n South African Law Journal - Unshackling the Shackleton defence a little : notes

Abstract

Summary judgment is a drastic and harsh remedy, as it deprives defendants of the opportunity to defend themselves against a claim that has been lodged against them. The remedy is very often invoked in credit agreements where the debtor has defaulted on the credit agreement without any proper excuse. It provides creditors an opportunity to obtain judgment where the defence raised by the defendant has no real chance of success and is raised merely for dilatory purposes or to frustrate the creditor. Courts have since an early stage applied the requirements of Rule 32(2) of the Uniform Rules of Court quite strictly due the drastic nature of the remedy, but have also done so realistically (see Fischereigesellschaft Busse & Co Kommanditgesellschaft v African Frozen Products (Pty) Ltd 1967 (4) SA 105 (C) at 111A-B and Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423B-H). The Maharaj case (supra) remains the locus classicus in this regard.