IN THE HIGH COURT OF LESOTHO
In the matter of :
WILLIAM J. MATTHEWS Plaintiff
STIRLING INTERNATIONAL CIVIL ENGINEERING LTD Defendant
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 29th day of April, 1988
The plaintiff filed a claim by way of a summons for payment of M33,760.11 being unpaid annual increments and overtime earnings when he was employed by the defendant company from April 1983 to March 1987. He also asked for damages for unlawful dismissal in the sum of M.7,079.04. I do not know from where that last figure came because such damages are in fact general damages and must remain unliquidated until assessed by the Court.
The defendant company entered an appearance but did not file a written defence. Instead it embarked on an application for the plaintiff to furnish security on the ground that he was a peregrinus. This was eventually heard and decided in favour of the plaintiff.
The plaintiff's next move was to file an application for summary judgment under rule 28, High Court Rules. This was supported by an affidavit by the plaintiff and followed by an opposing affidavit by one Ludovico Babbo, stated to be the managing director of the defendant company. The
plaintiff quickly filed a fairly comprehensive replying affidavit. This provoked the defendant to make an application under rule 30(1) for an order striking out the plaintiff's replying affidavit on the grounds that it was irregular and improper to file a replying affidavit in summary judgment proceedings.
On the hearing day both applications were heard and, in order to avoid any unnecessary delay, I found it convenient to decide the two matters together. Mr Addy for the plaintiff undertook not to refer to the replying affidavit in his submissions.
I shall deal first with the objection to the filing of a replying affidavit. The plaintiff filed an affidavit under rule 28(2) and this was followed by the defendant's opposing affidavit under rule 28(3). There is no provision for the filing of a replying affidavit by the plaintiff. Rule 28(4) provides that:
" No evidence may be adduced by the plaintiff other than the affidavit referred to in sub-rule(2) nor may either party cross-examine any person who gives evidence viva voce or by affidavit. The Court may however put to any person who gives viva voce evidence such questions as it considers may elucidate the matter.
Mr. Koornhof pointed out that this sub-rule is almost word for word the same as rule 32(4) of the South African Uniform Rules of Court. In Consolidated Press of SA Ltd v Van der Merwe 1951(1) SA 337(C) the Court permitted the plaintiff to put in a replying affidavit where there
had been a compromise after filing of the application for summary judgment. In Nepet (Pty) Ltd v Van Aswegan's Garage 1974(3) SA 441(0), the Court disapproved of the decision in Consolidated Press (supra) and held that the provisions of sub-rule (4) are peremptory, and that the replying affidavit filed by the plaintiff should be struck out.
Mr Addy referred to rule 8(12) which provides that no further affidavit may be filed by any party unless the Court in its discretion permits further affidavits to be filed. However rule 8 applies to applications filed by notice of motion. It is not applicable to summary judgment procedure which is based on a summons. The procedure ther= is governed entirely by rule 28.
Mr Addy submitted that rule 28(4), above, is not peremptory. He referred to s.14 of the Interpretation Act, 1977 which provides that:
In an enactment passed or made after the commencement of this Act, "shall" shall be construed as imperative and "may" as permissive and empowering.
He argued that the sub-rule does not state that "no evidence shall be produced" only that "no evidence may be produced" and that, consequently, there is a choice in the matter and the Court can allow a further affidavit in order to produce all the facts before the Court.
It should be noted that in sub-rule (4) "may" is used negatively as "no evidence may be adduced". This is the same as saying "evidence may not be adduced." In my opinion it is not permissive but rather it is peremptory
in the sense that "evidence must not be adduced" and so the Court has no discretion in the matter. I would therefore not allow a replying affidavit in summary procedure and it is accordingly struck out with costs to the defendant.
Turning now to the main application for summary judgment it will be convenient to deal with the various points in the order that they are set out in the defendant's heads of argument.
