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Economy Investments (Pty) Ltd and Others v First National Bank of Botswana Limited (previously named and known as Financial Services of Botswana Limited) (Civil Appeal No. 8 of 1996) [1996] BWCA 51; [1996] B.L.R. 828 (CA) (19 July 1996)

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1
IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA 3ELD AT LOBATSE
CIVIL APPEAL NO. 8/96
HIGH COURT CIVIL CASE NO. 1723/95
In the matter between:
ECONOMY INVESTMENTS (PTY) LTD - First Appellant
WEBSTER NDODA MASENYA    - Second Appellant
YOLINDA MASENYA  - Third Appellant
and
FIRST NATIONAL BANK OF BOTSWANA - Respondent LIMITED (PREVIOUSLY NAMED AND KNOWN AS FINANCIAL SERVICES COMPANY OF BOTSWANA LIMITED)
Advocate A. Gautschi for the Appellants Mr. Attorney B.B. Tafa for the Respondent
JUDGMENT
CORAM;   AGUDA, J.A.
TEBBUTT, J.A. LORD COWIE, J.A.
TEBBUTT J.A.:
The granting of an order for summary judgment in favour of the respondent against the three appellants in the High Court is the reason for this appeal. In the High Court respondent, to whom I shall refer as "the Bank", was the plaintiff and the three appellants first, second and third defendants respectively. On 1 September 1995 the Bank issued summons against first appellant for payment of two amounts (a) P121,319.35 and (b) Pi,648,457.23 together with interest and costs based upon two claims A and B. It also prayed that the right, title and interest of first appellant in certain properties mortgaged by it to the Bank be

4
,.~4 wrf '
, ' / : .        2
declared executable. In the same summons the Bank claimed as against second and third appellants, jointly and severally with first defendant payment of the sum of PI,000,000 and costs based upon certain suretyships to which second and third appellants had bound themselves.
As particulars of the two claims are important for this judgment,
I cite the relevant portions of them in full.
They read thus: "CLAIM A
2. 2.1 During or about July 1991 and at Gaborone, the Plaintiff represented by its then General Manager or other duly authorised representative, and the First Defendant represented by Second Defendant, entered into a written Agreement in terms whereof the Plaintiff agreed to lend and advance to First Defendant an amount of P115,532.47 (One Hundred and Fifteen Thousand Five Hundred and Thirty Two Pula and Forty Seven Thebe) to enable First Defendant to acquire Lease Area No. 153-KO, situate on Portion 29 of Crocodile Pools No. ~ 15-K0 in the South East

Administrative District. 2.2 The said Agreement had the following express or tacit terms:-
2.2.1  
that First Defendant shall effect repayment of the       said loan, together with accrued interest in the manner set out in the Agreement;
2.2.2  
that     the Plaintiff shall charge First Defendant interest on the sum advanced, at the rate of 1 3 % per annum ,

4 calculated monthly in advance on the residual balance of the amount owing by the First Defendant to Plaintiff by way of capital and interest;
2.2.3  
that     the Plaintiff may alter  the rate         of interest charged in terms of the Agreement upon one month' s written notice   to First Defendant;
 2.2.4  
that in the

5
event    of
First
Defendant
failing to
effect
payment of
any
instalment of
capital and
interest
payable to
the Plaintiff
timeously and
in full, the
whole amount
owing    by
First
Defendant in
terms of the
Agreement
shall
immediately
become due
and payable. The Plaintiff duly advanced the agreed amount of the loan to First Defendant in terms of the aforesaid Agreement.

6 Following written notice to First Defendant, Plaintiff has duly revised the rate of interest accruing on the residual balance of the capital sum advanced to First Defendant to the current rate of 15% per annum, calculated as aforesaid.
In breach of the above stated terms and conditions, the Defendant failed to effect payment to the Plaintiff of amounts due and payable timeously, or at all. In the premises, the total balance of the Defendant's account became immediately due and payable and, notwithstanding demand, the Defendant has failed and/or refused to pay said amount, which as at 14 August 1995 totalled P121,319.35 (One Hundred and Twenty One Thousand Three Hundred and Nineteen Pula and Thirty Five Thebe) inclusive of accrued interest.
During or about June 1992, and at

