CASE NO
REPORTABLE
CASE
NO: I 3329/2010
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
ANDRIES
PETRUS VELDMAN
…...............................................................FIRST
PLAINTIFF
LEONORA
VELDMAN
…........................................................................SECOND
PLAINTIFF
and
MURRAY
HENDRIK BESTER
….........................................................................DEFENDANT
CORAM:
Geier,
AJ
HEARD
ON: 08/02/2011
DELIVERED
ON: 17/02/2011
JUDGMENT
GEIER,
AJ
[1]
In this matter first and second plaintiff instituted action on 28
September 2010 against defendant for payment of the sum of N$ 127
265.00 together with ancillary relief.
[2]
The matter was defended and in response an application for summary
judgment was promptly launched.
[3]
Instead of resisting summary judgment in one of the modes prescribed
by Rule 32(3) of the Rules of High Court, the defendant brought an
application in terms of Rule 30 of the Rules of High Court seeking
the setting aside of the plaintiffs' summons as a irregular step.
[4]
First and second plaintiffs in turn, and also in terms of Rule 30,
applied for the setting aside of the defendant's application in
terms of Rule 30.
[5]
At the hearing of this matter counsel were agreed that the merits of
the first and second plaintiffs' Rule 30 application should be
considered first, as a finding in favour of plaintiffs, would
obviate the need to deal with the defendants Rule 30 application.
For
the sake of convenience I will continue to refer to the parties as
the first and second plaintiffs and defendant respectively
THE
FIRST AND SECOND PLAINTIFFS' APPLICATION IN TERMS OF RULE 30
[6]
Under the heading of what was styled "Notice in terms of Rule
30" First and Second Plaintiffs as Applicants gave notice that:
"...
THAT the above-named applicants will apply to the above Honourable
Court on Friday, 12 November 2010, or as soon thereafter as counsel
may be heard, for an order in the following terms:
1.
That, in terms of Rule 30, the respondent's notice of application in
terms of Rule 30 (1) dated 26 October 2010 constitutes an irregular
and/or improper step and falls to be struck out.
2.
That the respondent be ordered to pay the costs of this application
3.
Further and/or alternative rehef.
KINDLY
TAKE NOTICE FURTHER THAT the grounds upon which the
applicants
rely for the aforesaid relief are that:
(a)
On 28 September 2010 the applicants issued summons against the
respondent claiming the sum of N$ 127,265.00, together with
interest, which action was defended by the respondent;
(b)
On 22 October 2010 the applicants filed an application for summary
judgment, which matter is set down for hearing on 12 November 2010;
(c)
On 26 October 2010 the respondent filed a notice of application,
purportedly m terms of Rule 30;
(d)
The notice of application purportedly in terms of Rule 30 is
premature. It was incumbent upon the respondent to await the filing
of a declaration by the applicants in terms of Rule 20,
alternatively to serve a notice of bar on the applicants should the
declaration not be filed timeously in terms of the Rules of this
Honourable Court;
(e)
The notice of application brought purportedly in terms of Rule 30 is
brought by way of notice of motion. Rule 30 (2) in peremptory terms
provides that an application in terms of Rule 30 (1) shall be on
notice to all parties specifying particulars of the irregularity or
impropriety alleged;
(f)
It is accordingly self-evident that the applicants are prejudiced by
the aforegoing and are entitled to the relief sought in this Rule 30
application.
Kindly
place the matter on the roll for hearing accordingly... ".
[7]
At the hearing of these applications, Mr. Corbett, who appeared on
behalf of first and second plaintiffs, indicated that he was no
longer pursuing the ground set out in paragraph e) above but that he
persisted with point d) in that the defendants application in terms
of Rule 30 was submitted to be premature as it was incumbent upon
the defendant to await the filing of a declaration by the plaintiffs
in terms of Rule 20 alternatively to service a Notice of Bar should
the Declaration not be filed timeously in terms of the Rules of the
Honourable Court.
[8]
I might pause to mention that the defendant had delivered a Notice
of Opposition to the first and second plaintiffs application in
terms of Rule 30, but no answering papers were filed.
[9]
Mr. Barnard, who appeared on behalf of the defendant, indicated that
the defendant's grounds of opposition were nevertheless contained in
the Heads of Argument filed on behalf of the defendant subsequently.
Mr Corbett made no issue of this and as it appeared that the
plaintiff was, in such circumstances, nevertheless in this
unorthodox manner appraised of such grounds of opposition, and as it
thus appeared, that no prejudice was occasioned as a result, I
allowed argument to proceed.
