Nedbank (Lesotho) Limited v Sotho Development Corporation (Pty) Ltd (CIV/T 450 of 99) [2000] LSCA 83 (23 May 2000)

CIV/T/450/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- N E D B A NK ( L E S O T H O) L I M I T ED P L A I N T I FF a nd S O T HO D E V E L O P M E NT C O R P O R A T I ON (PTY) L TD R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le M r s. Justice K. J. G u ni on the 2 3 rd d ay of M a y, 2 0 00 T he plaintiff in this matter is N E D B A NK [ L E S O T H O] L i m i t e d. It is a b a n k i ng institution, established in a c c o r d a n ce with the L a ws of L e s o t h o. Plaintiff h as its m a in office at K i n g s w a y, M a s e r u. D e f e n d a nt is S O T HO D E V E L O P M E NT C O R P O R A T I ON ( P T Y) L T D. It is a c o m p a ny registered in t e r ms of the L a ws of L e s o t h o. It carries on its business at P L OT N O. 1 2 2 9 3 - 0 13 at T H E T S A NE I N D U S T R I AL A R E A, M A S E RU U R B AN A R E A, M A S E R U. T he plaintiff instituted this legal action against the defendant by issuing out of this court a c o m b i n ed S u m m o ns in w h i ch it claims:- 1. P a y m e nt of an a m o u nt of M l , 4 9 3 , 4 1 2 . 27 2. Interest thereon at the rate of 23% per annum from the 1st November 1999 to the date of payment An order declaring the property specifically m o r t g a g ed u n d er the b e l ow m e n t i o n ed D e e ds of hypothecation N o. 2 4 2 81 registered on the 14th July 1 9 94 a nd N o . 2 2 6 97 registered on the 26th July, 1 9 97 in respect of Plot N o. 1 2 2 9 3 - 0 1 3, situated at T H E T S A NE I N D U S T R I AL A R E A, M A S E RU U R B AN A r e a, here in M A S E R U, Executable. 4. Costs 5. Further and/or alternative relief. T he brief facts as gleaned f r om the plaintiff's declaration are as follows:- T h e se t wo parties entered into an [oral or written] a g r e e m e nt in terms of w h i ch plaintiff granted to the defendant an overdraft facilities. It is alleged that f r om time to time, at the special instance a nd request of the defendant, a nd in accordance with that overdraft a g r e e m e nt facilities, plaintiff a d v a n c ed m o n ey to the defendant. [Presumably by h o n o u r i ng c h e q u es d r a wn u p on the plaintiff b a nk by the defendant in w h o se account therein, there w e re insufficient funds to m e et those cheques]. It is further alleged that the p a y m e nt of this overdraft is secured by m e a ns of the t wo D e e ds of hypothecation m e n t i o n ed in paragraph 3 of the Declaration wherein they are annexed. Perhaps, the defendant's account is o v e r d r a wn b e y o nd the agreed limit; or m ay be the defendant has unreasonably delayed in m a k i ng an appropriate adjustment on that overdraft account, we do not k n ow because not m u ch is said in this regard. It is the express condition of the granting of the overdraft facilities that it shall always be in the entire discretion of the b a nk as to the extent, nature and duration of the advances, credits a nd other facilities so allowed. Plaintiff d e m a n d ed p a y m e nt of the overdraft as the parties had agreed that p a y m e nt of the overdraft will be m a de by the defendant on d e m a nd by the plaintiff. Despite plaintiff's d e m a nd to the defendant to p ay the said overdraft, defendant has failed to pay. T he plaintiff, then issued out the S u m m o n s, claiming the relief as stated therein. After an I N T E N T I ON OF A P P E A R A N CE to defend w as entered, an Application for S u m m a ry J u d g m e nt w a s, in terms of R u le 28 [High Court Rules Notice N o. 9 of 1980] filed. This Application for S u m m a ry j u d g m e nt is opposed.