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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No 47848/2017

In the Ex parte application of:

Insimbi Alloy Supplies (Pty) Ltd                                                                                 Plaintiff

and

Melcast Foundry CC                                                                                             Defendant

Registration number 2002/100810/23)

 

Judgment

 

Van der Linde, J:

Introduction

[1] This is an application for summary judgment in the amount of R194 167 41, interest at 10.5% and costs. The amount falls within the jurisdiction of the Magistrates’ Court, and the action could therefore have been instituted there. In fact, the plaintiff initially issued summons there, but withdrew its action. The reasons why the action was withdrawn is not evident, nor is it evident why the action was instituted in the High Court, the forum designed for matters of greater complexity and quantum. As will be seen below, the way in which the case has evolved thus far in this court, underscores the inappropriateness of the action having been instituted here.

[2] The plaintiff commenced its action here by means of what it submits is a simple summons. The summons does not comply with the rules, and there is no application to condone the non-compliances. These will be elaborated upon later in the judgment. However, what followed after the defendant entered appearance to defend was a paper exchange which heaped irregularity upon irregularity, underscoring why the matter should not have been brought in this court.

The irregularities

[3] The problem starts with the summons. The rules envisage two options: a summons for a debt and liquidated demand, and one which is not. The former follows form 9, the latter form 10. In this case the draughtsman offered an amalgam between the two.

[4] First, the second line of the first page of the summons carries a heading, “(Claim in respect of debt or liquidated demand)”. That suggests form 9. The mandamus to the sheriff or his deputy starts off by following form 9; after the words, “… in which action the plaintiff claims ...” which are envisaged in both forms 9 and 10, there follows the semi-colon (a colon is actually prescribed, but the summons need only be “… as near as may be in accordance with …” the form), which introduces the provision for the cause of action in concise terms. That part is still suggest form 9.

[5] But what follows immediately is not in accordance with form 9. There is no concise setting out of the plaintiff’s cause of action, a mere label of the case the defendant is called on to meet. To the contrary, what follows is a setting out of the relief that is claimed, followed by the following: “SEE PARTICULARS OF CLAIM ATTACHED – ANENXURE ‘A’”. That is inconsistent with form 9, and squarely consistent with form 10, which prescribes, after the words, “… in which action the plaintiff claims …”, the words, “… the relief and on the grounds set out in the particulars annexed hereto.”

[6] Then, further inconsistent with form 9 and consistent with form 10, there follow 57 pages of detailed particulars of claim comprising 6 pages of typed assertions and the rest annexures attached as evidence of the assertions. No appreciation is displayed for the difference between facta probanda and facta probantia. One of many examples is paragraph 9.2.1 which, not content with the assertion that the defendant is a juristic person (factum probandum), then annexes as annexure B a company search (factum probantium).

[7] Lest there be any doubt that form 10 was envisaged here, the summons is signed not only by the plaintiff’s attorneys, but also by a person who describes him/herself as “Authorised hereto in terms of Section 4(2) of the Right of Appearance in Court Act No. 62 of 1995.” Considering rule 17(2)(a), read with rule 18(1), this is an unequivocal indication that form 10 was intended.

[8] Next, the section that follows the words, “Inform the defendant further …” is verbatim form 10, until it reaches the last paragraph, which is then again verbatim form 9.

[9] This intertwining of forms 9 and 10 is not the subject of an application for condonation. In fact, the plaintiff asserts that the summons is a form 9 summons, and thus not a pleading to which an exception can be taken – and so it excepts to the defendant’s exception.

[10]It is necessary to say something about the reason why there is a difference between a simple summons and one with particulars of claim annexed. The former, as already indicated, need only label the claim. So few words are necessary, and the rules relating to pleading are not required to be followed. That is why an exception cannot be taken against it: it is not a pleading.

[11]It is very different the moment a statement of the material facts is annexed. Then that statement must comply with rule 18, and it must be drawn (signed) by a practitioner who has the skill and experience to drawn a pleading, and who appreciates the difference between facta probanda and facta probantia. This is essential, because this document (like the declaration that follows a simple summons) lays the very foundation of the litigation that will follow.