7 Gaborone, the Plaintiff, represented by its then General Manager or other duly authorised representative, and the First Defendant, represented by Second Defendant entered into an Agreement in terms whereof the Plaintiff agreed to lend and advance to First Defendant an amount of PI,225,820.71 (One Million Two Hundred and Twenty Five Thousand Eight Hundred and Twenty Pula and Seventy One Thebe) to enable First Defendant to acquire Tribal Lot 969 and Tribal Lot 970 Tlokweng.
The said Agreement had the following express or tacit terms:-3.2.1 that First
Defendant
shall effect
repayment of
the      said
loan,
together with
accrued
interest in
the manner

8
set out in
the
Agreement;
3.2.2    that     the

Plaintiff
shall charge
First
Defendant
interest on
the      sum
advanced, , at
the rate of
1 4 %    per
annum , calculat ed monthly in advance on the residual balance of the amount owing by the First Defendant to Plaintiff by way of capital and interest;

9
Plaintiff may-
alter    the
rate     of
interest
charged in
terms of the
Agreement
upon one
month' s
written
notice   to
First
Defendant;
3.2.4 that in the
event of
First
Defendant
failing to
effect
payment of
any
instalment of
capital and
interest
payable to
the Plaintiff
timeously and
in full, the

10
whole amount
owing    by
First Defendant in terms of the Agreement shall immediately become due and payable.
3.3    
The Plaintiff duly advanced the agreed amount of the loan to First Defendant in terms of the aforesaid Agreement.
3.4    
Following        written notice to        First Defendant, Plaintiff has duly revised the rate of interest accruing on     the residual balance of the capital sum advanced to First Defendant to the current rate of 15% per annum, calculated as aforesaid.

11 3.5 In breach of the aforesaid terms and conditions, First Defendant failed to effect payment to the Plaintiff of amounts due timeously, or at all. In the premises the total balance of First Defendant's account became immediately due and payable and, notwithstanding demand, First Defendant has failed and/or refused to pay said amount, which as at 14 August 1994 totalled PI,648,457.23 inclusive of interest."
The particulars of claim, in paragraphs 4.1 to 4.7 inclusive, allege that first appellant registered a series of seven mortgage bonds in favour of the Bank over its right, title and interest in certain properties as "continuing security and covering bonds" for the amounts owing by it to the Bank. In regard to these bonds paragraph 5 of the particulars of claim, where relevant,

12 eads as follows:
"5. The said Mortgage Bonds, being Nos. 1078/91, 1303/93, 381/92, 461/92, 1477/92, 909/93 and 679/93 expressly provide inter alia:
5.1     
5.2     
5.3    
that all amounts advanced by the Plaintiff shall become due and payable on demand;
5.4    
that in the event of default in the payment of any amounts due and payab1e to the Plaintiff, the payment of which is secured by the said Bonds, or in the event of a breach of any other obligation imposed by the said Bonds, all amounts secured by the bonds shall, at the Plaintiff's option, forthwith become

13 legally claimable and due without notice and the Plaintiff may forthwith proceed for the recovery thereof; 5.5 That a Certificate signed by the Manager of any branch of the Plaintiff shall be sufficient evidence for the purpo s e of obtaining provisional sentence/judgment in any competent Court or law for the amount owing by First Defendant to Plaintiff."
Paragraph 6 of the particulars of claim refers to second and third appellants alleging that on or about 8 July 1992 they guaranteed and bound themselves as sureties for the repayment on demand of all sums of money which first appellant may owe to the Bank with a limit of Pi,000,000. Paragraphs 6.2.5 and 7 then read as follows:
"6.2.5 that the amount of the
indebtedness of the
First Defendant and of

14
Second and Third
Defendants shall be
determined and proved
by a Certificate signed
by any authorised
official of the
Plaintiff and shall
constitute proof of the
amount of the
indebtedness of Second
and Third Defendants to
the Plaintiff. 7. A Certificate signed by the Manager of First National Bank of Botswana Limited, setting out the indebtedness of First Defendant to the Plaintiff as at 14 August 1995, and the rate of interest accruing thereon, and further setting out the indebtedness of Second and Third Defendants to the Plaintiff in terms of their guarantees, is annexed hereto marked "A" ."
A certificate from one John Anderson "in my capacity as General Manager of First National Bank of Botswana Limited" that as at 14 August 1995 first appellant was indebted to the Bank in the amounts of P121,319.35 and PI,648,457.23 with interest at the rate of 15% per annum and second and third appellants jointly and severally with first appellant in the sum of PI,000,000

