Court name
High Court of eSwatini

Gamedze v Thwala () [2000] SZHC 54 (05 May 2000);

Law report citations
Media neutral citation
[2000] SZHC 54
Coram
Masuku, J









IN
THE HIGH COURT OF SWAZILAND


CASE
NO. 2115/99


IN
THE MATTER BETWEEN:


NOKUTHULA
GAMEDZE Plaintiff


and


EPHRAEM
THWALA Defendant


CORAM
: MASUKU J.


FOR
PLAINTIFF: MR W.E. MKHATSHWA


FOR
DEPENDANT: M J.S. MAGAGULA


JUDGEMENT


5th
MAY, 2000


By
Simple Summons dated 26th August, 1999, the Plaintiff instituted
action for payment of a sum of E 7,000.00 being the balance of the
purchase price of a motor vehicle sold by the Plaintiff to the
Defendant, interest thereon and costs. The Defendant filed a Notice
to Defend the action. In response thereto, the Plaintiff filed a
Declaration.


In
the Declaration, the Plaintiff stated that on 19th September, 1998
and at Mbabane, she entered into a written agreement of sale in
respect of which she sold and delivered a motor vehicle to the
Defendant. The terms of the sale were the following:-


(i) that
the purchase price was E57,000.00. The Defendant was to pay a deposit
of E50,000.00 on signature of the agreement.


(ii) the
balance of the purchase price was to be liquidated in two monthly


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instalments
of E3,500 (three thousand five hundred Emalangeni) on each of the
succeeding months of October and November, 1998.


(iii) that
the vehicle was sold "voet stoots".


The
Defendant paid the deposit as agreed but neglected or refused to pay
the balance thereof, namely the amount of E7,000.00. The Plaintiff
then proceeded to apply for summary Judgement which was opposed by
the Defendant.


In
an Affidavit resisting summary judgement, the Defendant stated that
the said vehicle had latent defects which were known to the
Plaintiff, but which the Plaintiff did not disclose to the Defendant
at the time of the sale. The latent defects alleged are that the
vehicle failed to drive evenly on the road and it would lose balance
due to a damage to the chassis which resulted from an accident in
which the vehicle plunged into a ditch on its way to Durban.


It
is further alleged that from the said accident, the engine was also
damaged and a piston was not functioning properly. Furthermore, the
engine tappets were making some strange noise as a result of which
the Plaintiff was approached. The Plaintiff did not disclose the
story behind the malfunctions, content only to advise the Defendant
that the tappets needed oiling.


In
its Replying Affidavit, the Plaintiff denied that the vehicle had the
latent defects alleged of which she knew and omitted to disclose. It
further stated that by operation of the "voetstoots"
clause, the Defendant had no defence. The Plaintiff further stated
that the vehicle was subjected to a road worthiness test in which the
latent defects alleged would have been detected. Lastly, the
Plaintiff stated that it was significant that the alleged defects
were only raised when demand for purchase price was made and not
before, thus casting doubt on the genuineness of the alleged defects.


This
necessitated the Defendant applying for and being granted leave to
file a supplementary affidavit to deal with the last allegation. The
supplementary affidavit was never filed by the Defendant's attorneys
as undertaken. On the date to which the matter was postponed for
finalizing the hearing of the Summary Judgement


3


application,
none of the parties' representatives attended Court. As has now
become the rule and not the exception with some attorneys of this
Court, Mr Mkhatshwa and Mr Magagula not excepted, no apology or
explanation was tendered to Court for the non-appearance of the
attorneys on the date agreed to by the parties. I then decided to
deal with the matter on the basis of the papers before Court and the
substantial argument then advanced. I did this so as not to cause the
litigants to incur further unnecessary costs for the summary
judgement, especially since it is my view that the matter can be
decided on the papers notwithstanding the absence of the
supplementary affidavits.


According
to the provisions of Rule 32 (2), Summary Judgement applies to
claims, in the following catergories; (a) liquid document, (b) a
liquidated amount in money, (c) delivery of specified movable
property or (d) ejectment. The claim in question falls under
catergory (b).


Summary
judgement has been described as a very stringent and extra ordinary
procedure in that it closes the door of the Court on the face of the
defendant. Summary judgement, in view of the foregoing is granted
only in circumstances where it is clear on the papers that the
Plaintiff has an unanswerable case.


According
to Herbstein and Van Winsen, "The Practice of the Supreme Court
of South Africa, Fourth Edition, Juta, 1997, at page 442, the
defendant must set out his defence fully. The learned authors proceed
to state as follows;-


"This
has been held to mean that while the defendant need not deal
exhaustively with facts and 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 a court to decide whether the affidavit discloses a bona

fide
defence. A bona

fide
defence is disclosed if the defendant swears to a defence, valid in
law, in a manner that is not inherently or seriously unconvincing. In
other words, the affidavit must set out facts that, if proved at the
trial, would constitute a defence to the plaintiff's action.


4


In
one judgement, considered to be a locus classicus on the subject,
Corbett J.A., in MAHARAJ v BARCLAYS NATIONAL BANK LTD 1976 (1) SA 418
(AD) at 426 A, stated the responsibility of a Defendant in summary
judgement with devastating candour and absolute clarity. The learned
Judge stated as follows:-


"Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgement is by satisfying the Court by affidavit that he
has 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 has "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 judgement, 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 .... 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. "


Having
set out the law applicable from the above-cited authorities, one
needs to turn to the facts of the matter as earlier set out in order
to decide whether the Defendant has met the criteria so eloquently
set out by Corbett C.J.


5


The
Defendant in casu has raised the defence that the "voetstoots"
clause, on which the Plaintiff relies should not avail because there
were certain latent defects fully known to the Plaintiff which she
did not want to disclose to the Defendant at the time of the sale.
Allegations of an accident which occured in Durban whilst the merx
was still in the Plaintiff's ownership and possession are made
coupled with the resultant latent defects. The Plaintiff has not
responded to the allegations relating to the accident at all in the
reply. The Defendant has stated amounts expended in restoring the
merx, to a good state of repair and pristine condition.


In
view of the aforegoing, the Defendant has in my view alleged facts
which constitute a defence. He has fully disclosed the nature and
grounds of the defence, together with the material facts upon which
it is predicated. It is also worth mentioning that having regard to
the facts alleged by the Defendant, it appears that he has a defence
which is bona fide and good in law. It would be inappropriate nor
advisable for the Court to attempt at this forum to decide these
issues, or, as stated by Corbett C.J., to attempt to determine
whether or not there is a balance of probabilities in favour of one
or the other party. These are, in my view, issues that would best be
ventilated in a trial. I am not convinced that the Plaintiff has in
the papers an unanswerable case.


In
view of the foregoing, I find it appropriate, in view of the nature
of the remedy sought and the effect it has on the Defendant, to
refuse summary judgement. The Defendant is granted leave to defend
the main action.


Costs
of this application are to be determined by the trial Court.


T.S.
MASUKU


JUDGE