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[2012] ZAGPJHC 210
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SA Taxi Securitisation (Pty) Ltd v Soya and Another, SA Taxi Finance Solutions (Pty) Ltd v Molawa and Another (26126/201, 41194/2011, 00089/2012, 38354/20) [2012] ZAGPJHC 210 (26 October 2012)
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REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:
26126/2011
In the matter between:
SA
TAXI SECURITISATION (PTY) LIMITED
(Registration Number:
2005/021852/07)
................................................
Applicant
and
SOYA, MABOTHA PAULAS
(Identity Number:
….......
)
...........................................................................
Respondent
AND
CASE NO: 41194/2011
In the matter between:
SA TAXI FINANCE SOLUTIONS (PTY) LIMITED
(Registration Number:
2003/029687/07)
................................................
Applicant
and
MOLAWA, NONYANE SAMUEL
(Identity Number:
….................
)
.................................................................
Respondent
AND
CASE NO: 00089/2012
In the matter between:
SA TAXI SECURITISATION (PTY) LIMITED
(Registration Number:
2005/021852/07)
................................................
Applicant
and
MOKOTONG, AURLEAN
(Identity Number:
…..........
)
.......................................................................
Respondent
AND
CASE NO: 38354/2001
In the matter between:
SA TAXI FINANCE SOLUTIONS (PTY) LIMITED
(Registration Number:
2003/029687/07)
................................................
Applicant
and
MANGEBENGE, JUWAWA
(Identity Number:
…..............
)
......................................................................
Respondent
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] The above matters are all
interlocutory applications for the return and attachment of motor
vehicles for safekeeping pending
the finalisation of the respective
trials.
[2] The applicant in all the
matters is claiming largely the same relief against the different
respondents. The matters were heard
together. It was agreed that
the judgment and the order I make in one matter may apply to all the
applications.
THE SOYA MATTER – CASE NO 26126/2011
[3] The applicant is a
registered credit provider under the National Credit Act No 34 of
2005 (“
the NCA
”).
The applicant is the financier of thousands of taxis throughout
South Africa including the motor vehicles in the present
applications. In the first matter, Case No 26126/2011 (“
the
Soya matter
”),
the applicant and the respondent concluded a written lease agreement
during July 2008. In terms of the lease agreement,
the applicant
leased to the respondent a 2008 Toyota Quantum Sesfikile motor
vehicle (“
the
vehicle
”). The
respondent took delivery of the vehicle with which he commenced
operating a taxi route between Klerksdorp and Mafikeng.
[4] The first monthly instalment
of R7 877,35 in terms of the lease agreement was due on 21 August
2008. The respondent paid a
deposit of R4 800,00. Thereafter the
respondent made certain payments in reduction of his obligations
under the lease agreement.
However, the respondent subsequently
breached the agreement by failing to pay the full amount of the
instalments due. As a consequence,
the applicant instituted action
against the respondent in July 2011 for,
inter
alia
, the return of
the vehicle.
[5] The respondent defended the
action. The applicant’s application for summary judgment was
opposed and unsuccessful.
The respondent was granted leave to
defend.
[6] During August 2009 the
respondent invoked the provisions of section 86 of the NCA and
applied for debt review. The applicant
participated in the debt
review process. However, the negotiations between the parties
regarding re-arranged instalment payments
were unsuccessful. The
respondent’s application for debt restructuring was set down in
the Klerksdorp Magistrate’s
court for 23 February 2010, but was
then postponed
sine
die
. On 10 August
2010 the respondent withdrew his application for debt restructuring.
[7] On 23 June 2011 the
applicant, as it was entitled to do on its version, notified the
respondent, his debt counsellor and the
National Credit Regulator, in
the prescribed manner, of its election to terminate the debt review
in terms of section 86(10) of
the NCA. This notice was given after
sixty (60) business days had lapsed from the date on which the
respondent had applied for
debt review and whilst, on the version of
the applicant, the respondent was in default in respect of his lease
obligations. The
respondent terminated the services of his debt
counsellor and appointed a new debt counsellor in August 2011. The
new counsellor
commenced the debt review process afresh. However, by
this time, the applicant had already issued summons in July 2011, as
stated
above. On this basis, the applicant contended that the new
debt review process did not apply to the credit agreement between the
parties in terms of which the summons had been issued.
