Dean Gillian Rees and Edward Christopher Jowitt v Investec Bank Limited

Investec Bank Limited issued a combined summons of approximately 250 pages with 14 claims against the appellants and a third party trustee, totalling R34,050,118 in principal debt. The claims were based on loan agreements entered into between Investec and 12 principal debtors (companies), secured by mortgage bonds. In all but one claim, Mr Rees (first appellant) stood as surety for the principal debtors' indebtedness. Mr Jowitt (second appellant) was alleged to be a surety in respect of claims E and J only. After the appellants gave notice of their intention to defend, Investec launched summary judgment proceedings. The application was supported by an affidavit from Ms Mirielle Ackermann, a recoveries officer employed by Investec. The appellants contended that Ms Ackermann's affidavit did not comply with Rule 32(2) because she did not have personal knowledge of the facts and derived her knowledge solely from documents and files.

• Whether an affidavit by a recoveries officer employed by the plaintiff bank, who acquired knowledge of the facts from documents in the ordinary course of her duties, complied with the requirements of Rule 32(2) of the Uniform Rules of Court
• Whether the deponent to an affidavit in support of summary judgment must have first-hand knowledge of every fact in order to 'swear positively to the facts' as required by Rule 32(2)
• Whether summary judgment should be granted where the defendant raised vague defences and alleged prejudice arising from frozen bank accounts without providing substantive grounds for defence

The appeal was dismissed with costs, including the costs of two counsel.

In summary judgment proceedings under Rule 32(2) of the Uniform Rules of Court, a deponent to an affidavit in support of the application need not have first-hand knowledge of every fact constituting the plaintiff's cause of action. Where the applicant is a corporate entity such as a financial institution, a deponent may legitimately rely on records in the company's possession and knowledge acquired in the ordinary course of their duties as an employee to swear positively to the facts, verify the cause of action and amounts claimed, and state that in their opinion there is no bona fide defence. Personal knowledge in this context means knowledge obtained through the deponent's role and access to relevant documents, not necessarily direct participation in every transaction. A court must assess whether the affidavit meets the requirements of Rule 32(2) by looking at the matter 'at the end of the day' on all the documents properly before it. Commercial pragmatism must prevail over undue formalism in procedural matters.

The Court endorsed the statement in Joob Joob Investments that after almost a century of application, summary judgment proceedings can hardly continue to be described as 'extraordinary' or 'drastic', and that such labels should be discarded in favour of proper application of the rule. Summary judgment only holds terrors for a defendant who has no defence. The Court noted approvingly that 'undue formalism in procedural matters is always to be eschewed' and must give way to commercial pragmatism. The Court observed that Mr Rees appeared to be 'sparse with the truth and deliberately vague' and that his manner of putting up contentions appeared to be the work of 'a man attempting, as best as possible, to expose himself on as narrow a front as possible'. The Court also commented that to insist on first-hand knowledge of every fact would not be consistent with the principles in Maharaj and would make it practically impossible for banks and large corporations to obtain summary judgment.

This judgment clarifies and confirms the requirements for affidavits in support of summary judgment applications under Rule 32(2), particularly in the context of corporate applicants and financial institutions. It establishes that deponents need not have first-hand knowledge of every fact, but may rely on knowledge acquired in the ordinary course of their duties through access to company records and documents. The judgment reaffirms the pragmatic approach to summary judgment proceedings set out in Maharaj v Barclays National Bank Ltd, cautioning against undue formalism. It also reinforces that summary judgment is an appropriate remedy against recalcitrant debtors who cannot demonstrate a bona fide defence, and that vague, speculative allegations without factual foundation will not suffice to resist summary judgment. The case is significant for banking litigation and debt recovery proceedings in South Africa.