- T he proper procedure to be followed by the parties, in this matter in order to succeed in these endeavours, is prescribed by Rule 28 of our Rules. T he relevant portion thereof reads as follows:- W h e re the defendant h as entered a p p e a r a n ce to d e f e nd " 2 8. (1) the plaintiff m ay apply to court for s u m m a ry j u d g m e nt on e a ch of s u ch claims in the s u m m o ns as is only- on a liquid d o c u m e nt for a liquidated a m o u nt in m o n ey for delivery of specified m o v a b le property, or for ejectment fa) (b) (c) (d) together with a ny claim for interest a nd costs. T he plaintiff w ho so applies, shall within fourteen d a ys after (2) the date of delivery of entry of a p p e a r a n c e, deliver notice of s u ch application, w h i ch notice (a) m u st be a c c o m p a n i ed by an affidavit m a de by the plaintiff or by a ny other p e r s on w ho c an s w e ar positively to the (b) facts verifying the cause of action a nd the a m o u nt if a ny c l a i m ed a nd s u ch affidavit m u st state- (a) that in the opinion of the d e p o n e nt (c) the d e f e n d a nt h as no b o na fide d e f e n ce to the action a nd that entry of (d) appearance has b e en entered m e r e ly for the p u r p o se of delay [ My underlining] If the claim is f o u n d ed on a liquid d o c u m e nt a c o py of the (b) d o c u m e nt m u st be a n n e x ed to the affidavit. T he notice of application shall state that the application will be set d o wn for hearing on a specified date w h i ch shall be not less than s e v en d a ys f r om the date of delivery of the notice. (3 U p on the hearing of the application for s u m m a ry j u d g m e n t, the defendant m ay - (a) (b) give security to the plaintiff to the satisfaction of the Registrar for a ny j u d g m e nt including s u ch costs w h i ch m ay be given; or satisfy the court by affidavit or, w i th leave of the court, by oral evidence of himself or of a ny other p e r s on w ho c an s w e ar positively to the fact, that he h as a b o na fide defence to the action. Such affidavit shall be delivered before noon not less than two court days before the hearing of the application. Such affidavit or oral evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor." In our present case, the Notice of Application for Summary judgment, is accompanied by an affidavit as required, in terms of the rule. Both parties in this matter being artificial persons, the affidavits required in terms of the rule have been deposed to by other persons legally and duly authorised to act on behalf of the parties herein M A LL C A PE (PTY) L TD V M E R I NO K O - O P E R A S IE B E P EK 1957 (2) SA 347. In terms of the rule which governs the proceedings of this nature, there are specific issues which the deponents of the affidavits prescribed by the said Rule, ;must directly deal with. The contents of the affidavits, filed in support of the application for Summary judgment, or to resist the granting of that application, are prescribed by the said rule. Those requirements which must be satisfied by the prescribed affidavit of the plaintiff Applicant, are succinctly enumerated as follows by C O R B E TT JA [as he then was] in M A H A R AJ V B A R C L A YS N A T I O N AL B A NK L TD [1976 (1) SA] page 418 at 422-B. "(a) that the affidavit should be made by the plaintiff himself or by any other person who can swear positively to the facts (c) that it must be an affidavit verifying the cause of action and the amount claimed ( c) that it must contain a statement by the deponent, that in his opinion, there is no bonafide defence to the action and that the notice of Intention to defend had been delivered solely for the purpose of delays. " These are the requirements listed in our Rule 28 (2) (a) and (b) [High Court Rules Legal Notice No.9 of 1980]. They are highlighted by my underlining of the same in the rule as cited. The affidavit filed in support of the application for Summary judgment, must be scrutinised together with other documents which are properly before this court, M O W S C H E N S QN A ND M O W S C H E N S ON V M E R C A N T I LE A C C E P T A N CE C O R P O R A T I ON OF S A L TD [1959 (3)] SA 362. Proper scrutiny must be carried out in order to ascertain that these requirements are satisfied. This is where the crux of the matter in our present case, lies. The defendant has not bothered to do anything required of it by the rule. In terms of Rule 28 (3) [High Court Rules (Supra)] The defence could have