SUMMARY JUDGMENT AND AMENDED RULE 32
Civil procedure – Summary judgment – Divergence in defences raised in affidavit and plea – Not bona fide if lacking explanation for inconsistency – Advancing defences not raised in plea – Amended Uniform Rule 32.
Nedbank v Uphuhliso Investments and Projects [2022] ZAGPJHC 723 at [21]-[73]
Facts: Nedbank concluded an agreement with Uphuhliso that provided for an overdraft facility as well as a medium-term loan facility in the amount of R1,6 million, which was to be used to finance the purchase of a News Café in Maponya Mall in Soweto. Nedbank contends that Uphuhliso exceeded the limit and failed to meet its obligations, despite demand.
Claim: Nedbank seeks summary judgment against Uphuhliso and against the second to fourth defendants as sureties.
Discussion: The marked divergence between the defences raised by the defendants in their affidavit resisting summary judgment and what was contained in their plea; the blanket denials in the plea, apart from admitting the terms of the agreement; the amended Rule 32; that the defendant may not raise defences in the affidavit resisting summary judgment that are not pleaded; that the new Rule is intended to level the playing field by requiring both the plaintiff and the defendant to commit to a version of the facts; when the defence raised in the affidavit resisting summary judgment is inconsistent with the plea, it cannot in the absence of an explanation for the inconsistency be said to be bona fide; the grounds raised regarding the Conventional Penalties Act; and the defence related to the cancellation and claim for specific performance.
Findings: The defendants cannot now advance defences in opposing summary judgment proceedings that were not raised in their plea. To permit them to do so would undermine the amended summary judgment procedure and prejudice the plaintiff who was entitled to deal with those defences in its supporting affidavit. The defendants have failed to satisfy the court that they have a bona fide defence to the action.
Order: Judgment is granted against the defendants.
GILBERT AJ
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INSURANCE CLAIM FOR TUNNEL DAMAGE
Insurance – Tunnel construction – Prescription – Whether rock mass part of property insured – Order of High Court that liability of insurer subject to terms and conditions of policy.
Zurich Insurance v Gauteng Provincial Government [2022] ZASCA 127 at [19]-[72]
Facts: In a joint venture the province granted Bombela Concession Company a concession to run the Gautrain rail system. Insurance was taken out for the construction of the tunnels and the leaking of water was an engineering concern. The province discovered what it believed to be damage to parts of the tunnel system and made a claim in terms of the policy, that Zurich pay for the repairs, but the insurer repudiated.
Appeal: By Zurich against the High Court’s finding that Zurich was obliged to indemnify the province for the cost of replacing or repairing the damage to the tunnels.
Discussion: The background to the Gautrain project; whether the province’s claim against Zurich had prescribed; whether the rock mass that surrounds the void of the tunnels is part of the property insured; the propriety and effectiveness of the High Court’s order; the contention that the province must have been aware of the damage because it had a support team in place to monitor the construction of the tunnels; the policy and its terms; the expert testimony on the rock mass and tunnelling; that the order made Zurich’s liability subject to “all the terms and conditions of the policy”; and Zurich’s contention that the order did not draw a clear distinction between the merits and quantum.
Findings: The province’s claim had not prescribed. The property insured by the policy includes the rock mass that surrounds the void created by the process of excavation. The order of the High Court was clear, unambiguous and enforceable.
Order: The appeal is dismissed.
PLASKET JA (PONNAN JA, BASSON AJA, WEINER AJA and SIWENDU AJA concurring.)
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CHILDREN AND CANNABIS
Criminal law – Drugs – Children – Criminalisation of the use and/or possession of cannabis by a child – Does not serve the purpose of protecting the child – Less restrictive means available – Drugs and Drug Trafficking Act 140 of 1992, s 4(b).
Centre for Child Law v DPP, Johannesburg [2022] ZACC 35 at [42]-[91]
Facts: Four children tested positive for cannabis during a school-sanctioned drug test. They were brought before the magistrates’ court and agreements were concluded that included that the children participate in diversion programmes. They did not comply with the diversion programmes and an order for admission to a compulsory residential diversion programme came before the High Court on review.
Application: The proceedings led to the High Court delving into the question of the constitutionality of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to the extent that it criminalises the use and/or possession of cannabis by a child. The section was declared inconsistent with the constitution. An application for confirmation.
Discussion: The approach in the case of Prince (CC); the impact of criminalisation on the child; children’s rights in section 28 of the Constitution; a child’s right to dignity and the case of Teddy Bear Clinic (CC); the Children’s Act 38 of 2005; and the limitations on a child’s rights and whether the limitations are justified.
Findings: The criminalisation of the use and/or possession of cannabis by a child does not serve the intended purpose of protecting the child. There are less restrictive means available to protect a child from cannabis use and/or exposure. Section 4(b) of the Drugs Act infringes a child’s rights in sections 10 (dignity) and 28 (children) of the Constitution.
Order: The order of the High Court, declaring section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child, is confirmed.
MHLANTLA J (Unanimous.)
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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