[10]
Mr Barnard submitted further that the plaintiffs 'Notice of
Application' was irregular and liable to be set aside as it did not
comply with the requirements of Rule 6 (11) as, so the submission
went further, ' .. this notice simply aspires to be a 'Notice' and
not a 'Notice of Motion' as is required by the Rule... '. He
referred the court to Ondjava
Construction CC and Others v HAW Retailers 2008 (1) NR 45 HC at
p 48 where the court held:
"An
application in terms of Rule 30 is an interlocutory application
brought on notice to all parties. There is authority that where an
application is brought on notice the short form, Form 2 (a), to the
First Schedule to the High Court Rules should be utilized."
See:
Government
of the Islamic Republic of Iran v Berends 1997
NR 140 HC "
[11]
He pointed out that it appears with reference to the referred to
Form 2(a) that it inter
alia states
' ... that the affidavit of ... annexed hereto will be used in
support thereof... ' and that this formulation of Form 2(a) was
linked to Rule 6 (11) of the Rules of High Court which provides that
"notwithstanding
the aforegoing sub rules, interlocutory and other applications
incidental to pending proceedings may be brought on notice supported
by such affidavits as the case may require and set down for a time
assigned by the registrar or as directed by a judge."
[12]
It was then submitted with reference to the rule and the Ondjava
Construction decision
that this was indicative of the requirement of the number and
nature
of the affidavits which had to be annexed in support of an
interlocutory application. This rule, so Mr Barnard submitted, did
however not give an applicant the right to file no affidavits
whatsoever. He also took issue with the heading of the defendants
notice, which did not indicate that it was a 'Notice of Motion' as
was required in a substantive application or as would be required
also in an interlocutory or other incidental application.
[13]
While conceding that the first portion of the plaintiff's notice, up
to and inclusive of prayer 3, could in essence be regarded as
complying with the requirements of a 'Notice of Motion', he disputed
further that it was permissible for the plaintiffs to have set out
their grounds of the relied up irregularity in the 'Notice of
Application'. This is, so it was argued, contrary to all rules and
forms as the plaintiff was in essence setting out evidence in the
'Notice of Application'. All in all, and on a proper interpretation
of the plaintiffs 'Notice' same should really be regarded as a
'Notice' which was irregular, as not countenanced by the rules, in
terms of which it was incumbent on the plaintiffs to have brought a
'Notice of Application' in terms of the rules and not have
approached the court by way of
'Notice'.
[14]
Mr. Corbett on the other hand insisted that the 'Notice' referred to
was a 'Notice of Application' and therefore was regular. He
submitted that it was compliant with the requirements of Rule 30
(2), which in peremptory terms provides that an application in terms
of Rule 30(1) shall be on Notice to all parties specifying the
particulars of the irregularity and impropriety alleged.
[15]
He relied in this regard on the decision of Scott
and Another v Ninza
were
Jansen J held:
"Defendants
Notice in terms of Rule 30 certainly did not require to be supported
by an affidavit. All that Rule 30 (2) requires is that the notice
must specify the particulars of the irregularities complained of. It
is analogous to an exception. Nor does Rule 30 provide for any form
of reply. Plaintiff was quite entitled to give notice of intention
to oppose defendants application, but whether an answering affidavit
on behalf of plaintiff would in any way be justified can be decided
by the court hearing the application. As was held in Viljoen
v Federated Trust Ltd 1971
(1) SA 750 (O), in certain applications, in
casu an
application to strike out, "the
court must have regard only to the pleadings filed and cannot
consider any fresh matter introduced by way of evidence on Affidavit
or in any other matter." In
my view Rule 30 applications are in a similar category."
[16]
This was said with reference to what Mullins J had stated in Chelsea
Estates & Contractors CC v Speed -O-Rama 1993
(1) SA 198 (SE) 202 E-G.
[17]
It appears however on a further reading of the Scott
and Another v Ninza judgment
that such decision must be viewed against then applicable Rule 30,
as it existed during 1999 in South Africa, which required the giving
of a notice prior to the bringing of an application in terms of Rule
30, which is not the requirement in Namibia.
It appears further that the respondent there had failed to respond
to such a notice calling upon the plaintiff to remove the cause of
the defendant's complaint failing which an application was
threatened. As the respondent had failed to respond to such 'Notice'
this resulted in the applicants launching the application by way of
'Notice of Motion' in support of the application, founding
affidavits were filed on behalf of applicants. In opposing the
application, answering affidavits were filed on behalf of the
respondent. Replying and supporting affidavits were again filed by
applicants.
[18]
It would appear therefore that the relied upon dictum
does
not exactly answer the question as to whether or not it is incumbent
on an applicant in terms of Rule 30 to file any affidavits in
support of such application.
[19]
The answer to this question is however found in Swartz
v Van der Walt t/a Sentraten 1998
(1) SA 53 (WLD) were Claasen J analysed the distinction between
applications 'on notice' and those brought on 'notice of motion' as
follows:
"3.
