Summary judgment: a procedure to stop defaulters delaying their day in court

It is often the case that a defendant who has no defence to a legal claim against them, nevertheless files a notice of intention to defend, intending to delay the resolution of the matter for as long as possible. This is the stuff of nightmares for plaintiffs, who fear the prospect of lengthy and costly litigation that sees them throwing good money after bad. Where it is clear that a defendant is only defending a claim as an abuse of the court process, a plaintiff has the right to apply to the court for summary judgment, that is judgment granted without a full trial of the matter. This is a far-reaching remedy, and the requirements the plaintiff must meet in order to persuade the court to come to their aid, are strict.

The requirements are as follows:

1. The plaintiff must apply for summary judgment within a narrow time-frame, that is after the defendant has given notice that it defends the claim, but before the plaintiff takes any further steps in the matter. Once a further step has been taken, the window of opportunity is closed.

2. The remedy is only available to a plaintiff who brings an original claim (a plaintiff in convention) and not a defendant who brings a counter-claim in response to a claim brought against them (a plaintiff in reconvention).

3. The remedy is only available in certain types of claims.These are (a) claims based upon signed, unconditional, written acknowledgments of indebtedness in specific amounts of money (liquid documents), (b) claims for agreed, fixed or easily ascertainable sums of money (liquid claims), (c) claims for the delivery of specified movable assets, and (d) certain claims for eviction.

Summary judgment is applied for on affidavit and the application must be set down promptly for hearing. The plaintiff’s affidavit must verify the facts upon which their claim is based, and confirm that it is their opinion that the defendant has no defence and is giving notice to defend simply to delay proceedings.

To avoid the granting of summary judgment, the defendant is required either to provide security for the amount of any judgment that may result, or to deliver an answering affidavit fully disclosing the nature of the defence relied upon and the material facts supporting this defence.

Last Thursday, the Eastern Cape High Court handed down judgment in the matter between Standard Bank and B and Another. The bank had applied for summary judgment against an estranged married couple, who had failed to repay a loan and interest as well as insurance premiums. The husband raised a number of defences to the claims, including disputing the jurisdiction of the court, disputing the initials upon the loan agreement which he conceded he signed, arguing that the application was brought too early, and claiming that he did not receive a prescribed notice which the plaintiff was required to send to him before summons.

The court considered each purported defence in turn, and found that none presented a bona fide defence upon which the defendants could rely to secure the right to defend the claims through a full trial. Accordingly, summary judgment was granted to the bank, together with an order that the defendants’ immovable property could be attached and sold to cover the monies due under the judgment.

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