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