The Rule 6 motion procedure has always been interpreted as referring
to the initiating of 'fresh proceedings'. The words 'on notice of
motion' used in the Rule have been interpreted as referring to such
fresh legal proceedings. (Yorkshire Insurance Co Ltd v Reuben 1967
(2) SA 263 (E) at 265) An application to amend pleadings is
interlocutory and not a fresh legal proceeding. The parties are
already engaged in litigation and have already complied with the
formalities of appointingattorneys and supplying addresses for the
service of documents. It is therefore not necessary to repeat all of
these formalities when seeking leave to amend pleadings which have
already been filed in accordance with these formalities.
4.
An application for leave to amend pleadings is indeed an
interlocutory application which is 'incidental to pending
proceedings' as contemplated in Rule 6 (11). (SA Metropolitan
Lewensverskerings Maatskappy Bpk v Louw N.O 1981 (4) SA 329 (O) at
332 B). Thus the application for leave to amend a pleading
contemplated in Rule 28 (4) must of necessity be an interlocutory
application falling within the meaning of Rule 6 (11). In terms of
the latter Rule, such applications are brought 'on Notice' and not
on 'notice of motion'. The difference between these two concepts has
been set out clearly in the past. (Yorkshire Insurance Ltd v Reuben
(supra); Viljoen v Federated Trust Ltd (supra);
Hendriks v Santam Insurance Co Ltd 1973 (1) SA 45 (C) at 46 D - 47 C
and then Muller v Paulsen 1977 (3) SA 206 E at 208 F-G; SA
Metropolitan Lewensversekering Maatskappy v Louw N.O (supra). An
application brought on notice does not require a supporting
affidavit unless the particular circumstances so require. That is
why Rule 6 (11) expressly uses the words '... supported by such
affidavits as the case may require ...'. Not all applications for
amendments will require affidavits as I have already set out above.
5.
Finally it should be borne in mind that Rule 6 (11) commences with
the words: 'Notwithstanding the aforegoing sub-rules ... 'Rule 6
(11) is therefore an exclusionary provision which is to be read in
contradiction to the rest of the provisions in Rule 6. It indicates
an exception to the normal rule that all applications are to be
brought on notice of motion supported by an affidavit. Inmy view an
application to obtain leave to amend is one such an exception
contemplated in Rule 6 (11)."
[20]
Claasen J's analysis seems correct and should be read in conjunction
with what said by the court in Ondjava
Construction CC & Others v HAW Retailers at
p 48 paragraph [15]. I respectfully associate myself with what was
said by the learned judges in this regard.
[21]
It has also already been held by Hoff J in the Ondjava
Construction CC and Others v HAW Retailers matter
that an application in terms of Rule 30 is an interlocutory
application to be brought 'on notice' to all parties. It is
accordingly clear that such application is governed by Rule 6 (11).
It is also clear that a Rule 30 application is an application which
is incidental to pending proceedings. It appears expressly from Rule
30 (2) that an application in terms of Rule 30 is to be brought 'on
notice'. Such application, so it was held in Swartz
v Van der Walt t/a Sentraten, does
not require supporting affidavits unless the particular
circumstances require it. Should the circumstances however require
supporting affidavits, and indeed a full exchange of affidavits, as
was countenanced by the court in Scott
and Another v Ninza, such
Rule 30 application would necessarily have to be brought on Notice
of Motion, the 'short form', Form 2(a),
to ensure a fair procedure.
[22]
If regard is then had to the plaintiffs' notice it appears that it
informs the defendant that an application for the relief set out in
prayers 1 to 3 of the 'notice' would be made on Friday 12 November
2010 at 10h00. It also informed thedefendant further of the bases,
(the grounds), on which the application would be made.
[24]
It importantly also requested the Registrar to enroll the matter
accordingly.
[25]
In substance it appears therefore that the defendant was given
'notice' of all the essential aspects pertaining to the intended
'application on notice'. In that regard the 'notice of application'
of the plaintiffs' was compliant with Rule 30(1) and (2). The
evidentiary effect of the plaintiffs' election not to fortify their
'notice of application' by way of affidavits is of course another
matter.
[26]
In the premises it must be concluded that the plaintiffs acted
within the parameters of the rules when they brought their
'application' in terms of Rule 30 'on notice'.
The submissions made on behalf of defendant in this regard can
accordingly not be upheld.
[27]
This finding then clears the way for the determination of the
remaining sole ground of irregularity relied upon by plaintiffs in
support of their application in terms of Rule 30, which was to the
effect that:
"the
Defendants Notice of Application purportedly in terms of Rule 30 was
premature as it was always incumbent on the Defendant to await the
filing of an Declaration by the Applicants in terms of Rule 20,
alternatively
to serve a Notice of Bar to the Applicants should the Declaration
not be filed timeously in terms of the Rules of Court."
