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[2015] ZAGPJHC 104
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Firstrand Bank Limited t/a GMSA Financial Services a Division of Wesbank v Olivier and Another (03851/15) [2015] ZAGPJHC 104 (5 June 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 03851/15
DATE: 05 JUNE 2015
In the matter between:
FIRSTRAND BANK LIMITED t/a GMSA
FINANCIAL SERVICES
A DIVISION OF
WESBANK
...................................................................................................
Applicant
And
LEE-ANNE
OLIVIER
.................................................................................................
First
Respondent
DAVID VAN DER
MERWE
....................................................................................
Second
Respondent
JUDGMENT ON APPLICATION
FOR SUMMARY JUDGMENT
MAKUME, J:
[1] The Applicant issued summons
against First and Second Respondents on the 25th February 2015. In
the action Plaintiff prays
for judgment against the First Respondent
for return of a motor vehicle namely 2011 Mercedes Benz B200 with
Engine Number [26…………]
Chassis Number
[WDD2……….] (“the vehicle”).
[2] Only the First Respondent entered
appearance to defend and filed a plea to the summons whereafter the
Applicant lodged this
application for summary judgment. The First
Respondent promptly filed an affidavit opposing the granting of
summary judgment.
[3] The Applicant says that it is the
owner of the vehicle and attaches a Certificate of Registration
issued by the Licensing Department
dated the 31st January 2013 and
that the First Respondent is in unlawful possession of the vehicle.
In the plea read together with
the answering affidavit the First
Respondent denies being in unlawful possession of the vehicle and
puts up a version that she
acquired possession of the said motor
vehicle as a gift from her husband the Second Respondent. Secondly,
the First Respondent
places in dispute on ownership of the motor
vehicle. She says that the document attached to the Applicant’s
summons indicates
that the First Respondent is the owner of the
vehicle not the Applicant. There is a clear dispute as to ownership
accordingly the
general rule that credibility ought not to be decided
on affidavit in my view applies in this matter.
[4] The Applicant contends that the
First Respondent does not have a bona fide defence to its claim. This
is not true. The First
Respondent has indeed in her answering
affidavit as well as in the plea set out sufficient material
statement of fact which if
proved at the trial will constitute a
defence to the Plaintiff’s claim. In my view the First
Respondent’s affidavit
complies in all respects with the
requirements as set out in Breitenback v Fiat
1976 (2) SA 226
(T).
[5] In my view the application for
summary judgment should not be granted and I accordingly make the
following order:
5.1 The application for summary
judgment against the First Respondent is dismissed.
5.2 The First Respondent is granted
leave to defend the action.
5.3 The Applicant is ordered to pay the
costs of this application.
DATED at JOHANNESBURG this 5th day of
JUNE 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 22 APRIL 2015
DATE OF JUDGMENT 05TH JUNE 2015
COUNSEL FOR THE APPLICANT ADV C A DU
PLESSIS
INSTRUCTED BY MESSRS ROSSOUWS LESIE
INC
8 Sherborne Avenue
Parktown
Johannesburg
Tel: (011) 726 9000
Ref: MAT13717/JJ Coertze/dg
COUNSEL FOR THE FIRST
RESPONDENT MR A S MARAIS
INSTRUCTED BY H W SMITH AND MARAIS
c/o HOWARD SALMON ATT
4 St David Lane
Houghton
Johannesburg
Tel: (016) 421 1215/6
Ref: SV 0125/IG/SO0002