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[2017] ZAECPEHC 60
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McCar Motors v Fourie N.O. and Others (2280/2017) [2017] ZAECPEHC 60 (26 October 2017)
IN THE HIGH COURT Of
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 2280/2017
Date
heard: 29 August 2017
Date
delivered : 26 October 2017
In
the matter between:
McCAR
MOTORS
Plaintiff
and
NICK
COENRAAD FOURIE
N.O.
First Defendant
KYLA
JEAN FOURIE
N.O. Second
Defendant
JOHAN
ABRAHAM VAN HUYSSTEEN
N.O. Third
Defe
ndant
JUDGMENT
RUGUNANAN,
AJ:
[1]
This is an opposed application for summary judgment. The
plaintiff, a close corporation styled as ‘
McCar
Motorc CC’
as more fully described in the particulars of claim instituted action
with a combined summons against the first, second and third
defendants in their respective capacities as trustees of the CC
Business
Trust.
Although no specific detail
is
proffered
in the particulars of claim.
it appears
from the papers before me that the
trust
conducts
business in the name of ‘
Algoa
Bay
Auto’
(‘Algoa’).
[1]
[2] The plaintiff's claim
is based on the
rei vindicatio
and is founded on the
allegation that it is the owner of two Toyota land cruiser motor
vehicles. A full description of these vehicles
appears in paragraph 5
of the particulars of claim. The plaintiff claims delivery of the
vehicles which, it is alleged, are in
the possession of the
defendants.
[3]
In launching this application, the plaintiff
has complied with the procedural requirements
under
rule 32(2) of the uniform rules of court. The defendants have given
notice to oppose these proceedings and have filed an
opposing
affidavit made in the name of the first defendant. Simultaneously
with delivery of their notice of intention
to
defend the action but before filing notice to oppose the
application for summary judgment, the
defendants
delivered their plea. There is nothing extraordinary about this since
a plaintiff may nonetheless apply for summary
judgement, despite
delivery of a plea. See in this regard
Steeledale
Reinforcing
v Ho
Hip
Corporation
2010 (2)
SA
580
(ECP)at 583H.
Nonetheless the
defendants are of the view that the
plaintiff's persistence with the application notwithstanding
their
defence being disclosed beforehand affects the question of costs.
More about this later.
[4]
The standard summary judgement supporting affidavit on behalf of the
plaintiff has been deposed to by Mr Riaan Mostert in his
capacity as
sole member and in which affidavit he verifies the plaintiff's cause
of action and alleges that the defendants have
no bona
tide
defence having entered an appearance to defend for purposes of
delay.
[5] The content of the
defendants' opposing affidavit discloses that the application is
resisted essentially on the ground that
ownership of both vehicles is
vested in Algoa, it having acquired them, together with 'the
necessary paperwork', and taken delivery
from one Burger on payment
of their full purchase price to him. Pending the vehicles being
subjected to a roadworthy inspection,
and unbeknown to the
defendants, it is alleged that Burger fraudulently procured
roadworthy certificates and sold the vehicles
to the plaintiff
without delivery being effected. In addition. the opposing affidavit
reveals that the vehicles, prior their acquisition
by
Algoa.
were
sold to Burger by one Engelbrecht. These averments stem from the
content of a letter dated 26 May 20l 7 from the defendants'
attorneys
to the plaintiff's attorneys. This letter is attached to the opposing
affidavit as ‘Annexure C’ and its content
is reproduced,
cut and paste, in the opposing affidavit. Regarding the initial sale
of the vehicles by Engelbrecht to Burger, the
defendants seek
reliance on an undated and unattested statement from Engelbrecht.
This statement is attached to the opposing affidavit
as ‘Annexure
G’.
[6] Over the
years the interpretation of rule 32(3)(b) by
the courts
has
culminated in the design of several principles. It is considered
useful to articulate some of these before determining whether
the
content of the opposing affidavit is sufficient to overcome the
application for summary judgment. The rule requires a defendant
who
opposes an application for summary judgment to satisfy the court by
affidavit that it has a
bona
fide
defence
to the action and further, that such affidavit shall disclose
fully
the
nature and grounds of the defence and the material facts relied upon
therefor. The word
fully
in this
context means no more than that a defendant need not deal extensively
with the facts and the evidence relied upon to substantiate
them, but
should at least disclose its defence and the material facts on which
the defence is founded with sufficient particularity
to enable the
court to decide whether a
bona
fide
defence
is disclosed.
