Summary Judgment | Attorneys in Randburg and Sandton

Summary Judgment

Summary judgment is a way of bypassing a Trial and receiving relief almost instantly. For sake of clarity assume A runs a Garden service. B procures A to clean his garden. A gives B the invoice for the work completed. B does not pay A, subsequently, A sues B for non-payment.

Should B file and serve a Notice of Intention to Defend, A would have the ability to apply for Summary Judgment.

What is Summary Judgment?

It is an application to the Court, stating that the Notice of Intention to Defend is merely to delay the proceedings and that the Defendant does not have any defence to the Claim. This is allowed for under Rule 14 in the Magistrate Court Rules and Rule 32 in the Uniform Rules of Court (for High Court litigation).

When can you use Summary Judgment?

It can be used when summons was issued based on the following;

  • on a liquid document;
  • for a liquidated amount in money;
  • for delivery of specified movable property;
  • or for ejectment

What is the procedure for Summary Judgment?

An application for Summary Judgment along with an affidavit in support thereof must be served and filed on the Defendant (or his/her Attorneys) within 15 days of receipt of the Defendant’s Notice of Intention to Defend.

Who should make the affidavit?

The affidavit must be made by the Plaintiff or any one who can positively swear to the facts. It could be the owner, financial manager, accountant – whomever has first hand knowledge of the facts of the claim.

What should the affidavit state?

Due to the severity of the application, the rule and case law pertaining to it is very strict. Magistrates and Judges alike have a very strict interpretation of the Rules. The wording of the affidavit must be very specific and certain phrases must be included in the affidavit. An argument that the meaning is the same has been rejected by many Courts, as they require the exact wording as per the Rules.

In the affidavit, the deponent must;

  1. Verify the cause of action and the amount,
  2. State that in his or her 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
  3. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit.

What are the possible outcomes of a Summary Judgment application?

If a Summary Judgment application is successful, the Plaintiff will be awarded judgment against the Defendant and would have cut out the entire trial process.

However, if the application is unsuccessful the Defendant will be awarded leave to defend and may then continue with the usual litigation process.

What can a Defendant do to win opposing an application for Summary Judgment?

The Defendant would need to prove that he/she has a bona fide defence and that he/she can prove such at trial.

Summary Judgments in the Courts are very difficult to win, due to the view Magistrates and Judges take – in that it is an extreme relief as it cuts out the ability for the Defendant to extensively prove his/her defence.

However, many litigants continue using this form of relief as the Law makes provision for it and in some circumstances it is successful.

 

Aurelia Pearl Singh

Practising Attorney