done (a) or (b) of the said rule. A deliberate election, to ignore compliance with the requirement of this rule on the part of the defendant, was made. The application for Summary judgment is resisted by the defendant, by mounting an attack on the manner of compliance with the rule governing the procedure adopted by the plaintiff/applicant. The defendant h as a d o p t ed a position that e v en if there is no c o m p l i a n ce w i th the rule by the defendant, that failure to c o m p ly by the defendant d o es not by itself entitle the court to grant the application for S u m m a ry j u d g m e n t. T he court m u st grant the application for S u m m a ry j u d g m e nt w h en that application a nd the supporting d o c u m e n ts h a ve no defects. In short, the court m u st be satisfied with the total c o m p l i a n ce with the requirements of the rule, by the applicant. T h e re should be no apparent defects in the d o c u m e n ts filed a nd relied u p o n, in support of the application for S u m m a ry j u d g m e n t. T R A N S V A AL S P I CE W O R KS B U T C H E RY R E Q U I S I T ES ( P T Y) L TD V C O N P EN H O L D I N GS ( P T Y) L TD 1949 (2) SA 198 at 200. In resisting the granting of the application for S u m m a ry judgment, a n u m b er of points-in-limine h a ve b e en raised on behalf of the d e f e n d a nt in this case:- 1. T he first point-in- limine attacks the locus s t a n di of the d e p o n e nt of the affidavit w h i ch a c c o m p a n i es the application for S u m m a ry j u d g m e n t. 2. T he s e c o nd point-in-limine s e e ms to attack the ability of the said d e p o n e nt to d e p o se to the facts verifying the c a u se of action. 3. T he third point-in-limine c o n c e r ns the alleged failure by plaintiff to disclose the c a u se of action in the S u m m o ns a nd D e c l a r a t i o n. 4. T he last p o i nt d e a ls w i th the description of the parties w h o se identity is p ut in issue. 1- Parties to an overdraft facilities a g r e e m e n t. 2- Parties to the D e e ds of h y p o t h e c a t i o n. T h e se four points are w h at I m a n a g ed to g l e an f r om the A n s w e r i ng affidavit a nd the H e a ds of A r g u m e nt for D e f e n d a n t. T h e re c o u ld be m o re or less b ut the drafting of b o th d o c u m e n ts is n ot s i m p le a nd straightforward. L O C US S T A N DI T he d e p o n e nt of the affidavit filed on b e h a lf of the plaintiff b a n k, in t e r ms of R u le 28 (2) [ H i gh C o u rt R u l e s] s u p r a, is o ne S A M U EL L I A HO R A H L A O. He h as a v e r r ed in his affidavit that he is d u ly authorised to m a ke this affidavit on b e h a lf of the plaintiff as m o re fully a p p e a rs f r om the R e s o l u t i on filed of record. R A H L A O, h as c l a i m ed in the s a me affidavit, that he is the E x e c u t i ve M a n a g er - credit of the plaintiff. T h e se a v e r m e n ts by t h e m s e l v es satisfactorily s h ow the court that M r. R a h l ao h a s, that required l o c us s t a n di to represent the plaintiff b a n k. P H O O F O LO V C E N T R AL B A NK OF L E S O T HO C. OF A N O. 6 of 1987; W I NG ON G A R M E NT ( P T Y ) L TD V L N DC C. of A. No. 6 of 1999. In addition to the above, there is that Special Resolution [at p a ge 9 of the record]. There in, are the n a m es of persons w ho are authorised and e m p o w e r ed to represent the c o m p a ny (the plaintiff herein). A m o n g st those people w ho are authorised to sign all d o c u m e n ts and represent this plaintiff, is o ne Rahlao. A n o t h er d o c u m e nt the p o w er of attorney, (at p a ge 1) of the record) w h i ch appointed the plaintiff's present attorneys is signed by M r. R a h l ao and o ne other official w h o se n a me appear in that special resolution, On this point the defendant m u st fail. R a h l ao is duly authorised to represent the plaintiff bank. T he second point in limine concerns the deponent's ability to "positively s w e ar to the facts verifying the cause of action". T he deponent of the A n s w e r i ng Affidavit, o ne L O U IS M E Y