[8] On the applicant’s
calculations, the total payments made by the respondent subsequent to
his application for debt review
up to 30 January 2012 amounted to
approximately R155 819,16. The sum actually due by the respondent in
terms of the lease agreement
over the period September 2009 to April
2012 was R252 275,20 (R7 877,35 x 32). The shortfall was R96 256,04
and is increasing
each month.
[9] The applicant contended that
pending the outcome of the action and in the absence of the interim
relief now sought, the applicant
has no other method of preventing
the respondent from alienating, selling or damaging the vehicle or
otherwise disposing of same.
The result of such conduct will be that
the only security which the applicant has for the respondent’s
indebtedness will
disappear.
[10] In the answering affidavit,
the respondent has raised several defences some of which were also
raised in the affidavit resisting
summary judgment. In summarised
form, the defences raised by the respondent were that the applicant
failed to prove that the applicant
was a registered credit provider
in terms of the NCA; that the deponent to the founding affidavit (Ms
Phyllis Lombard) could not
have had personal knowledge of the
applicant’s dealings with him as well as the lease agreement in
question; that the applicant
has abused the court process by first
launching a summary judgment application, which failed and then by
bringing the present application
based on an interdict for interim
vindicatory relief; that the applicant has delayed in bringing the
instant application; that
at the time of the negotiations leading to
the conclusion of the lease agreement, the applicant omitted to
conduct proper enquiries
in regard to his financial ability to pay
the required monthly instalments under the agreement which resulted
in reckless credit
granting on the part of the applicant; that the
relief sought by the applicant is final in effect which will result
in the respondent
being unable to earn a living to support his family
and to pay legal fees; that the applicant acted in bad faith in the
debt review
process by rejecting the proposed repayments; that the
giving of notice to terminate the debt review was not done lawfully
since
such notice never came to his attention; that his debt review
in the Magistrate’s court was to be heard soon; the lease
agreement was still extant; that the applicant has not complied with
its obligations in terms of the NCA; and that the respondent
was
currently paying to the applicant an amount in terms of his offer
under the NCA which application is subject to section 86
and which
the Court has a discretion to reinstate any agreement in terms of
section 86(11) of the NCA.
[11] In the replying affidavit,
the applicant in addition to attaching the applicant’s
certificate in terms of the NCA and
contending that the respondent
had not delivered a Rule 7 notice challenging the authority of Ms
Phyllis Lombard, denied all the
allegations in the answering papers.
There was nothing untoward with the denials, in my view.
THE MOLAWA MATTER – CASE NO 41194/2011
[12] In the second matter
against Mr N S Molawa, Case No 41194/2011 (“
the
Molawa matter
”),
the applicant, SA Taxi Finance Solutions (Pty) Ltd, seeks an order
for the delivery into the possession of the Sheriff
of a 2010 Foton
Inkunzi 14 seater motor vehicle (“
the
vehicle
”)
forming the subject matter of a lease agreement. The applicant
undertook to keep the vehicle safely at its own expense
pending the
outcome of the action.
[13] The lease agreement between
the applicant and the respondent was entered into in June 2011. In
terms of the lease agreement,
the applicant leased to the respondent
the vehicle. The respondent took possession of the vehicle. The
agreed monthly instalment
was R8 409,50. The first payment was due
on 1 August 2010. The respondent paid the deposit of R2 500,00 and
thereafter paid certain
other amounts in reduction of his obligations
under the lease agreement. However, later the respondent breached
the lease agreement
by failing to pay the full amount of the
instalments due.
[14] As in the case of the
previous application, the respondent invoked the provisions of
section 86 of the NCA and applied for
debt review in July 2011. The
applicant in due course received from the debt counsellor a proposal
for a reduction of the monthly
instalment from R8 409,50 to R4 579,00
per month. The applicant made a counter-proposal, which the
respondent did not accept.
