Rule 32(1) of the rules of the High Court and rule
14(1) of the Magistrates Court rules
Whether it is in the Magistrates' or the High court, the rules applying to both courts have the same basic requirements for an application for summary judgment. In the High Court the applicable rule is rule 32 and in the Magistrates' Court rule 14.
In the civil procedure index we, at SA Court Rules, list summary judgment under "shortcuts to judgment", together with Provisional sentence, default judgments and confession/consents to judgment, as it, along with the other mechanisms mentioned, allows a plaintiff in an action to avoid having to obtain judgement via the usual route of a trial, provided they can bring their claim within the requirements of the rule.
It is, fairly tritely at this point, referred to as "an extraordinary, stringent and drastic remedy", and immediately thereafter referred to as no longer being such, this is as a result of the dicta in Joob Joob Investments v Stocks Mavundla Zek JV [2009] All SA 407 (SCA). (see, for example Firstrand Bank Limited t/a Wesbank v Maenet JA Attorneys Inc [2021] ZAGPPHC 612 and Beyonce Hairpiece Salon and General Mechandiser (Pty) Ltd and Another v Bester and Another [2023] ZAKZPHC 92).
The current view is most aptly summed up in Joop Joop as, "having regard to its purpose and its proper application, summary judgment proceedings only hold terrors and are “drastic” for a defendant who has no defence" (see para 33).
Summary judgment is a procedure which is available only in action proceedings, this much is clear form the wording of the respective rules, which refer to a summons:
"The plaintiff may, after the defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only-"
Application proceedings are clearly therefore excluded from the rule, the form of the proceedings is however by application. Since 1 July 2019 the entitlement of a plaintiff to apply for summary judgment arises only after the delivery of a plea by the defendant.
Under the previous wording of the rule summary judgment was an available remedy on a simple summons after receipt of a notice of intention to defend. This would now seem to be impossible, as in the ordinary course the plaintiff would deliver a declaration to which the defendant would deliver a plea which would then entitle the plaintiff to apply for summary judgment (see however the approach taken in Nedbank Limited v Mbuduma's Jazz Club CC and Others [2023] ZAMPMHC 40).
Whether the plaintiff applies for summary judgment in the High or the Magistrates court, the claim must be one of the following:
(a) 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.
The question which arises is whether claims which are in some way linked to a claim for one of the above can be brought alongside the above in an application for summary judgment. The answer, in respect of a claim in which judicial cancellation or confirmation of cancellation of an agreement is concerned, appears to be conclusively yes, the number of cases in which this relief has been granted being too numerous to list. In respect of a prayer for rectification the SCA stated in PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Ltd 2009 (4) SA 68 (SCA) that:
"A prayer for rectification does indeed fall outside the provisions of rule 32. It does so not because it is a claim impliedly excluded by that rule, but because it is not, in the true sense, a claim at all." - see para [3]
The reasoning set out in the balance of paragraph [3] of that judgment should hold true for many analogous situations, that:
"The written agreement signed by the parties and annexed to the plaintiff's particulars of claim refers to what the plaintiff alleges were the wrong premises. The plaintiff was therefore obliged to seek rectification of the written agreement in order to enable it to lead evidence that what it alleges were the correct premises were let to the defendant – for, in the absence of rectification, such evidence would be inadmissible both because of the parol evidence or integration rule and the rule that no evidence may be given to alter the clear and unambiguous meaning of a written contract. But the plaintiff's claim remains a claim for arrears owing in respect of the lease of the 4th floor office and rectification, although essential to enable the plaintiff to prove its claim, is not part of that claim."
The court in K201250042 (South Africa) (PTY Ltd v Mazel Foods (PTY) Ltd and Another [2022] ZAGPJHC 558 held, at para [15], in respect of a claim for ejectment, in which was also sought cancellation of a lease agreement, that:
"What remains is whether the court may at summary judgment stage grant an order for the confirmation of the cancellation of the lease agreement. The respondents aver that such an order is not competent at summary judgment stage. I am of the view that an order for confirmation of cancellation of the lease agreement is competent in summary judgment as it will be linked to an order of ejectment."