15 respectively, was filed with the particulars of claim.
The summons was served on 14 September 1995 and on 25 September 1995 the three appellants entered appearance to defend. On 3 October 1995 the Bank launched an application for summary judgment against the appellants for the amounts claimed by it and for an order declaring the properties mentioned executable and attached an affidavit from the aforesaid Anderson in support of it. As this affidavit was the subject of an attack by the appellants both in the Court a quo and in this Court, I set it out in extenso. It reads:
"1. I am an adult male, resident at Gaborone.
2.     
I am employed by the Plaintiff in the capacity of General Manager, Property Division and I am duly authorised to make this Affidavit on the Plaintiff's behalf.
3.     
All the facts herein contained are within my personal knowledge by virtue of:-

3.1    
my involvement in this matter; and
3.2    
my control of the file which contains the documents relating to this matter.
4.       I can and do swear to the facts verifying
the cause of action and the amount claimed
in the Plaintiff's Particulars of Claim and
I annex hereto true copies of Mortgage Bonds
registered by First Defendant in favour of

16 the Plaintiff, being numbers 1078/91, 1303/93, 381/92, 461/92, 1477/92, 909/93 and 679/93. 5. It is my opinion that there is no bona fide defence to the action and that entry of an Appearance to Defend has been delivered solely for the purpose of delay."
Copies of the bonds were annexed and form part of the record but nothing turns on them or their contents at this stage.
The three appellants opposed the application and filed an affidavit by second appellant, Webster Ndoda Masenya, ("Masenya") in support of such opposition. Third appellant confirmed the contents of that affidavit in so far as they related to her and confirmed that second appellant, her husband, was authorised to oppose the application on her behalf.
Masenya is the managing director of first appellant. His wife is its other director. He averred that the application for summary judgment was fatally defective for five reasons. I shall set out in more detail those reasons and his averments in regard to them when I come to consider whether the application for summary judgment, for those reasons, was fatally defective or not. Suffice at this stage merely to say, in precis form, what they are. They are these. Firstly, Masenya averred that Anderson had no personal knowledge of the facts upon which the causes of action were based and was therefore unable to swear

17 positively to them. Secondly, Masenya averred that Anderson failed to verify all the causes of action and the amounts claimed in them. Thirdly, Anderson had wrongly annexed the mortgage bonds, they not being liquid documents. Fourthly, Anderson had not annexed copies of the agreements on which the two claims were based in the summons and, in view of the allegations in the summons based on them, the failure to do so rendered the summons probably excipiable as being vague and embarrassing. Fifthly, the Bank relied for the amounts of its claims on a certificate of indebtedness. Such certificates are contra bonos mores and therefore the suretyships were null and void and unenforceable.
It will immediately be appreciated that the appellant's never dealt at all with the merits of the case or set out what their defence or defences were to the claims, contenting themselves merely with an attack on the validity of the summary judgment application.
The matter came before Gaefele Ag.J. in the High Court who, in a written judgment delivered on 9 January 1966, granted summary judgment against the appellants with costs. It is against that judgment that appellants now come on appeal to this Court.
In his approach to appellant's objection to the application for summary judgment, the learned Judge obviously felt that as they had merely set out to impugn the validity of the application without setting out their defence to the claims, they could not resist summary judgment. This appears clear from the following

18
remarks by him.
"The basis of the defendants' defence (if it could be called that) is that the application for summary judgment is fatally
defective        However, no fatal defect
was shown to exist in the application at the time of hearing."
Then again:
"This is a matter where the nature and grounds of the defence are not disclosed."
Dealing with the contentions raised by the appellants as to why
the application was defective, the learned Judge said:
"There is simply no defence raised in so far as the above contentions by the defendant are concerned. I call these "contentions", because they do not disclose a defence to the plaintiff's claim. If the contentions could be said to be defences, they appear to me to be, for want of better description, "porcupine defences", i.e. defences made by the defendant for purposes of buying time and protecting itself from the claim by the plaintiff, without more, because should the defendant expose itself it will be harmed."
In regard to Masenya's affidavit, the learned Judge said:
"It contains no facts upon which the defendants could be said to rely. The affidavit raises, as I said earlier, only technical defences. I cannot help the

