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[2015] ZAGPJHC 29
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SA Taxi Development Finance (Pty) Ltd v Nzama (36116/2013) [2015] ZAGPJHC 29 (6 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 36116/2013
DATE: 06 FEBRUARY 2015
In the matter between:
S A TAXI DEVELOPMENT FINANCE (PTY)
LTD
............................................................
Applicant
And
NZAMA JOHN
VALOYI
......................................................................................................
Respondent
J U D G M E N T
MASHILE J:
[1] This is a summary judgment
application based on the breach of a written lease agreement of a
2008 Toyota Quantum Sesfikile with
Engine No. 2T……..
and Chassis No. JT………. The parties concluded
the aforesaid lease agreement
on 17 October 2011 at Johannesburg.
[2] Pursuant to signature of the
agreement by both parties, the Applicant delivered the vehicle to the
Respondent. The lease agreement
provided that ownership of the
vehicle would despite delivery of the motor vehicle to the Respondent
remain vested in the Applicant.
Furthermore, the lease agreement
stipulated that the Respondent would pay the recoverable amount to
the Applicant as follows:
2.1 Initial deposit of R30 000.00;
2.2 First rental of R10 261.20 on 7
December 2011;
2.3 Thereafter the Respondent was to
make payment of 64 equal rentals in the sum of R10 261.20 on each
corresponding day of each
consecutive month.
[3] Another provision of the lease
agreement is that in the event that the Respondent fails to pay the
rental on due date or fails
to satisfy any of his other obligations
arising from the lease agreement, the Applicant shall without
prejudicing any of its other
rights in law be justified to:
3.1 Cancel the lease agreement and in
such event:
3.1.1 Claim return and possession of
the motor vehicle;
3.1.2 Retain all payment already made
by the Respondent;
3.1.3 Claim payment of the difference
between –
3.1.3.1 The outstanding amount at the
date of cancellation of the lease agreement less a rebate on finance
charges calculated from
date of termination of the lease agreement;
3.1.3.2 The amount at which the motor
vehicle is valued in terms of the lease agreement or the resale value
thereof, whichever is
the greater.
3.2 Claim interest on the amount
referred to in the lease agreement calculated at 24.00% per annum
alternatively, at the current
interest rate linked to the fluctuation
of the interest rate calculated from date of termination of the lease
agreement to date
of payment;
3.3 Costs at the scale as between
Attorney and client;
3.4 Claim all expenses incurred in
tracing the Respondent before or after the institution of this
action, attachment, removal, storage,
valuation and the sale of the
motor vehicle.
[4] The Respondent breached the
agreement in that it failed to pay rentals in that on 12 November
2012 he was in arrears with his
payments in the sum of R11 084.47.
Following this breach of the agreement, the Applicant instituted
action against the Respondent
seeking confirmation of the termination
of the agreement, return of the motor vehicle to the Applicant
forthwith, forfeiture of
all amounts paid by the Respondent in terms
of the agreement, expenses incurred for removal, valuation, storage
and sale for the
motor vehicle and payment of costs as at the scale
between attorney and client. The Respondent delivered a Notice of
his Intention
to Defend, which move prompted the Applicant to launch
this summary judgment application wherein it persists with judgment
as prayed
for.
[5] The Respondent denies that he has
entered appearance to defend solely for the purposes of delay. He
has raised three points
in limine and a defence on the merits
generally. The three points in limine are:
5.1 The deponent to the affidavit in
support of summary judgment, Ms Valerie Ann Valiades, does not have
the necessary authority
to depose to the affidavit on behalf of the
Applicant;
5.2 This Court does not have
jurisdiction to hear this matter as the Respondent does not reside
within its area of jurisdiction;
5.3 The Applicant did not conduct a
credit assessment prior to advancing the loan;
5.4 On the merits, the Respondent
disputes being indebted to the Applicant in any amount whatsoever and
maintains that his rentals
are up to date.
[6] I will now examine the points in
limine and the defence on the merits in the order in which they
appear above.