ER I C H I K O W I TZ - [presumably the individual w ho represents the defendant corporation in all its dealings, denies that R a h l ao "can positively s w e ar to the facts verifying the cause of this action". T he grounds of the denial appears to be his ignorance regarding the position held by a nd the date of the appointment of R a h l ao to represent the plaintiff bank. He claims he does not k n ow w h en R a h l ao w as engaged to w o rk for the plaintiff b a nk and that he does not k n ow R a h l a o. W h en the b a nk appoints its employees, it is not obliged to inform its customers about the appointments, nor to give the n a m es of, nor to present to its customers, the appointees personally. T he d o c u m e n ts w h i ch are properly before this court, s h ow b e y o nd a ny doubt, that R a h l ao is an e m p l o y ee of the b a nk w h i ch has given h im authority to act on its behalf in this matter. In his affidavit Rahlao avers that he is the executive m a n a g er - credit of the plaintiff bank. T he representative of the defendant m ay not k n ow the executive m a n a g er - credit personally. T he duties or responsibilities of the executive m a n a g er - credit, are not mentioned a n y w h e re in the papers before m e. This plaintiff being the banking institution m ay be it can be a s s u m ed that the executive m a n a g er - credit controls the credit the b a nk extends to its customers. He should therefor, be in charge of the recovery of the m o n ey w h i ch the b a nk has lent to its customers. As the m a n a g er - credit he should be in a position to acquire personal k n o w l e d ge of the financial standing in that bank, particularly of those customers to w h om the b a nk has extended s o me credit, as this defendant. As w as pointed out in M A H A R AJ v B A R C L A YS N A T I O N AL B A NK L TD [1976 (1) S A] 4 18 at 4 24 - C, the o v e r d r a wn account is operated in the s a me branch w h e re the deponent of the affidavit verifying the facts is the executive m a n a g er - credit. As the m a n a g e r, he m ay be too busy to deal personally with each and every customer. He cannot be expected at the s a me time to be the clerk w ho is m a k i ng every entry of a withdrawal and deposit into the accounts held in the plaintiff bank. In his affidavit, R a h l ao has alleged that the facts w h i ch he has d e p o s ed to, are f r om his personal k n o w l e d ge a nd records u n d er his control. B e i ng the m a n a g er - credit, it m u st be his responsibility to e x a m i ne the state of indebtedness of the customers to the bank. He should be in the position at the e nd of the day to say w ho is indebted to the b a nk a nd to w h at extend a nd to decide w h e t h er or not the b a nk can m a n a ge to recover its m o n ey f r om those customers. As regards the extent of the defendant's indebtedness to the plaintiff, the parties h ad a prior arrangement of the determination of the s a m e. At paragraph (h), A n n e x u re 'A' (page 16 of the record), it is provided:- "(h) That the a m o u nt of the indebtedness to the b a nk at a ny time (including interest a nd the rates of interest) to be secured under the b o nd shall be determined a nd p r o v ed by a certificate signed by any m a n a g er or accountant of the B a n k; It shall not be necessary to prove the appointment of the person signing any such certificate and such certificate shall be conclusive proof of the a m o u nt of the said indebtedness and shall be valid as a liquid d o c u m e nt in a ny c o m p e t e nt court for the purpose of obtaining provisional sentence or s u m m a ry judgment." T he Certificate of Balance issued in terms of the a b o ve provision has b e en so issued under the h a nd of Rahlao. This is a further indication that R a h l ao is a person w ho is definitely in a position to "positively swear to the facts verifying the cause of this action." He appears to h a ve dealt with this account held by defendant in that bank. T he objection, to the ability to s w e ar positively to the facts by the d e p o n e nt of the