*
19 defendants."
In adopting this approach to the matter, the learned Judge erred. As I shall show in more detail later, a defendant can successfully resist summary judgment by merely attacking the validity of the application if he can show that it does not meet the requirements of the relevant Rule of Court or is fatally flawed in some other respect. He does not, in such circumstances, have to set out his defence. Indeed, he can resist the application without filing any affidavit at all.
Because of the erroneous approach in this case and lest it be repeated in other matters, it is necessary I feel, despite the fact that they have been set out in several decisions of this Court in the past, to set out again the principles that should guide the courts of Botswana when considering applications for summary judgment. In doing so it is also useful to refer to decisions in South Africa (where the relevant Rule of Court (Rule 32) is couched in exactly the same terms as the Rule of Court in Botswana) and in which principles enunciated in regard to the South African Rule are persuasive as to the guidelines which our courts should follow in applying the Botswana Rule for summary judgment. To do so, it is convenient to set out again that Rule. It is Order 34 of the High Court Rules and the main and relevant part of it reads as follows:
"ORDER 34
SUMMARY JUDGMENT
1. Where the defendant has entered an appearance to

20 defend, the plaintiff may apply to court for summary judgment on each of such claims in the summons as is only-
 (a)     based on a liquid document;
 (b)     for a liquidated amount in money;
 (c)     for delivery of specified movable property; or
 (d)     for ejectment,
together with any claim for interest and costs.

2.       (1) The plaintiff shall within 14 days after the date
of entry of an appearance to defend, 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 entry of appearance to
defend has been delivered solely for the purpose of delay.
(2) If the claim is founded on a liquid document, a copy of the document shall be annexed to such affidavit. (3) Such notice of application shall state that the application will be set down for hearing on a stated day not being less than seven days from the date of delivery thereof.
3.       Upon the hearing of an application for summary
judgment, the defendant may-
la) give security to the plaintiff to the
satisfaction of the Registrar for any judgment including costs which may be given; or

21 (b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or, with the leave of the court, by oral evidence of himself or of any other person who can swear positively to the fact that he has a bona fide defence to the action, such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor."
It has been repeated over and over that summary judgment is an extraordinary, stringent and drastic remedy in that it closes the door in final fashion to the defendant and permits a judgment to be given without a trial (see Erasmus; Superior Court Practice Bl-206 and cases cited in note 6 esp. Maharai v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423F; Du Setto (Sunny Side II) PTY Ltd and Others v Financial Services Company of Botswana Ltd Civil Appeal 19/94 (unreported) at p. 17 and cases there referred to.) It is for that reason that in a number of cases in South Africa, it was held that summary judgment would only be granted to a plaintiff who has "an unanswerable case". In more recent cases that test has been expressed as going too far (see e.g. BreitenbaclL v Fiat SA (Edms) Bok 1976 (2) SA 226T at 227F; Diesel Power Plant Hire CC v. Master Diggers (Pty) Ltd 1992 (2) SA 295 (W) at 298J-299B).

22 In Du Setto' s case supra, this court came to a similar conclusion and I repeated that view in Fashion Enterprises (Pty) Ltd v. Image Botswana (Pty) Ltd Civil Appeal 24/93 (an unreported judgment delivered on 14 July 1994 at p.12). As set out in Du Setto's case at p.17 the purpose of summary judgment is well-known. It is aimed at a defendant who, although he has no bona fide defence to an action brought against him, nevertheless gives notice to defend solely in order to delay the grant of judgment in favour of the plaintiff. It therefore serves a socially and commercially useful purpose, frustrating an unscrupulous litigant seeking only to delay a just claim against him. However, even although the plaintiff need not have to have "an unanswerable case",, it is clear that before a court will close its doors finally to a defendant it must take care to see to it that the plaintiff's claim is unimpeachable. Because of the drastic consequences of an order granting summary judgment, the courts must be astute to ensure that the procedure is not abused by a plaintiff who may wish either to secure, by the procedure, a judgment against a defendant when he knows full well that he would ordinarily not be able to obtain such a judgment without a trial or who may use the procedure as a means of embarking upon a "fishing expedition" to try to ascertain prematurely what a defendant's defence is and to commit him to it by having him testify to it on oath.
It is for this reason that the courts have insisted on strict compliance with the Rule applicable to the obtaining of summary judgment viz Order 34 (2) , (see Maharaj ' s case, supra at 423 E-H;

