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Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Regulations

Rules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa

14. Summary judgment

 

(1) Where the defendant has delivered notice of intention to defend, the plaintiff may apply to court for summary judgment on each of such claims in the summons as is only—

(a)        on a liquid document;

(b)        for a liquidated amount in money;

(c)        for delivery of specified movable property; or

(d)        for ejectment,

together with any claim for interest and costs.

 

(2) The plaintiff shall within 15 days after the date of delivery of notice of intention to defend, deliver notice of application for summary judgment, together with an affidavit made by plaintiff or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his or her opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit and the notice of application for summary judgment shall state that the application will be set down for hearing on a stated day not being less than 10 days from the date of the delivery thereof.

 

(3)        Upon the hearing of an application for summary judgment the defendant may—

(a) give security to the plaintiff to the satisfaction of the registrar or clerk of the court for any judgment including costs which may be given; or
(b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of himself or herself or of any other person who can swear positively to the fact that defendant has a bona fide defence to the action, and such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

 

(4) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2), nor may either party cross-examine any person who gives evidence orally or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it deems fit.

 

(5) If the defendant does not find security or satisfy the court as provided in subrule (3), the court may enter summary judgment in favour of the plaintiff.

 

(6)        If on the hearing of an application made under this rule it appears—

(a)        that any defendant is entitled to defend and any other defendant is not so entitled; or

(b)        that the defendant is entitled to defend as to part of the claim, the court shall—

(i) shall give leave to defend to a defendant so entitled thereto and give judgment against the defendant not so entitled; or
(ii) give leave to defend to the defendant as to part of the claim and enter judgment against him or her as to the balance of the claim, unless such balance has been paid to the plaintiff; or
(iii) make both orders provided for in subparagraphs (i) and (ii).

 

(7) If the defendant finds security or satisfies the court as provided in subrule (3), the court shall give leave to defend, and the action shall proceed as if no application for summary judgment had been made.

 

(8) Leave to defend may be given unconditionally or subject to such terms as to security, time for delivery of pleadings, or otherwise, as the court deems fit.

 

(9) Where delivery of a declaration is required by these rules and the court, when giving leave to defend in terms of this rule, has not made an order for the delivery of such declaration within a specified time, such declaration shall be delivered within 15 days of the date leave to defend has been given.

 

(10) The court may at the hearing of an application for summary judgment make such order as to costs as it deems fit: Provided that if—
(a) the plaintiff makes an application under this rule, where the case is not within the terms of subrule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which would entitle him or her to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant's costs, and may further order that such costs be taxed as between attorney and client; and
(b) in any case in which summary judgment was refused and in which the court after trial gives judgment for the plaintiff substantially as prayed, and the court finds that summary judgment should have been granted had the defendant not raised a defence which in its opinion was unreasonable, the court may order the plaintiff’s costs of the action to be taxed as between attorney and client.