Court name
High Court of eSwatini
Case number
Civil Case 404 of 2003

Shabangu and Company v Swaziland Manufacturing and Allied Workers Union (Civil Case 404 of 2003) [2003] SZHC 118 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 118
Coram
Annandale, ACJ









THE
HIGH COURT OF SWAZILAND


Held
at Mbabane Civil Cate No. 404/2003


In
the matter between


ALEX
S. SHABANGU & COMPANY Plaintiff


And


SWAZILAND
MANUFACTURING AND


ALLIED
WORKERS UNION Defendant


Coram Annandale
A

C
J


Plaintiff
Mr. M. Simelane


For
Defendant Mr. B. Dlamini


Ruling
on exception in an application for Summary Judgment


5
December 2003


An
exception was noted by the defendant against an application for
summary judgment. At this stage of the proceedings, defendant has not
filed any notice to oppose the application for summary judgment, nor
any opposing affidavit. It only relies on its exception to avoid a
judgment being considered against it. Incidentally, this is the
second time it does so, as an earlier application for summary
judgment, in which plaintiff relied on the supporting affidavit of
its own attorney was withdrawn, with tendered costs.


The
practise of the defendant, to solely rely on its exception to the
application for summary judgment, without also filing an affidavit to
oppose it, is not a salutary one.


2


In
Bader and another v Weston and another 1967(1) SA 134(C) at 136 E - G
Corbett J (as he then was) referring to application proceedings in
general but equally applicable to the present position, said:-


"It
seems to me that, generally speaking, our application procedure
requires a respondent, who wishes to oppose an application on the
merits before the court by way of affidavit... Having done so, it is
also open to him to take the ' preliminary point ... On the other
hand, I do not think that normally it is proper for such a respondent
not to file opposing affidavits but merely to take the preliminary
point."


This
time, in its second application for summary judgment, plaintiff does
not again rely on the supporting affidavit of its own attorney, also
not on the affidavit of any member of plaintiff (a firm of attorneys)
but on a very novel approach - the supporting affidavit is deposed to
by the former president of defendant, a labour

union.
It is the union which is sued for costs, arising from professional
services

rendered
to it by plaintiff.


The
affidavit of Mr. Jonga states that he has perused the particulars of
claim, that he verifies the cause of action in the matter as well as
the relief sought and the amounts claimed and that he was present
when plaintiff was mandated to represent defendant on diverse
occasions. He also makes the usual averments that the defendant has
no

bona
fide defence to the claim and that its notice to defend is solely to
delay the matter. What he does not state is how he is able to verify
the amount of the claim.


The
very odd aspect is that it is in fact the defendant and not the
plaintiff who does this.


The
exception taken is:


"(a) That
the deponent in (sic) the affidavit in support for summary judgment
does not have locus standi in judicio.


(b) Further
that there is no allegation that he has been authorised to depose to
the affidavit, nor does he furnish proof of such authority;


3


(c) That
Rule 23 contemplates that the Deponent should either be the plaintiff
or an agent of the plaintiff, not the plaintiff's attorney. "


The
last ground has no merit. In the first application for summary
judgment, the supporting affidavit was made by the plaintiffs own
attorney, Mr. Simelane. This identically worded ground of exception
was then raised, and it was applicable at that time. Presently, no
affidavit by the plaintiff's attorney comes into play and to except
to a non-existent aspect is patently unjustified. At best, one could
perhaps assume that this paragraph was inadvertently carried over
from the previous exception.


The
second ground also has no merit. Mr. Simelane, plaintiff's attorney,
correctly relies on the legal position regarding the drafting of
affidavits, where deponents regularly include the unnecessary phrase
of: "I have been duly authorised to depose to this affidavit."
An affidavit is evidence which does not in the ordinary course of
events require authorisation. In this regard, Sapire CJ held the
following in Swaziland Building Society v Kalanga Ltd., umeported
Swaziland High Court Civil Case No. 1496/97:-


"The
first point taken in the opposing affidavit is that Nigel Caplen does
not disclose any basis of authority for him to depose the affidavit.
This is a bad point and I have on a number of occasions pointed out
that no deponent to any affidavit requires any authority to provide
evidence of facts within his knowledge. The act of attesting an
affidavit is the same as giving evidence and is a personal act of the
witness for which he requires no authority. "


The
second ground of the exception thus equally cannot stand.


The
first ground of the exception is the only one that requires further
consideration. Prior to deciding on locus standi it is helpful to
first briefly look at what is actually before the court, namely an
exception to a summary judgment application. Summary judgment
procedure, of English origin, was introduced to assist a plaintiff in
a case where a defendant, who cannot set up a bona

fide
defence or raise against a plaintiff's case an issue which ought to
be tried, enters appearance merely to delay the granting


4


of
the plaintiff's rights. Rule 32 was designed to prevent a plaintiff's
claim, based on certain causes of action, from being delayed by what
amounts to an abuse of the process of court. In certain
circumstances, therefore, the law allows the plaintiff, after the
defendant has entered appearance, to apply to court for judgment to
be entered summarily against the defendant, without a trial. The
intention is not to shut the door to a defendant who has a triable
defence. This remedy is extraordinary and very stringent, permitting
judgment without a trial, closing the doors of court to a defendant.
Consequently, it should be resorted to and accorded only where the
plaintiff can establish his claim clearly and the defendant fails to
set up a bona fide defence. (see Erasmus, Superior Court Practice
(Loose Leaf Service No. 7, 1992) at Bl- 205 and 206 and the
authorities there quoted).