The respondent did not obtain a
Magistrate’s court order for the restructuring of the monthly
rental. In the end, no agreement
was reached. On 10 October 2011,
the applicant, as it was entitled to do on its version, notified the
respondent, his debt counsellor
and the National Credit Regulator, in
the prescribed manner, of its election to terminate the debt review
in terms of section 86(10)
of the NCA. At that point in time, at
least 60 (sixty) business days had passed from the date on which the
respondent had applied
for debt review, and whilst the respondent was
in default in respect of his lease obligations.
[15] Towards the end of October
2011, the applicant instituted an action against the respondent for,
inter alia
,
return of the vehicle. The respondent entered appearance to defend.
The applicant applied for summary judgment. The respondent
filed an
opposing affidavit resisting summary judgment. The respondent was
granted leave to defend.
[16] In the furtherance of its
claim that the respondent has breached the lease agreement, the
applicant calculated the rental
payments made by the respondent
subsequent to his application for debt review in July 2011, to total
R25 339,90. The sum actually
due by the respondent in terms of the
lease agreement for the period July 2011 to April 2012 was R84 095,00
(R8 409,50 x 10).
The shortfall was R58 755,10 and is increasing
each month.
[17] The respondent admitted to
non-payment in his affidavit resisting summary judgment and alleged
that he paid according to his
proposal before a Magistrate’s
court order was granted, instead of in accordance with the terms of
the lease agreement. The
applicant has cancelled the lease agreement
in terms of clause 8.2.2 of the lease agreement. It was not in
dispute that the respondent
is using the vehicle as a taxi.
[18] In the answering papers
filed out of time, the respondent raised a number of defences. Some
of the defences, although not
entirely credible to resist the relief
sought, however raised issues of concern in the whole debt review
process as discussed later
in the judgment. In the main, the
respondent contended that the applicant’s sales agent misled
him into believing that he
could meet the financial obligations
envisaged by the lease agreement and still make profit by the usage
of the vehicle as a taxi.
Further that he was not granted the
opportunity to secure his own insurance for the vehicle as the
applicant’s insurance
cover now proved unaffordable. When the
respondent realised that he could not comply with his financial
obligations, and to make
ends meet, he resorted to debt restructuring
thereby compromising his financial commitments to all his creditors
and defaulting
in respect of the lease agreement. In spite hereof,
the respondent said he refused to surrender the vehicle to the
applicant when
requested to do so. He contended that he had made a
reasonable instalment repayment offer to the applicant, which offer
was unfairly
rejected.
[19] The respondent further
contended that even though the applicant had terminated the debt
review process, he made payment to
the applicant as proposed by his
debt counsellor. The proposed attachment of the vehicle would be
drastic and would prevent him
from earning a living, including making
repayments to the applicant. The lease agreement was still in place.
There was no proper
and prior analysis of his financial situation.
The respondent also contended that by resorting to the relief
currently sought,
the applicant failed to promote the spirit of the
NCA. The respondent has also applied for condonation for the late
filing of his
answering affidavit, which was filed and served a day
later. There was a reasonable explanation for the delay. Condonation
ought
to be granted.
[20] In the replying affidavit
the applicant disputed the contentions of the respondent. The
applicant contended that it was entitled
to terminate the debt review
process as the respondent had not yet obtained an order in the
Magistrate’s court for debt restructuring
within the period
provided for in the NCA. The respondent was given the option upfront
to obtain his own insurance or use the
insurance company of the
applicant’s choice. The applicant submitted that it
participated in the debt review in good faith.
It was in the business
of financing taxis countrywide. For this reason the applicant used
stringent measures to assess the financial
risks when providing
finance to taxi operators.
THE MOKOTONG MATTER – CASE NO 00089/2012
[21] I deal with the third
matter in which the respondent is Mr A Mokotong, Case No 00089/2012
(“
the Mokotong
matter
”). The
applicant seeks similar relief as in the two other matters. The
lease agreement was concluded in April 2009. In
terms of the lease
agreement, the applicant leased to the respondent a 2009 Toyota
Quantum Sesfikile (“
the
vehicle
”) to be
used as a taxi. The respondent took possession of the vehicle.
