The Historical Context of Summary Judgment in South Africa: Politics, Policy and Procedure

Abstract

A fundamental defect of classical common-law procedure was its inability to test the factual basis of a defendant’s defence without the issue being determined at a trial. As a result, the practice of sham pleading developed whereby a defendant raised a fictitious defence for the purposes of delay. Although Lord Brougham raised this matter in a speech addressed to the House of Commons in 1828, it was not until 1853 that he proposed a Bill to halt this abuse. Lord Brougham’s Bill was premised on an adapted version of the summary diligence, a procedural mechanism borrowed from Scottish Law. The Bill was unfavourably received by the English legal profession who were suspicious of a Scottish innovation of Civilian origin. In response, Lord Keating introduced a competing Bill during the ensuing session, which was finally enacted in 1855 as the Summary Procedure on Bills of Exchange Act (18 & 19 Vict c 67), commonly dubbed as Keating’s Act. It is contended, that the summary judgment procedure as it has been received into our contemporary practice is the product of political expediency on account of the intense political lobbying and heated policy debates concerning the competing Bills. The resultant compromise produced an indigenous English summary mechanism that, when compared to summary proceedings of Civilian origin, indicates that the term “summary” was misused in its English procedural context because the summary procedure that it devised neither simplified the ordinary proceedings, nor ensured procedural guarantees nor did it promote the execution of judgment. A further contention is that South African practice for many decades resisted the reception of the English model of summary judgment because it was not procedurally relevant at the time since provisional sentence proceedings, an executory procedure of Roman-Dutch origin, was entrenched in Cape practice and the other colonies. The eventual reception of the summary judgment procedure into South African civil procedural law has been both tardy and fragmented and not without controversy because of its potential for placing in jeopardy the procedural rights of defendants.