The High Court has dismissed an application by Petros Masithela Nxumalo for summary judgment against Standard Bank Eswatini in a case in which he was claiming more than E45.9 million in alleged losses linked to an Old Mutual insurance policy.
In a judgment delivered by Judge N.M. Maseko, the court ruled that Nxumalo’s claim could not be determined through summary judgment proceedings because it involved disputed facts and did not fall within the categories of claims permitted under Rule 32 of the High Court Rules.
Nxumalo had sued Standard Bank for E45 932 562.93 together with interest at 13 per cent per annum, alleging that the bank failed to return or provide him with an Old Mutual insurance policy document after his housing loan was transferred to the then Swaziland Building Society.
He claimed that the bank’s failure to provide the policy document resulted in substantial financial and proprietary losses.
According to court papers, Nxumalo was employed by the bank in 1993 and had taken disability life cover and investment policies with Old Mutual Life Assurance.
He further stated that his insurance policy had been used as collateral security for a housing loan obtained from the bank. The plaintiff argued that after the housing loan was ceded to the then Swaziland Building Society, the bank had a legal duty to return his insurance policy document.
He alleged that despite numerous requests and correspondence, the document was never returned. Nxumalo maintained that this failure led to financial losses amounting to more than E45.9 million.
However, Standard Bank opposed the application and argued that the matter was unsuitable for summary judgment because the claim was one for damages and it involved several factual disputes requiring a full trial.
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The bank submitted that the amount claimed was neither a liquidated amount nor based on a liquid document as required by Rule 32. It further argued that Nxumalo had failed to explain how the various figures making up the E45.9 million claim had been calculated.
The bank also contended that the insurance policy was a contractual matter between Nxumalo and Old Mutual and that any policyholder could obtain a replacement policy directly from the insurer if the original document was misplaced.
In his judgment, Justice Maseko agreed with the bank’s submissions and emphasised that summary judgment was an extraordinary remedy reserved for clear and unanswerable cases.
“The plaintiff’s case does not fall within any of the four categories wherein summary judgment may be granted,” the judge said.
He found that the plaintiff had failed to provide sufficient evidence showing how the claimed amount was calculated and noted that the defendant had raised bona fide defences and several triable issues.
“The aforesaid amount of E45 932 562.93 must be unpacked by the plaintiff in a full-blown trial where the defendant would also have ample opportunity to present its own evidence in defence of the plaintiff’s claim,” said the judge. Justice Maseko further stated that damages claims generally require oral, documentary and expert evidence and therefore are unsuitable for summary judgment proceedings.
The court also expressed concern that Nxumalo chose to represent himself despite repeated advice from the court and the defendant’s legal representatives to engage an attorney. The judge noted that civil litigation involves complex legal procedures and warned that self-represented litigants often face difficulties complying with court rules.
“It is extremely difficult for the court to advise the unrepresented litigant because that would mean the court is descending into the arena and literally prosecuting the matter on behalf of the litigant,” he said.
In conclusion, the court found that the application for summary judgment was irregular and that the matter should proceed to trial where all disputed issues could be properly ventilated.
The court dismissed the summary judgment application with costs, granted Standard Bank leave to file a plea and referred the matter for a full trial.
Justice Maseko further ordered Nxumalo to comply with all applicable Rules of Court and prepare and file a complete and accurate Book of Pleadings once pleadings have closed.