[22] The agreed monthly
instalment due in terms of the lease was R9 000,61. The respondent
paid a deposit of R5 000,00, and thereafter
paid certain other
amounts in reduction of his lease obligations. However, on the
version of the applicant, the respondent breached
the agreement by
failing to pay the instalments due timeously or at all. On 18
February 2010, the respondent was in arrears in
the amount of R33
843,88.
[23] In November 2009 the
respondent utilised the provisions of section 86 of the NCA and
applied for debt review. The applicant
and the respondent could not
reach agreement as contemplated in section 86(8)(a) of the NCA in
spite of negotiations. On 23 February
2010, the applicant terminated
the debt review after giving notice to all parties concerned. The
termination was in terms of section
86(10) of the NCA. At such
termination, no order had been made by the Magistrate’s court
granting the debt restructuring
application.
[24] On the calculations of the
applicant, the payments made by the respondent for the period
November 2009 to December 2011 totalled
only R92 683,95. The sum
actually due by the respondent for the period November 2009 to
February 2012 is R144 009,76 (R9 000,61
x 16). The shortfall is R51
325,81 which is increasing each month.
[25] As in the other matters,
the applicant cancelled the lease agreement, instituted an action
which was defended by the respondent.
Similarly, the application for
summary judgment was opposed. The respondent was granted leave to
defend on 1 February 2012.
[26] In the answering affidavit,
the respondent raised largely the same defences as the respondents in
the above matters. These
included briefly, the discretion of the
Court in granting the relief sought; the authority of the deponent to
the founding papers
and her knowledge of the transaction in question;
the procedure followed by the applicant in resorting to interim
relief after
a failed summary judgment application; that at the time
of the agreement the applicant sale’s agent failed to properly
assess
the financial ability of the respondent to sustain payments in
respect of the lease agreement; that the applicant participated in
the debt review process in bad faith by rejecting respondent’s
repayment offer; and generally, that the return of the vehicle
to
the applicant will hamper the respondent’s right to earn an
income. For the rest, the allegations and counter-allegations
on
both sides were the same as in the other matters.
THE MANGEBENGE MATTER – CASE NO 38354/2011
[27] Finally, I deal with the
fourth application. The matter of SA Taxi Finance Solutions (Pty)
Ltd against Mr J Mangebenge, Case
No 38354/2011 (“
the
Mangebenge matter
”).
[28] The applicant and the
respondent concluded a credit lease agreement in May 2010. In terms
of the lease agreement the applicant
leased to the respondent a
Toyota Quantum Sesfikile 15 Seater (“
the
vehicle
”). The
vehicle was delivered to the respondent after he signed the
agreement.
[29] The agreed monthly
instalment due in terms of the lease agreement was R10 568,25. The
respondent paid the required deposit
of R5 500,00. The respondent
breached the agreement by failing to pay the instalments due. On 14
September 2011 the respondent
was in arrears in the sum of R73
800,73.
[30] In February 2011 the
respondent applied for debt review in terms of section 86 of the NCA.
There was no agreement between
the parties during the debt review
process. The debt counsellor had proposed a reduced monthly
instalment from R10 568,25 to R4
000,00 per month. The applicant
rejected the proposal on the basis that the debt would only be paid
off in 2037, which is more
than 25 years in the future, and long
after the useful life of the vehicle. As a consequence, on 15
September 2011, the applicant,
acting in terms of section 86(10) of
the NCA, terminated the debt review by giving notice to all the
parties concerned. At that
stage, there was no order made by a
Magistrate’s court granting the debt restructuring application.
[31] On the calculations of the
applicant, the only payments made by the respondent consequent to his
application for debt review,
and for the period 8 April 2011 to
February 2012, totalled R61 760,22. The sum actually due by the
respondent in terms of the
lease agreement for the period March 2011
to April 2012 was R147 955,50 (R10 568,25 x 14). The shortfall is
R86 195,28 which is
increasing each month.
