Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)

Please note that this matter was decided before the major amendment to the summary judgment rule!

The principles set out in this judgment, however, still apply to applications brought in terms of the new rule.

The defendant, Maharaj, was a customer of Barclays National Bank Ltd, and operated a current banking account at the bank's Stanger branch. Maharaj had entered into an oral agreement for an overdraft facility with the bank, which was represented by its duly authorised manager, D. A. Rees.

The bank claimed that Maharaj owed them a sum of R14,112.32, along with interest at a rate of 13 percent per annum from October 24, 1974, and costs. The bank's claim was based on the overdraft agreement. Maharaj disputed the bank's claim, arguing that he had met his obligations to the bank and was not indebted to them. He contended that he had given instructions to the bank to stop payment on all cheques, including post-dated cheques, from April 25, 1973, onwards, and that any payments made by the bank on such cheques after his instructions were not his responsibility.

Maharaj's defense was based on the premise that he had taken steps to prevent his account from being further overdrawn and that any overdraft amount claimed by the bank was due to the bank's own actions contrary to his explicit instructions.

THE LAW

The affidavit supporting an application for summary judgment must be made by the plaintiff or by another person who can swear positively to the facts, verifying the cause of action and the amount claimed. The affidavit must also state that, in the deponent's opinion, there is no bona fide defense to the action and that the notice of intention to defend was delivered solely for the purpose of delay.

The person making the affidavit, if not the plaintiff, must have personal knowledge of the facts. The mere assertion that the deponent "can swear positively to the facts" is insufficient unless it is clear that the deponent fully understands the meaning of these words.

The court concluded that the affidavit filed by the bank in support of its application for summary judgment was just sufficient to meet the requirements of Rule 32 (2) of the Uniform Rules of Court. The affidavit was made by the bank's branch manager's assistant, who did not explicitly state his personal knowledge of the facts but whose position implied such knowledge. The court inferred that he would have knowledge of the defendant's financial standing with the bank and the state of his current account.

The defendant must disclose the nature and grounds of their defense and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defense. The defendant is not required to formulate their defense with the precision required of a plea, nor is the Court to examine it by the standards of pleading.

If the defendant fails to provide security or satisfy the Court that there is a bona fide defense, the Court has discretion as to whether to grant summary judgment. However, if the defendant appears to have a bona fide defense that is good in law, the Court must refuse summary judgment.

In this case, the Appellate Division found that the defendant's affidavit, while not perfect, did disclose a defense that appeared to be bona fide and sufficiently particular to comply with Rule 32 (3) (b). Consequently, the Court allowed the appeal, set aside the order of the trial court, and granted the defendant leave to defend the action. The decision emphasises the importance of ensuring that the extraordinary remedy of summary judgment is only granted when the plaintiff's claim is unimpeachable, and the defendant's defence is not bona fide or is bad in law.