IN THE KWAZULU NATAL HIGH COURT, DURBAN REPUBLIC OF SOUTH AFRICA Case Number: 2820/2010 2821/2010 2822/2010 2823/2010 2824/2010 2825/2010 2826/2010 2829/2010 In the matter between: IMPERIAL BANK LIMITED PLAINTIFF and EUROPEAN METAL TRADING (AFRICA) (PROPRIETARY) LIMITED DEFENDANT REASONS FOR THE ORDER HANDED DOWN ON 10 AUGUST 2010 Ngwenya AJ: Introduction [1] On 10 August 2010, I handed down an order in respect of all the matters by the same plaintiff against the same defendant under the following case numbers 2820/2010; 2821/2010; 2822/2010; 2823/2010; 2824/2010; 2825/2010; 2826/2010 and 2829/2010. [2] I granted plaintiff summary judgment order in respect of each matter but ordered that it could recover costs in respect of one matter. I did not furnish any reasons to my order. [3] After my order, counsel for the defendant Mr. Tobias moved for an oral Page 1 of 9
application for leave to appeal which I considered irregular and he subsequently abandon it. Later on in August, written application for leave to appeal was filed with the Registrar. Thereafter an amended Notice of Application for Leave to Appeal accompanied by a request for written reasons for the order were filed of record. [4] I now furnish my reasons for my order. They follow below. Background [5] Plaintiff is a bank and a registered credit provider in terms of the relevant provisions of the law. Defendant is a registered company with its domicilum at 20 Kent Road, Greyville, Durban. [6] In each of the of the matters the parties entered into a separate instalments sale agreement whereby the plaintiff sold to the defendant certain truck motor vehicle for a specific sum of money payable in instalments specified in the agreement. These agreements are not governed by the provisions of the National Credit Act. Defendant took possession of the motor vehicles but failed to make payment of all the instalments that become due, owing and payable. [7] The breach by the defendant prompted plaintiff to institute these proceedings. Defendant filed appearance to defend against which plaintiff applied for summary judgment. [8] In opposing the summary judgment, defendant did not disclose any defence on the merits to the plaintiff s claim. The thrust of the defendant s 2
case was the attack on the affidavit supporting summary judgment application and verifying the cause of action. For the sake of completeness, I set first below the relevant part of paragraphs in the summons which defendant contends cannot be verified by way of an affidavit. The relevant express alternatively, implied alternatively tacit terms of the agreement were as follows: [9] Mr. Tobias for the defendant contends that if a term in agreement is express it cannot be tacit. The two are mutually destructive. Therefore the affidavit confirming such mutually destructive allegations is selfcontradictory. In this regard he sought reliance on the following decided cases Threeball Construction (Pty) Ltd v Lipschitz 1987 (2) SA 633 (W) and South African Breweries Ltd v Razco (Pty) Ltd (unreported case no. 10398/2009 KZ-D) [10] In Barclays National Bank Ltd v Smith 1975 (4) SA 675 (D), Booysen AJ (as he then was), had to deal with the provisions of Rule 32(2), as they then were. As far as is relevant for the purposes of this judgment the rule read thus: The plaintiff shall deliver notice of such application, accompanied by an affidavit made by himself 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 had been delivered solely for the purposes of delay. [11] In interpreting the Rule, the court had this to say: Page 3 of 9
It appears to me, however, with respect, that it is by no means clear that Rule 32(2), upon a proper construction thereof, required verification of the cause of action as a sine qua non to the effectiveness of the affidavit. This seems to have been the view taken in Strydom v. Kruger, 1968 (2) S.A 226 (G.W) at p. 227. The English version of Rule 32(2) is, to mind, ambiguous in that it can be interpreted as meaning either that the affidavit has to verify the cause of fact or that the person must be a person who can swear positively to the facts which verify the cause of action. Although FANNIN, J., in Mahomed Essop (Pty) Ltd v. Sekhukhulu & Son, supra at p. 730, stated that the words verifying the cause of action clearly qualify the affidavit in the English version I am of the opinion that the words are capable in their context of being interpreted as qualifying the word facts. The Afrikaans version of Rule 32(2) is however unambiguous and it is incapable of being interpreted as meaning that the beëdigde verklaring is required to verify the cause of action. The words waarop die skuldoorsaak en die geëisde bedrag (as daar is) berus clearly and unambiguously qualify the word feite. Sec. 65 of the Republic of South Africa Constitution Act 32 of 1961, which provides that the signed copy of a law shall prevail in case of conflict is not applicable to the Uniform of Court. See in this regards Steyn, Die Uitleg van Wette, 4 th ed., pp 149, 150. It appears to me that the proper approach to the interpretation of Rule 32(2) is that stated in Peter v Peter and Others, 1959 (2) S.A 347 (A.D) at p.350, namely: a reference to the other text is permissible whenever the text under consideration is ambiguous. The Legislature obliviously intends both versions to have exactly the same meaning, and that intention is carried out if the ambiguity in one text is resolved by reference to the unambiguous words in the other text. In this regard the following statement of VAN DEN HEEVER J.A., in New Union Golfield Ltd v. Commissioner of Inland Revenue, 1950 (3) S.A. 392 (A.D) at p. 406 are apposite: 4
.but when a Legislature speaks in two languages in the same breath it seems to me that that which is common to both versions must be regarded as Parliament s true intention. The surplus on one side must be regarded as due to incautious expression. [12] It is evident from the above extract that his Lordship was of the view that the supporting affidavit in the summary judgment application was meant not to verify the cause of the action but facts. It will be noted that Booysen J s judgment is in conflict with Miller J s judgment in Barclays National bank Ltd v Love 1975 (2) SA 514 (D) on the same principle. [13] Having concluded that Rule 32(2) does not require the cause of action to be verified, the learned Judge proceeded to conclude that a cause of action cannot be said to be verified by an affidavit which also verifies, albeit in the alternative, that it does not exist. Respectfully I would have thought that when the learned Judge concluded that in his opinion the Rule does not require the cause of action to be verified, that is the end of the matter. In any event, while I consider his Lordship s comments on quoted here en passant, I nevertheless take a different view on the matter, as will become clear in this judgment later. [14] The learned Judge further proceeded thus: Where summons contains alternative claims based on alternative and mutually Page 5 of 9