[2]
It is not
required of a defendant to prove a defence on a balance of
probabilities.
[3]
Rather, what
is required is
that a
defendant sets out
in its
affidavit
facts which,
if proved
at the trial,
will
constitute
an
answer
to the
plaintiff's
claim
(Marsh
v
Standard
Bank
of
South Africa
Ltd
2000
(4)
SA 947
(W) at 949C).
The
additional requirement of bona
tides
is
not
anything
judged
in
voc
uo.
[4]
Nor is
it
given a literal meaning:
it will
suffice, seemingly, if the defendant swears to a defence valid in law
in a manner
which
is
not
inherently
and
seriously
unconvincing
(see
Breitenbach
v
Fiat
SA
(Edms)
Bpk.
1976
(2)
SA
226
(TPD)
at
227G-22B8).
Stated
otherwise,
the presentation by the defendant of material facts with sufficient
particularity for the court to determine that they
constitute a
defence, is the gist of the requirement of
bona
tides
in
the context of summary judgment proceedings.
[5]
[7]
Incorporating the contents of 'Annexure
C', the deponent to the opposing
affidavit
alleges that Algoa is vested with ownership of the two
vehicles. having paid Burger and taken delivery
thereof. Although accepting that these allegations are
hearsay, our law recognises that possession of movable property
raises a presumption of ownership (see
Ebrahim
v
Deputy
Sheriff. Durban
&
Another
[6]
).
The
converse of the presumption is that in a vindicatory action a
plaintiff who claims movable property by
right of ownership from someone in possession has the
burden of proving his (i.e. the plaintiff's) title.
[7]
With this analysis undertaken of the opposing affidavit, I am
satisfied as to the existence of a bona
fide
defence
to the action, that is to soy, the opposing affidavit has set out
material facts, which if established at the
trial of
the action, may constitute a defence to
the plaintiff's
action.
[8]
Although having disclosed facts on which their defence relies,
the question is, may the defendants rely on allegations which
constitute
hearsay, or in order to render those allegations
admissible at the summary judgment stageshould the defendants have
introduced
o confirmatory affidavit by each of the persons mentioned
in the opposing affidavit who will presumably eventually testify to
those
facts at the trial? As will appear from what follows hereunder
the case low appears not to have satisfactorily addressed this
question.
[9]
Mr
Gibbs who appeared for the plaintiff contended that the opposing
affidavit. unconfirmed by confirmatory affidavits from Burger
and
Engelbrecht, incorporates hearsay matter which is inadmissible and
argued that the opposition to the application for summary
judgment
must fail. In
support of
his contention, Mr Gibbs placed reliance on the
proposition that the opposing affidavit
ought to have
been supported by admissible evidence. In this regard he
relied
on
the
following
cases,
namely;
Standard
Merchant
Bank
Ltd
v
Rowe;
[8]
Mayibuye
Centre
-
CD
Rom
Publications
v
Workgroup
Holdings
(Ply)
Ltd;
[9]
and
Chairperson,
Independent Electoral Commission v
Die
Krans
Ontspannlngsoord
(Edms) Bpk
[10]
. In
Mayibuye,
evidence
which
sought
to
resolve an alleged ambiguity in a written agreement
was introduced on affidavit; but the court having concluded
that
there was no ambiguity held that the evidence was inadmissible not
only because it was hearsay but more specifically because
it offended
the parol evidence rule - accordingly the defendant
was not granted leave to defend.
Rowe
involved
an
application for
summary
judgment and concerned a failure by the defendants to have attached
an alleged novated agreement to their opposing affidavits.
For that
reason the court held, (on the strength of the best evidence rule
which provides that, except in exceptional circumstances,
the only
admissible evidence of the contents of a document is the document
itself). that the terms of the novated agreement could
not be proved
other than by the production of the agreement itself. On this basis
the secondary evidence, of a hearsay nature.
which the defendants
sought to rely on to prove the terms of the novated agreement was
held to be inadmissible. In
Chairperson,
Independent Electoral Commission
the
defendant's opposing affidavit was based on hearsay, the deponent
having alleged that she was advised of certain facts by other
employees of the defendant. From the brief summation of these cases I
need only mention that they accord with a strict approach
which
precludes a defendant from adducing inadmissible evidence at the
summary judgment stage despite having disclosed facts on
which a
defence may be
founded.
