Summary Judgment: Progressive evolvement, insidious extinction or idle existence?

Summary Judgment: Progressive evolvement, insidious extinction or idle existence?
03 Sep 2021

Summary judgment is a procedure that affords a plaintiff the right to obtain judgment against a defendant summarily without proceeding all the way to trial. In its previous form and prior to the amendment (effective 1 July 2019) of Rule 32 of the Uniform Rules of Court (“the Uniform Rules”), a plaintiff could apply for summary judgment as early as the time at which a notice to defend was delivered by the defendant.

To succeed with an application for summary judgment, the plaintiff had (and still has to) demonstrate that the defendant had no “bona fide” (or genuine) defence and thus the notice to defend had been entered solely for purposes of delay. The defendant on the other hand has to demonstrate that the converse is true.

In essence, the amendment to Rule 32 of the Uniform Rules prescribes that a plaintiff can now only apply for summary judgment after the defendant has filed a plea and not after the delivery of a notice to defend.

One can only assume that the Task Team of the Rules Board who were responsible for the amendment must have intended to enhance the summary judgment procedure with the introduction of the amendment. Unfortunately, the amendment may in fact result in contentious debates and legal quagmires. One such example is the recent and interesting judgment of Belrex 95 CC v Barday 2021 (3). This case highlighted what could perhaps be the beginning of many more legal debates arising out of the amendment.

Brief and sequential facts

The plaintiff in Belrex issued summons on 4 March 2020. The defendant delivered his notice to defend on 18 March 2020 and thereafter filed his plea on 19 June 2020. In terms of the amended Rule 32 of the Uniform Rules, a plaintiff must apply for summary judgment within 15 business or court days after the filing of the defendant’s plea. The plaintiff accordingly delivered its application on 9 July 2020 and applied for summary judgment. In its affidavit (which must accompany the application), the plaintiff dealt in detail with the defendant’s plea and the reasons why (in the plaintiff’s view) it did not raise any issues worthy of being taken to trial.

On 4 August 2020, the defendant filed a notice to amend his plea as well as a special plea. Notably, this was after receipt of the summary judgment application (which was set down for hearing on 13 August 2020). It is trite that any party to proceedings may amend its pleading at any time before judgment. Amendment of pleadings and documents is dealt with and given effect to in terms of Rule 28 of the Uniform Rules. The defendant was thus well within his rights to amend his plea. However, Rule 28 prescribes a specific procedure to be followed for the amendment of pleadings including but not limited to affording the opposing party the opportunity to object to the amendment.

The amended Rule 32 does not preclude a defendant from amending his plea even after an application for summary judgment has been launched. In Belrex, His Lordship Hanney J opined that this could constitute a lacuna that a defendant could use as a stratagem to frustrate a plaintiff in proceeding with its application for summary judgment. In this regard, the defendant could as a tactical ploy file an amendment to frustrate the hearing of the summary judgment since there is no opportunity provided for in the amended Rule 32 enabling a plaintiff to launch a fresh application for summary judgment after the plea has been amended. The learned judge makes a pertinent observation in this regard. This is something that the Task Team responsible for the amendment may not have considered.

To complicate matters further, the defendant in his affidavit resisting summary judgment dealt with his defences as set out in the amended plea and not his initial plea. This as a result presented a few legal difficulties for the court to grapple with in Belrex. They are set out below:

  • Firstly, whether an application for summary judgment could be granted in terms of the amended Rule 32 where the defendant had amended his plea after the summary judgment proceedings were initiated.
  • Secondly, at what stage (during summary judgment proceedings) would a defendant be permitted to amend his plea?
  • Thirdly, would the court in determining the summary judgment application (which was based on the defendant’s plea before it was amended) be required to have regard to the defendant’s notice to amend the defendant’s plea?

The greatest difficulty that confronted the court was that the time period within which the plaintiff was entitled to object to the amendment had not lapsed. As such, the amendment had not been finalised at the time of the hearing of the summary judgment application. One could thus not speak of an amendment to the plea. It had simply not yet occurred. It then begs the question as to which plea was the court to have regard to in deciding the summary judgment application? The court remained unconvinced, and rightly so, that it could grant leave to defend to the defendant purely based on his “amended plea” or his notice of intention to amend.

The court threw a further spanner in the works in grappling with this issue. It posed the question as to what would happen in the event that there was an objection to the amendment by the plaintiff? An answer was proposed that the defendant would file an affidavit resisting summary judgment which was in line with his amended plea. The writer begs to differ with this approach as an objection could in the writer’s view similarly be directed at the allegations in the supporting affidavit which mirror the defendant’s amended plea.

In Belrex, the defendant’s opposing affidavit was inconsistent with his amended plea. Further, the plaintiff was not afforded an opportunity to deal with it as Rule 32(4) precludes the filing of a further affidavit other than the initial affidavit in support of the summary judgment application. Once again, this possibility is not envisaged in the amendment of Rule 32.

The court ultimately ruled that it was impossible for it to deal with the application for summary judgment (in the prevailing circumstances) in terms of the amended Rule 32. It provided the following reasons for reaching this decision:

  1. The amendment of the defendant’s plea was not ripe for adjudication for want of compliance with the amendment procedure (i.e. set out in Rule 28(2));
  2. Even if the amendment was ripe, the plaintiff’s affidavit in support of its application for summary judgment had not dealt with the defendant’s amended plea (in particular whether it raised an issue worthy of being taken to trial);
  3. Even if the amended plea was considered to be properly before the court, the plaintiff was precluded from delivering further evidence, in the form of an affidavit, to address the issue of whether the amended plea raised issues worthy of it being taken to trial;
  4. Because the allegations in the opposing affidavit did not match the allegations in the initial plea, it would defeat the whole object of the amended Rule 32, which required that the nature and grounds of the defence as set out in the plea and the material facts contained in the affidavit resisting summary judgment be in harmony; and
  5. It would be unfair and unjust to the defendant, who has a right to amend his plea at any stage before judgment, in particular even more so if summary judgment were to be granted against him before taking into account his defence as set out in his amended plea.

The court thus made no order in respect of the summary judgment proceedings and ordered that the amendment procedure must follow its normal course. Importantly, the court granted leave to the plaintiff to bring a fresh application for summary judgment on the amended plea if the defendant’s amendment was ultimately allowed.

Prima facie, a plaintiff could legitimately hold a very dim view of the amended Rule 32 procedure, given what the plaintiff and ultimately the court was faced with in Belrex. The court in that case adopted a boldly pragmatic approach where it was faced with a legal quagmire. Certainly a plaintiff wishing to launch summary judgment proceedings is now faced with more legal hurdles to overcome as an amendment may be brought by a defendant as a strategic ploy to prevent a plaintiff from obtaining summary judgment.

That said, to speak of the extinction (even at gradual pace) or the idle existence of the summary judgment procedure based on the Belrex case alone would be overly premature and pessimistic given the preservation of the plaintiff’s rights by the court in Belrex. That said, only the future will tell as to whether the position held in Belrex will be followed by our courts, accepting of course that each case will in most likelihood be dealt with on its own merits. One can only hope that the amendment to Rule 32 is a progression of the summary judgment procedure and will not lead to further uncharted terrain and its ultimate extinction or idle existence.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Simphiwe Shoba
Simphiwe Shoba

Simphiwe Shoba plays an integral role in the Fluxmans litigation team, which enjoys a formidable reputation as one of South Africa’s leading litigation departments. As a commercial litigation specialist, his... Read more about Simphiwe Shoba


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