Bona Fides And Affidavits In Summary Judgment

In the case of ABSA Bank Ltd v DC Peacock & 1 Other [2020] JOL 48904 (WCC), the dispute turned on the principles relating to summary judgment and the defendant’s indebtedness to the plaintiff.   

The plaintiff applied for summary judgment as it believed that the defendant did not have a valid defence. 

Rule 32(3)b of the Uniform Rules of Court provides that a defendant (in summary judgment proceedings) may satisfy the court by affidavit to the fact that they have a bona fide defence to the action and that such affidavit or evidence shall disclose the nature and grounds of defence entirely and the material facts relied thereunder upon. 

The court stated in this regard that: 

“Affidavits in summary judgment proceedings are customarily treated with a certain degree of indulgence, and even a tersely stated defence may be a sufficient indication of a bona fide defence for the purposes of the Rule”.   

However, the defendant, in this case, made a bald denial in her affidavit regarding the extent of her indebtedness to the plaintiff, claiming that such indebtedness arose only from a single mortgage bond amounting to R200 000, and not over R2 million from 4 mortgage bonds as alleged by the plaintiff. 

The court stated of the defendant, who was in fact indebted as a result of 4 mortgage bonds: 

 “… brazenly she comes before this Court and opposes a summary judgment application by suggesting there was only one such mortgage bond and that she only owes R200 000 as opposed to R2 million and more.  It is truly a quintessential act of bad faith”.   

The defendant, therefore, had no bona fide defence, and the application for summary judgment was granted. 

This case illustrates the importance of honesty with courts and that while “even a tersely stated defence” may be sufficient, it does not derogate from the fact that our courts do not take dishonesty lightly.