Written by Candidate attorney – Banele Mhlongo
Recent Changes to Application for Summary Judgment Procedure in the High Court
The Uniform Rules of Court regulate the conduct of proceedings in the High Court of South Africa. Rule 32 of the Uniform Rules of Court deals with Summary Judgement Applications. The purpose of the summary judgment procedure is to afford a plaintiff, who has an unanswerable case against a defendant who has no defence, a much speedier remedy than that of waiting for the conclusion of a trial action. On the 1st July 2019 an amendment to Rule 32 came into effect.
The position before the 1st of July 2019 was that a plaintiff who has instituted a claim based on –
- A liquid document;
- for a liquidated amount of money;
- for the delivery of specified moveable property; or
- for ejectment
may have applied to court for summary judgment against the defendant where the latter had delivered notice of intention to defend.
An application for summary judgement was required to be delivered within 15 court days after the delivery of the notice of intention to defend. The Plaintiff could then set the application for summary judgement down for hearing on a stated date not being less than 10 court days from the date of delivery thereof.
The position after the amendment to Rule 32 is that a plaintiff cannot make an application for summary judgement until such time as the defendant has delivered a plea, which is the document in which the defendant answers the allegations raised by the plaintiff. The trigger has shifted from delivery of the notice of intention to defend to delivery of the plea which occurs within twenty days after delivery of the notice of intention to defend. Rule 22 of the Uniform Rules of Court provides that the Defendant must in his plea either admit or deny or confess and avoid the allegations made by the plaintiff in his particulars of claim or declaration.
A further change is an affidavit must be delivered in support of an application for summary judgment. The plaintiff may then proceed with an application for summary judgment within 15 court days after the delivery of the defendant’s plea and set the application for summary judgement down for hearing on a stated date not being less than 15 court days from the date of delivery thereof, which is a departure from the 10 court days previously granted.
The result of the amendment is firstly that more time will elapse before a plaintiff may proceed with an application for summary judgement as the defendant would normally be granted 10 days to file a notice of intention to defend and a further 20 days to file a plea. The lapse in time may disadvantage plaintiffs who rely on summary judgment as a speedier remedy. However, the requirement of delivery of the defendant’s plea removes uncertainty as it provides clarity regarding what the defendant’s possible bona fide defence in the case is.