CIV/T/158/87
IN THE HIGH COURT OF LESOTHO In the matter of :
KLOPPERS HANDEL (PTY) LTD Plaintiff
VS
LESOTHO PHOTO LABS & LIGHTING Defendant JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. Lehohla on the 7th day of September. 1987.
After a summons had been issued by plaintiff against defendant for
(a) payment of the sum of M8991.53 in respect ofgoods sold and delivered by plaintiff atdefendant's special instance and request which
sum remains due and payable;
Interest thereon at 12% a tempore morae;
Costs of suit; and
Further and or alternative relief,
defendant gave notice of intention to defend the action coupled with Notice to plaintiff to file security because plaintiff is a peregrinus. This notice of intention to defend was filed just over a month after the summons had been issued out of the Registrar's office.
Fourteen days later i.e. on 13th May 1987 plaintiff applied to this court for summary judgment set down for May 18th for an order in terms of prayers reflected in the original summons. The application for summary judgment was supported by Hester Johanna van der Merwe in an affidavit wherein the deponent set out in his averments that he is plaintiff's credit controller and that the facts stated in the application are within his own knowledge and further that he is authorised to depose to them in an affidavit to the effect that defendant is indebted to plaintiff in the sum claimed in the summmons on grounds stated therein less an amount of
/M2000.00
-2-
M2000.00 which was paid after the summons had already boon issued.
The deponent further avers that he verily believes that the defendant hasn't any bona fide defence to the claim, thus the appearance was, according to his belief, entered solely for purposes of delay.
In an opposing affidavit one David Ntlhasinye on behalf
of the defendant deposed that he is the Managing Director
of the defendant and that facts related thereto are withinhis personal knowledge.
He further deposed that plaintiff is not entitled to summary judment in so far as its claim does not fall withen the ambit of Rule 28(1) of the High Court Rules. That rule provides that
"where the defendant has entered appearance to defend the plaintiff may apply to court for summary judgment on each of such claims in the summons as. is only -
on a liquid document
for a liquidated amount in money
for delivery of specified movable property,or
for ejectment
together with any claim for interest and costs"
I have underlined what plaintiff appears to rely on as forming the basis for his resort to summary judgment.
Defendant charges that the claim is neither based on a liquid document nor is it for a liquidated amount in money. He further avers that because of its nature as an extraordinary relief a summary judgment can only be available where a defendant has no bona fide defence. But, he submits, he has a bona fide defence because he is not indebted to the plaintiff in the amount reflected as M8991.53 in the summons less M2000.00 as shown in the affidavit. He argues that he was originally indebted to plaintiff in the sum of M8,289.85 and has attached a series of invoices marked "NM1, 2, 3 , 4 and 5" which he claims clearly show the amount of the original debt. Indeed the sum of the amounts reflected in the invoices equals M8289.85.
Defendant avers that this total amount of debt has been reduced by payment of M3000 and on this basis submits that
/he is
-3-
he is entitled to defend this action because ho has a bona fide defence.
It was submitted on behalf of plaintiff by Mr. Mochochoko that summons for summary judgment was issued in terms of Rule 28 and further that this procedure is applicable notwithstanding entry of appearance to defend if plaintiff feels that defendant is merely playing for time by entering appearance to defend.
Mr. Mochochoko further stated that the claim is for a liquidated amount namely money agreed on or capable of prompt ascertainment. He pointed out that the claim is for M8991.53 as shown in the summons and referred to the M2000 which plaintiff acknowledges as part payment of the entire amount. He thus submitted that the summary judgment is for the balance amounting to the difference between the two sums above. This amounts to M6991.53 and Mr. Mochochoko says this amount is ascertainable.
Reacting to defendant's opposing affidavit Mr. Mochochoko argued that defendant used one of the options open to him, namely that he filed an affidavit purporting to say he has a defence but in effect it amounts to no defence to the extent that it is not conceived in good faith. He submitted that defendant ought to have set out facts which if pleaded would constitute a good defence in law. He charged that there hasn't been any disclosure as to the nature of the defence. He conceded that such disclosure need not be detailed and prolix. He pointed our that defendant's defence is not above criticism because the defendant merely makes a denial without disclosing facts relied on in making such a denial. Hence the defence is marred by the fact that no bona fide or honest disclosure was made in it.
In reference to para 4 of the opposing affidavit it was submitted that defendant's averment that summary judgment is an extraordinary procedure does not advance his case in any manner whatsoever. It only amounted to a description of the summary procedure. It was accordingly submitted that this shows that the appearance was entered solely for delay. I was referred to para 5 of defendant's opposing affidavit where it is maintained by plaintiff that
/defendant
-4-
defendant admits liability. As pointed out above in this paragraph i.e. 5 of defendant's opposing affidavit the defendant says he is not indebted to plaintiff in the amount reflected i.e. M8991.53 nor has he paid only M2000.00 in an effort to reduce the debt owed to plaintiff.
