Summary judgment: Rationale for proceedings impeccable

1] Before this Court, is an application for summary judgment wherein the plaintiff seeks the following order against the defendant for services rendered by the plaintiff to the defendant:

I. Payment of the sum of R2 391 064.88;
II. Interest on the sum of R2 391 064.88 at the rate of prime plus 2% from 4 October 2017 to date of final payment;
III. Costs of suit on the scale as between attorney and client.

[2] At the commencement of the trial, the Court alerted the defendant that in its affidavit resisting summary judgment, it only relies on points in limine and does not disclose its defence to the plaintiff’s claim as required by Rule 32 of the rules of Court. The defendant insisted that the points in limine are its defence as envisaged in Rule 32.

[3] It is not in dispute that during the period November 2016 to September 2017 the plaintiff rendered services to the defendant at the later special instance and request in the sum of R2 391 064.88.

[4] It is contended by counsel for the defendant that the affidavit in support of summary judgment does not comply with Rule 32 in that the deponent did not state the amount as it appears on the summons. The rule requires the deponent, so the argument goes, to swear positively that the defendant is liable to the plaintiff on a specified amount and the deponent in this case failed to do so.

[5] I am unable to agree with counsel for the defendant on this point. There is a plethora of authority that it is sufficient for the deponent in the affidavit in support for summary judgment to swear positively and verify the cause of action of the plaintiff as it appears in the particulars of claim to the summons. I hold the view that, it is not necessary to repeat what is alleged in the summons verbatim in the affidavit filed in support of the application for summary judgment. That the plaintiff did not explicitly state and identify the amount as claimed in the summons cannot be said to be prejudicial to the defendant and the defendant did not make that allegation. Therefore the defendant fails on this point in limine and it falls to be dismissed.

[6] It is further contended on behalf of the defendant that the plaintiff’s summons is defective in that it does not comply with Rule 18(6) of the Rules of Court. The plaintiff, so goes the argument, annexed a document to its simple summons purported to be an agreement between the parties which is not an agreement but a credit application which was not even signed by the plaintiff. Further, so it is contended by counsel for the defendant, the plaintiff’s summons fail to state how the amount claimed was calculated. The plaintiff’ summons does not indicate whether it relies on an oral or written agreement, if so, when, where and by whom it was concluded and therefore, the plaintiff’s summons is excipiable.

[7] It is further contended by counsel for the defendant that the plaintiff’s summons is premature in that it does not comply with clause 17 of the “Standard Trading Conditions” attached to the credit application. Clause 17 requires the plaintiff to first cancel the agreement in respect of which payments have fallen in arrears and then the full outstanding balance shall become immediately due and payable on demand.

[8] I find myself in disagreement with counsel for the defendant in this regard. The plaintiff’s cause of action is for services rendered and is not based on an agreement. Even if the plaintiff’s cause of action was based on the agreement, which is not, there is a plethora of authority that where there is no statute which makes it a condition precedent that the agreement must be signed by both parties for it to be valid, the agreement will is valid.

Further, the parties have performed in terms of the agreement and it is absurd for the defendant to come to Court and attempt to deny the existence of the agreement when it has received a benefit from the agreement. It is my respectful view that the claim of the plaintiff is a liquidated amount and the account statement is sufficient proof of that amount. I am of the view therefore that this point in limine falls to be dismissed.

[9] It is trite that for a defendant to successfully resist an application for summary judgment, it must satisfy the Court that it has a bona fide defence by disclosing fully the nature of the grounds of the defence and the material facts relied upon for such defence.

[10] In the case of Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA), the Court stated the following:

“The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of her/his day in court. After almost a century of successful application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out.

In the Maharaj case at 425 G-426E, Corbett JA, was keen to ensure first, an examination of whether here has been sufficient disclosure by the defendant of the nature and grounds of his defence and the facts upon which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good in law. A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of the defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.”

[11] In the present case, the defendant has filed an affidavit resisting summary judgment which affidavit contained only the technical defences enunciated above. In my view, it is not that the defendant did not understand the plaintiff’s claim against it, but deliberately avoided to set out the nature and grounds of its defence and the facts upon which it is based with sufficient clarity to satisfy the Court that it has a bona fide defence which is good in law.

[12] I am accordingly satisfied that the defendant has no bona fide defence to the claim of the plaintiff and that the appearance to defend has been entered solely for the purposes of delaying the plaintiff from receiving his money.

[13] In the circumstances, I make the following order:

I. The defendant is liable to pay the plaintiff the sum of R2 391 064.88;

II. The defendant is liable to pay the plaintiff interest on the sum of R2 391 064.88 at the prime rate plus 2% from 4 October 2017 to date of payment

III. Costs of suit on the scale as between attorney and client.