Has the summary judgment remedy lost its purpose following the amendments to Uniform r 32?

April 1st, 2020
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The summary judgment procedure is set to give a plaintiff, with an unanswerable case, a speedy judgment, against a defendant who does not have a defence, without the delay and expense of a trial. This procedure is set out in the Rules Regulating the Conduct of the Proceedings of the several provincial and local divisions of the High Court of South Africa (Uniform Rules). Uniform r 32 has been amended and these amendments merely applies to summary judgment applications initiated after 1 July 2019 (see Standard Bank of SA v Rahme and Another (unreported case no 17/46904; 27740/2018; 27741/2018; 3765/2019; 11912/2018, 3-9-2019) (Siwendu J) at para 31). The crux of the matter is to consider whether the change – brought about by the said amendments – serves the purpose intended by summary judgment remedy, which is to get a speedy judgment.

Procedure prior to Uniform r 32 amendments

In terms of the old rule, a plaintiff could apply for a summary judgment after the defendant had delivered a notice of intention to defend. The old Uniform
r 32(2) required that a notice of the summary judgment proceedings be served within 15 days of receipt of a notice of intention to defend.

The founding affidavit in support of a summary judgment application was, and still is, a technical document and the content thereof is strictly prescribed by the rules. It was required by Uniform r 32(2) that the deponent merely verify the cause of action and the amount, if any is being claimed, state that there is no bona fide defence to the action and that the notice of intention to defend has been delivered for the purpose of delaying judgment.

Procedure post Uniform r 32 amendments

The circumstances in which a summary judgment remedy is appropriate have not been affected by the amendments, but the procedure has seen some major changes.

Firstly, Uniform r 32(1) read with Uniform r 32(2)(a) now provides that the plaintiff cannot bring a summary judgment application until the defendant has delivered a plea. The trigger has shifted from delivery of a notice of intention to defend to delivery of a plea. A plaintiff, with an unanswerable case against a defendant who does not have a bona fide defence, now has to wait for delivery of a plea to be able to issue a summary judgment application.

Secondly, Uniform r 32(2)(b) has added an additional requirement to the content prescribed for supporting founding affidavit. In the affidavit it is required to ‘identify any point of law relied upon and the facts upon, which the plaintiff’s claim is based, and explain briefly why the defence pleaded does not raise any issue for trial’. It will not be enough to merely state that the defendant has no bona fide defence, the affidavit must prove the lack of a defence and basically attack the plea.

Lastly, Uniform r 32(2)(c) departed from the ten-day period set down for summary judgment applications. The plaintiff can set the application for summary judgment down for hearing on a stated day not being less than 15 court days from the delivery thereof.

The effects of the amendments in practise

The amendments have caused for more time to lapse before the summary judgment remedy is available to a plaintiff. Furthermore, various avenues that may be used to delay a matter have been opened for elusive defendants. For one, the defendant may wait for the 20 days to lapse and, thereafter, wait for the plaintiff to file a notice of bar before it delivers a plea.

Alternatively, on the last day of the five days’ time period set by a notice of bar, the elusive defendant may further delay delivering a plea by requesting, from the plaintiff, discovery of certain documents in terms of Uniform r 35(14). The defendant may allege that the documents are required for purposes of pleading. The more the plea is delayed, the longer it will take for the plaintiff to initiate a summary judgment application. This defies the purpose and objective intended to be achieved by a summary judgment remedy.

Was there any need to further certainty?

There are some legal practitioners who have welcomed the amendments to the procedure and the commonly held sentiment being that the amendment promotes greater certainty before a judgment is granted. This greater certainty outweighs the lesser time and saving of costs achieved by the summary judgment application procedure prior to the amendments. This makes one wonder whether there was a need for further certainty.

The courts in South Africa have always promoted the spirit of fairness and justice when considering summary judgment applications. The summary judgment remedy is only available in certain circumstances and these conditions seem to guarantee certainty of both the existence of a claim and the absence of a defence.

The first circumstance that avails the summary judgment remedy is where the claim is based on a ‘liquid document’. A ‘liquid document’ for purposes of the summary judgment remedy has been considered to be the same as the meaning of a ‘liquid document’ for purposes of provisional sentence proceedings set out in Uniform r 8 (see Van Wyngaardt, NO v Knox 1977 (2) SA 636 (T)). This is a document that ‘evidences by its terms and without resort to evidence extrinsic thereto, is an unconditional acknowledgement of indebtedness in an ascertained amount of money, the payment of which is due to the creditor’ (Rich and Others v Lagerwey 1974 (4) SA 748 (A) at 754H)).

The second circumstance is if the cause of action is based on a ‘liquid amount of money.’ In general, a ‘liquidated amount of money’ bears the same meaning with ‘debt or liquidated demand’. There has to be evidence of an existing due debt and its certainty is found on the same premises as described above for a liquid document in provisional sentence proceedings. It has to be an amount, which was agreed on between the parties or easy to calculate.

The third circumstance is when the plaintiff is seeking delivery of a specific movable property. This is a situation, where for example, a contract specifically provides that the defendant must deliver something to the plaintiff. There is clearly a right to receive and an obligation to deliver a specific property.

Lastly, the summary judgment remedy is available in evictions from an immovable property. A judgment for eviction is sensitive and has far reaching consequences. Therefore, an application for summary judgment for eviction must comply with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The court in Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) in para 20 ruled that the PIE Act does not apply to ejectment from a commercial property or a property owned by juristic persons. Nevertheless, when seeking the summary judgment remedy one must comply with the Extension of Security of Tenure Act 62 of 1997.

The above circumstances reflect a good degree of certainty found in the summary judgment remedy. It is difficult to understand why further certainty was required before pursuing the remedy. The summary judgment remedy is only available in circumstances where there is evidence of the existence of a claim and absence of a defence. There is no extrinsic evidence, or a plea, required to show that no bona fide defence exists.

Other jurisdictions

South African courts adopted the summary judgment remedy form the United Kingdom (UK). In the UK, the remedy may only be brought after pleadings have been closed. This is why the Rules Board in South Africa considered the position in the UK as assurance and indication of merit for these amendments (see Memorandum to role-players in respect of proposed changes to the summary judgment rule (Uniform rule 32) July 2016).

There is a difference between South African law and UK law on the circumstances that the summary judgment is available. In terms of the Civil Procedure Rules (CPR) in the UK, unlike in South
Africa, the summary judgment remedy is available in most proceedings – except for those for possession of residential premises; and proceedings for an admiralty in rem claim. The scope of circumstances that one can pursue the summary judgment remedy is broader in the UK, hence it is understandable why the remedy is only available after pleadings have been closed. In South Africa, as discussed above, the remedy is limited to a few circumstances and the few circumstances guarantee certainty of not being defensible.

Conclusion

The summary judgment remedy has not lost its purpose, but it has certainly moved two steps backwards. The new procedure is open to a lot of abuse, by elusive defendants, that may result in more time and costs being wasted. The benefit remains that the plaintiff will attain a judgment without trial, but the journey to obtaining that judgment has been extended.

Audacious Tawanda Dzinouya LLB (Wits) LLM (UJ) is a legal practitioner at MVMT Attorneys in Johannesburg.

This article was first published in De Rebus in 2020 (April) DR 12.

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