IN THE COURT OF APPEAL OF SWAZILAND

APPEAL CASE NO.17/01

In the matter between:

JOHN SIPHO MAGAGULA APPELLANT

AND

STANDARD BANK OF SWAZILAND RESPONDENT

CORAM : BROWDE JA

: TEBBUTT JA

: BECK JA

JUDGMENT

Tebbutt JA:

The respondent, to whom for convenience I shall refer as “the Bank”, on 17^th September 1996 lent the appellant, Magagula, the sum of E83 380 00 which, with interest thereon, had to be repaid at the rate of E2 386,59 per month over 60 months. On 19^th February 1998 when the loan, with interest, stood at E81,354.38, the appellant signed an acknowledgement of debt agreeing to repay the loan at E2 000 per month from 5^th March 1998. Alleging that the appellant had not made the requisite payments and that at 31^st October the balance, inclusive of interest charges, stood at E95 118.12, the Bank issued summons against the appellant claiming the said sum of E95, 118.12, interests and costs. It set out details of how the amount was made up. The appellant entered appearance to defend. The Bank thereupon applied for summary judgment, its Recoveries Manager, one Tshabalala, averring that the appellant had no bona fide defence to the claim.

The appellant filed an opposing affidavit stating that he did not owe the Bank the amount claimed. He had made payments totalling E73,500.00, including an initial deposit of E15, 000.00 and annexed certain documents in support of his averment. These he said, excluded payments totalling E12, 000 “made through Plaintiff’s (i.e. the Bank’s) attorneys”, which he averred were not included in the Bank’s details and payments totalling E10 500 paid between October 1996 and April 1997.

In a replying affidavit, Tshabalala set out what he said was the entire record of the payments made by the appellant. These totalled E43 160.10. In so doing he did not, however, deal with the appellant’s averments in regard to the E12 000 or E10 500. He did not deny their having been made.

On 18^th May 2001 Sapire CJ granted the Bank an order for summary judgment. On 12^th June 2001 the appellant noted an appeal to this Court against that Order.

In terms of Rule 30(1) of the Rules of the Court of Appeal, the appellant had to prepare the record on appeal and lodge it with the Registrar of the High Court for certification as correct within two months of the date of noting his appeal i.e. by 12^th August 2001. This appellant failed to do so, only filing it with the Registrar on 11^th September 2001 and serving it on the Bank’s attorneys on 17^th September 2001.

On 16^th October 2001 the appellant gave notice that he would apply in terms of Rule 17 of the Rules of this Court for condonation of his failure to lodge the record on time. The Bank opposed the application and the matter came before this Court on 23^rd November 2001.

In deciding whether to grant condonation, the Court exercises a judicial discretion considering such factors inter alia as the degree of lateness, the explanation therefor and the prospects of success in the appeal.

In the present case the appellant’s delay was some five weeks. His explanation for his default is that a circular letter was issued to all practitioners by the Registrar stating that no matter would be enrolled for hearing at this, the November session of this Court, later than 7^th September 2001. Appellant said that he was of the view that the appeal record had to be lodged on that day. He attended at the Registry on that day but noticed a mistake in the citation of the parties and returned with the corrected record, following an interviewing weekend, on 11^th September 2001.

Appellant was clearly in error as the lodging of the record had nothing to do with the Court circular, but was governed by the provisions of Rule 30(1) with which he had failed to comply.

It is unnecessary to decide if the delay was an inordinate one or whether the explanation for it is reasonable or not because of more importance is the question of his prospects of success on appeal.

As has been stated over and over, summary judgment is a drastic remedy closing the door finally and irrevocably on a defendant and while a useful and necessary remedy to prevent a defendant with no bona fide defence from delaying or thwarting a plaintiff’s claims, it must because of its drastic consequences, be granted with circumspection.

In the present case there is no judgment by the Court a quo giving its reasons for granting summary judgment. Nor is there any endorsement on the file, or elsewhere, as to the exact terms of the order. There is before this Court only an extract from a page in the learned Judge’s notebook in which there appears in his handwriting the following:-

“SJ less amounts paid”.

Mr. Flynn for the Bank informed the Court from the Bar that what the learned Judge had done was to take the amount of E95 118.12, which was the amount allegedly owing, according to the Bank, on 31^st October 1999, reconcile the Bank’s details and the appellant’s documents and deduct from it payments which the Bank said had been made by the appellant subsequent to 31^st October 1999, arriving at a figure of E78 958.02. The learned Judge, so Mr. Flynn said, had given summary judgment in that amount with costs.

This, however, overlooks the fact that the figure of E95 118.12 was disputed by the appellant as were the payments which the Bank said he had made. He averred that the payments exceeded these amounts and included those payment of E12 000 and E10 500, with which Tshabalala did not deal in his replying affidavit and certainly did not deny that they had been made.

There was therefore clearly a dispute on the facts before the Court a quo which could only be resolved at a trial and which should have accordingly prompted the learned Judge to decline to grant summary judgment.

Although what was before this Court was an application by the appellant for condonation and for the enrolment of the appeal in this or the next session of this Court, in the light of the view the Court took of the merits, the Court decided, in order to save costs to treat the matter as on appeal and heard counsel on the merits of the appeal and on the question of costs.

For the reasons set out above, the Court finds that the learned Judge erred in granting summary judgment and that the appellant’s appeal must accordingly succeed. The following Order is therefore made:-

1. The application by the appellant for condonation of his failure to lodge the record on appeal timeously is granted;

2. Appellant’s appeal succeeds.

3. The Order of the Court a quo granting respondent summary judgment, with costs, is set aside and there is substituted therefor the following:

   1. Summary judgment refused;

   2. Appellant is granted leave to defend.

4. The costs of

   1. the summary judgment proceedings in the Court a quo;

   2. the application by appellant for condonation;

   3. the appeal to this Court;

are to be costs in the cause.

P.H. TEBBUTT JA

Judge of Appeal

BROWDE JA : I AGREE ______________

J. BROWDE

Judge of Appeal

BECK JA : I AGREE ______________

C.E.L. BECK

Judge of Appeal

Delivered in open Court on this 30^th day of November 2001