The shortcoming of a combined summons in a summary judgement application lies in the declaration. Although the declaration filed with the summons is not fatal to the plaintiff’s cause in a summary judgement application, it is nevertheless deemed pro non scripto. The decision-maker need only look at the summons to enter summary judgement against the defendant. This discussion focuses on the procedure for the summary judgement application in the High Court of Lesotho. Particularly, it sets out how the declaration should be adapted or varied to become useful for the purpose of the application.
The summons, declaration and particulars of claim
The summons is the process through which the plaintiff institutes an action against the defendant. The summons brings the cause of action to the attention of the defendant by informing him of the cause of action and the relief claimed. In terms of Rule 18(1) of the High Court Rules (HCR), "[e]very person making a claim against any other person may, through the office of the Registrar, issue out a summons which shall be in a form as near as possible with Form “N” of the First Schedule...”. There are two types of summonses: simple and combined summons. In South Africa, a simple summons is ideal when the cause of action relies on a debt or liquidated demand. Particulars of claim accompany the summons in the combined type. This type of summons is apposite when the claim is not based on a debt or liquidated demand. In Lesotho, when a declaration accompanies the summons, the bundle is referred to as a combined summons. Both types of summonses must adhere to form “N” save that the combined summons must also comply with Rules 20 and 21, which regulate the declaration.
The summons must set out the claim with such particularity to allow the defendant to plead or acknowledge the claim. Pursuant to Rule 18(5), “[t]he summons shall contain a concise statement of the material facts relied upon by plaintiff in support of his claim, in sufficient detail to disclose a cause of action.” The summons must convey a brief statement outlining facts that portray a cause of action. Only the aggrieved party can issue the summons, which must contain a claim against the aggrieving party. The claim must be ascertainable from the summons subject to certain requirements. For instance, Rule 28(2) requires annexing a liquid document to an affidavit deposed to by a person “who can swear positively to the facts verifying the cause of action and the amount” (that is, one who has knowledge of the facts that gave rise to the cause of action). However, the liquid document must constitute the basis of the claim in the summary judgement application. Having been served with the summons, should the summons lack any detail regarding the claim, the defendant is entitled to request further particulars. Still, to avoid judgement by default being obtained against them, the defendant must enter an appearance to defend the matter.
Summary judgement
When the defendant enters an appearance to defend the action and delivers the same to the plaintiff, the latter may apply for summary judgement. Moreover, according to Rule 28(1), the claim (in the summons) on which the plaintiff relies must be based on a liquid document, liquidated amount of money, delivery of specified movable property or ejectment. Should the summons lack in particularity regarding the cause of action, the court may decline to enter summary judgement against the defendant. In the case of Standard Lesotho Bank Ltd v Ileck Mahomed (Ileck) the plaintiff had issued the summons along with the declaration. After the defendant delivered an entry of appearance to defend the claim to the plaintiff, the latter applied for summary judgement. Consequently, the defendant objected to other documents filed along with the summons. Among them was the declaration and a facility letter. The court held that summary judgement must be entered based solely on information in the summons. The court disregarded the letter under Rule 28(4); perhaps for also not being certified as it was a photocopy of the original. Thus, the simple summons which adhered to form “N” was insufficient to disclose a cause of action without reference to the facility letter (or the declaration). The court dismissed the summary judgement application. Although it is unclear whether the court erred in declining to consider the facility letter as a liquid document, it was however, correct in ignoring the declaration.