[12]Thus a plaintiff cannot under the guise of purporting to put up a simple summons offer a statement of material facts which does not comply with the rules: when the description of the cause of action exceeds a label, and takes the form of an annexure which contains the material facts of the cause of action, then that is a pleading which must comply with rule 18.

[13] The defendant’s exception is that the plaintiff’s claim is vague and embarrassing. The complaints go mainly to the issue raised earlier in this judgments, being pleader’s inability to appreciate the difference between facta probanda and facta probantia. An example of a complaint raised in this regard is in paragraph 3 of the defendant’s notice dated 16 February 2018.

[14] Next the defendant applied to strike out the plaintiff’s particulars of claim on the basis that the plaintiff was persisting with the summary judgment application in the face of the exception notice. That application is in itself defective, because the defendant’s exception can be argued when the plaintiff moves the application for summary judgment. But, as I have pointed out, the exception is a function of the plaintiff’s problematic pleading.

[15] Next, the plaintiff filed an exception and an irregular step notice, asserting that its summons is a simple summons, not a pleading, and thus that an exception could not have been taken against it. It also contends that the exception itself is not clearly and concisely stated, and also not properly signed. But what the defendant delivered on 12 March 2018 was not an exception but an application, which was doomed to fail as I have indicated, but not for any of the reasons raised by the plaintiff.

[16] Then, on 9 July 2018, the plaintiff filed what it called an exception and an “Application in terms of rule 30(1).”  But that document is itself fatally defective. To begin with, an exception is a pleading, not a notice. And so a pleading is required, which – as for example, a plea – has a name, here an “Exception”, an then sets out the various exceptions relied on, with the grounds, just like a pleading; and ending, just like a pleading, with the relief claimed, and duly signed, with provision for service. The exception here fails, if only for the reason that in form it is not a pleading. It is also bad in substance, because it supposes that the summons is a simple summons when, as pointed out, it is not.

[17] The application in terms of rule 30 is also fatally defective for lack of a supporting affidavit. Such an application cannot succeed unless it show prejudice, and this is usually if not invariably proved by an affidavit which sets out the prejudice relied on.

[18]And finally, the defendant has now applied for leave to file a supplementary affidavit opposing summary judgment. The basis disclosed is that the defendant’s attorney and counsel advised the defendant, long after the plaintiff had filed its heads of argument in the application, that the affidavit opposing summary judgment does not disclose a defence. That explanation should bring the application straight into the realm of applications for the leading for further evidence to relieve the pinch of the shoe; they are usually refused.

[19]Ultimately, when all is said and done, this matter ought not to have come before the High Court. Not only is the amount involved relatively small, but the pleadings and notices are of an inadequate standard. In my view the clients ought not to be suffering the cost of these short-comings. The summary judgment will be refused on the basis that the plaintiff’s summons is materially defective.

[20]In the result I make the following order:

(a) The application for summary judgment is dismissed, and the defendant is granted leave to defend.

(b) The defendant’s application to file a supplementary affidavit opposing summary judgment is refused.

(c) The defendant’s application in terms of rule 23 dated 12 March 2018 is refused.

(d) The plaintiff’s exception and application in terms of rule 30(1) dated 9 July 2018 are refused.

(e) Neither the plaintiff’s attorneys nor the defendant’s attorneys are permitted to recover any fees from their respective clients in respect of the processes that were disposed of in terms of this order.

WHG van der Linde

Judge, High Court

Johannesburg

Date hearing: 29 January 2019

Date judgment: 29 January 2019.

 

Counsel for the Plaintiff

Adv.

Instructed by

Viljoen –French &Chester Inc.

10 St Giles Street 

Docex 12

Randburg

P.O. Box 2412

Randburg

Tel: 011 998 7000

Fax: 011 8868649

Email: Aubrey@lawvfc.co.za

Ref: collections/R563/R610

 

 

Counsel for the Defendant

Adv.

Instructed by

Pearson Attorneys.

C/o Document Exchange

4^th Floor, Carlton Centre Building

150 Commissioner Street

Johannesburg 

Docex 33

Benoni  

Randburg

Tel: 011 749 8801

Email:bradley@pearsonattorneys.co.za

Ref: B Barrable/sp/M10058

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