[28]
In this regard it was immediately pointed out that Mr. Corbett had
neither in his Heads of Argument, nor during oral argument, relied
on any authority for this proposition. On the contrary, so Mr.
Barnard on the other hand submitted, it was clear from the
provisions of Rule 30 that a party may, within 15 days after
becoming aware of an irregularity, apply to court to have the
irregular step or proceeding set aside. That would mean that such
application can be made at any stage of legal proceedings.
[29]
Mr Barnard's submission seems to be correct as the only
pre-conditions set by the Rule would be that such application would
have to be brought within the aforesaid 15 day period, (or possibly
within an extended 15 day period in terms of Rule 27(1)),, and
provided that no further step in the cause was taken.
It would indeed appear that the legislature intended that an
application in terms of Rule 30 could be brought at any stage of 'a
cause' for as long as the applicant in a Rule 30 application would
be a party to 'a cause' in which an irregular step proceeding had
been taken.
[30]
In this regard the learned authors of Erasmus
Superior Court Practice state
with reference to Rule 30 (1) of the Rules of Court:
"Prior
to the amendment of the sub-rule in 1987 the phrase 'any cause' was
used and it was held that the words were used in the widest possible
sense and referred to any judicial proceedings of what so ever
nature.
[31]
They submit further that " ... the phrase 'a cause' in the
present (the
South African), sub-rule
has a similar wide meaning."
[32]
I can see no reason to disassociate myself from this interpretation.
Is it not a matter of daily experience in our courts that resort to
the mechanisms provided by Rule 30 is had in a wide spectrum of
judicial proceedings?
[33]
I conclude therefore that a party to any judicial proceedings, (a
cause), such
as the defendant, in the present instance, and subject to the
further requirements set by the rule, would be entitled to utilise
the mechanisms provided for by Rule 30 at any stage of the judicial
proceedings to which it is a party.
[34]
In coming to this conclusion I take into account further that
neither the provisions of Rules 20, 30 nor those contained in Rule
26 pose a bar to a party to a cause to resort to Rule 30 prior to
the filing of a declaration. Therefore and subject also to the
requirement of prejudice,
I can see no reason why a party, should be precluded from attacking
an irregular step or proceeding immediately and at any stage of
judicial proceedings, and why such party should have to await the
filing of a declaration in circumstances where, for example, a
summons has not been properly issued or where the necessary power of
attorney has not been filed.
[35]
It follows therefore that the plaintiffs' application in terms of
Rule 30 cannot succeed.
THE
DEFENDANTS APPLICATION IN TERMS OF RULE 30
[36]
The defendant's application took aim at the plaintiffs' simple
summons, and more particularly it took issue with the claim
formulation, as contained therein.
[37]
The defendant was informed in such simple summons that the first and
second plaintiff's had thereby instituted action against him in
which they claimed together with ancillary relief:
"
... Payment of the sum of N$ 127,265.00 being instalments for July
and August 2010 payable in terms of a loan agreements entered into
between the parties on 23 June 2010 which the amount is now due and
payable by Defendant to the Plaintiffs and which amount, despite due
demand, the Defendant refuses and/or neglects and/or fails to
pay;
[38]
The essence of the attack mounted on behalf of defendant was that
the plaintiffs' simple summons dismally failed to inform the
defendant of the case he had to meet. In this regard it was averred
further that the simple summons herein and were plaintiffs' claims
were based in contract, should have complied with the provisions of
Rule 18 (6) of the Rules of High Court. In support of these
contentions it was pointed out that it was evident from the content
of plaintiffs' simple summons that plaintiffs relied on one or more
purported loan agreement(s), that the Plaintiff had not stated that
the relied upon contract(s) was/were written or oral and when, where
and by whom it/they was/were concluded and that, if such contract
was written, a true copy thereof had not been annexed. These
omissions, so Mr. Barnard's argument ran further, caused prejudice
to the defendant as he would be required to plead to a summons that
was vague and unintelligible and which, furthermore even contained
grammatical errors. Accordingly the defendant was unable to
meaningfully and contextually respond to such allegations by way of
an answering affidavit to be filed in defence of the summary
judgment proceedings which had been launched against him.
[39]
Ultimately it was submitted that there was simply not sufficient
information contained in plaintiffs summons to appraise defendant
properly of what case he had to meet. This lack of particularity and
the non- compliance with the provisions of Rule 18 also undermined
the defendants fair trial rights, as entrenched by the provisions of
Article 12 of the Namibian Constitution.
[40]
Mr. Corbett on behalf of plaintiffs immediately conceded that the
claim formulation, as contained in the summons, did not specify
whether or not the relied upon agreement was written or oral and
that it was furthermore correct that the written agreement had not
been annexed. He disputed however that Rule 18 (6) was applicable to
a simple summons in which debts or liquidated demands were claimed.