23 Du Setto's case, supra at p.18 of the judgment) . If there is not a sufficient compliance with that Rule or if the application is fatally flawed in any other respect, summary judgment should not be granted. For that reason a defendant is entitled to attack the validity of an application without having to set out his defence. In Mowschenson and Mowschenson v. Mercantile Atlas Corporation of SA Ltd 1959 (3) SA 362 (W) at 366B, it was stated that a defendant's remedies are not confined to the three alternative courses specified in sub-rule (3) but he is entitled to dispute the validity of the verifying affidavit or the application itself on any aspect (at 366 D-E). In that case (at 366 E-F) Marais J. said:
"If it is reasonably possible that the plaintiff's application
is defective     the issue
must, in my view, be decided in favour of the defendant." In the Maharai case Corbett J.A. at p.423 E-F said in regard to strict compliance with the Rule:
"While undue formalism in procedural matters is always to be eschewed, it is important in summary judgment applications under Rule 32 that, in substance, the plaintiff should do what is required of him by the Rule." He added
"The grant of the remedy is based upon the

24 supposition that the plaintiff's claim is unimpecheable. One of the aids in ensuring that this is the position is the affidavit in support of the application." (See also Joel's Bargain Store v Shorkend Bros (Pty) Ltd 1959 (4) SA 263 (E) at 265; Barclays National Bank Ltd v Love 1975 (2) SA 514 (D) at 517F; Pillav v Andermain (Pty) Ltd 1970 (1) SA 531 (T) at 534 P-G.)
It is for these reasons that it has been held that the validity of the application or of the verifying affidavit can be assailed by a defendant in order to resist summary judgment even without his filing an affidavit. (See Transvaal Spiceworks and Butchery Requisites (Pty) Ltd v. Coopen Holdings (Pty) Ltd 1959 (2) SA 198 at 200 B-D; Fischereigesellschaft F. Busse & Co Kommanditgesellschaf v. African Frozen Products (Pty) Ltd 1967 (4) SA 105 (C); Pillay v. Andermain (Pty) Ltd (supra) at 533A; Northern Cape Scrap and Metals (Edms) Bpk v. Upinqton Radiators and Motor Graveyard (Edms) Bpk 1974 (3) SA 788 (NC) at 793 E-H; Cape Business Bureau (Pty) Ltd v. van Wyk and Another 1981 (4) SA 433 (C); Jagger and Co Ltd v. Mohamed 1956 (2) SA 736 (C) at 73 8) . In the Fischereiqesellschaft case supra, Theron J. said in regard to the verifying affidavit in that case (at 111c):
"The affidavit did not comply with the requirements of the Rule and summary judgment should not have been granted upon it even if no opposing affidavit had been

25 filed." (my emphasis)
And in Cape Business Bureau v. Van Wyk supra Baker J. said at
439.
"A defendant can attack a summary judgment application on any ground. He can do this without filing an opposing affidavit merely by confining himself to the defects in plaintiff's verifying affidavit, summons, declaration and any further particulars furnished."
That statement of a defendant's ability to resist summary judgment purely on defects in the plaintiff's application has also found expression in this Court. In Nicola Jane Letsholo v. Botswana Housing Corporation Civil Appeal 13/1993 (unreported) Aguda J.A. referring to the decision in H.K. Gokal (Pty) Ltd v. Multhambi 1969 (3) SA 88(T) at 90 to the opposite effect, said:
"If by this the Court in that case is suggesting that a summary judgment application cannot be refused unless the defendant files an affidavit setting out a defence, with due respect, cannot be held to represent the law in this country nor can the opinion to the effect that an affidavit