However I was invited to take note of the fact that although defendant has alleged payment of a certain amount he has adduced no proof to substantiate his allegation, No date or means of payment has been placed before Court. No document has been placed before court to show the amount paid.
Mr. Mochochoko reacting to head 6 of Mr. Mphalane's assertion that without a declaration clearly outlining the cause of action the court would not be in a postion to grant summary judgment for the summons does not give the particulars of the claim which is based on goods sold and delivered, submitted that this is a combined summons outlining plaintiff's cause of action. He submitted further that plaintiff need not file a declaration.
I may at this stage point out that there is a difference between a summons and a combined summons. According to Nathan, Barnett and Brink's Uniform Rules of Court combined summons means summons with a statement of claim annexed thereto in terms of Rule 17(2) of South Africa).
Rule 17(2) provides that
"In every case where the claim is not for a debt or liquidated demand there shall be annexed to the summons a statement of the materiel facts relied upon by the plaintiff in support of his claim, which statement shall inter alia comply with rules 18 and 20"
Rules 18 and 20 refer to
(i) rules relating to pleading generally and (ii) declaration respectively.
On page 108 loc cit appear the following words :-
"See the comment on Rule 17 in regard to the cases when a declaration, as distinct from a combined summons, is necessary, and in regard to the requirement thereof."
/The
- 5 -The comment in question is as follows :-
"The simple summons (Form 9) is intended for us in claims for a debt or liquidated demand, because it, was considered that in many of these cases the action is undefended and a declaration is unnecessary. But in all other
cases in which a declaration would
inevitably have to be filed, it is now provided that a combined summons is to be issued."
I have had a look at both forms 9 and 10 i.e. summons and combined summons respectively and have observed that plaintiff's summons accords nearly with form 9 and definitely not with form 10.. This should suffice to dispose of plaintiff's attempts to persuade the court to regard his as combined summons.
Mr. Mochochoko pointed out that if after appearance has been entered plaintiff should file a declaration then that would be a procedural step that would disentitle him from applying for summary judgment. He accordingly submitted that as against the foregoing procedure plaintiff if he is of the view that his case is unanswerable by defendant, would then be entitled to apply for summary judgment.
He accordingly applied for summary judgment as prayed i.e. M6991.53 or if the court is of the view that defendant's claim that he paid M3000.00 is genuine than plaintiff prays for judgment in the sum of M5991.53 in terms of Rule 28(7) and that leave be granted to defendant to contest the claim that is not conceded either by plaintiff or in the ruling implicit in the order that would follow in the event that the court accept defendant's claim that he paid M3000 and not M2000.00 as claimed by plaintiff.
In his response Mr. Mphalane submitted that counsel for plaintiff manifested a clear misunderstanding of the meaning of a combined summons. I have already mode my ruling on this point earlier.
He further brought to the attention of the court that in the face of the existing dispute on the amount claimed by the plaintiff in the original summons and that shown by defendant to be owing in that summons coupled with the dispute as to the amount claimed to have been paid by
/the defendant
-6-
the defendant and part of which is vehemently denied by plaintiff it cannot be said beyond doubt that a factor that would require clearing by way of declaration and the related consequences of further and better particulars do; not exist. Should there be doubt on these factors then it was submitted that summary judgment should be refused.
It was further submitted that to the extent that plaintiff at least implicitly acknowledges payment of M2000.00 then this is clear indication of change of cause of action. He submitted again that the amount claimed is not liquid or liquidated as invisaged by provisions of Rule 28.
Referring to Rule 33 as a possible cure to plaintiff's papers Mr. Mphalane pointed out that an amendment is the only possible remedy under the rules and submitted that an affidavit is not enough for the purpose. He further pointed out that the rate of interest at 12% is disputed and submitted that 11% is the rate followed in normal practice. He queried the 12% interest on the grounds that it was not based on any written agreement between the parties. He accordingly prayed for dismissal of the summary judgment and in the same vein for leave to be granted to defendant to defend the action and have proceedings stayed in terms of Rule 28(9).
In his final reply Mr. Mochochoko conceded that the
interest rate is not settled for even at times without proof of prior agreement this Court has allowed not only 12% but upwards of 17% interest.
He reiterated that the summons discloses that the amount claimed is liquid and is ascertainable by simple arithmetical calculations. The figure is clear hence no form of evidence can be required other than that the amount is due and payable. He submitted that the question of amendment of the summons is uncalled for. He accordingly pointed out that if defendant makes payment of part of the debt, plaintiff is entitled to come to court for the balance outstanding on the capital debt. He prayed that even if the M3000 was paid indeed there can be no sincere denial that in that event M5289.85 remains owing assuming without
/conceding
-7-
conceding that the capital debt was M8289.85 as claimed by defendant. In their own admission therefore the defendants owe M5289.85 it was submitted.
Reference to South African Authorities indicates that
"a plaintiff cannot avail himself on the procedure under (the then) Rule 22(1) of the Rules of the Cape Supreme Court to obtain summary judgment on a part of his claim viz. in respect of something less than his whole cause of action and less than the full amount claimed, which part he alleges to be liquidated."