He relied in this regard on Namibia
Beverages v Amupolo 1999
NR 303 (HC) and the decision of Frank
Keevey (Pty) Ltd v Koos van der Merwe Beleggings (Kroonstad) (Edms)
Bpk en „n Ander 1970
(3) SA 430 (O).
[41]
He submitted further that the relied upon cause of action as pleaded
was setting out the plaintiffs cause of action in sufficiently
precise terms. He argued therefore that the summons should stand and
the defendants Rule 30 application should be dismissed accordingly.
[42]
In the Namibia
Beverages v Amupolo Maritz
J, (as he then was), analysed the distinction between a simple
summons and a declaration as follows:
"Whereas
a plaintiff is only required to set out his or her cause of action
and the relief claimed in concise terms in a simple summons (see
Volkskas
Bank Ltd v Wilkinson and Three Similar Cases 1992
(2) SA 388 (C) at 395A), the paucity of such particulars would not
necessarily meet the threshold requirements prescribed for the
particulars to be alleged in a declaration.
The
object of a simple summons is to bring the defendant before Court
and to inform him or her of the nature and cause of the claim or
demand he is required to meet (see B
W Kuttle & Association Inc v O'Connell Manthe and Partners Inc
1984
(2) SA 665 (C) at 668C-D).
The
particulars of the debt or liquidated demand to be stated in a
simple summons need not be more than that required to sufficiently
inform the defendant of the claim to enable him or her to decide
whether or not to defend the action and to enable the Court to
decide, on an application for default or summary judgment, whether a
cause ofaction has been established or not (compare Cohen
Limited v Koekemoer 1949
(2) SA 807 (SWA) at 808 and Landman
Implemente
(Edms)
BPK v Leliehoek Motors (Edms) Bpk 1975
(3) SA 347 (O) at
350A)
Once the defendant has entered appearance to defend the action
commenced with a simple summons he is entitled to be informed with
sufficient particularity about the nature of the claim, the
conclusions of law on which the plaintiff relies and the relief
claimed (Rule 20 (2) so as to plead to except to or tender an amount
in settlement of that claim and, once the issues have been defined
in the pleadings, to prepare for trial and present his/her defence
on the basis thereof.
Because
the purpose of a simple summons and that of a declaration are
significantly different from one another, it follows that the extent
to which the claim should be particularised in the declaration must
be more extensive than the limited nature of the particulars
required by the rules applicable to a simple summons. The
requirement of Rule 20 (2) that a declaration 'shall set forth the
nature of the claim', when read together with Rule 18 (4) demands of
the plaintiff to plead, in a clear and concise manner the material
facts relied upon by him or her in support of the claim (see Trope
v South African Reserve Bank and
Another
and Two Other Cases 1992
(3) SA 208 (T) at 210G-H).
Moreover,
the plaintiff is also required to comply with the other requirements
of Rule 18 and with the guidelines relating to pleadings developed
by judicial pronouncements in that regard."
[43]
Mr. Barnard, in seeking to avoid the impact of this decision,
submitted that the above quoted observations by Maritz J had nothing
to do with the issue that had to be decided in the matter and that
they were clearly obiter
as
the learned judge had stated: "The
real issue between the Plaintiff and the Defendant is therefore of a
limited factual nature: What, if any, is the agreed credit which the
plaintiff had topass in favour of the Defendant for the promotional
products of the Plaintiffs sold by the Defendant during the
promotion?'.
[44]
Mr. Barnard also drew the courts attention to the effect of an
obiter
remark
in a judgment and its interaction with the stare
decisis rule
as formulated by the South African Supreme Court of Appeal in True
Motives 84 (Pty) Ltd v Mahdi and Another 2009
(4) SA 153 (SCA) at par [100].
[45]
It would appear that these submissions by Mr. Barnard have
substance, but this does of course not mean that I cannot consider
what was said by Justice Maritz J in this regard.
[46]
Mr. Barnard further, upon an analysis of the Volkskas
Bank Ltd v Wilkinson and 3
Similar Cases decision,
which, in turn had approved the dictum of the Cape Supreme Court in
BW
Kuttle Associates Incorporated v O'Connell Marthe and Partners
Incorporated,
pointed
out that the relied upon passage by Maritz J in Amupolo made it
clear that the decision made in Volkskas
Bank Ltd v Wilkinson had
to be distinguished as that decision had dealt with an application
for default judgment, where no notice of intention to defend had
been delivered, and where there was accordingly no need to inform
the defendant what the case was that he had to meet - and that the
Defendant there did, in any event, not intend to meet any case at
all.