26 should be filed even if only a legal objection to the application for summary judgment are raised be held to reflect the proper interpretation of Order 34 Rule 3 of our Rules. In my opinion what is important is that the defendant must give notice to the plaintiff that he intends resisting the application on stated grounds."
The appellants in casu clearly complied with the latter requirement set out by Aguda J.A.
If a defendant chooses to attack the validity of an application for summary judgment without setting out a bona fide defence to the plaintiff's claim he, of course, seeks the risk of the application being granted if he should fail in his attack because he would then have put nothing before the court to satisfy it that he has a bona fide defence to the action. What a defendant must do to comply with that part of Order 34 has been set out fully in Du Setto's supra at pp 19-20 and dealt with equally fully by Lord Cowie J.A. in First National Bank of Botswana Ltd v. Valley Sci Construction (Botswana) (Ptv) Ltd and Others Civil Appeal 52/1995 (unreported), and also by him in Sidney Tshepiso Pilane v. First National Bank of Botswana Limited and Another Civil Appeal 16/1994 (unreported). I need not repeat them here.

27 TVhat then must a plaintiff do in order to comply with the requirements of Order 34 Rule 2? That has been most succinctly set out by Theron J. in the Fischereiaesellschaft case in regard to the South African Rule of Court 32 and followed in a large number of cases in South Africa since then. (See e.g. Maharai's case supra at 422 B-C and cases there cited.) It provides guidelines which I feel are equally apposite to this country's Order 34 (2). Theron J. said thus at 107 H to 108 B, after citing Rule 32 (2) which is exactly the same as Order 34 (2):
"On an ordinary, straight-forward, grammatical interpretation of the words used here, the requirements of the affidavit would appear to consist of the following:
(a)    
that the affidavit should be made by the plaintiff himself or any other person who can swear positively to the facts,-
(b)    
that it must be an affidavit verifying the cause of action and the amount, if any, claimed; and
(c)    
that it must contain a statement by the

28
deponent that in his
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. A court will have to be satisfied that each of these three requirements has been fulfilled before it can hold that there is an affidavit before it which is in proper compliance with the Rule."
Some difficulty has in the past arisen in regard to the words in
sub-rule (2):
"        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  "
In one case it was held (by Herbstein J. in Wright v. McGuiness 1956 (3) SA 184(C)) that "the phrase 'who can swear positively to the facts verifying the cause of action' is a qualification of 'any other person'." This view has since been dissented from and that if the language of the Rule is considered carefully, it is clear that it should be read as if a comma had been inserted after the word "facts" in order to effect a plain separation between it and the word "verifying" following upon it (see the

29 Fischereiigesellschaft case at 108E--109C; Maharai's case at 422 D-H Erasmus op.cit. Bl-217 note 7 and cases there cited) . In the Fischereiqesellschaft case, Theron J. traced the origin and history of the Rule from the corresponding Order in England pointing out that there was a comma in that Order between the words "facts" and "verifying". As pointed out further by Corbett J.A. in the Maharai case, "facts do not verify; a person verifies an alleged state of facts. And where the verification takes the form of a sworn affidavit it may be said figuratively, that the affidavit verifies the facts." It is also significant that in an exactly similarly worded Rule in the Rules of the Magistrates' Courts Act in Botswana made in terms of the Magistrates' Courts Act (Cap 04:04) viz Order XIV, a comma appears between the words "facts" and verifying the wording being
"        swear positively to the facts, verifying the cause
of action        "
I agree that sub-rule (2) should be read as set out by Theron J. and that the deponent to the affidavit in support of summary judgment must "verify the cause of action and the amount, if any, claimed."
Has the Bank in this case complied with those requirements or is the application for summary judgment fatally flawed in any other respect?
In view of the incorrect approach of Gaefele Ag.J., he did not deal in any depth with the application in order to see if it was