The first is that the application for summary judgment was filed out of time. Rule 28(2) provides that application for summary judgment must be made by the plaintiff who "shall within fourteen days after the date of delivery of entry of appearance, deliver notice of such application." The notice of appearance to defend was filed on 2 July 1987 and served on the plaintiff's attorney on the same day. The application for summary judgment was filed on 23 July. In accordance with a.49(2) of the Interpretation Act, Sundays and public holidays are not counted. Thus the fourteenth day was 20 July. So the application would appear to be out of time.
Mr Addy argued that the 14 days period was interrupted by the defendant's notice to file security on 3 July and this Court's order on 27 July staying the proceedings under rule 48(3) pending the hearing and disposal of the said notice to file security. Mr Addy stated that both parties had agreed that this preliminary matter should be disposed of before any further proceedings. He also submitted that the defendant had not filed any pleadings in the main suit and that the notice to file security was merely a device for causing delay in the matter because there was
no genuine defence available.
The Court's order on 27 July staying the proceedings is irrelevant as the fourteenth day expired on 20 July. In any case such an order would not prevent either party from filing pleadings or any other necessary application or documents. Summary judgment procedure is an extraordinary remedy and a very stringent one because it enables a plaintiff to obtain judgment without the necessity of going to trial. The opportunities for doing so must be limited and the rules must be strictly adhered to. It follows from this that the Court's discretion under rule 59 to condone failure to comply with the rules is likely to be used very rarely in connection with this special procedure. At this stage I do not find any good reason to condone the late filing.
The second objection by Mr Koornhof is that part of the claim for summary judgment is for damages which is not permitted. Rule 28(1) permits this procedure only for claims (a) on a liquid document; (b) for a liquidated amount in money; (c) for delivery of specified movable property, or (d) for ejectment. Mr Koornhof's submission was that all claims for damages are for unliquidated amounts and therefore outside the permitted range of choices. It is clear that if some claims fall within and others without the above four classes, the plaintiff cannot claim summary judgment (see: Garlicks Wholesale v Davis 1927 CPD 185)
However, damages are of two sorts: general damages which are unliquidated and special damages which are liquidation In Botha v Swanson & Co (Pty) Ltd 1968(2) PH F85, it was held that a claim cannot be regarded as one for a liquidated
amount in money unless it is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a mere matter of calculation (presumably as distinct from assessment).
In the summary judgment application the plaintiff asks for judgment in terms of prayers 1, 2 and 3 of his Declaration. These are 1) M33,760.11 for unpaid increments and overtime 2) M7,079.04 damages for unlawful dismissal, and 3) costs. I have already held that the claim for damages for unlawful dismissal must be for an unliquidated sum since it represents general damages which have to be assessed by the Court. Mr Addy submitted that the damages claimed represented one months salary in lieu of notice, but I doubt this. For one thing the other documents do not indicate that the plaintiff was earning over M7,000.00 per month; and for another thing, if that was so it would in any case amount to special damages which would not come under the general head of "damages for unlawful dismissal." Thus, since one of the plaintiff's claims is for an unliquidated amount, whatever the other claims are, he is disqualified from obtaining summary judgment.
The third point made by Mr Koornhof was that the plaintiff's supporting affidavit contained superfluous matter contrary to the requirements of rule 28(2), the relevant part of which provides that:
........... such affidavit must state
that in the opinion of the deponent the defendant has no bona fide defence to the action and
that entry of appearance has been entered merely for the purpose of delay
It does not inform us what else, if anything, can or cannot be included in the affidavit. Mr Koornhof submitted that it must be in strict accordance with the above requirements only and he indicated that there were several South African authorities for the proposition that it must not contain any evidence supporting the plaintiff's case. He referred to paragraph 4 of the plaintiff's affidavit which very briefly listed five reasons why the plaintiff believed that the defendant had no bona fide defence. Rule 28(2) does not in fact specifically exclude anything and, although I would agree that the five reasons referred to can be described as indicating what supporting evidence would be adduced, it seems to me to be quite reasonable for the plaintiff to inform the Court briefly why he believes that the defendant has no bona fide defence. I would not regard it as being superfluous in the circumstances.