[47]
Mr. Corbett tried to lessen the impact of these submissions by
submitting in turn that the remarks by his Lordship Mr. Justice
Maritz (as he then was) were not entirely irrelevant to the issues
before him, as the learned judges remarks made in regard to the
unsatisfactory nature of the pleadings show, and on the basis of
which, he ultimately granted a special costs order.
[48]
In view however of what was said by the South African Supreme Court
of Appeal in Standard
Bank of South Africa Ltd v Oneanate Investment (Pty) Ltd (in
liquidation) 1998
(1) SA 811 (SCA), (and which authority counsel seemed to have
overlooked), it becomes unnecessary for me to decide this issue
finally.
[49]
The South African Supreme Court of Appeal per Zulman JA held that
the objects and requirements of a simple summons are as follows:
"A
simple summons is for a 'debt or liquidated demand'. In terms of
Uniform Rule 17 (2) (b) such a summons is required to be 'as near as
may be in accordance with Form 9 of the First Schedule' to the
Rules. The words 'as nearly as possible' can 'hardly be taken at
their full face value' (per Schreiner JA in Trans-African
Insurance Co Ltd v Maluleka 1956
(2) SA 273 (A) at 277A, dealing with the previous Transvaal Rule 19
which contained a similar phrase). Form 9 requires that the
plaintiff's cause of action be set out in concise terms. All that is
required is that 'the claim be set out with sufficient clarity for
the Court to decide whether judgment should be granted and for the
defendant to be made aware of what is being claimed from him' (per
Berman et
Selikowitz
JJ in Volkskas
Bank Ltd v Wilkinson and Three Similar Cases 1992
(2) SA 388 (C) at 395A). As stated by Tebbut J in B
WKuttle & Association Inc v O'Connell Manthe and Partners Inc
1984
(2) SA 665
(C)
at 668C-D:
"The
object of a summons is not merely to bring the defendant before
Court; it must also inform the defendant of the nature of the claim
or demand he is required to meet. But it need do no more than that.
It need not go into minute particulars. It is for this reason that a
Supreme Court summons has been described as 'merely a label' ... or
'a general indication of claim'"
A
simple summons stands on its own feet. So, for example, a
plaintiff's right to obtain summary judgment will be adjudicated
upon in the light of averments made in the summons. There can be no
doubt that the simple summons in the instant matter sets out a
'cause of action'. This 'cause of action' is based upon a claim for
an amount due and payable by the defendant to the plaintiff in
respect of moneys lent and advanced to the defendant by way of
overdraft at the former's special instance and request. This is
sufficient particularity to enable the defendant to be aware of what
was being claimed from it and is sufficiently clear to have enabled
a court to have decided whether to have granted judgment on it.
In
an event and as pointed out by Eksteen JA in Sentrachem
Ltd v Prinsloo 1997
(2) SA 1 (A) at 15H - 16B, it is not even necessary for the purposes
of interrupting prescription that a summons, in terms of which a
creditor seeks to obtain payment of a debt, sets out a 'cause of
action' Even a summons which does not set out a 'cause of action'
can nevertheless serve to interrupt prescription of the debt
claimed. The only qualification is that the summons must not be so
defective that it amounts to a nullity."
[50]
Not only does it appear that the South African Supreme Court of
Appeal seems to cite with approval the dicta of Berman et
Selikowitz
JJ in Volkskas
Bank Ltd v Wilkinson and Three Similar Cases and
of Tebbut J in B
W Kuttle & Association Inc v OConnell Manthe and Partners Inc,
it
also appears that it's dictum is absolutely in line with what was
stated by Maritz J in Namibia
Beverages v Amupolo.
[51]
The above cases indicate an impressive concensus on this issue and
constitute strong persuasive authority, which I respectfully adopt.
Accordingly I find that, in order to pass muster, a plaintiff's
simple summons for a 'debt or liquidated demand' in terms of High
Court Rule 17 (2) (b), has to be 'as nearly as possible' in
accordance with Form 9 of the First Schedule' to the Rules. The
plaintiff's cause of action has to be set out in concise terms which
sets out the claim with sufficient particularity to enable a Court
to decide whether judgment should/can be granted and for the
defendant to be made aware of what is being claimed from him'. In
this regard the simple summons must be able 'to stand on its own
feet' and not amount to a nullity. 'The object of the summons is not
merely to bring the defendant before Court; it must also inform the
defendant sufficiently of the nature of the claim or demand he is
required to meet. But it need do no more than that. It need not go
into 'minute particulars' and it need not comply with Rule 18(4) and
(6).
[52]
When applying these principles to the present matter I would think
that the defendant here was appraised with 'sufficient clarity' and
in sufficiently concise terms that the claim against him was
contractual in nature, that the contract relied on was concluded on
23 June 2010, and that two instalments, being the instalmentsfor
July and August 2010, totalling N$ 127,265.00, had become due and
payable in terms thereof.