[32] The applicant has cancelled
the lease agreement. The respondent was granted leave to defend under
similar circumstances as
the other matters when an application for
summary judgment was launched.
[33] In the answering affidavit,
the respondent raised substantially the same defences raised by the
respondents in the other applications
under discussion. In
particular, the respondent contended that there was no certificate of
registration as a credit provider attached
to the founding papers.
However, this issue was cured in the replying papers when the
applicant provided the requisite certificate
in terms of the NCA.
[34] The authority of the
deponent to the founding papers was equally challenged. The same
applied to the procedure followed by
the applicant in seeking the
present relief. The respondent also contended that the granting of
credit to him as envisaged in
the lease agreement was reckless on the
part of the applicant. The respondent also contended that he was
paying a monthly instalment
to the applicant as suggested by his debt
counsellor. However, a certificate of balance attached to the
replying papers, and dated
29 May 2012, showed that at the date of
the issuing of summons, the respondent was in arrears with his
monthly instalments in the
amount of R73 800,73. The current arrears
were R150 457,33.
APPLICANT’S INTERIM RELIEF
[35] It is more than plain from
the above background that in all the applications in issue, the
applicant seeks interim relief in
the form of attaching the motor
vehicles in question pending the outcome of the respective trials.
The relief sought is not a
final interdict as contended for on behalf
of the respondents. There is indeed a vast difference between the two
remedies. In
all the applications, it is not in dispute that the
applicant is the lawful owner of the motor vehicles.
SOME LEGAL PRINCIPLES
[36] In
LAWSA
Vol XI, 2 ed, para 401, it is said that:
“
An
interim interdict is a court order preserving or restoring the status
quo pending the final determination of the rights of the
parties. It
does not involve a final determination of these rights and does not
affect their final determination. Whether an
interdict is final or
interim depends on its effect upon the issue and not upon its form.
”
Reference is made to
Apleni
v Minister of Law and Order and Others
1989 (1) SA 195
(A) at 201A-D. It is settled law that the
requirements for the right to claim an interim interdict are, a
prima
facie
right; a
well-grounded apprehension of irreparable harm if the relief is not
granted and the ultimate relief is ultimately granted;
that the
balance of convenience favours the granting of an interim interdict;
and that the applicant has no other satisfactory
remedy. See in this
regard the well-known case of
Setlogelo
v Setlogelo
1914 (A)
221 at 227. It is also settled law that in exercising its discretion
whether or not to grant an interim interdict, the
Court is enjoined
to consider the above requirements, not in isolation, but
conjunctively. In Prest
,
The Law and Practice of
Interdicts
(1996) at
39, the learned author states:
“
Van
der Linde accordingly distinguishes between two differing situations.
On the one hand, a clear right; on the other, a right
which is
doubtful. On the one hand, a matter which can be decided by interdict
alone; on the other, a matter which is not a proper
one to be decided
by interdict alone and requires a more complete judicial proceeding.
On the one hand, a final interdict; on
the other, an interim
interdict. Each situation has its place in the scheme of things and
both in the framework of interdicts.
On the one hand, the applicant
is entitled to final relief where the right asserted by him is
clearly established; on the other,
where the right asserted by the
applicant, though prima facie established, is open to doubt, the
applicant is entitled to lesser
relief, viz interim relief until such
time as he can establish, upon a balance of probabilities his right
in a more complete judicial
proceeding. This lesser relief is,
however, dependent upon the applicant being able to satisfy the
requirements relating to irreparable
harm.
”
LEGAL PRINCIPLES APPLIED TO THE FACTS
[37] Applying the above legal
principles to the facts of the instant applications, it is apparent
that the defences raised by the
respective respondents, although
attracting some sympathy, are clearly not a bar to an order for the
interim attachment of the
various motor vehicles. Ms Stevenson, who
appeared for the applicants in all the four matters, referred the
Court to numerous
other case law emanating from this High Court and
other High Courts involving litigation between the applicant and taxi
operators.