The fourth objection was that the supporting affidavit does not comply with rule 28(2)(a), which is set out above. Mr Koornhof submitted that the plaintiff must state that "in his opinion" the defendant has no bona fide defence and that those actual words must be used. Presumably the plaintiff is expected or required to used the formula: "In my opinion .....etc." Those words were not actually used in this instance.
Nathan, Barnett & Brink's Uniform Rules of Court (2nd edn.) p.198, tell us that: "this averment is essential. A failure to make the averment will result in summary judgment being refused," and various authorities are cited. Herbstein & Van Winsen (3rd edn.) p.303, inform us in similarly
vein and cite an unpronounceable case in support. The plaintiff in fact used the following words: "I verily believe that the defendant ...............has no bona fide defence in this action.
It is true that he omitted to use the magic words but I am of the view that the actual meaning is the same and I would regard it as substantial compliance with this rule and therefore acceptable. I would suggest that in future, so as to avoid further time-consuming and tedious argument, the simplest solution would be to make a special point of stating: "in my opinion ....... etc" as set out in the rule.
The fifth point is with regard to whether the defendant did in fact disclose a bona fide defence. In this instance the defendant relied mainly upon three annexures to its opposing affidavit, referred to as LB1, LB.2 and LB.3. The first two were photocopies of eleven payslips signed by the plaintiff. LB.3 was a document, admittedly signed by the plaintiff, in which he agreed with the salary, notice and leave pay calculations set out in it and confirmed that he had no other claims whatsoever against the company. Mr Koornhof submitted that these matters constituted a strong and valid bona fide defence, especially in view of the plaintiff's contrary assertion in his affidavit, para. 4(e), in which he stated categorically: "I have never appended my signature to any document wherein I disclaim defendant's liability to pay my overtime money."
Mr Addy argued that the documents annexed were irrelevant and that the signed agreement, LB.3, was, in any case, a waiver which amounted to a breach of various provisions of the Employment Act. However, these are all matters that would have to be proved and argued fully at any
trial and consequently are not properly for consideration in summary procedure, where the plaintiff is confined to satisfying the Court that the defendant's defence is of no substance at all and that the plaintiff has an unanswerable case. Moreover, I do not consider that this is the position here. In Breitenback v Fiat SA (Edms) Bpk 1976(2) SA 226(T), it was held that a bona fide defence is disclosed if the defendant swears to a defence, valid in law, in a manner which is not inherently or seriously unconvincing. That seems to me to be a reasonable approach to the question. In the present instance I am of the opinion that there is a substantial defence case which ought to be considered after hearing evidence and submissions. In such circumstances the Court has no discretion in the matter under rule 28(5) and the action must proceed (see: A.E. Motors (Pty) Ltd v Levitt 1972(3) SA 658).
Mr Koornhof asked for costs on the attorney and client scale and for an order that the action be stayed until they are paid. This is in accordance with rule 28(9) which provides that:
" The Court may at the hearing of the application make such order as to costs which it deems just. It may, if the plaintiff makes an application for summary judgment where the claim does not fall within the terms of sub-rule(1), or if the plaintiff makes such an application, which in the opinion of the Court he should not have made because he well knew that the defendant relied upon contentions which would entitle him to leave to defend, the Court may order that the action be
stayed until the plaintiff has paid the defendant's costs and the Court may further order that such costs be taxed as between attorney and client.
In fact both wings of the above sub-rule apply here. The plaintiff's claim does not fall within the terms of sub-rule(1) because part of it is for unliquidated damages. Secondly the plaintiff knew that he had signed the document LB3 confirming that he had received his dues and had no other claims against the company, which would obviously be their defence and which would equally obviously entitle them to leave to defend. There was thus no justification at all for bringing this application for summary judgment.
Accordingly, summary judgment is refused and the plaintiff's application is dismissed with costs to the attorney defendant on the attorney and client scale. In addition, the action is stayed until the plaintiff has paid the defendant's costs, including those awarded in connection with the preliminary application regarding the wrongful filing of a replying affidavit. The latter costs are at the normal rate.
P. A. P. J. ALLEN
J U D G E
29 April, 1988
Mr Addy for plaintiff
Mr Koornhof for defendant
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