[10] A permissive
approach was adopted by the courts in
Herbert
v Steele
[11]
, Mans
v
Kennedy
[12]
and
Cronje
v
Cooper
[13]
.
In
Herbert
v
Steele
hearsay
evidence
was accepted on the premise that "a
defendant
is not obliged to disclose
its
evidence."
[14]
A reading of the judgment comprehends, in my respectful view, that a
defendant is not required to qualify its evidence in the sense
of
meeting the requirements for admissibility nor is a court required to
evaluate the evidence
as
it does
during
trial
proceedings.
This
springs
from
the
trite
principle
that proof of a defence on a balance of probabilities is not the
standard at the summary judgment stage.
[15]
Recognising this principle in its acceptance of hearsay evidence, the
court in
Mans
v
Kennedy
[16]
stated:
"Die
verweerder hoef
nie
op
hierdie
stadium
sy
verweer te bewys nie. Al wat hy moet doen is
om
voldoende
feite
te
beweerwat, as dlf bewys sou word,
'n
goeie
verweer is"
(my
own emphasis
in bold).
Rule
32(3)(b)
essentially requires disclosure of
material
facts
setting
out the nature and grounds of the defence.
My
sense
is
that this
is no
different from the general approach that a litigant when pleading a
cause of action or defence is required to set out material
facts
without pleading evidence to prove those facts.
[17]
By parity of reason. and in the context of summary judgment
proceedings, material facts mean nothing other than that the
facto
probanda
(facts
that must be proven) required for a particular defence must be set
out but not necessarily the
facto
probantio
(evidence
to prove the material facts). In my view. the rule should be
understood with this distinction
in
mind
and so
should
Herbert
v
Steele
and
Mans
v
Kennedy.
[11]
That a court may grant leave to defend on the basis of hearsay in a
defendant's opposing affidavit is also evident from the
judgment in
Cronje
v
Cooper
[18]
.
In that case the court conceded the contention that allegations made
by the defendant constituted hearsay matter. but decided that
it
could refuse summary judgment since no machinery was available in
summary judgment proceedings to enable the defendant to compel
a
person to put up a confirmatory affidavit.
[19]
It is understood that the court adopted this approach in the
exercise of its discretion to refuse summary judgment.
[20]
[12] In none of the cases
referred to by Mr Gibbs is there any indication that the courts were
referred to the permissive approach
adopted in
Herbert
v
Steele, Mans
v Kennedy
and
Cronje
v
Cooper;
and without intending
criticism. nor did Mr Gibbs mention these in argument.
[13]
In deciding the matter, the permissive approach adopted in the
abovementioned cases is endorsed. I do so in recognition of:
the
principle that a defendant is not required to prove a defence on a
balance of probabilities; the requirement in the rule that
material
facts be disclosed - and in this sense being mindful of the
distinction between facto
probanda
and
facto probantia
which presupposes the allegation of facts and not the evidence
with which such facts will be proved at the trial; and the discretion
afforded to a court
(Cronje v
Cooper
supra).
[
1
4]
This
brings
me to the
question
of costs.
Citing
Mahomed
Adam (Ply)
Ltd
v Barrett
1958 (4) SA 507
((PD),
Ms
Rossi who appeared for the defendants contended for a punitive costs
order against the plaintiff on the premise that the plaintiff
should
not have employed summary judgment proceedings
where its
claim is disputed and it had knowledge of the nature and grounds of
the defence.
In this
matter,
two
considerations are relevant to the question of costs. The first is
that the defendants' plea was delivered before the application
for
summary judgment was
launched.
The issue formulated
in the
plea
is a
denial of
the plaintiff's allegation of ownership of the vehicles.
Tritely, in
a vindicatory action, a defendant is not required to do anything more
than to deny the plaintiff's allegation of ownership
and
the
consequence of such
a denial
is
that the
plaintiff has the
onus
of
proving title.
