Swaziland Development and Savings Bank v Nkambule (129 of 2015) [2018] SZHC 123 (11 June 2018)

Case summary

Civil Law- In an application for summary judgment premised on alleged breach by the defendant defaulting on its obligation to a credit loan facility defendant opposing application; Defendant’s cause for resisting summary judgment premised on a plea of non-joinder of a guarantor which bound itself to the defendant as a borrower in a demand guarantee, and an alleged counterclaim for certain alleged damages arising out of unauthorized deductions in the defendant’s business account held with the plaintiff; Plaintiff a financial institution and nominated guarantor, the Central Bank as administrator of a small and medium enterprises loan guarantee scheme or fund;   Civil Practice and Procedure- summary judgment requirements in terms of Rule 32 (4) (a) of the Rules of Court explained in context of application- what applicant needs to show and what constitutes cause to be set out by defendant to obtain leave to defend;   Civil Law and Procedure- defendant putting up a plea or exception of non-joinder of a third party- in principle non-joinder availing defendant in a summary judgment provided he can show third party is a necessary party having a legal interest in the subject matter of the action; a guarantor in a similar position to that of a co-principal debtor or surety and has no legal interest in the subject matter of a claim for recovery of a loan and thus not a necessary party in the proceedings; Test whether necessary party that the third party be shown to stand to be prejudiced by the outcome or grant of the claim;   Civil Law and Procedure – On proper construction and application of Rule 32 (4) (b) a counterclaim in reconvention founded on a separate cause of action may not serve as a valid defence to summary judgment on proper construction of the wording of r. 32(3) (b) as read with r. 32 (3) (c) of the Rules of Court; Defendant constrained under the rule to set out circumstances in respect of which there ought to be a trial or investigation ‘with respect to the claim, or the part of the claim, to which the application relates’. A counterclaim based on a separate cause of action not a question, issue, or circumstance ‘in respect to the claim or part of the claim to which application relates’ and as such not proper cause for the court to grant leave to defend and dismiss summary judgment.

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