.png)
What happens when a defendant has no genuine defence? Where their plea is not tenable and amounts to nothing more than a delay tactic or an abuse of court process? In these circumstances, the plaintiff has a legal remedy and may apply for summary judgment. This article goes through what summary judgment is in South African law, why it exists, and how courts apply it, by balancing the rights of both the Plaintiff and Defendant, as a plaintiff has a right to enforce their claim and a Defendant has a right to defend and state their case. At its core, summary judgment is a mechanism that allows a plaintiff to obtain relief where the defendant’s defence is not bona fide and raised only to delay proceedings.
The courts duty in summary judgment proceedings must protect the plaintiff’s right to relief where it is clearly due, and must guard against injustice by ensuring that a defendant with a bona fide defence is not deprived of their day in court. As Honourable Kooverjie J put it in Basdeo v Discovery Life Limited “summary judgment procedures are not intended to deprive a defendant with a triable issue or sustainable defence.” At the same time, courts must assist plaintiffs where their rights are “balked by the delaying tactics of a defendant who has no triable defence”
The Essence of Summary Judgment
A cause of action as defined in the case Abrahamse and Sons v South African Railways and Harbours “includes every fact which is material to be proved to entitle the plaintiff to succeed in its claim.” A plaintiff sets out their cause of action and the Defendant then has a chance to respond to the claims and provide their version in their plea.
Each side has the right to be heard, to ventilate those disputes at trial. But when that right is abused, when it is used vexatiously to delay and avoid justice, summary judgment steps in as a mechanism to dispense with actions that ought not to proceed to trial.
As the court in Maharaj v Barclays Bank explained, the test is whether the defendant has disclosed the nature and grounds of their defence, and whether on the facts disclosed the defence appears to be bona fide and good in law. A defence is not bona fide if it is raised merely to delay judgment that the plaintiff is justly entitled to. Similarly, in Breitenbach v Fiat SA (Edms) Bpk, the court emphasised that it is the defence itself that must be bona fide, not the defendant’s subjective belief.
Statutory Requirements for Summary Judgment
The procedure is governed by Rule 32 of the Uniform Rules of Court and Rule 14 of the Magistrate Court Rules, Rules Regulating the Conduct of the Proceedings of The Magistrates' Courts of South Africa. After the defendant has served their plea, the plaintiff must file an affidavit in support of the summary judgment application. That affidavit must:
- Verify the cause of action and the amount claimed
- Identify any point of law relied upon
- Set out a clear and concise statement of the material facts upon which the claim is based
- Explain why the defence raised by the Defendant does not raise any issue for trial
This was reaffirmed in Tumileng Trading CC v National Security and Fire (Pty) Ltd, where the court explained that it is sufficient for the plaintiff to verify the cause of action by reference to the particulars of claim. There is no need for repetition of facts already pleaded. What is crucial, however, is that the plaintiff must engage with the defendant’s plea and explain why the defence is not sustainable or bona fide and has been raised merely for the purposes of delay.
The Test for a Bona Fide Defence
- Has the defendant disclosed the nature and grounds of their defence?
- On the facts disclosed, does the defendant have a defence that is sustainable in law?
In Cohen N.O. v Deans, the court confirmed that the defendant must disclose a defence that is “legally cognizable” which means if proven at trial, would amount to a valid defence. If the facts put up raise a triable issue, the matter should proceed to trial. But if the defence is designed only to delay, summary judgment should be granted.
Application in the Basdeo and Another v Discovery Life Limited case
The Basdeo case illustrates these principles vividly. The applicants were beneficiaries under their late father’s Discovery Life policy. Although the capital amounts were eventually paid, Discovery resisted paying interest and costs, relying on a clause that allowed it to defer payment pending police investigations.
Kooverjie J rejected this defence, finding it neither bona fide nor good in law. The court emphasised that Discovery had failed to follow up on the status of the investigation and had not assessed the claim within a reasonable time. As the judgment noted, “there is no rule of law which stays civil proceedings where a criminal prosecution is pending”. Deferment of payment pending third-party investigations is not a valid defence unless exceptional circumstances exist.
The court drew on Klencovljevic Alexander v Discovery Life Limited (ZAGPHC 191, 18 August 2014), where Discovery had similarly sought to defer payment until SAPS investigations were finalised. The court in Alexander held that insurers cannot indefinitely postpone their obligations by relying on third-party processes without conducting their own assessment. Fairness requires that claims be assessed within a reasonable time.
Summary judgment was granted with a punitive costs order against Discovery.
Conclusion
Summary judgment is a carefully balanced legal instrument designed to prevent abuse of court process while safeguarding genuine defences.
The courts are clear, where the defendant’s plea is a tactic to delay justice, summary judgment ensures that justice is not postponed indefinitely, because justice delayed is justice denied.