In some of these cases, interim relief was granted,
whilst in others it was declined. However, each case must be
determined on
its own merits.
[38] In one of the cases where
interim relief was granted in this High Court, namely
SA
Taxi Securitisation (Pty) Ltd v Chesane Andries Rabohadi
(unreported Case No 26382/2009), at para [10] of the judgment,
Boruchowitz J said:
“
The
function and purpose of an interim attachment order is to protect the
leased goods against deterioration and damage and to keep
them in
safekeeping until the case between the parties has been finalised.
Its purpose is not to enforce remedies or obligations
under the
credit agreement and the remedy does not form part and parcel of the
debt enforcement process envisaged in the NCA.
See in this regard J
M Otto the
National Credit Act Explained
para 44.4. See also
unreported judgment in SA Taxi Securitisation (Pty) Ltd v H W Young
Case No 10249/2008 (CPD). Also compare
Absa Bank Ltd v De Villiers.
”
[39] In all the applications in
question, the applicant’s unquestionable concerns, which runs
like a golden thread throughout,
can be summarised as follows. The
lease agreements in respect of all the respondents provide that, in
the event the applicant cancels
the agreement for any reason (as it
happened here), and the respondents dispute the cancellation, the
respondents would be obliged
to continue to pay the agreed
instalments while the vehicles remain in their possession. On the
facts set out above, it is evident
from the respondents’
continued failure to make payments of monthly instalments that they
do not intend to comply with these
terms of the lease agreement.
[40] In addition, the
respondents clearly intend to continue to utilise the applicant’s
vehicles in the conduct of their
taxi operations. They derive income
therefrom, without paying the applicant what had been agreed on.
This results in the vehicles,
used as taxis, being exposed on a daily
basis to the rigours associated with taxi business, which also
entails the extensive mileage
that is travelled while the taxis are
in operation.
[41] The applicant is equally
apprehensive that not only are the taxis known for frequent
involvement in accidents and consequential
damage thereto, but the
diminishing value of the vehicles on a daily basis. This is a
situation over which the applicant has no
control whatsoever, and
therefore entirely powerless to protect its interests or minimise its
risks in and to the vehicles.
THE APPLICANT’S SECURITY FOR DEBTS
[42] What is most telling, and
well-founded in favour of the applicant is described in the following
terms. The only security
that the applicant has for the rather
substantial sums of monies owed by the respondents collectively is
being diminished in value
on a continuous basis. These are the motor
vehicles in the possession of the respondents. To await the outcome
of the pending
trials will undoubtedly prejudice the applicant. At
that stage the vehicles, if still functional, will most likely have
little
or no value to discharge the sums owing by the respondents to
the applicant. See in this regard the unreported judgment of Kgomo
J, Case No 49779/2010 (GSJ), delivered on 13 September 2011, at para
[39], comments with which I, respectfully, agree. In
Seaman
Bros v Collett
1928
(EDL) 170, the Court appeared to accept Stroud’s Judicial
Dictionary (s.e.v.) the definition of “
security
”
as “
speaking
generally, anything that makes the money more assured in its payment
or more readily recoverable
”.
At p 173 of the judgment, the Court (Gane AJ) went on to say:
“
I
notice that the New English Dictionary gives a somewhat more
restricted definition of the word as meaning: ‘Property
deposited
or made over, or bonds, recognizances, or the like entered
into by or on behalf of a person in order to secure his fulfilment of
an obligation, and forfeitable in the event of non-fulfilment; a
pledge, caution.’ I will assume, however, for present
purposes, that Stroud’s definition is correct, so that the word
‘security’ is in itself explicable. That cannot,
however, prevent the word from being construed in the light of its
context and the surrounding facts. The agreement was that a
car sold
and delivered to the purchaser should remain in the purchaser’s
hands as security until the price should be fully
paid.