MS VALERIE ANN VALIADES’S LACK
OF AUTHORITY
[7] The Respondent concedes that
generally an applicant is not obliged to furnish proof that he or she
has the requisite authority
to depose to an affidavit in support of a
summary judgment application. However, he contends that an applicant
will be under obligation
to furnish proof of authority in those
instances where he or she has been specifically asked to do so in
terms of Uniform Rule
7(1) of this Court
[8] I agree with the Respondent’s
contention completely. However, there is no evidence from the papers
filed by the Respondent
in this matter that he has complied with the
aforesaid rule. The closest attempt that he has made is to mention
in his affidavit
resisting summary judgment that the Applicant should
comply. There is no formal notice by which he required the Applicant
to comply
with the rule within 10 days of the date of service of the
notice. That being the case, the time within which he should have
requested
compliance with the rule, 10 days, has come and gone.
Accordingly, this point in limine is rejected.
THIS COURT’S LACK OF
JURISDICTION TO HEAR THIS MATTER
[9] The Respondent argues that this
court does not have jurisdiction to hear this matter as he does not
reside within the area of
jurisdiction of this court and that he made
payment of the rentals in Pretoria. Generally, there are two bases
on which a court
can found jurisdiction in a matter. Thus a court
will have such jurisdiction where the cause of action arose within
its area or
a respondent resides within its area. In casu, the
Respondent is correct that he does not reside within the
jurisdictional area
of this Court and that he made the rental
payments elsewhere.
[10] While the Respondent is correct,
the residence of a respondent is not the sole ground on which
jurisdiction can be founded.
The whole cause of action arose in
Johannesburg because the agreement was concluded and finalized there.
For that reason, this
Court has jurisdiction. This point in limine
is devoid of any merit and must necessarily fail.
RECKLESS CREDIT
[11] The Respondent asserts that the
Applicant did not conduct any assessment to determine whether or not
he was a suitable candidate
to whom it could advance finance for the
motor vehicle. He submits that insofar as he can remember he was not
presented with a
credit application to complete. The Applicant
denied this submission during argument in court. Most importantly
though is the
Applicant’s argument that the effect of a
transaction being declared reckless is that the status quo ante is
restored. In
this case therefore the Respondent must return the
vehicle and claim that the credit that the Applicant advanced to him
was reckless.
[12] I agree with the Applicant. A
party cannot claim that the financed transaction was reckless and
then elect to hang on to the
possession of a motor vehicle, which he
claims he cannot afford. Instead the Respondent continues to keep
the motor vehicle and
operates it as a taxi. This is highly
prejudicial to the Applicant as the more he keeps and utilizes it for
his taxi business,
it depreciates in value such that the Applicant
might not recover its loss. This point in limine too cannot stand as
a defence
to the Applicant’s claim.
[13] On merits, the Respondent simply
does not have a defence. The argument presented by him is the most
unsound and feeble. The
Applicant has successfully demonstrated that
the Respondent is in arrears with his rentals. The burden of proving
that the rentals
are not behind shifted to the Respondent. He must
show that in fact the amount claimed by the Applicant is incorrect as
he has
been paying the correct amount monthly.
[14] The Respondent has drably failed
to discharge that burden. He has failed to produce proof of payment
of the rentals into the
correct account of the Applicant. Had he
done so, the Applicant would have been in a position to reconcile his
account and probably
the need to institute this action would have
been obviated. In the absence of such lack of evidence, the court
cannot come to
the Respondent’s assistance. It is inescapable
to conclude that the Respondent does not have a bona fide defence as
envisaged
in Uniform Rule 32 of this Court and that he has indeed
entered an appearance to defend solely for the purposes of delay.
[15] In the circumstances, I make the
following order:
1. Summary Judgment is granted in
favour of the plaintiff against the defendant.
1.1 The cancellation of the agreement
between the Plaintiff and Defendant is confirmed.
1.2 The defendant is ordered to return
the 2008 Toyota Quantum Sesfikile with engine number J………….
to the plaintiff.
1.3 The defendant forfeits all payments
by it in terms of the agreement.
1.4 The Defendant is ordered to pay all
the expenses incurred with regard to the removal, valuation, storage
and sale of the vehicle.
1.5 The defendant is ordered to pay
costs on the attorney and client scale.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPLICANTS: ADV. R
Stephenson
INSTRUCTED BY: Marie –Lou
Bester INC
COUNSEL FOR THE RESPONDENTS:
INSTRUCTED BY: Pieter Coetzee
Prokureurs
DATE OF HEARING: 30 January 2013
DATE OF JUDGMENT: 6 February 2015