plaintiff for summary judgment.
Its
claim is based on a written agreement dated 3rd September 1992 for
the lease of a motor vehicle (apparently on hire-purchase terms).
The
agreement as drafted simply refers to "goods", and includes
what is apparently a reference to a year of first registration, i.e.
1982, and engine and chassis numbers. In fact the subject matter is a
bus. The agreement refers to a total "selling price" of
E150 COO. It appears, though it is not the clearest document I have
seen, that there was to be an initial payment of E40,000 and that the
balance (including finance charges) of E139 579 was to be payable in
24 subsequent monthly instalments.
2
Clause
2.4 of the terms and conditions of this agreement is expressed as
follows:
"2.4
. Lessee hereby agrees that no warranties or representations have
been given or made as to the state, conditions or fitness of the said
goods which the Lessee takes with all faults and agrees to accept all
risks of whatsoever nature."
The
plaintiff, as lessor, claims that the defendant has not paid any of
the monthly instalments. It initially sought recovery of the sum of
E139,57S, plus interest at 24 percent per annum from the date of the
agreement, and costs on the attorney and client scale. Mr. Khumalo
has now indicated that the principal sum to be recovered, if interest
is claimed at 24 percent, should be E110,000.
The
plaintiff has filed an affidavit verifying its claim, in support of
its application for summary judgment.
The
defendant has filed an affidavit in opposition. In this, he says in
paragraph 2:
"(i)
I have a bona fide defence...... the motor vehicle...
was
not roadworthy. The plaintiff deliberately misrepresented its
condition to me but it broke down within a week of delivery. I
tendered its return but the plaintiff well knowing its defects
refused to accept it.
"(ii)
Save for the one week the bus worked it has not operated since its
delivery and I wish to tender return -hereof in return for the E30
000 I paid as the bus is of no use to me."
Then,
in paragraph 2(iv), he states shortly:
"I
also have to counterclaim the plaintiff for damages for loss of
business."
3
A
defendant, in resisting an application for summary-judgment, must set
out his defence. He is not bound to set out all of the facts,
exhaustively, on which he relies, but he must provide enough detail
for the court to be able to decide whether, if his allegations are
true, he would have a defence. The same considerations govern a
counterclaim.
The
defendant has not gone beyond making bare assertions. He has not
specified in what way the plaintiff made any deliberate
misrepresentations to him. He has not specified in what way the
vehicle was not roadworthy or how it broke down.
In
respect of the alleged counterclaim, he has given no details at all
of the damages he claims to have suffered for loss of business.
His
affidavit does not in my view fulfil the requirements of the rules.
The
court nevertheless retains a discretion whether or not to grant
summary judgment. It is a stringent remedy which, in this
jurisdiction, is only granted when there is no reasonable doubt that
the plaintiff should succeed.
In
this case, the claim is substantial. The defendant has indicated,
though very inadequately, that the vehicle was unroadworthy almost
from the outset. He has made, though very inadequately, an assertion
that the plaintiff made a deliberate misrepresentation.
I
am not persuaded that the exclusion clause on which Mr. Khumalo is
seeking to rely would necessarily preclude the defendant from
obtaining relief if he were to be able to substantiate his
assertions, and I am not persuaded that this is an appropriate case
in which to grant judgment summarily. I think it is reasonably
possible that to do so might give rise to an injustice.
4
I
consider that the defendant should be granted leave to defend, on
terms that he shall within 10 days file and serve his plea and
counterclaim, failing which the plaintiff shall be at liberty to
enter judgment as claimed.
No
order as to costs.
DAVID
HULL
CHIEF
JUSTICE