[53]
This, in my view, is a claim formulation, which, so to speak, can
'stand on its own feet', and on the strength of which a Court can
quite competently decide whether judgment should be granted or not.
This is then the one side of the coin.
[54]
On the other, and if a court is able to competently decide on such
claim formulation whether judgment should be granted or not, I can
see no reason, why a defendant, resisting summary judgment, and
facing such 'a general, but sufficiently precise, indication of
claim' cannot give a 'general indication of its defence'. After all
that is all that is really required of a defendant formulating a
bona
fide defence
to such action in an affidavit resisting summary judgement in terms
of Rule 32 (3) (b) of the Rules of High Court.
[55]
It should be mentioned though that it was also conceded, correctly
so, by Mr. Corbett that the claim formulation in the simple summons,
relating to the loan agreement here, was formulated in the plural.
He submitted further, that in spite of this, this aspect was
remedied in the Notice of Summary Judgment and the verification
under oath contained in the supporting affidavit thereto, in which
first and second plaintiffs clarified this aspect and from which it
appears in no uncertain terms that payment of the sum of N$ 127
265.00 was claimed on the basis of one loan agreement only.
[56]
Mr. Corbett submitted further, with some force, that, despite the
defendant's protestations to the contrary, (ie. that he was not be
able to meaningfully and contextually respond to the contents of the
plaintiffs' summons and depose to an answering affidavit in the
Summary Judgment proceedings), that these allegations were directly
contradicted in the same affidavit by the allegations :
"I
have read the Affidavit filed in support of the application for
Summary Judgment against me. I deny that I have entered an
appearance to defend herein solely for purposes of delay. I have
bona fide defences against the claim of the Plaintiffs, details of
which I shall set out at the opportune moment, subject as what is
set out below."
[57]
From these allegations, so Mr Corbett reasoned further, it must be
deduced that the claim formulation, (as contained in the plaintiffs'
simple summons, as verified in the affidavit filed in support of the
application for Summary Judgment), must have been specific enough,
on defendant's own version, to enable the defendant to positively
state that he had 'defences
against the claim of the plaintiff's'. Not
only did this statement indicate that the Defendant was able to
conclude on the information supplied in the simple summons that he
had more than one defence to such claim, it also indicated, in no
uncertain terms, that he was also able to formulate an opinion on
such defences to the effect that they were indeed bona
fide.
[58]
It would appear that this argument is sound as this would clearly
also be the only inference that can reasonably be drawn from the
defendant's own allegations.
This
argument now also reinforces the conclusion arrived at in paragraphs
[52] -[54] above.
[59]
Defendant also complained that the alleged lack of particularity in
the summons, and the non-compliance with rule 18(6) severely and
materially undermined his entitlement to a fair trial, entrenched by
the provisions of Article 12 of the Constitution of the Republic of
Namibia, given the fact that summary judgement against him would be
finalise and adjudicate upon the plaintiffs' claims against him
definitively, without him ever having been in a position to properly
defend such action.
[60]
I have already on the facts of this matter rejected the defendant's
contentions, that he was not able to meaningfully and contextually
respond to the contents of the plaintiffs' summons and depose to an
answering affidavit in the summary judgment proceedings. This
finding at least impliedly, if not directly, means that I also hold
the view that the defendant, on the facts of this matter, was indeed
placed in the position to properly and effectively resist the
plaintiffs' claims at this stage of the proceedings, given the less
stringent requirements set by the rules of court in regard to
summary judgment proceedings.
[61]
In any event I fail to see how, (in circumstances were a valid claim
formulation in the simple summons, as verified for summary judgement
purposes, and which contains sufficient particularity to enable a
defendant to be aware of what is being claimed from it, and which
particularity will even enable a court to decidewhether judgment
should be granted), such a defendant is unable to formulate an
affidavit in opposition thereto.
[62]
It must be kept in mind in this regard that all a defendant is
required to do at this stage is to put enough information before the
court to persuade a court that there is a genuine desire and
intention of adducing at the trial, evidence of facts, which if
true, would constitute a valid defence. In order to achieve that
degree of persuasiveness a defendant must do no more than assert an
intention to establish a defence by evidence at the trial. The
defendant must place on affidavit enough of his evidence to convince
the court that the necessary testimony is available to him and that
if accepted it would constitute a defence.
[63]
The threshold, which a defendant, that is facing summary judgment
proceedings, needs to overcome, is extremely low, as it has for
instance also been held in this regard that summary judgment should
for instance only be granted if a plaintiff has a 'clear and
unanswerable case'.