Further in Art Printing Works Ltd vs Citizen (Private) Ltd 1957(2) SA. 95 plaintiff had in terms of order 43 of the Rules of Court (S.R.) applied for summary judgment on a summons issued in terms of Order 3, Rule 6, claiming (1) payment of an amount of £3661-16 - 4d
"being due and owing by defendant to plaintiff in respect of printing done by plaintiff for and on behalf of defendant, at the usual or customary rates and stationary supplied by plaintiff to defendant at defendant's special instance and request during the period June to September, 1956", (2)
interest a tempore morae (3) costs of suit. In that case defendant, in limine objected on the ground, inter alie that the summons had not been "endorsed with the particular: of claim" as required by order 3, Rule 6. It was held that as the summons did not contain the averment of the "nature, extent and the grounds of the cause of action" the objection should be upheld and further that the defendant was not bound to apply for particulars.
On page 94 of the Uniform Rules supra a comment under Rule 17 is to the effect that under sub rules 1 and 2 the Rule makes provision for the issue either of a summons or of a "combined summons" i.e. a combination of summons and declaration. The latter form is in use in the Magistrate's Court."
In Abdurahman's supra at 297 the following words appear:
"He then proceeds to show that there is good reason why the plaintiff should not be allowed to split up his action. The object of the order, he says, is to avoid delay, and if it is once
/admitted
-8-
admitted that there must be a trial, even if only on some of the claims there is no saving of time. Moreover, the adoption of such a course may result in costs being increased."
I need not over-emphasise that among many concessions made by Mr. Mochochoko is included the plea that judgment be entered for plaintiff in respect of what is admitted by defendant and that the residue of the claim be referred to trial. Although it can be argued that this submission is in keeping with provisions of our Rule 28(7) (b) (ii) laying down that
"If on the hearing of the application for summary judgment it appears that a defendant is entitled to defend as to part of the claim but not to the whole of such claim the court may. give leave to defend to defandent as to part of the claim and enter judgment against him as to the balance of the claim, unless he shall have paid such balance ......."
it is clear that this procedure has no regard to the important aspect raised above as to the necessity of saving the time and avoiding of increase in costs occasioned by postponement for purposes of enabling defendant to defend part of the claim disputed. But it is our rule. See also Hugo Franco Pty Ltd vs Gordon 1956(4) SA. 482 where as in Abdurahman's case supra the summary judgment was refused. Quoting with approval the following words to wit the summary judgment Rule
"embodies an extraordinary remedy and a litigant who wishes to avail himself of the procedure
-therein described must bring himself squarely within the ambit of the Rule"
Murray C.J. said on page 484
"......the plaintiff was refused summary judgment
as to the liquidated portion of the whole of his claim, despite his willingness to restrict his application to that portion."
I have already referred to our Rule 28(7) (b) (ii) on the point in issue. It is on all fours with Rule 32 (6)(b)(ii) of the Uniform Rules of Court applying to South African Courts.
In none of the authorities cited in my judgment has there been specific reference to this particular Rule. Regard being had to the fact that the edition of the Uniform
/Rules
-9-
Rules I have consulted is of comparatively more recent . origin i.e. 1965 as opposed to the authorities which cover cases which occurred in the 1950's I would take it then that some of the matters covered in the authorities cited no longer hold or as stated in Art Printing Works Ltd. supra at 97.
"The question whether this requirement has been fulfilled must be answered in reference to the circumstances of each case."
Regard has also to be paid to the fact that our Rules on the particular subject of summary judgment application do not provide the particular forms of summons and contents thereof and do not correspond with forms 9 and 10 appearing in the Uniform Rules of Court. It thus becomes a matter for every drawer of summons to employ boot stap methods to make his summons as close as possible to what may be reasonably acceptable in his attempt to move an application for summary judgment.
While I do appreciate the value of the South African authorities referred to above to the extent that they indicate that summary judgment should he refused once only a portion of the claim is admitted for otherwise the result becomes wasteful both from the point of view of costs in that they become increased and of time in that delay is not avoided, I however consider that our Rule 28 (7)(b) (ii) is based on sound principles viz. as in all pleadings matters which are admitted bring pleadings. to conclusion forthwith while those on which there are disputes are the ones regarding which there need be adduced further evidence to enable the court to make a final decision thereon.
Relying therefore on Rule 28(7) (b) (ii) binding on our courts and notwithstanding highly persuassive South African authorities to the contrary I uphold plaintiff's application for summary judgment in the sum of M5289.85 admitted by defendant though disputed by plaintiff to extent that it falls short of M1000 of its. claim as revised in its deponent's affidavit, plus interest at the rate of 11% and costs on party and party basis. I also 'order
/that
-10-
that defendant be given leave to defend the claim on,which there is a dispute.
ACTING JUDGE.
7th September, 1987.
For Plaintiff : Mr. Mochochoko For Defendant : Mr. Mphalane.