destructive allegations, application can in my view be made for summary judgment on one of those claims but then the verifying affidavit in order to be effective would have to verify only those allegations which support that claim. Summary judgment will be granted in respect of portion of a claim save that admission of a defence as to part will not preclude judgment as to the residue of claim. Abdurahman s Estate v. Abdurahman, 1956 (3) S.A 295 (C). Nor will it be granted in respect of one of a number of claims made not in the alternative. Garlick s Wholesale v. Davis 1927 C.P.D. 185; Abdurahman s Estate v. Abdurahman, supra. It can to my mind however be granted in respect of one of two alternative claims in a summons. In that event, however, it must be clear that the cause of action on which the particular claim is based has been duly verified.(esso Standard South Africa (Pty) Ltd. v. Virginia Oil and Chemical Co. (Pty) Ltd.,1972 (2) S.A 81 (O) at p.85). In this matter there has not been a proper verification of the cause of action relied upon because an essential allegation has in the same breath been verified and contradicted. [15] Relying on Booysens J s judgment, Stegman J, in Threeball supra, had this to say it was held at 682 D- H that where two mutually destructive versions of the facta probanda are relied on in support of alternative causes of action set out in a summons, the verifying affidavit of the plaintiff in a summary judgment application must elect between the alternative versions of the facts. If the deponent purported to verify each of the two mutually destructive alternative versions of the cause of action, he could not be said to have verified either of them. Emphasis added. [16] In South African Breweries supra, Luthuli AJ, had to deal with an allegation in the particulars of claim which stated that the terms of the oral agreement as express, alternatively, implied, further alternatively, tacit. 6
The affidavit in support of the summary judgment application confirmed these averments, according to the judgment. The learned Judge observed if a term was express it cannot possibly be tacit, but Markins confirms these inconsistent alternatives. That is not permitted. Respectfully I do not understand Threeball judgment which the learned Judge relies on, as suggesting that alternative causes of action are necessarily consistent. By their very nature in my view alternative causes of action are inconsistent but not necessarily mutually destructive. Stegman J, in Threeball had this to say on this score: Pleading inconsistent versions in the alternative is of course entirely proper. I agree with Stegman J on this score and respectfully take a different view to the one taken by Luthuli AJ. Alternative causes of action are not automatically mutually destructive. Clearly South African Breweries, supra is clearly inconsistent with previous decisions it sought to rely on. [17] In any event my approach to the matter is different. In my view the interpretation of Rule 32(2) by Booysen J, while being a correct one of the Afrikaans version, this is certainly not so with regards to the English version. The English version has the following who can swear positively to the facts verifying the cause of action The Afrikaans version on the other hand reads thus in this connection iemand anders wat die feite le en bevestig waarop die skuldoorsaak die geëisde bedrag, waar daar is, berus Clearly the Afrikaans version says less than the English version. There is no equivalent of the words can swear positively, in the Afrikaans version. The interpretation of the Rule in the manner the court did, was thus not justified. This notwithstanding the issues at hand here are not inconsistent with the gravemen of the judgment which was followed in Threeball. Page 7 of 9
[18] Coming to the facts at hand, the facts which are allegedly express, alternatively implied, alternatively tacit are set out in paragraphs 5.2 to 5.3 and read: 5.2 The Annual Finance Charge Rate ( AFCR ) compounded in terms of the payment plan would be linked in terms of the rate clause in the agreement by a margin of 0.50 % per annum below the prime lending rate as applicable from time to time, the starting rate being 14.13%. 5.3 The Defendant would liquidate the aforesaid amount by 6 instalments of R50 060.36 each at one monthly intervals commencing on 20 March 2008, 4 instalments of R26 335.38 each at one monthly intervals commencing on 20 September 2008, 11 instalments of R26 335.38 each at one monthly intervals commencing on 20 February 2010, 11 instalments of R26 335.38 each at one monthly intervals commencing on 20 February 2011, 11 instalments of R26 335.38 each at one monthly intervals commencing on 20 February 2012 and a final payment of R26 335. 38 on 20 February 2013. [19] On any reading of these averments they are complimentary to each another. Whether they were express, tacit or implied, they are not mutually destructive. Differently put each of these allegations standing alone is not a negation of the other. On the contrary the one amplifies the other. It follows that the attack of the summary judgment application on this score is misplaced and must fail accordingly. [20] I have found persuasion in Mr. Tobias s argument with regards to costs in this matter. However, I did not find persuasion that in instituting various actions against the same defendant for various causes of action, plaintiff acted irregular. Maybe there are sound economic reasons why it could have done otherwise. But certainly in my view it was well within its right in 8
terms of the law to issue out separate summons if it so chose. [21] With these consideration in mind, it follows that summary judgment should be granted as prayed in all eight matters but that costs be awarded in respect of one matter only. Ngwenya AJ Page 9 of 9