”
[43] The
Oxford
English Dictionary
,
2
nd
ed, Vol XIV, defines the word “
security
”
as,
inter alia
”:
“
The
condition of being secure
”
and,
“
The
condition of being protected from or not exposed to danger; safety
”,
or,
“
The
safety or safeguarding of (the interests of) a state, organization,
person, etc., against danger, esp. from espionage or theft;
…
”
Based on the above definition of
“
security
”
in the
Seaman Bros
case, the respondents in the instant applications are plainly in the
same category of purchasers. On their own versions, the respondents
have no meaningful income and they are not possessed of any
meaningful assets, as argued on behalf of the applicant. It is
therefore
more than plain that the security held by the applicant in
the form of the motor vehicles presently in possession of the
respondents
is extremely fragile and precarious. As owner of the
motor vehicles, the applicant ought not to be placed in such position
without
adequate legal remedy.
[44] Mr Lavine, who appeared on
behalf of the respondent in the
Soya
matter (he also appeared for the respondents in the two other
applications as indicated below), argued that pursuant to the
unsuccessful
summary judgment application, the respondent was granted
leave to defend. Therefore, effectively, the applicant, “
now
seeks almost identical relief that was sought in the application for
summary judgment, save that the relief sought now is interim
in
nature
”. In the
various defences raised by the respondent in resisting summary
judgment in short, it was argued that the granting
of the order
sought by the applicant in the present application would have the
effect that the respondent would be unable to earn
a living, unable
to make payments on the amount owing to the applicant in terms of the
agreement and, “
unable
to pay legal fees to conduct the present litigation
”,
and that the balance of convenience militates in favour of dismissing
the interim application with costs.
[45] In the
Molawa
matter, Mr Hadebe, who appeared on behalf of the respondent, advanced
virtually the same argument as Mr Lavine. Additionally,
he submitted
that the applicant ignored the provisions of the NCA and that the
respondent’s debt review application was pending
in the
magistrate’s court.
[46] In the
Mokotong
matter as well as the
Mangebenge
matter, Mr Lavine for the respondents presented the same arguments as
in the
other
matter in which he represented the respondent. It is unnecessary, for
present purposes, to recite the submissions.
[47] It is trite that in the
exercise of its discretion, the Court in granting leave to defend in
summary judgment applications
and the granting of interim relief (as
in the present matter), uses different approaches.
INTERIM RELIEF AS OPPOSED TO SUMMARY JUDGMENT
[48] The requirements for the
granting of interim relief have already been set out in para [36] of
this judgment. The fact that
the respondents were granted leave to
defend at the conclusion of the summary judgment applications was
rather overplayed. It
does not necessarily mean that they can
successfully resist a subsequent claim for interim relief. In a
summary judgment application
the plaintiff is not called upon to
enter the merits of the matter, but is confined to what the rule,
namely Rule 32 of the Uniform
Rules of Court, allows. On the other
hand, for a defendant to successfully resist summary judgment, “
it
is sufficient if he discloses fully the nature and grounds of a bona
fide defence to the action
”.
See
Venter v Cassimjee
1956 (2) SA 242
(N) at 245H. This means that the defendant must
raise an arguable defence. See also
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 423H.
[49] The standards of proof
between interim relief and summary judgment are different. The
reliance on the fact that the respondents
were granted leave to
defend is, in my view, misplaced. The defences will be relevant in
the pending trials, not in the present
applications. There is also
no merit in the assertion that the applicant unduly delayed in
launching the present applications.
THE AUTHORITY AND PERSONAL KNOWLEDGE OF MS PHYLLIS LOMBARD
[50] Prior to concluding, I need
to deal with one other common defence raised by all the respondents.
This was that the deponent
to the founding papers in all the summary
judgment applications, Ms Phyllis Lombard, had no personal knowledge
of the subject matter
of the affidavit. In other words, that Ms
Lombard could not swear positively to the facts in each of the
respective matters. In
this regard the respondents placed reliance on
the unreported judgment of Coppin J in
SA
Taxi Securitisation (Pty) Ltd v Bongani Enoch Dlamini
,
Case No 00643/2012 (GSJ). In that matter the learned Judge found
that the contents of the founding affidavit deposed to by the
selfsame Phyllis Lombard was “
nothing
more than a statement of information and belief that is based purely
on inadmissible hearsay evidence
”,
and that the plaintiff’s affidavit in support of summary
judgment in each of those matters accordingly does not meet
the
requirements of Rule 32(2).
