- October 5, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant, on 18 June 2012, lent and advanced an amount of N$1 740 000, in respect of a housing loan to the respondents. A second agreement, referred to as a re-advance, was entered into inter partes, namely, on 17 October 2017, for a loan of N$ 113,716. It is alleged by the applicant that the respondents have fallen into arrears in the repayment of the two loans. As a result of not keeping their end of the bargain, the applicant issued a combined summons for payment of the amount of N$ 1 624 647,19.
The respondents entered an appearance to defend the matter. The applicant with the belief that the respondents do not have a bona fide defence, applied for summary judgment. The court is to determine whether this case constitutes a proper case in which it should grant an application for summary judgment.
Alleged non-compliance with Regulation 4(1) of the Regulations
Masuku J:
‘[16] The court was further referred to the judgment in Tsamkxao Oma v Minister of Land Reform by Ms Kuzeeko, in a case where she appeared. She pointed out that the court, in that matter, held that failure to comply with the provisions of the Act is not fatal for the reason that the provisions thereof are merely directory and not peremptory. As such, non-compliance can be cured by the defaulting party tendering a reasonable explanation. It was her submission that by the very nature of the summary judgment procedure, it was not possible for the applicant to tender that explanation in the instant case.
[17] If I were to agree with Ms Kuzeeko that her contentions are correct, namely, in reference to the Omajudgment, it is clear that there is no explanation in this matter as to how the non-compliance came about. In the absence of that explanation, there can, in my considered view, be no legal basis for the court to exercise its discretion in the applicant’s favour in this matter. This places Ms Kuzeeko’s argument on a serious precipice.
[18] Furthermore, when one has regard to the relevant regulation, it appears to have two ‘shalls’, so to speak. The first applies in relation to a certification that the deponent acknowledged that he or she knows and understands the contents of the affidavit and knows and understands the contents of the declaration. The further ‘shall’, which is peremptory, it must be added, relates to the commissioner stating the manner, place, and date of taking the declaration. Should an omission to state the date of signature of the affidavit or the place, be seen as innocuous and treated as such? (Emphasis added).
[22] There is an added reason why in this particular case, being an application for summary judgment, which in terms of the case law, a stringent remedy, must be followed to the letter. This is because summary judgment, if granted, is issued in circumstances where the defendant is not afforded the full effects of a trial, considering the summary nature of the procedure followed in this type of proceeding. In the case of Nored Electricity (Pty) Ltd v Ouster, it was stated that in cases of summary judgment, the papers must be in apple-pie order, so to speak. That is not the case in the instant matter.
[23] Ms. Kuzeeko further helpfully referred the court to Ladybrand Hotels v Stellenbosch Farmers where it was reasoned that where it was not apparent that an affidavit had been signed in the presence of the commissioner of oaths, the maxim omnia praesumuntur rite esse acta i.e., all things are presumed to have been correctly and solemnly done, applies. The court considered that if the affidavit was defective, it should be condoned.
[24] It will be readily apparent that the issue that afflicted the affidavit in that matter, was of a different type from the one in the instant case. The fact that the oath was administered in the presence of the commissioner may be readily assumed but not where or when the said oath was administered. The issue of substantial compliance does not, in my considered view readily apply where there is no indication where or when the oath was administered. This must especially be the case where the matter in question relates to a stringent and possibly prejudicial matter such as a summary judgment. In this particular case, it may herald the possibility of the respondents not having a roof over their heads, which is a serious matter especially given the first respondent’s precarious health conditions painted on the canvas of the respondents’ opposing affidavits.
[25] In the premises, I am of the considered view that the issue of non-compliance with regulation 4(1) in this matter, regard particularly being had to the relief sought, as seen through the prism of the Nored Electricity (Pty) Ltd v Ouster case, the court should insist on the full and proper compliance with the peremptory requirement that the date when the oath is administered is stated.
[26] In that case, the court dealt with the seven golden rules of summary judgment that the court should consider in dealing with summary judgment applications. One of these was that ‘in determining summary judgment, the court is restricted to the manner in which the plaintiff has presented its case, namely, that the court must insist on strict compliance by the plaintiff and technically incorrect papers should see the application refused.’
[27] It must be stated that the law is a profession that in many cases, requires accuracy, precision, and attention to minute details. Commissioners of oath must perform their functions with a full presence of mind. They must not be perfunctory in their approach, resting on the forlorn hope that the court will invariably apply the lower standard of substantial compliance in reviewing their work and will invariably hold that non-compliance with the regulations is merely directory.
[28]…in the instant case, the affidavit is the very foundation of the application for summary judgment, and the sentiments expressed in the Swart case above, would in my considered view, be important. This is so when viewed in the light of the nature and possibly drastic nature of summary judgment, and in this case coupled with the fact that the respondents would at the end of the day, possibly lose their primary home and be thus susceptible to the vicissitudes of nature.
Wherefore the could held that:-
a) The provisions of the Regulations made in terms of section 10 of the Act are merely directory and not peremptory. As such, the court retains a discretion, regard had to whether substantial compliance is proved, to overlook non-compliance.
b) Commissioners of oaths must perform their functions with a full presence of mind and not be perfunctory in their approach, resting on the forlorn hope that the court will invariably apply the lower standard of substantial performance in reviewing their work.
c) A summary judgment application, it being a drastic order, the applicant should ensure that the papers are technically correct. Where there is an omission in the affidavit on which the summary judgment application is predicated, the court may refuse to exercise its discretion in favour of the applicant for summary judgment.
d) The applicant had an opportunity to remedy the defect raised in the opposing affidavit by withdrawing the application and filing a new and properly attested affidavit, but it did not do so.
In the premises, the application for summary judgment was refused as there is no properly attested affidavit before the court, on which the relief sought in the papers is predicated.