affidavit a c c o m p a n y i ng the application for S u m m a ry j u d g m e n t, m u st fail. T he third objection raised is essentially an exception to the S u m m o n s. It is b e i ng alleged that the essential a nd necessary allegations, h a ve b e en omitted. T he o m i s s i on h as allegedly resulted in the failure of the s u m m o ns to disclose the c a u se of action. T he S u m m o ns are c o n s e q u e n t ly exceptionable. . It is necessary to e x a m i ne the m a n n er in w h i ch facts relied on as the basis of the claim, are set out. In the declaration, it is alleged that in t e r ms of an a g r e e m e nt b e t w e en the plaintiff a nd d e f e n d a nt at a special in stance a nd request of the defendant the plaintiff a d v a n c ed m o n ey to the d e f e n d a nt on an overdraft facility. It is a t e r ms of their a g r e e m e nt that an overdraft will be paid on d e m a nd u p on the d e f e n d a nt by plaintiff. S u ch d e m a nd h as b e en m a de by plaintiff to the defendant to p ay that overdraft. T he d e f e n d a nt d o es n ot d e ny that there w as an a g r e e m e nt in t e r ms of w h i ch plaintiff granted it a facility to o v e r d r aw its a c c o u nt at the plaintiff b a n k. It is not denied that d e f e n d a nt o v e r d r ew its account. It is a d m i t t ed that the p a y m e nt w as d e m a n d ed by a letter of d e m a nd addressed to the defendant. T he plaintiff's claim, as appears on the S u m m o ns a nd the declaration, particularly paragraph 3 thereof, is f o u n d ed on the a g r e e m e nt a nd the b r e a ch of the t e r ms of that a g r e e m e n t. In t e r ms of that a g r e e m e n t, d e f e n d a nt w as granted overdraft facilities by agreement. In terms of that a g r e e m e n t, defendant w as granted overdraft facilities by the plaintiff. In accordance with the terms of that overdraft facilities a g r e e m e n t, plaintiff a d v a n c ed m o n ey to the defendant, w h e n e v er the defendant requested s u ch m o n ey a d v a n c e s. This request for m o n ey a d v a n ce w as p r e s u m a b ly m a de by presentation for p a y m e nt of the c h e q u es d r a wn by the defendant u p on the plaintiff bank. It is alleged that it is the term of the a g r e e m e nt that the overdraft will be paid by the defendant on d e m a nd by the plaintiff. T he a g r e e m e nt a nd the t e r ms thereof, relied u p on h a ve b e en alleged by the plaintiff in paragraph 3 of the declaration. MC W I L L I A MS V F I R ST C O N S O L I D A T ED H O L D I N GS ( P T Y ) L TD ( 1 9 8 2) 2 SA 1 [[A]. T he s u m m o ns are precise, intelligent a nd sufficiently disclose the plaintiff's claim. T h e re is no ambiguity w h i ch c an possibly d e ny the defendant an opportunity to appreciate a nd understand the plaintiff's claim. T he defendant is sufficiently informed that there w as an a g r e e m e n t, in t e r ms of w h i ch the defendant w as granted overdraft facilities by the plaintiff. At the defendant's special instance a nd request, m o n ey a d v a n c es w e re m a de by plaintiff to the defendant f r om time to time. It is further alleged that the p a y m e nt of the overdraft w as to be m a de by the defendant on d e m a nd by the plaintiff. T h e re is a further allegation that such a d e m a nd w as m a de by plaintiff u p on the defendant. This issue of lack of necessary allegation m u st also be decided in favour of the plaintiff. A n o t h er point-in-limine c o n c e r ns the identity of the parties. T he d e p o n e nt of the a n s w e r i ng affidavit avers that he h as no k n o w l e d ge w h e t h er the S t a n d a rd C h a r t e r ed B a nk Africa P LC L i m i t ed c h a n g ed its n a me to N E D B A NK [ L e s o t h o] L i m i t e d. Part of the issue h as b e en dealt w i th w h en the question of locus s t a n d: w as d e t e r m i n e d. It is n ot alleged that plaintiff is obliged in l aw to i n f o rm the d e f e n d a nt of its c h a n ge of n a m e. It is not alleged that it is a t e rm of the parties' a g r e e m e nt relied on by this plaintiff, to