30 defective. This court must therefore consider afresh the reasons advanced by the appellants as to why they say the application is so defective as to be unable to sustain a granting of an order for summary judgment. I shall deal with them seriatim.
Appellant's aver that in regard to the first requirement outlined by Theron J., the verifying affidavit by Anderson does not comply with it, in that Anderson did not have personal knowledge of the facts set out in the summons and that where doubt is cast upon the ability of the deponent to speak with personal knowledge as to those facts, summary judgment must be refused (see Mowschenson's case supra at 366E-367A; Barclays National Bank Ltd v. Love 1975 (2) SA 514 (D) at 515-516; Maharai's case at 423 D-E) .
It will be recalled that Anderson said that he was the General Manager, Property Division of the Bank and that he had personal knowledge of the facts by virtue of his involvement in the matter and his control of the file which contains the documents relating to it. Masenya denied those averments. Anderson, he said, was not in any of the agreements, mortgage bonds or suretyships either in the negotiation or execution of them. In my view, this is irrelevant. The negotiations leading to the loan agreements, the registration of the bonds or the suretyships are not germane to the Bank's cause of action or in any way relevant. It is on those agreements or documents themselves that the claims are founded. They would obviously be found in the file relating to the appellants which Anderson says is in his control. As General

31 Manager he would also be aware of any default by appellants of any of their obligations. What those obligations are and if any default in regard to them have been sufficiently set out is a different matter but that Anderson is a person who can swear positively to them is, in my view, beyond doubt. Similar objections to a verifying affidavit were raised in the cases of Barclays Bank v. Love supra, Maharai, Du Setto supra, and in Nedperm Bank Ltd v. Verbri Projects CC 1993 (3) SA 214 (W). In the Love case the affidavit was made by the Manager of the branch of the Bank at which the defendant had an overdraft on which the bank claimed; in the Maharai case it was the assistant to the branch manager; in the Nedperm case it was the regional manager (housing and repossessions) in the Eastern Transvaal of a bank; and in the Du Setto case, the managing director of the company which was the present Bank's predecessor. In all the cases it was held that there was sufficient compliance with the first requirement.
As stated by Miller J. in the Love case, the nature of the deponent's office in itself suggested very strongly that he would in the ordinary course of his duties acquire personal knowledge of the defendant's financial standing with the Bank. He might not know personally of every entry made in the bank's records but he could rely on those records, if he had personal control of them, to say that he had personal knowledge of the facts of the defendant's account. The same was said of the deponents in the Maharaj case and the Nedperm case where Zulman J. said, after referring to the Love case,

32 "The position is no different in the case with which I am dealing, which also concerns a plaintiff bank and a statement by an obviously senior official in the bank who says that he has control of records and that he has access to them, and that he can swear positively to the matters contained therein."
The same thing applies in the instant case, and as in the Du Setto case, where the managing director of the company, in addition to his control of the relevant file, also said that he had personal knowledge because of his involvement in the matter -an averment made similarly by Anderson. I am of the view that the Bank has adequately complied with the first requirement set out in Order 34 (2). The first objection to the application must therefore fail.
The second, third and fourth arrows in the quiver of the appellants for their attack on the validity of the application are to large measure associated with one another. They are, to repeat them, that in "verifying the cause of action and the amount claimed in the Plaintiff's Particulars of Claim" it is not clear which cause of action or amount claimed Anderson was seeking to verify, the action being based on two claims and causes of action. Secondly, that in failing to annex the

33 relevant loan agreements or to set out their terms and conditions it was not clear which obligations appellant's had breached therefore (i) creating uncertainty as to what facts Anderson was verifying and (ii) possibly rendering the particulars of claim excipiable. Thirdly, by annexing the mortgage bonds was Anderson seeking to found as a cause or causes of action any of the Bank's claims on them? If so, his verification was vague as it could not, in such circumstances, be ascertained with certainty what he was verifying.
From what I have set out above in regard to the strict compliance with the Rules by a plaintiff in order to obtain summary judgment, the requirement in respect of the verification of the cause of action and the amount claimed also demands strict compliance. As stated by Baker J. in Cape Business Bureau v. van Wyk supra at 439E: "If the plaintiff fails to verify his cause of action with clarity and exactitude, it is defective and his claim will fail". (See also Mmabatho Food Corporation (Pty) Ltd v. Fourie en Andere 1985 (1) SA 318 (T) at 321 (G) . Has the Bank met that test?
Turning to the appellants' attack on the verification part of Anderson's affidavit, it is convenient first to deal with their objection to the annexing to his affidavit by Anderson of the mortgage bonds. I can find nothing objectionable in this. In my view what the Bank is seeking to rely upon for its claims against the appellants are the two loan agreements set out in Claims A and B in the Particulars of Claim which I have set out