On a liquid document
The requirements for liquidity of a document are straightforward, the document must:
upon a proper construction thereof,
evidence by its term and without resort to evidence extrinsic thereto
an unconditional acknowledgement of indebtedness
in an ascertained amount of money,
the payment of which is due to the creditor
See Van Wyngaardt, N.O. v Knox 1977 (2) SA 636 (T), adopting the definition as set out in Rich & Others v Lagerwey 1974 (4) SA 748 (AD) at 754H in respect of Provisional sentence.
A further requirement for the application based on a liquid document is that "If the claim is founded on a liquid document, a copy of the document shall be annexed to such affidavit" - HCR rule 32(2)(c) and MCR 14(2)(c).
Even in an instance where the liquid document fails on the above definition, it is in all likelihood still a claim which would carry reasonable prospects of success on the next type of claim, namely that it is still a claim for a liquidated amount in money.
For a liquidated amount in money
The question of whether a sum which is claimed can be regarded as being liquidated is answered in Oos-randse Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk en andere (2) 1978 (1) SA 164 (W) at 168H-169A as follows:
"A money claim is liquidated if the amount thereof has been fixed by agreement or by the judgment of a Court. To those two cases one can perhaps add a third one (as suggested in Botha v. Swanson & Co. (Pty.) Ltd., 1968 (2) PH F83, and in Leymac Distributors Ltd. v. Hoosen and Another, 1974 (4) SA 524 (D), namely, if the ascertainment of the amount is a mere matter of calculation. In the last-mentioned case, however, the data upon which the calculation is to be based would themselves have to be amounts about which there was no room for uncertainty, estimation or debate. When, in order to prove his claim, the plaintiff will have to show that it, or some element in it, or some datum involved in its computation, was fair or reasonable, the claim is not liquidated."
See also Blakes Maphanga Inc v Outsurance Insurance Co Ltd 2010 (4) SA 232 (SCA) at para [17]
Extrapolating from the above quote, the requirements for a liquidated amount in money are:
if the amount thereof has been fixed by agreement or;
if the amount thereof has been fixed by the judgment of a Court; or
if the ascertainment of the amount is a mere matter of calculation.
Where the claim is to be ascertained by calculation the data or sums forming part of the calculation must not be uncertain, require estimation or debate, the most ready example being payment of a specified amount in rental in a lease agreement (see for example K201250042 (South Africa) (PTY Ltd v Mazel Foods (PTY) Ltd and Another [2022] ZAGPJHC 558). Claims for unliquidated damages are therefore clearly excluded (eg for personal injury). Essentially any claim which would require to be proved by evidence, not readily ascertainable and which could be subject to challenge in cross examination - that is, anything requiring a trial to determine.
For delivery of a specified movable
The requirements of this sub-paragraph are self explanatory.
Clearly the application could not be brought where the action claims, for example, ownership of immovable property, or where the claim is as against movable property, but which is not specified or described in such a matter as to be properly identified.
Corporeal property is considered movable if:
"its condition is such that it can be readily moved from one place to another without being damaged and without losing its identity, having regard to its size, nature and composition." see Silberberg and Schoeman's: The Law of Property, Muller et al page 41 published by LexisNexis South Africa citing Voet 1 8 11; Van der Keessel Praelectiones ad Gr 2 1 10–11; Van Leeuwen RHR 2 1 6; Huber Heedensdaegse Rechtsgeleertheyt 2 1 5.
It is worth remembering that incorporeal property may also be considered movable, for example a usufruct held over movable property.
The claim would include one based on the actio rei vindicatio, in which instance the plaitniff would need to allege and prove"
"i) that he or she is the owner of the thing, ii) that the thing was in possession of the Defendant at the time the action was commenced and iii) that the thing which is vindicated is still in existence and clearly identifiable." - see Chetty v Naidoo 1974 (3) SA 13 (A) 20 B-C
For ejectment
A claim for ejectment could also be based on the actio rei vindicatio or on breach of a lease agreement. However such a claim is most likely only to apply to leases or occupation of commercial property, the remedy for eviction of an occupier from residential or agriculture property being governed by the provisions and proceedings prescribed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998 and Extension of Security of Tenure Act, 62 of 1997 respectively.
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