i n f o rm the d e f e n d a nt of that c h a n ge of n a m e. T h at c h a n ge of n a me f r om S T A N D A RD Chartered B a nk A f r i ca P LC L i m i t ed to N E D B A NK [ L e s o t h o] L i m i t e d, is a matter of c o m m on k n o w l e d ge in this country. As s u ch this court is entitled to take a judicial notice thereof. Ex-facie d o c u m e n ts e.g. D e e ds of h y p o t h e c a t i on [ ( A n n e x u r es " A" a nd " B ") at p a g es 12 a nd 19 of the record,] it a p p e a rs that the d e f e n d a nt is i n d e b t ed to the S t a n d a rd C h a r t e r ed B a nk Africa P L C. T h e re m i g ht be uncertainty as to the rights the plaintiff c l a i ms b e c a u se plaintiff a p p e a rs on the S u m m o ns a nd D e c l a r a t i on to be N E D B A NK ( L e s o t h o) L i m i t e d. Plaintiff w o u ld h a ve to allege a nd p r o ve h ow it a c q u i r ed the rights of S t a n d a rd Chartered B a nk A f r i ca P L C. T R A N S V A AL S P I CE W O R KS A ND B U T C H E RY R E Q U I S I T ES (PTY) L TD V C O N P EN H O L D I N GS (PTY) L TD [1959(2)] SA 1 9 8. T he plaintiff in o ur present case, d o es n ot h a ve to c l a im that it is a legal holder of said d o c u m e n ts or that they w e re c e d ed to it, b e c a u se it is still the s a me person w ho h as only c h a n g ed the n a m e. T h e re h as b e en no transference of those d o c u m e n ts f r om o ne person to the other. T he Standard Chartered B a nk Africa P LC Limited is the s a me person as N E D B A NK ( L e s o t h o) L i m i t ed but h as only c h a n g ed its n a me f r om the o ne to the other. T h is c h a n ge of n a me h as b e en specifically alleged at p a r a g r a ph 3.1 of the Declaration. O v er a nd a b o ve this specific allegation of the c h a n ge of n a m e, the fact of that c h a n ge of n a me is a well k n o wn o n e. T he defendant m u st fail on the point too a nd the objection on this g r o u nd is accordingly dismissed. A n o t h er objection raised on behalf of the defendant against the granting of the application for S u m m a ry j u d g m e n t, a nd particularly, the declaration that the m o r t g a g ed property, be executable, is that, that property so m o r t g a g ed d o es not b e l o ng to the defendant. T he first g r o u nd is that, the lease is registered in f a v o ur of " " S O T H O' D I S T R I B U T O RS ( P T Y) L TD in the first D e e ds of hypothecation. Secondly, that very s a me lease, has b e en surrendered to the state. T he facts w h i ch appear to be in the c o m m on cause, are that, the first D e ed of hypothecation w as p a s s ed a nd registered in favour of the plaintiff on the 18th J u ne 1 9 9 1. T he s e c o nd D e ed of hypothecation w as registered in favour of the plaintiff on the 28th April 1 9 9 4. T h e se deeds of hypothecation w e re m a de by the defendant herein in order to secure the p a y m e nt of the overdraft w h i ch it operated at the plaintiff b a n k. T he property so m o r t g a g ed is lease N o. 1 2 2 9 3 - 0 13 [ M a s e ru U r b an A r e a] w h i ch is the principal office of the defendant. T he a r g u m e nt s e e ms to suggest that the property m o r t g a g ed d o es not b e l o ng to the defendant, a nd could not possibly be available as security for the p a y m e nt of the overdraft on the b a nk account operated or c o n d u c t ed by the defendant at the plaintiff bank. On the face of the p o w er of Attorney ( A n n e x u re 'A a nd 'B at p a g es 12 a nd 20 of the record] the defendant is the mortgagor. In both instances, the P o w er of Attorney w as issued out after the B o a rd of Directors of the defendant corporation h a ve duly authorised. This brings into question the defendant's b o na fides. Is it suggested, that the defendant purported to m o r t g a ge s o m e b o dy else's property? T h at c a n n ot be so. It is likely that an error w as c o m m i t t ed w h en the description of the lease w as entered at p a ge 13 of the record. That error w as in fact, subsequently rectified w h en the s e c o nd m o r t g a ge w as passed in respect of