The plaintiff may, after the defendant has delivered a plea (in the High Court), or where the defendant has delivered notice of intention to defend (in the Magistrates’ Court), apply to court for summary judgment on each of such claims in the summons as is only-
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment;
together with any claim for interest and costs.
A claim for a ‘liquidated amount in money’ is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a matter of mere calculation.
The expression ‘delivery of specified movable property’ denotes a certain identifiable object or objects which can be classified as ‘movable’ and which must be in existence at the time when the claim is being made.
Regarding ejectment, the owner of land is under the common law entitled to apply to court for an eviction order by simply alleging his ownership of the land and stating that someone else is in occupation thereof. The onus is then on the occupier to prove lawful occupation. The Constitution and land reform legislation have however placed severe restrictions on this common law right to evict occupiers.
The plaintiff shall within 15 days after the date of delivery of a plea (in the High Court), or where the defendant has delivered notice of intention to defend (in the Magistrates’ Court), deliver notice of application for summary judgment, together with an affidavit made by him/herself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit and the notice of application for summary judgment shall state that the application will be set down for hearing on a stated day not being less than 10 days from the date of the delivery thereof.
The affidavit accompanying the application must comply with the following requirements:
If the claim is founded on a liquid document, a copy thereof must be annexed to the plaintiff’s affidavit. The object of this provision is to ensure that the defendant at least sees a copy of the document which forms a vital part of the case which is being made against him/her. As such, if the document is not annexed to the founding affidavit the application does not comply with the rules of court and the relief sought cannot be granted.
Finally, the notice of the application must state that the application will be set down for hearing on a stated day being not less than ten days from the date of delivery of the notice.
Upon the hearing of an application for summary judgment the defendant may-
(a) give security to the plaintiff to the satisfaction of the registrar for any judgment including costs which may be given, or
(b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of him/herself or of any other person who can swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.
The defendant has two alternative methods to meet the plaintiff’s claim. If the defendant contemplates giving security in terms of subrule (a), the merits of the defence need not be dealt with. The amount of security is fixed by the registrar or the clerk of the court and it cannot be less than the claimed amount.
Should the defendant choose to act under subrule (b) he must deliver the affidavit before noon on the court day but one preceding the day on which the application is to be heard. This is to allow the plaintiff enough time to consider the affidavit. If it is filed late the matter can be postponed with an appropriate cost order.
The onus that rests on the defendant (to satisfy the court that he has a bona fide defence to the action) is not a heavy one, but he must lay enough before the court to persuade it that he can provide evidence of a valid defence at trial. The court will not attempt to decide the issues in favour of or against any of the parties, but only whether defendant has ‘fully’ disclosed the nature and grounds of his defence. Thereafter the court will decide to grant the summary judgment or refuse it and grant the defendant the opportunity to defend the action.