Exceptions
must go to the root of the pleading excepted to, the allegations of
which are assumed to be true for the purposes of the exception. A
pleading is exceptionable when it reveals conditions that ought to
have been fulfilled, but which omits an averment that they have been
performed (Purcell, Yallop & Evere (Pty) Ltd v Lambrecht 1912 CPD
1044) The object is to dispose of the case or a portion thereof
expeditiously. The onus is always on the excepient to satisfy the
court that sound and adequate grounds exist why an exception should
be upheld. (City of Cape Town v National Meat Suppliers Ltd 1938 CPD
52). Exceptions to pleadings can be taken when it discloses no cause
of action or defence, or where it is vague and embarrassing and the
cause thereof is not removed.


Mr.
Simelane strenuously and repeatedly argued that the defendant is not
entitled to except at all. This argument is based on the assertion
that it is the affidavit in support of the summary judgment
application that causes the objection, and that exception cannot be
taken against the affidavit as it is evidence and not a pleading,
which points could only be raised in an affidavit resisting summary
judgment.


If
this argument is to be sustained it would be to lose sight of the
heart of the matter, namely that "an exception is designed to
obtain a decision on a point of law which will dispose of the case in
whole or in part, and avoid the leading of unnecessary evidence at
the trial", to quote plaintiff's attorney who relies on Brown v
Vlak 1925 AD 56 at 58 for the above citation. To hold that it is not
competent to raise the issue


5


of
lack of locus standi on exception is to also ignore the fact that the
supporting affidavit of Jabulane Jonga is an inextricable part of the
summary judgment application, which if granted without further ado,
will close the doors of court to the defendant. If defendant's
exception fails, on the other hand, it will have only itself to blame
for not opposing the application by way of an opposing affidavit as
well, taking objection in limine to the locus standi of the deponent.


Furthermore,
to hold as so strongly contended by plaintiff's attorney, would be to
ignore what Tebbutt J (as he then was) held in AAIL (SA) v Muslim
Judicial Council 1983(4) 855 CPD at 860 E

-
G,
approving of and following Anirudh v Samdei and others 1975(2) SA
706(N). He held that:


"...
I

respectfully agree with his (Howard J in the referred to Natal
decision) (my insert) reasoning and similarly agree with his
conclusion that the question as to whether a party has the necessary
locus standi to sue or be sued (in the resent matter, to depose to an
affidavit in support of summary judgment) is a matter which can
competently be dealt with on exception. "In Anirudh v Samdei
(supra), Howard J came to the conclusion which he did after
consideration of similar grounds raised by the present plaintiff's
attorney. It was set out as (at 707 G - H):


"His
opposition rested four square on the contention that Rule 23(1) of
the present Rules limit the grounds of exception to those which it
mentions, viz. that a pleading is "vague and embarrassing"
or "lacks averments which are necessary to sustain an action or
defence. "


Our
Rule 23(1) in Swaziland equally refers to the abovementioned two
grounds applicable to exceptions. I am of the view that it would be
an overly restrictive interpretation to refuse an exception merely on
the absence of such an averment in an exception on locus standi which
equally goes to the core of the complaint. I respectfully agree with
the views held by both Tebbutt J and Howard J as mentioned above. It
cannot be the position to refuse to entertain a point of non locus
standi


6


raised
by an exception, instead of it being raised in limine as part of an
affidavit resisting summary judgment.


Before
I proceed to the real merit of the matter, there is one further
point, which was not argued by either of the attorneys, and that is
the form of the exception itself.


Apart
from the three grounds contained in the notice of exception, referred
to earlier on, all it further contains are the words:


"Take
notice further that plaintiff is afforded 14 days within which to
remove the cause of complaint. "


The
glaring omission is the absence of a prayer that the plaintiff's
application be dismissed or that the pleading excepted to be set
aside or for such other relief which may be competent. An exception
which is lacking in such a prayer for relief, when the complaint is
not removed or rectified or appropriately addressed, is bad in law.
There is no application

before
me in which this defect is sought to be cured, rectified or amended,
but, as said, no such point has been taken by Mr. Simelane.


This
gives rise to two questions, the first being if the court should mero
motu consider it, perhaps to cure it without an application to do so,
but more importantly, whether it is only bad in law or whether it is
a nullity.


In
Vernom and Others N.

N.
O.
v Bradley & Others N.

N.
O.
1965(1) SA 422(N) Henning J held at 424-A that:


"Accepting
the position (upholding of an exception, which is bad in law for want
of a prayer in conclusion without an amendment providing for a prayer
as done by a full bench in Natal) (my insertion) as I am bound to do,
that an exception which lacks a prayer is bad, I am in no doubt that
the Court has the power to order an amendment to make good the
defect, provided no prejudice or injustice is thereby caused to the
respondent. The requirement of a prayer is not laid down by the
Rules, and can only be a matter of practice. I can see


7


no
reason to believe that this rule of practice is imperative, in the
sense that non-compliance therewith renders an exception a nullity."


