Lotts v NMI Durban South Motors (Pty) Ltd t/a Barons Bellville

The plaintiff (Ethan Lotts) purchased a motor vehicle from the defendant (NMI Durban South Motors (Pty) Ltd t/a Barons Bellville) on 10 November 2022, financed by Standard Bank of South Africa Ltd. After taking delivery, numerous defects arose from 11 November 2022, until the plaintiff returned the vehicle to the defendant on 13 July 2023. The plaintiff claimed positive malperformance and issued summons on 1 November 2023, seeking a refund of the purchase price of R1,186,810.02, alternatively a replacement vehicle plus a monetary payment for the difference in value, and damages of R461,465.87 for vehicle financing costs while being deprived of the vehicle's use. After the defendant filed a plea on 18 December 2023, the plaintiff served an application for summary judgment on 5 February 2024. The defendant then took the point that the summary judgment application was an irregular step because it was filed outside the 15-day time limit prescribed by Rule 32(2)(a). The dispute revolved around whether 'dies non' (the days between 21 December and 7 January) should be excluded from the computation of the 15-day period for filing summary judgment applications.

• Whether the dies non rule in Rule 6(5)(b)(iii)(aa) applies to summary judgment applications brought under Rule 32
• Whether the plaintiff's summary judgment application was filed within the 15-day period prescribed by Rule 32(2)(a)
• Whether the plaintiff successfully established grounds for condonation of the late filing of the summary judgment application
• Whether the summary judgment application complies with Rule 32(1) given the nature of the relief claimed

The Rule 30 application was upheld. The summary judgment application was dismissed. The plaintiff was ordered to pay the defendant's legal costs, including costs of counsel where employed, on Scale A. The matter was directed to be heard on the semi-urgent roll when enrolled.

The dies non rule in Rule 6(5)(b)(iii)(aa), which excludes the days between 21 December and 7 January from the computation of time limits for delivery of notices to oppose or affidavits, does not apply to summary judgment applications brought under Rule 32. Summary judgment applications are governed exclusively by the time limits in Rule 32(2)(a), which requires filing within 15 days after delivery of the plea, and the dieuntiencludnon exclusion is inapplicable. Additionally, claims for unliquidated damages, replacement vehicles, and unascertained monetary amounts are not competent in summary judgment proceedings under Rule 32(1) as they do not constitute liquidated debts capable of prompt ascertainment.

The court noted that it is undeniable that this is a significant case for the plaintiff as he remains indebted to SBSA and returned the motor vehicle to the defendant on 13 July 2023. The court also observed that prejudice is absent on the defendant's part, and had the plaintiff shown proper reasons for condonation, the irregular step might have been dismissed. The court remarked that it is in the interest of justice, given the plaintiff has been without the use and enjoyment of the motor vehicle while still indebted, for the matter to be granted a date on the semi-urgent roll.

This judgment clarifies the interaction between Rule 6(5)(b)(iii)(aa) (the dies non provision) and Rule 32 (summary judgment) in the Uniform Rules of Court, holding that dies non does not apply to summary judgment applications. It reinforces the principle that summary judgment is only available on limited grounds for claims that are for liquidated debts or easily ascertainable amounts, and not for claims involving unliquidated damages or alternative relief requiring valuation evidence. The case also emphasises that an application for condonation for late filing must be properly substantiated with reasons for the delay, not merely raised in argument.