the very s a me lease. T he B o a rd of Directors of the defendant resolved to execute a second m o r t g a g e. This time the description of the m o r t g a g ed property is " S O T HO D E V E L O P M E NT C O R P O R A T I ON ( P T Y) L T D '. This indicates without a d o u bt that the B o a rd of Directors of the defendant w as a w a re that there is a first m o r t g a ge on lease No 1 2 2 9 3 - 0 13 situated at Ha T H E T S A N E, M A S E RU U R B AN A R E A. As far as the surrender of that lease is concerned, the Minister of H o me Affairs, of the G o v e r n m e nt - representing the state to w h om the said lease h as b e en allegedly surrendered, consented to the m o r t g a ge of the s a m e. T h e se technicalities are trivial a nd for the purposes of the application for S u m m a ry j u d g m e n t, they could be ignored. T he rectification of such m i n or technical errors c an be m a de without prejudice to a ny of the parties. T he letter a nd spirit of the d o c u m e n t s, clearly indicates that the parties thereto, understood their rights a nd obligations as stated in those d o c u m e n t s. T he defendant w as in the m i n ds of all concerned, the person entitled to m o r t g a g e, as it did the property in question O ur rule 28 is identical to rule 32 of U n i f o rm R u l es of S u p r e me Court of S o u th Africa. There are n u m e r o us cases w h e re that rule has b e en discussed, interpreted a nd applied to a variety of facts. P a r a m o u nt in every court's m i nd w h en considering an application for S u m m a ry j u d g m e nt is to ensure that, first, that the defendant w ho m i g ht h a ve a b o na fide defence against the plaintiff's claim is not denied an opportunity to put that defence before the trial court. Secondly, w h e re there is no defence, the court m u st exercise its discretion in such a w ay that justice is d o ne to the parties. Justice delayed is justice denied. It m u st h a ve b e en in consideration of this principle that the legislature s aw it fit to enact rule 28 [High C o u rt R u l es (Supra)]. This rule m u st h a ve b e en enacted for the purpose of affording the plaintiff with i m m e d i a te relief, w h e re the defendant is unable to satisfactorily explain the failure to m e et as required its obligations. O ne of the m o st i m p o r t a nt t h i n gs w h i ch the d e f e n d a nt is required to do in t e r ms of rule 2 8 ( 3) [ H i gh C o u rt R u l e s] is to set o ut in an affidavit, the facts w h i ch if p r o v ed at the trial, will constitute an a n s w er to the plaintiff's claim. B R E I T E N B A CH V F I AT S A [ E D M S] B PK 1 9 76 (2) SA 2 26 at 2 2 7 - G. T he d e f e n d a nt in o ur p r e s e nt c a se h as n ot set o ut a ny facts w h i ch c o u ld be c o n s i d e r ed as a possible a n s w er to t he plaintiff's claim. In the c a se of B r e k e n c b a ch v F i at S A ( E D M S) B P K, ( S u p r a ). T he d e f e n ce w as a v e r r ed in a m a n n er w h i ch a p p e a r ed in all c i r c u m s t a n c es to be needlessly bald, v a g ue or sketchy. At least it w as there, a v e r r ed in the A n s w e r i ng affidavit, for the court, c o n s i d e r i ng the application for S u m m a ry j u d g m e nt to c o n s i d er a nd m a ke a d e t e r m i n a t i on as to w h e t h er or n ot it c an if p r o v ed at the trial, f o rm an a n s w er to t he plaintiff's claim. T h e re are no facts alleged by the d e f e n d a nt in this m a t t er w h i ch this court c an c o n s i d er as a likely d e f e n ce a nd therefore exercise its discretion in f a v o ur of the d e f e n d a n t. T h e re is n o t h i ng this d e f e n d a nt c an p o s s i b ly p ut before the trial court to c o n s i d er as the a n s w er to the plaintiff's claim. In these c i r c u m s t a n c e s, the plaintiff is entitled to s u c c e ed in this application for S u m m a ry j u d g m e n t. T he application is a l l o w ed w i th costs as p r a y e d. K. J. G U NI J U D GE F or Plaintiff: M r. M a t s au F or D e f e n d a n t: M e s s rs W e b b e r, N e w d i g a te 19