Particulars of claim and the declaration
At times, the plaintiff may include a document termed "particulars of claim” in place of a declaration. In the case of Dencor Lesotho v Al Barakah Investment (Dencor), the plaintiff issued summons with particulars of claim annexed thereto. In dismissing the summary judgement application, Hlajoane J equated the declaration and the particulars of claim as the same document. Whatever the reason, the documents are not analogous. First, it is noteworthy that particulars of claim may not adhere to Rule 21 when incorporated into the summons unlike when they appear in the declaration, which is a separate document and pleading. Moreover, Rule 18 regulates the summons, whereas Rule 21 regulates the declaration. Secondly, particulars of claim may also be part of a declaration as reflected in Rule 20(4). Therefore, a declaration and particulars of claim are not synonymous. That is, the learned judge erred in equating them and this led to an erroneous decision. Relying erroneously on the Ileck judgement, the court disregarded the particulars of claim to the detriment of the plaintiff. Consequently, the court focused on only the summons and then dismissed the summary judgement application.
However, in the case of Standard Lesotho Bank v Motlejoa Guest House (Motlejoa), the plaintiff issued simple summons against the defendant. Instead of annexing the declaration to the summons, the plaintiff appended a particulars of claim. The issue was whether the particulars of claim constituted a further step in the procedure for a summary judgement application. After interrogating Rule 18(5), Mathaba J observed that the rule requires the plaintiff to set out the material facts in sufficient particularity so as to disclose a cause of action against the defendant. The particulars of claim were included to aid the defendant to fully understand the nature and grounds of the plaintiff’s claim as reflected in or ascertained from the facts the particulars conveyed. The court ruled that although a liquid document is evidential, it ought not be excluded under Rule 28(4) but annexed under Rule 28(2). In reversing the Dencor decision, the court upheld Olaf Leen v First National Bank of Lesotho, and found that the particulars of claim are invariably filed with the summons. Thus, a particulars of claim is part of the summons, whether annexed to or included in the summons.
It should be noted that the plaintiff has the discretion to set out the particulars of claim in the summons or append the particulars of claim to the summons. When the particulars of claim appear in a separate document from the summons, the deputy sheriff must serve both as if they were a combined summons. The documents, unlike the summons and declaration, are not separate processes when billing the plaintiff in the return of service. The declaration is the one in which the plaintiff can make conclusions of law on the facts and based on annexures. The plaintiff must not label the particulars of claim as an annexure because, although deemed a pleading, it is rather an “extension” of the summons than an annexure. Thus, when the particulars of claim appear in a separate document, they need no revenue stamp. Dissimilarly, the declaration, which is a separate document, must be stamped. However, as mentioned earlier, the particulars of claim can be part of both the summons and the declaration.
The cure for the combined summons
According to the Ileck decision, should the plaintiff issue a combined summons, in a summary judgement application, the court must disregard the declaration. In terms of the Motlejoa case, the particulars of claim are part of the summons. Particulars of claim may also be in the declaration, pursuant to Rule 20(4). Therefore, the information in the particulars of claim can be in both the summons and the declaration. Rule 21(2) provides that "[i]n the declaration the plaintiff shall set forth the nature of his claim (own emphasis), the conclusions of law which the plaintiff claims he is entitled to deduce from the facts therein and the prayer for the relief claimed.” Rule 18(5) provides that "[t]he summons shall contain a concise statement of the material facts relied upon by plaintiff in support of his claim, in sufficient detail (own emphasis) to disclose a cause of action.” Therefore, the particulars of claim should convey information or details regarding the claim. In this regard, for the information to be considered in a summary judgement application, it is submitted that a legal drafter must rename a declaration to particulars of claim. This renaming effectively converts a combined summons into a simple summons.
Conclusion
For an application for summary judgement, the plaintiff does not further their cause by annexing the declaration to the summons. That is, the drafter of pleadings should rather erase the term "declaration” from the face of the document and write "particulars of claim” to have it included in the summary judgement application. In this way, they issue a simple summons and the court will not disregard the material facts that disclose the cause of action with sufficient particularity outlined therein. Although it is an evidential document, if the claim is based on a liquid document, the document must be annexed to the affidavit supporting the summary judgement application. This document is important in discharging the onus of proving the indebtedness of one party to the other. The court should thereupon be satisfied beyond a reasonable doubt that the plaintiff is entitled to summary judgement.
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