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Summary Judgment is a procedure to assist a Plaintiff in a case where a defendant, who cannot set up a bona fide defence or raise against the Plaintiff’s case an issue which ought to be tried, delivers a notice of intention to defend merely in order to delay the granting of the Plaintiff’s rights. Magistrate’s Court Rule 14 and High Court Rule 32 have subsequently been amended to provide that Summary Judgment may only be applied for after the Defendant has delivered its plea.

The procedure is intended to prevent a man clearly entitled to money from being delayed, where there is no fairly arguable defence to be brought forward. The rule is not intended to shut out a defendant who can show that there are triable issues applicable to the claim as a whole from laying his defence before the court.

Phillips v Phillips and Another (292/2018) [2018] ZAECGHC 40 – The court has an overriding discretion whether on the facts averred by the plaintiff, it should grant summary judgment or on the basis of the defence raised by the defendants, it should refuse it.  Such discretion is unfettered.  If the court has a doubt as to whether the plaintiff’s case is unanswerable at trial such doubt should be exercised in favour of the defendant and summary judgment should be refused.  The court can exercise its discretion and refuse summary judgment even if the requirements resisting summary judgment have not been met.

Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (A) at 423G – The grant of the remedy is based on the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus and bad in law

The court continued by stating that “Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim… 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 fact 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”.

With regards to the words “fully” the court stated that “while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least 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”.

The procedure is done by way of an Application to court for a date of hearing, together with the founding affidavit setting out the grounds for summary judgment. Such an application is opposed by a Defendant by filing an opposing affidavit.

Recently our offices attended to a matter where the defendant, unrepresented at the time, had filed an opposing ‘affidavit’ erroneously not having it signed or commissioned. The Applicant insisted that Summary Judgment should be granted as there was effectively no opposition before the court. Our offices, on behalf of the Defendant, contended that the Defendant could not be held accountable for not understanding or knowing the law, nor should her case be dismissed on a minor technicality when there was no prejudice suffered by the Applicant nor any delay in finalisation after having brought a signed and dully commissioned copy to court.

The court made the following finding:

“The Audi Alteram Partem Rule is a fundamental principle of our law which is enshrined under the bill of rights in the Constitution. Courts are enjoined not to shut the door in the face of a litigant for flimsy reason or for minor technical defences raised by the other party. The proper function of the court is to try disputes between litigants who have real grievances and to see to it that justice is done.

No doubt parties and their legal advisors should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand, technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits. This is so more particularly when a member of public who is undefended is up against experience legal practitioners.

Fairness to both parties is the overriding factor.”

The application for summary judgment was dismissed and leave granted to defend.

Legal representatives should always strive to comply fully with court rules, but an applicant or defendant’s case should not plainly be denied based solely on technical errors or failure to comply with certain rules. Regards must always be had to the bigger picture and what the overall function of a court ultimately is – to resolve valid disputes between parties.


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