FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:   

•	Case Number:	  	CA 380/2008 
•	High Court: 		EASTERN CAPE – GRAHAMSTOWN	
•	DATE HEARD: 		APRIL 24, 2009
DATE DELIVERED:   		APRIL 29, 2009 

JUDGE(S):  			CHETTY AND PILLAY JJ

LEGAL REPRESENTATIVES –

Appearances:
1.	for the Appellant(s):		ADV KOEKEMOER	 	
2.	for the Respondent(s):   	 

Instructing attorneys:
•	Applicant(s):			    
•	Respondent(s):  	 

CASE INFORMATION -
1.	Nature of proceedings:  	CIVIL APPEAL 
Topic:	Summary Judgment – Bona Fide defence what constitutes
Key Words:

NOT REPORTABLE 
IN THE HIGH COURT OF SOUTH AFRICA 
(EASTERN CAPE - GRAHAMSTOWN)
In the matter between				Case No: CA 380/2008 
TRUSTEES FOR THE TIME BEING OF THE 
MARIO BUILDERS TRUST					Appellant
And 
BLUE MAGNOLIA CC t/a SUPPLY ELEK			Respondent 
Coram:			Chetty and Pillay, JJ
Date Heard:		24 April 2009
Date Delivered:		29 April 2009 
Summary:			Summary Judgment – Bona Fide defence – what 				constitutes
_______________________________________________________________
JUDGMENT 
_______________________________________________________________
CHETTY, J

[1]	The appellant and the respondent entered into an agreement in terms of which the latter sold a 315KVA 11000/400V minisub to the appellant. The material terms of the written agreement acknowledged the payment of an initial deposit of R110 000, 00 and stipulated that payment of the balance due i.e. R127 388, 23 be effected by the last working day of January 2008. It is not in issue that the balance outstanding was not effected on the due date but three payments totalling R105 000, 00 was paid on 12 February 2008 (R50 000, 00), 28 February 2008 (R30 000, 00) and March 2009 (R25 000, 00) respectively leaving a shortfall of R22 388, 23.

[2]	The respondent in due course instituted action against the appellant in the magistrate’s court, King Williams Town, for recovery of the balance outstanding in terms of the agreement. The entry of an appearance to defend engendered an application for summary judgment. In its opposing affidavit the appellant, whilst acknowledging the terms of the agreement, alleged that the minisub was defective in certain respects and that the costs attendant upon rendering it to a workable condition amounted to R18 000, 00. In addition, the appellant averred that the failure on the part of the respondent to effect delivery resulted in the appellant having to bear the costs thereof in an amount of R6000, 00. Consequently, the appellant claimed that it had a counterclaim against the respondent in the sum of R24 000, 00, an amount in excess of the respondent’s claim against it. 

[3]	Notwithstanding the aforegoing the court below granted summary judgment. What obfuscated the issue and appears to have influenced the magistrate’s decision was the appellant’s reliance on a number of deposit slips annexed to its opposing affidavit which indicated that the appellant had in fact paid the respondent the total sum of R285 000, 00. Included amongst these deposit slips was an amount of R70 000, 00 paid to the respondent on 12 October 2007. It is obvious that this payment was unrelated to the agreement and the appellant’s reliance on this deposit slip as affording corroboration for the contention that the payments made exceeded the contract price merely added to the confusion which ultimately led the trial magistrate to conclude : - 
	
	“In light of the above and the existence of a counterclaim materially the same as the amount claimed will be sign to the court to treat it with circumspection. The respondent had been unable to show to the court either that it was a material part of the agreement that the applicant would pay for the transport of the article or that it would be supplied with the oil and circuit breaker in question. Had this been the case the respondent would surely have notified the court of what attempts had been made by him to rectify the problem with the applicant since delivery on 16 January 2008 but he is silent on this regard.”

[4]	Summary judgment is an extraordinary and stringent remedy which permits the grant of a final judgment in a defended action without full pleadings or a trial. Notwithstanding its drastic nature a court will grant summary judgment to prevent delay in a case in which a defendant fails to disclose a bona fide defence. The legal position is trite but requires repetition by reason of the magistrate’s failure to fully appreciate the import of the decisions in regard to what constitutes a bona fide defence. 

[5]	In Maharaj v Barclays National Bank Ltd Corbett JA stated the legal position thus at 426A-426E: -

	“(O)ne of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he had a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is: (a) whether the defendant had “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona fide and good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully”, as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.(See generally, Herb Dyers (Pty.) Ltd. V. Mohamed and Another, 1965 (2) S.A. 31 (T); Caltex Oil (S.A.) Ltd. V. Webb and Another, 1965 (2) S.A. 914 (N); Arend and Another v. Astra Furnishers (Pty.) Ltd., supra at pp. 303-4; Shepstone v. Shepstone, 1974 (2) S.A. 462 (N)). At the same time the defendant is not expected to formulate his opposition to the claim with the precision that would be required of a plea; nor does the Court examine it by the standards of pleading. (See Estate Potgieter v. Elliott, 1948 (1) S.A. (C) at p. 1087; Herb Dyers case, supra at p. 32)”

[6]	In my view had the trial magistrate been properly appraised of the fact that the payment of R70 000, 00 was unrelated to the agreement between the parties, he would in all probability not summarily have rejected the appellant’s averments relating to the factual substratum of the counterclaim. It follows that the appeal must succeed. The following order will issue: -

3.	The appeal is upheld with costs.
4.	The magistrate’s decision is set aside and replaced by the following order - 

“1.	The application for summary judgment is refused.
2.	The defendant is granted leave to defend.
3. 	Costs of the application are to be costs in the cause.”

_________________________
D. CHETTY 
JUDGE OF THE HIGH COURT 

Pillay, J

I agree.

______________________
R Pillay
JUDGE OF THE HIGH COURT 

Obo the Appellant: Adv J R Koekemoer