I
respectfully agree with the approach adopted by Henning J. As ho
point on this basis was taken by Mr. Simelane and no argument was
advanced as to whether the plaintiff would suffer any prejudice if
the bad exception was to be considered, even in the absence of an
application to amend it, I do not consider it to be of such
consequence that the excipient has to be turned away from being heard
due to the defect.


Accordingly,
the exception is not found to be a nullity and secondly, if
necessary, the court shall be at liberty to order an appropriate
prayer as deemed to tie; apposite.


I
now turn to consider the affidavit itself, which was filed in support
of the summary judgment application, and excepted to. Rule 32(3)(a)
regulates the requirements of the affidavit which is to be
considered. It reads in part that:


"...an
affidavit verifying the facts

on
which the claim, or the part of the claim, to which the application
relates is based and stating that in the deponent's belief there is
no defence to that claim or part, as the case may be, and such
affidavit may in addition set out any evidence material to the
claim."


This
differs materially from the South African equivalent (Rule 32(2)),
which requires "..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 has been
delivered for the purpose of delay."


Further,
materially different ancillary matters are also contained in the two
different Rules. This makes it difficult to seek guidance and
precedents in South African sources of law, which patently has a very
different perspective, though some principles are comparable.


8


Under
South African Law, despite a thorough search, I was unable to find
any

precedent
in which the deponent to the affidavit in support of a summary
judgment

application,
qualified in that sub-rule as :-


"...(the
plaintiff) or by any other person (my emphasis) who can swear
positively to the facts verifying the cause of action and the amount
...claimed..".


has
been disqualified for reason of being, actually, the defendant (or
its representative). Possibly, there is no precedent because this may

never
have been done, and judicially considered. It is also possible that
my available research materials and facilities are inadequate. The
authorities are trite "that the affidavit should be made by the
plaintiff himself or by any other person who can swear positively to
the facts; that it must be an affidavit verifying the cause of action
and the amount, if any, claimed; and that it must contain a statement
by the

deppnent
that in his opinion there is no bona fide defence to the action and
that notice to defend has been delivered solely for the purpose of
delay." (per Corbett J

A
(as he then was) in Maharaj v Barclays Bank Ltd 1976 SA (1) 418
(A.D.) at 422 B - C).


In
Swaziland, Rule 32(3)(a), as it presently stands, does not specify by
who the affidavit is to be made, at all. Nor does it even require the
quantum of the claim to be verified. It does require a stated belief
that there is no defence to the claim, but not


also
that the defence is not bona fide or that the notice to defend is
dilatory or that it has been delivered solely for the purpose of
delay. In addition, such an affidavit may even contain statements of
information or belief with the sources and grounds thereof.


Stripped
of all but the bare essentials, the deponent of the affidavit in our
law is really only required to verify the facts on which the claim is
based and to state his belief of a non defence. There is no
pre-qualification of the deponent.


I
do hold reservations about the propriety of having the former
president of the defendant depose to an affidavit to support a
judgment sought to be taken against the Labour Union which he
represented at the plaintiff law firm when it was mandated.


9


During
the hearing of argument, I thrice asked Mr. Simelane why the
plaintiff himself did not depose to the affidavit. On all three
occasions he steadfastly changed the subject, evading a direct
answer. The answer remains a mystery. Nevertheless, despite careful
consideration, I cannot come to the conclusion that the exception
must be upheld on the first ground either. The deponent swears
positively to the facts within his personal knowledge, he verifies
the particulars of claim and the cause of action, as well as the
relief (sought) and the amount claimed. This, in my view, satisfies
the requirement that he must verify the facts on which the claim is
based. He fortifies this with his further disclosure that he "was
present on the various occasions when the plaintiff was mandated to
represent the defendant, in the company of (his) vice President and
Secretary General." He finally states his belief that there is
no defence to the claim. Despite the above remarks about whether his
identity, his personal tie with the defendant, is in consonance with
established principles and practise, it cannot derogate from his
ability to swear positively to the facts, verifying the claim. He is
in a unique position to do so. Attorney/client privilege also is no
bar, as the privilege does not vest in the attorney but in the
client, who has chosen to abandon it.


Accordingly,
the exception is dismissed, which costs incidental thereto to follow
the

event.


No
defence has been raised by defendant, which might have been
considered by the court. Defendant did not avail itself to the filing
of any affidavit to resist the application for summary judgment as it
was entitled to do. It had more than ample time to do so, if indeed
it has any defence to the claim. That leaves only the evidence in the
affidavit in support of the application to be considered, with
nothing to gainsay it. As said above, defendant chose to solely rely
on its exception and no more, choosing thereby to stand or fall by
it. With the exception having been dismissed, the

outcome
of the matter is inevitable.


Summary
judgment is ordered to be entered against the defendant, as set in
the

combined
summons, with costs.


ANNANDALE,
A

C
J