[21]
Ms Rossi
argued that the significance of having filed the plea, with
disclosure of a denial beforehand, is that the plaintiff ought
to
have reconsidered its position regarding the application
for
summary
judgment. She contended that the plaintiff was presented with a
further opportunity to reconsider its stance upon delivery
of the
defendants' opposing affidavit disclosing material facts, which if
established at the trial of the action,
may
constitute
a defence
to the
plaintiff's
action.
In the
aggregate,
the
plaintiff
was
presented
with
two
opportunities
when
it
should
have
made
a strategic
assessment to desist
from
proceeding
with
summary
judgment.
[15]
Although accepting that the plea incorporates a denial,
Mr Gibbs argued that the formulation of the issue
in the
defendants' plea assumes relevance for the dominant question of onus
which affects the plaintiff in the action. The argument
meant that,
in this specific case, summary judgment proceedings ought not to be
concerned with the dominant question of onus since
the rule obliges a
defendant to disclose the nature and grounds of the defence and the
material facts relied upon therefor. The
logical conclusion of the
argument by Mr Gibbs is that the costs issue bears no relation to the
formulation of the defendants'
plea and falls to be determined with
reference to the matter contained in the opposing affidavit.
Reiterating that the opposing
affidavit contained hearsay matter. Mr
Gibbs' summation was that the plaintiff's persistence with the
application for summary judgment
was eminently reasonable in the
light of its reliance on the cases supporting the strict approach. I
agree. Ms Rossi has not asked
the court to stay the action until the
plaintiff has paid the defendants' costs.
[16]
In the circumstances, I make the following order:
[16.1] the
application for summary judgement is refused;
[16.2] the defendants are
granted leave to defend the action instituted by the plaintiff; and
[16.3] the plaintiff
shall pay the defendants• costs on a scale as between party and
party.
________________________
S
RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff
Adv. W Gibbs
Instructed:
Van Stadens Attorneys c/o Goldberg&. De Villiers Inc. Port
Elizabeth
For
Defendants:
Adv. T Rossi
Instructed:
Friedman Scheckter Attorneys. Port Elizabeth
[1]
Opposing affidavit, paragraph 5 as read with Annexure C thereto
[2]
see
Maharaj
v Barclays National Bank Ltd
1916 (1) SA 418
AD at 426 C
[3]
see
Marsh
v Standard Bank of South Africa Ltd 200() (4) SA 947 (W)
at 949 C-D;
and
Maharaj v
Barclays
National Bank
Ltd
1976
(1)
SA
418
(A) at 426 A
[4]
Van Niekerk et al
Summary
Judgment, A Practical Guide,
Issue
1 at page 11-16
[5]
Van Niekerk
op
cit
at
page 9-14(1)
[6]
1961 (4) SA 265
(D&CLD) at 267C
[7]
See
Ruskin
N.O. v Thiergen
1962 (3) SA 137
(AD) at 744A; Goudini Chrome
(Pty) Ltd v
MCC
Contracts
(Pty)
Ltd
[1992] ZASCA 208
;
1993
(1)
SA
77
(AD)
at
page
82A;
and
Hoffmann
&
Zeffert,
The South
African law of Evidence, 4th ed at page 594
[8]
1982
(4)
SA
671
(W)
[9]
[1997] ZASCA 66
;
[1998] 2 All SA 105
(AD)
[10]
1997 (1) SA 244 (T)
[11]
1953 (3) SA 271 (TPD)
[12]
1961(3) SA (GWPA)
[13]
1978 (1) SA 268 (NPD)
[14]
1953
(3) SA 271 (TPD)
[15]
see
Marsh
v Standard Bank of South Africa Ltd
2000 (4) SA 947
(W) at 949 C-D;
and
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at426 A
[16]
1961(3) SA
(GWPA)
at
page 120 C-E
[17]
See
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838 D-H; Makgae v
Sentraboer (kolJperatief) Bpk
1981 (4) SA 239
(T) at 245D
and
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
at 913F
-
G
[18]
1978 (1) SA 268 (NPD)
[19]
at page 275 E
[20]
at page 275 E
[21]
see
Harms,
Amler's
Precedents
of
Pleadings,
6
th
ed
at page 350,
Ruskin
N.O. v Thiergen
in
fn
7