Alshams,
in its heads
of argument,
gave notice that it will apply, in terms of Order 10 Rule
67(c), for leave to have the answering affidavit filed of record in
this matter to be included as part of the record.
Savannah,
in their heads of argument took, in
limine,
the point that Alshams had failed to comply with the ...
Alshams,
in its heads
of argument,
gave notice that it will apply, in terms of Order 10 Rule
67(c), for leave to have the answering affidavit filed of record in
this matter to be included as part of the record.
Savannah,
in their heads of argument took, in
limine,
the point that Alshams had failed to comply with the provisions of
Order 10 Rule
67 in that the rule precludes an automatic right to file an answering
affidavit in summary judgment proceedings.
It
appears counsel for the second respondent's concern was that the
answering affidavit was filed without prior permission of the court.
SMITH J…, in In
Vogue (Pvt) Ltd v E L Blue
HH82-93…,
stated;
“I
d not think a replying affidavit should be, as it were, held in
reserve and then produced at the hearing of the application. That
would be most unfair to the respondent and the judge hearing the
matter. I consider that any replying affidavit, in an application for
summary judgment, should be filed as though it were an answering
affidavit and then at the hearing of applicant should seek the
court's permission in terms of part (c) of the proviso to Rule
67.”
See
also Edgars
Stores Ltd v Dolem Investments
(Pvt) Ltd HB03-04.
I
agree with the approach adopted by SMITH J. This will allow all the
parties involved to have read the affidavit beforehand and be able to
formulate their positions and be ready to deal with the issue rather
than wait for day of hearing. To do otherwise leads to the undesired
postponement and unnecessary increase of costs in the matter.
At
the hearing, counsel for the second respondent contended that Alshams
was aware of the circumstances of Interfin, which was that the
arrangement between it and Alshams was temporary as stated in the
letter of 7 March 2012. The averments of fraud are not new. They
could not have escaped Alshams. They should have dealt with all facts
in the founding affidavit.
Counsel
for the applicant
submitted
that Rule
67(c) was designed for situations such as the present case. The
applicant was not aware of the allegations of fraud. The letter of 7
March 2012 does not suggest any fraud. There is nothing to suggest
that Alshams ought to have known about the fraud. It was not in the
public domain. There were no criminal allegations.
The
relevant portion of Rule
67 provides:-
“67.
Limitations as to evidence at the hearing of applications
No
evidence may be adduced by the plaintiff otherwise than by affidavit
of which a copy was delivered with the notice, nor may either party
cross-examine any person who gives evidence viva voce or by
affidavit; provided that the court may do one or more of the
following –
(a)
Permit evidence to be led in respect of any reduction of the
plaintiff's claim;
(b)
Put to any person who gives oral evidence questions -
(i)
To elucidate what the defence is; or
(ii)
To determine whether, at the time the application was instituted, the
plaintiff was or should have been aware of the defence;
(c)
Permit the plaintiff to supplement his affidavit with a further
affidavit dealing with either or both of the following -
(i)
Any matter raised by the defendant which the plaintiff could not
reasonably be expected to have dealt with in his first affidavit; or
(ii)
The question whether, at the time that the application was
instituted, the plaintiff was or should have been aware of the
defence.”
The
parties are agreed on the import of Rule 67(c), which is that the
court may permit the plaintiff to supplement his affidavit with a
further affidavit in response to issues raised by the defendant which
the plaintiff could not reasonably be expected to have dealt with in
his founding affidavit.
The
issue, therefore, is whether the matters raised by the plaintiff in
the answering affidavit are in response to matters which the
plaintiff was not aware of at the time it filed its answering
affidavit.
The
only issue raised by Alshams in its submissions is the fraud
allegations made by Savannah. This aspect is related to in paragraph
7.2 of the answering affidavit. The rest of the affidavit, which is
19 pages long, dealt with other issues not related to the fraud.
Alshams was building and strengthening its case in the answering
affidavit when the other party have no opportunity to respond to
same. Such acts defects the whole purpose of having summary judgment
proceedings.
I
will therefore allow the answering affidavit in so far as it responds
to the issue of fraud and expunge the rest of the paragraphs from the
record.
