Summary
Summary Court proceedings
- Course
- Civil Procedure (LCVP4814)
- Institution
- University Of The Freestate (UFS)
Civil Procedure application and action proceedings, as well as summary judgments.
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CASE STUDY: 1Facts
In its summons a commercial firm, Neves Builders, claimed the following (540-541 B):
“(a) Payment of the sum of R6 500, being plaintiff’s fair and reasonable charge for work done and materials
supplied by plaintiff for and on behalf of defendant at defendant's specific instance and request during
December and January 1984 and which amount defendant has despite demand refused and/or
neglected to pay although the said amount is due and payable;
(b) interest at the rate of 11% per annum a tempore morae;
(c) alternative relief;
(d) costs of suit.”
De la Cour, the defendant, entered an appearance to defend whereupon the plaintiff applied for summary
judgment which the defendant opposed. The defendant’s opposing affidavit contained the following
allegations summarised as follows (541 B-F):
In outline the defence is as follows. The plaintiff is a builder. In November 1983 defendant engaged
him to do some alteration work at a block of flats which is divided into sectional titles. The work was
not undertaken on the basis of a "fair and reasonable" charge as alleged by plaintiff, but in terms of
two quotations for R1 360 (alterations to office accommodation) and R2 600 (alterations to a flat).
The work was required to be finished before 1 January 1984. The defendant avers that the alterations
did not go well. Plaintiff’s workmen did some damage; some of the work was poorly executed and had
to be re-done by another contractor; some of the work was not done at all; work continued beyond 1
January 1984, exposing defendant to a damages claim by an incoming tenant; and various items were
removed from the site by plaintiff or his workmen. Annexed to the papers is a detailed list of the
"damages" which defendant claims to have suffered by reason of the aforegoing. He subtracts the total
damages from the aggregate of the two contract prices and arrives at a balance in favour of the
plaintiff in the sum of R2 708,10. He then says in his affidavit:
“I am accordingly prepared to acknowledge liability to plaintiff in the amount of R2708.10, which I
accordingly tender him in full and final settlement of his claim."
At the hearing plaintiff’s counsel moved for summary judgment in the amount of R2 707,90 on the basis that
the defendant in his opposing affidavit had acknowledged his liability to that amount, had shown no defence
to that portion of the claim and that the tender to pay in full and final settlement was ineffective.
SOURCE
Neves Builders & Decorators v De La Cour 1985 (1) SA 540 (C)
ANALYSIS
(1) Judging from the nature of the claim set out above, what type of summons did the plaintiff
issue?
The plaintiff issued a simple summons, the reason being that on the face of it the claim is for a
liquidated demand.
(2) Why does the plaintiffs claim only set out the bare essentials and not describe all the
material facts of the claim?
The Uniform Rules of Court simply do not require a description of all the material facts of the claim.
Rule 17 requires that all such material facts be described only in respect of an unliquidated claim. The
reason is clear: in the case of a simple summons, the claim is fixed or easily determinable. These
claims are often left undefended thereby allowing default judgment to be granted against the
CIP 301-K 2007 CASE STUDIES -1-
, defendant or if defended, would sustain an application for summary judgment. It is therefore
unnecessary to give a full statement of the claim and all that is required is that the cause of action be
concisely described in the summons. Details of the claim only become necessary if the defendant has
entered an appearance to defend and an application for summary judgment has been refused.
(Obviously the same applies where the matter is defended by agreement between the parties and
where an application for summary judgment was not made timeously.) Only at this stage is the plaintiff
compelled to furnish the defendant with a declaration. (See Uniform Rules Rule 20(1).) The declaration
must state the nature of the claim and those conclusions of law that the plaintiff is entitled to deduce
from the facts. (See Uniform Rules Rule 20(2).)
(3) What is the purpose of an application for summary judgment?
The purpose of an application for summary judgment is to obtain judgment speadily against a
defendant who has no bona fide defence against the plaintiffs claim and who has entered an
appearance to defend solely for the purpose of delaying the action.
(4) What are the grounds for an application for summary judgment?
The grounds for an application for summary judgment are set out in Rule 32 of the Uniform Rules of
Court and need not be repeated. However, it is important to understand the following.
Application for summary judgment is restricted to these four grounds. Moreover, each of the grounds
for summary judgment fall within the scope of a "debt or liquidated demand". As has been stated in (1)
above, a simple summons must be issued if the claim is for a "debt or liquidated demand". This
indicates the procedural relationship between a simple summons and the application for summary
judgment. What is also evident is that application for summary judgment cannot be brought on an
unliquidated claim in respect of which a combined summons has been issued.
(5) Why is a notice of intention to defend particularly important for an application for
summary judgment?
The Uniform Rules Rule 32(2) states that an application for summary judgment may only be brought
after the defendant has entered an appearance to defendant. The underlying reason is that defendant
indicates by entering the notice of intention to defend that he plans to raise a defence against the
claim stated in the plaintiffs simple summons. Only at this stage is the plaintiff sufficiently informed
about the defendant's true intentions and may protect his interest by means of an application for
summary judgment to show that the defendant does not have a bona fide defence and that he is
raising a defence merely as a tactic to delay the action. However, the plaintiff has a choice: on receipt
of the notice of intention to defend he or she can either apply for summary judgment or may accept
the said notice and file a declaration within the prescribed time, in which case the normal litigation
process will follow.
(6) Does the defendant’s opposing affidavit described above, disclose a bona fide defence?
Obviously, every bona fide defence raised against an application for summary judgment must be
assessed on its own merits.
In the present instance, the bona fide defence raised by the defendant attempts to show that the
plaintiff’s claim is unliquidated. If you read the summary of the defendant’s opposing affidavit carefully,
you will notice that the defendant raised the following issues in this respect:
(1) The terms of the contract are in dispute; the plaintiff contends that the contract price
is for a fair and reasonable charge whereas the defendant alleges that the contract
price was based on two quotations in fixed amounts.
(2) The defendant lists a number of complaints about the quality of work performed by
the plaintiff (eg damages done, work not done, work done late, items removed, etc)
that are relevant to the nature and extent of the plaintiffs claim.
What may also be inferred is that the contract was not in writing and therefore its terms would have to
be proved.
CIP 301-K 2007 CASE STUDIES -2-
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