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BY Aslam Moosajee AND Zameer Omar
Summary judgments and dies non: Are the days between 21 December to 7 January counted?
In the case of Lotts v NMI Durban South Motors (Pty) Ltd t/a Barons Belville, the Western Cape Division of the High Court of South Africa, Cape Town had to consider whether dies non (i.e. 21 December to 7 January) is excluded when calculating the time period for the filing of an application for summary judgment in terms of the Uniform Rules of Court (“the Rules”).
Background
Lotts purchased a vehicle from Barons Belville (“Barons”) which Standard Bank financed, but defects emerged after taking delivery. Lotts instituted action against Barons on 1 November 2023, claiming a refund, or alternatively, replacement of the vehicle and damages. Pursuant to Barons delivering its plea on 18 December 2023, Lotts delivered an application for summary judgment on 5 February 2024 in terms of Rule 32 of the Rules.
In response, Barons delivered a notice in terms of Rule 30 and 30A of the Rules, claiming that the application for summary judgment constituted an irregular step. Barons alleged that this was because the application was filed more than 15 court days after the plea was delivered. The Rules require summary judgment applications to be delivered within 15 court days of the delivery of the plea.
Lotts argued that the dies non applies to applications for summary judgments and that he was within the 15 court day period when he delivered the application. Lotts argued further should the dies non be deemed inapplicable to applications for summary judgment, the delay should be condoned by the court.
The Court’s findings
The court found that dies non only applied to the delivery of answering affidavits, following a notice of intention to oppose in an application and did not apply to Rule 32 summary judgment applications.
Lotts had to give substantial reasons for the court to condone the late filing of the summary judgment application but failed to do so. Lotts merely explained that the delay should be condoned by the court without elaborating why. Although Barons did not establish prejudice in its Rule 30 application, Lotts’ failure to give substantial reasons for condonation counted against him.
In addition, an application for summary judgment cannot be made where further evidence must be led to support a claim. Given that Lotts was claiming damages, the court found that further evidence was required to prove the quantum of damages. Lotts’ application for summary judgment therefore failed.
Barons’ Rule 30 application was upheld and Lotts’ application for summary judgment was dismissed with costs, including the costs of counsel where employed.
Conclusion
Dies non does not apply to applications for summary judgment. The days between the period of 21 December to 7 January are thus counted when determining the 15-day period for the timeous delivery of the summary judgment application. If a party wants to secure condonation for the late filing of any application or pleading, sound reasons for the delay should be provided and that party must also demonstrate that they have reasonable prospects of success on the merits.
Aslam Moosajee
Executive | Dispute Resolution
Zameer Omar
Candidate Legal Practitioner | Dispute Resolution
