Flamingo Knitting Mills (Pty) Ltd v Clemans and Others 1972 (3) SA 692 (D)Summary judgment is a powerful procedural mechanism that serves to expedite civil litigation by allowing a plaintiff to bypass a full trial where it is evident that the defendant has no genuine defence. Both r 14 of the Rules regulating the Conduct of the Proceedings of the Magistrates’ Courts and r 32(2) of the Uniform Rules of Court were amended to reinforce stricter requirements in summary judgment applications. Rule 14, effective from 9 March 2020, largely mirrors the amendments made to r 32, which took effect on 1 July 2019. The amendments emphasise safeguarding defendants’ rights while also allowing legitimate claims to be resolved promptly.
The case of Flamingo Knitting Mills continues to provide significant insight into the requirements for verifying affidavits in summary judgment applications, particularly the level of detail and knowledge required from a deponent. Although this case predates the recent amendments, its principles remain relevant in interpreting the stricter procedural rules now in place.
The verifying affidavit, required by rs 14 and 32, is a procedural safeguard. It balances the plaintiff’s right to avoid unnecessary delays with the defendant’s right to a fair trial. Summary judgment, as an extraordinary remedy, is not to be granted lightly, and strict compliance with the rules ensures that defendants are not deprived of their right to trial without proper justification.
The amended rules reflect the need for a higher level of detail in affidavits supporting summary judgment applications. The plaintiff must now ensure the affidavit verifies the cause of action, the amount claimed (if applicable), and that there is no bona fide defence. The affidavit must be made by a person with personal knowledge of the facts, which is crucial in supporting the legitimacy of the claim. These amendments aim to make the summary judgment procedure fairer and to ensure that this expedited remedy is granted only in appropriate circumstances.
The 2020 amendments to rs 14 and 32 significantly changed the procedure for summary judgment applications, placing a greater burden on plaintiffs to demonstrate the strength of their claim from the outset. Under the previous versions, an application for summary judgment was brought immediately after the defendant filed a notice to defend. However, under the amended rules, a plaintiff can only apply for summary judgment after the defendant has delivered a plea. This change allows the defendant an opportunity to present a defence before the plaintiff applies for summary judgment.
Moreover, the plaintiff’s affidavit must address the defence raised by the defendant in the plea, explaining why the defence is not bona fide and has no merit. The aforementioned amendments aim to prevent plaintiffs from using summary judgment as a tool to stifle potentially valid defences, ensuring that the defendant’s version is properly considered before summary judgment is granted.
Both rs 14 and 32 stipulate that the verifying affidavit must be deposed by the plaintiff or a person who can positively attest to the facts. In Flamingo Knitting Mills, the court emphasised that the deponent must have personal knowledge of the facts or reliable information upon which they can positively attest. The amended rules reinforce this requirement by ensuring that the deponent’s affidavit must address the defence raised by the defendant, which inherently requires a detailed understanding of both the claim and the defence.
In instances where the plaintiff is a juristic entity, the verifying affidavit may be made by a director, manager, or officer who has personal knowledge of the facts. The courts remain vigilant to ensure that affidavits are not based on hearsay or vague assertions but on concrete and reliable knowledge.
The amendments to the aforementioned rules require that the verifying affidavit not only confirms the cause of action but also, where applicable, verifies the amount claimed. This requirement ensures that the plaintiff’s claim is substantiated and that the court can assess whether summary judgment is appropriate, based on specific and reliable facts.
In Flamingo Knitting Mills, the court scrutinised the verifying affidavit to ensure that it provided sufficient detail regarding the cause of action and the amount claimed. The amendments to rs 14 and 32 now require that the affidavit be even more comprehensive, clearly setting out the facts and addressing any defences raised in the defendant’s plea. If the amount claimed cannot be accurately verified, or if the affidavit lacks sufficient detail, the court is likely to refuse summary judgment, as was demonstrated in Flamingo Knitting Mills.
Under the amended rules, the verifying affidavit must include a statement asserting that, in the deponent’s opinion, there is no bona fide defence to the claim. This assertion must now be made in the context of the defendant’s plea, which means the plaintiff must engage directly with the defendant’s stated defence and explain why it lacks merit.
A bona fide defence is one that raises a genuine dispute of fact or law, and the court will only grant summary judgment if the defence is clearly without substance. The amendments require plaintiffs to demonstrate why the defence, as pleaded, is not bona fide. In Flamingo Knitting Mills, the court emphasised that a plaintiff’s assertion must be based on a thorough understanding of the facts and not mere speculation. The amendments have reinforced this by necessitating a direct engagement with the defence raised by the defendant.
The assertion that the defendant’s appearance to defend was entered solely to delay proceedings also remains a critical component of the verifying affidavit. The amendments aim to prevent misuse of the summary judgment procedure by ensuring that such an assertion is made based on specific facts, rather than as a mere formality. In Flamingo Knitting Mills, the court was careful to ensure that the plaintiff’s affidavit included a convincing assertion that the defendant’s defence was intended only to delay proceedings, and this principle remains essential under the amended rules.
Recent case law has provided further guidance on the application of the amended rs 14 and 32. In Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC), the Western Cape Division of the High Court, Cape Town emphasised the importance of addressing the defendant’s plea in the verifying affidavit. The court held that a plaintiff’s failure to engage with the defences raised by the defendant would be fatal to the summary judgment application, as it undermines the fairness of the process.
Similarly, in Rahme and Another v The Standard Bank of South Africa Limited In re: The Standard Bank of South Africa v Rahme and Another (GJ) (unreported case no 2017/46904, 6-9-2021) (Siwendu J), whereby the court reiterated that the purpose of the amendments was to ensure that defendants are given a fair opportunity to present their case before summary judgment is granted. The court emphasised that plaintiffs must provide detailed and specific reasons why the defendant’s defence is not bona fide, and that summary judgment should not be granted where there is any indication of a genuine dispute of fact or law.
The amendments to rs 14 and 32 have brought significant changes to the procedure for summary judgment applications, placing greater emphasis on the rights of defendants to present their defences. The case of Flamingo Knitting Mills remains relevant in illustrating the importance of strict compliance with the requirements for verifying affidavits, particularly the need for personal knowledge and detailed engagement with the facts of the case.
The recent amendments and case law developments highlight the need for precision, accuracy, and a thorough engagement with the defendant’s defence in summary judgment applications. The verifying affidavit plays a crucial role in ensuring that the plaintiff’s claim is legitimate and that the defendant’s right to a fair trial is upheld. Failure to comply with the amended rules can result in the dismissal of the summary judgment application, reinforcing the principle that summary judgment is an extraordinary remedy that must be granted only in clear and appropriate cases.
Simbongile Siyali BA Law LLB LLM (Criminal Law and Procedure) (NWU) is an Assistant State Attorney in Johannesburg.
This article was first published in De Rebus in 2024 (December) DR 46.