[64]
If one has regard to the present claim formulation it appears that
it would have been a simple matter for the defendant to have
responded to such allegations by either stating that there was a
loan agreement entered into between the parties on 23 June 2010, or
there was not. Even if it is considered that possibly two loan
agreements were relied upon, (which aspect was clarified), it would
have been a simple matter for the defendant to admit or deny the
fact that two agreements were concluded on 23 June 2010. Similarly
it does not take much to admit or deny, (and on the assumption that
an agreement was admitted, that the instalments which were allegedly
payable for July and August 2010), were either due and payable or
not. It would also have been a simple matter for the defendant to
state the ground on which payment of such instalments was either
made or not made or refused on the ground, for instance, of a
counterclaim, the foundation of which, would in any event have been
self-contained and not dependant on the claim formulation contained
in the summons.
[65]
It seems to me therefore that just because a claim formulation does
not need to go into minute particulars that this must necessarily
mean that the fair trial rights of a defendant have been breached.
While I have no doubt that insufficient particularity in a simple
summons may also infringe on a defendant's fair trial rights, (as a
defendant would clearly be entitled to be appraised with sufficient
particularity of the claim he or she has to meet), it seems
ultimately to be a question of degree, or rather of particularity,
(as either a claim formulation is sufficient or it is not), which
will determine whether or not a litigants fair trial rights have
been infringed or not.
[66]
In this case I have already held on the facts that sufficient
particularity was provided to the defendant to enable him to
effectively resist this summary judgement application, by way of a
'meaningful and contextual response' and to raise the alleged ' ..
bona
fide defences against the claim of the Plaintiffs, ... at the
opportune moment... '. In
such scenario an infringement of the defendant's fair trial rights
just did not occur.
[67]
Finally sight should also not be lost of the fact that the
defendant, in terms of Rule 32 (3) (a), could also have given
security to ward off the application for summary judgment and to
simply proceed to trial thereafter.
[68]
It follows that also the defendant's application in terms of Rule 30
must fail in law and on the facts.
THE
ASPECT OF POSTPONEMENT
[69]
In view of the dismissal of both applications in terms of Rule 30
the issue of whether or not summary judgment should now be granted
comes to the fore.
[70]
The plaintiffs seek summary judgment.
[71]
The defendant on the other hand, in his affidavit filed in
opposition to the application for jummary judgment, prays that the
summary judgment application should stand over for determination
subsequent to the hearing of the Rule 30 application.
[72]
It needs to be clarified in this regard that, although such
affidavit was annexed to a 'Notice of Opposition', in which the
defendant indicated that the affidavit of the defendant would be
used in support of the opposition of the summary judgment
application, and although such affidavit, in part, was styled in
the
same fashion that an affidavit filed in opposition to summary
judgment proceedings would customarily be styled, (in that it stated
that appearance to defend was not entered into solely for purposes
of delay, alleging at the same time that he had certain bona
fide
defences against the Plaintiffs claim etc.), defendant also
indicated expressly that he wished to raise such defences at the
opportune moment. The remainder of the body of this affidavit
basically echoed the allegations made by Mr. Roets, the defendant's
legal practitioner of record, in support of the Defendants
application made in terms of Rule 30.
[73]
As these affidavits contained no ' pleading over', the defendant was
clearly at risk for failing to disclose any defence on the merits
therein. Thus it became imperative that a postponement be sought and
obtained.
[74]
The defendant is rescued in my view by the proviso contained on Rule
30 (1), which states :
"
... : Provided that no party who has taken a further step in the
cause with knowledge of the irregularity shall be entitled to make
such application.
[75]
The filing of an affidavit in terms of Rule 32(3)(b) would have
constituted such a further step in the cause.
[76]
As it was also not contended on behalf of plaintiffs' that the
defendant's affidavit styled ' affidavit filed in support of the
Notice of Opposition', constituted such a further step, I will
accept that the defendant was precluded by the proviso to the rule,
from filing an affidavit in terms of Rule 32(3)(b), on the merits,
the moment he elected to activate the mechanisms of Rule 30. The
dictates of justice surely demand, in such circumstances, that he
now be given such opportunity.
[77]
In the result in the following orders are made:
The
First and Second Plaintiffs' application in terms of Rule 30 is
dismissed with costs, including the cost of one instructed and one
instructing counsel.
The
Defendant's application in terms of Rule 30 is dismissed with
costs, including the costs of one instructed and one instructing
counsel.
The
application for Summary Judgment is postponed to the next motion
court date, being Friday 25 February 2011, to be dealt with in
accordance with the applicable Practice Directive, if necessary.
GEIER,
AJ
COUNSEL
FOR FIRST AND SECOND PLAINTIFFS:
Mr.
A.W. Corbett
Instructed
by: LorentzAngula
Inc
COUNSEL
FOR DEFENDANT:
Mr.
T. Barnard
Instructed
by: Chris
Roets Legal Practitioners
Veldman and Another v Bester (I 3329/2010) [2011] NAHC 39 (17 February 2011);