34 above. The amounts of those loans were secured by the mortgage bonds. The position is similar to that in the case of Nedperm Bank v. Verbri Projects supra, the decision in which was heavily relied upon by Mr. Tafa, who appeared for the Bank in this Court. There, too, the plaintiff's claim was in respect of moneys lent and advanced by it to the defendant pursuant to agreements concluded with the defendant, the indebtedness thereby created being secured by way of various mortgage bonds registered over immovable properties. There, too, the plaintiff claimed payment of the amount of the loan allegedly owing by the defendant and for an order declaring three immovable properties, the subject of the bonds, executable. There, too, the deponent to the plaintiff's verifying affidavit annexed to it copies of the bonds. It was argued that summary judgment could not be granted on a claim for an order declaring property executable, Reliance for that was placed on the decision of Heyns J. in Allied Building Society v Malic Construction and Development Co C.C. and Another 1991 (4) SA 432 (T) . Zulman J. in the Nedperm Bank case, concluding that that decision was wrong, declined to follow it. He found (at 219D) as follows
"It seems to me that the relief of declaring property executable is ancillary relief, it is a procedural matter and is not to be dealt with on the basis that it is a claim which is impermissible merely because of the provision of Rule 32(1) or

35 indeed at all." A similar conclusion was arrived at by Didcott J. (as he then was) in First National Bank of S.A. Ltd v. Ngcobo and Another
1993 (3) SA 490 (D) where the learned Judge accepted the argument of Counsel that the claim that property be declared executable did not amount in the true sense to a claim of any kind.
In a judgment delivered in the High Court of Botswana on 9 March 1995 in the matter of Barclays Bank Botswana Limited v. M.I. Ebrahim and Others Civil Case No. 1728/93 (also an application for summary judgment) Gyeke-Dako J. also declined to follow the judgment of Heyns J. and also held that the relief of declaring property executable is ancillary relief and is a procedural matter. I agree with Zulman J., Didcott J. and Gyeke-Dako J. As the claim for the declaring of the properties in question in this case executable was relief ancillary to the Bank's claims on the loan agreements, the annexing of the mortgage bonds to Anderson's affidavit would neither offend against the provisions of Order 34 nor, as contended by appellants, create claims separate from Claims A and B, thus creating uncertainty as to which claims Anderson was verifying and thus rendering his affidavit fatally defective. I accordingly find that this attack on the affidavit must fail.
In regard to the other attacks on the verification portion of Anderson's affidavit, there are indeed, as submitted by Mr. Gautschi for the appellants, two claims involving two amounts. The two claims involved two causes of action: one based on a

36
v;ritten agreement in July 1991 and one on "an agreement" in June
1992. Anderson swore "to the facts verifying the cause of action
and the amount claimed in the Plaintiff's Particulars of Claim".
Mr. Gautschi submitted that this rendered the affidavit fatally
defective as it was uncertain which of the two claims and which
cause of action he was verifying. Mr. Tafa countered this by
i arguing that while it would have been more correct for Anderson
to have verified the "causes." of action and "amounts, claimed" (I
emphasise the plurals), the defect, if such it be, was cured by
the addition of the words "in the Plaintiff's Particulars of
Claim". Assuming for the purposes of this judgment that Mr.
Gautschi is correct and that there were two causes of action
giving rise to two claims for two amounts, I am of the view that
the affidavit does nevertheless comply with the requirements of
the Rule. In Maharaj's case at 423 H-l Corbett J.A. stated that
in considering whether or not to grant summary judgment the Court
looks at the matter "at the end of the day" on all the documents
before it (see also Sand & Co Ltd v. Kollias 1962 (2) SA 162 (W)
at 165). One of the documents in this case is the particulars
of claim. It is, of course, commonplace in affidavits in matters
of litigation to refer back to what is set out in a summons or