[51] The contentions of the
respondents are untenable for a number of reasons. Briefly stated,
the founding affidavits of Ms Phyllis
Lombard in the present
applications are clearly different to those filed in the summary
judgment applications. The latter affidavits
were plainly lacking in
certain respects regarding the knowledge of the deponent. This is
apparently the reason why summary judgment
was not granted. However,
the founding affidavits in the present applications, properly read,
complied in all respects with the
requirements of Rule 32(2) of the
Uniform Rules. The requirements were further re-emphasised in the
replying affidavits. Furthermore,
all the respondents had not invoked
the provisions of Rule 7 of the Uniform Rules to challenge the
authority of Ms Phyllis Lombard
as was required. In addition, the
present applications clearly concern interim relief and not summary
judgment applications.
CONCLUSION
[52] I conclude that the
applicant has succeeded more than necessary in establishing all the
requirements for the granting of interim
relief in all the four
matters. On all the facts, it is highly improbable that the applicant
would have lent money to the respondents
without proper assessments
and investigations as claimed by the respondents. The applications
must succeed with costs.
PROCEEDINGS BY WAY OF AN ACTION AND MOTION PROCEEDINGS
[53]
En
passant
, I have
observed that there are numerous and similar matters on the motion
court roll of this High Court involving the applicant
and other
financial institutions who are chasing debtors, such as the present
respondents. The tendency of plaintiffs first proceeding
by an
action, and later, when summary judgment applications failed, to
institute motion proceedings for interim relief in the same
matters,
is on the increase. The debtors are frequently dragged before the
courts based on the same cause of action. The result
is that the
costs of litigation are inevitably increased in instances where the
debtors are already in financial trouble. It may
be that in the
process their rights to access to courts in terms of section 34 of
the Constitution, as argued in the present applications,
are
curtailed. However, for present purposes, I need not make a
conclusive finding in this regard. It may be that instead, the
rights of the creditors such as the applicant in the present matters
ought to be reviewed. They must, for example, at initial
stages of
litigation decisively elect the nature of the proceedings to be
instituted and be kept thereto. The tendency remains
a matter of
concern.
ORDER
[54] In the result I make the
following order:
1. In the
Soya
matter (Case No 26126/2011) an order is granted in terms of prayers 1
(in particular 1.1, 1.2, 1.2.1 and 1.2.2), 2, 3 and 4) of
the notice
of motion dated 5 April 2012.
In the
Molawa
matter (Case No 41194/2011):
Condonation is granted for the
late filing of the answering papers.
An order is granted in terms of prayers 1 (in particular 1.1, 1.2,
1.2.1 and 1.2.2), 2, 3 and 4 of the notice of motion dated
5 April
2012.
In the
Mokotong
matter (Case No 00089/2012) an order is granted in terms of prayers
1 (in particular 1.1, 1.2, 1.2.1 and 1.2.2), 2, 3 and 4 of
the
notice of motion dated 12 March 2012.
In the
Mangebenge
matter (Case No 38354/2011) an order is granted in terms of prayers
1 (in particular 1.1, 1.2, 1.2.1 and 1.2.2), 2, 3 and 4 of
the
notice of motion dated 5 April 2012.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT MS R J STEVENSON
INSTRUCTED BY MARIE-LOU BESTER INC
COUNSEL FOR THE RESPONDENTS
(THE
SOYA
MATTER, THE
MOKOTONG
MATTER AND THE
MANGEBENGE
MATTER) K LAVINE
INSTRUCTED BY LARRY MARKS ATTORNEYS
COUNSEL FOR THE RESPONDENT
(THE
MOLAWA
MATTER) ATTORNEY T HADEBE
INSTRUCTED BY T HADEBE ATTORNEYS
DATE OF HEARING 6 JUNE 2012
DATE OF JUDGMENT 26 OCTOBER 2012