The Summary Judgment procedure has received considerable attention by our Courts and has been an integral part of our development of our common law and civil procedure.
Summary Judgment has always been a balancing act between, on the one hand, entitling a Plaintiff to apply to Court to have Judgments entered summarily against the Defendant, thereby putting an end to the matter and avoiding the Plaintiff being put to the expense of a trial and, on the other, avoiding the closure of a door on a Defendant who could show a triable issue(s) applicable to the Plaintiff’s claim.
On 1 July 2019, the material amendments to the Summary Judgment Rule (i.e. Uniform Rule 32) came into operation.
In terms of the Rule in its amended form:
The Plaintiff may only apply for Summary Judgment after the Defendant has delivered a Plea (sub-rule 1);
The Plaintiff must, in the Affidavit in support of Summary Judgment, verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the Plaintiff’s claim is based and explained briefly why the defence as pleaded does not raise any issue for trial (sub-rule (2)(b));
The Defendant may, in order to avoid Summary Judgment, give security to the satisfaction of the Court, and no longer to the satisfaction of the Registrar for any Judgment including costs which may be given (sub-rule (3)(a)).
One of the impacts of the amendment is that a Plaintiff now has the opportunity to amplify the previously formulaic averment that the defendant does not have a bona fide defence to the action.
The judgment of the North Gauteng High Court in the matter of ABSA BANK LIMITED v MPHAHLELE N.O. AND OTHERS, gives a very useful and informative analysis of the requirements of the amended Uniform Rule 32.
In the matter the Court was asked to deal with issues, inter alia, such as whether the Plaintiff is restricted, in its Affidavit in support of Summary Judgment, to providing the Court with an explanation as to why the defence as pleaded, does not raise any issue for trial and, following thereon, whether the Plaintiff is or is not entitled to furnish either supplementary facts or rely on further courses of action, which are not contained in the Plaintiff’s Particulars of Claim and whether the Plaintiff is entitled to supplement its Particulars of Claim by adducing evidence (including documentary evidence).
The Court concluded that the provision in the amended Rule that the Plaintiff must explain briefly why the defence has pleaded does not raise any issue for trial, must be confined solely thereto and that the brief explanation does not open the door for the Plaintiff to introduce new evidence in an attempt to show that the Plaintiff has an unanswerable case.
The Court also cautioned that the requirements of sub-rule (2)(b) of Uniform Rule 32 in its amended form must be strictly complied with before a Court can be satisfied that it may grant Summary Judgment in favour of the Plaintiff.
For more information or assistance, contact our Litigation Department on 041 363 6044 or info@kaplans.co.za.
