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[2020] ZAECPEHC 29
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Wesbank (A Division of First Rand Bank Limited) v Merrington (560/2020) [2020] ZAECPEHC 29 (20 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 560/2020
Date
heard: 11 August 2020
Date
delivered: 20 August 2020
In
the matter between:
WESBANK
(A
DIVISION OF FIRST RAND BANK LIMITED)
Plaintiff
and
JONATHAN
DYLAN MERRINGTON
Defendant
JUDGMENT
RUGUNANAN,
J
[1]
This
is an application for summary judgment. The plaintiff’s cause
of action is founded on the defendant’s breach of
an instalment
sale agreement (“the agreement”). The agreement falls
within the scope of the National Credit Act
[1]
and was concluded on 28 July 2018 in respect of a Toyota Avanza motor
vehicle. The breach allegedly arose from the defendant’s
failure to make regular payments of fixed monthly instalments of
R5 225, 04 that amounted to R19 027, 38 arrears as at
24
January 2020 with the full outstanding contract balance being in the
amount of R228 382, 66. The plaintiff claims
inter
alia
cancellation of the agreement, return of the vehicle, alternatively
payment of the latter amount in the event that the vehicle
is
irrecoverable.
[2]
The deponent to the affidavit in support of
summary judgment is Maureen Vorster. She states:
“
1.
I am the Operational Manager, duly employed … by the Plaintiff
in their legal
department …
2.
I am duly authorised by virtue of my employment with and the position
which I
hold with the Plaintiff to depose to this affidavit on the
Plaintiff’s behalf.
3.
The facts stated herein fall within my personal knowledge and belief,
unless
the context indicates otherwise or appears otherwise from the
context and pertains to matters over which I have direct supervision
and control as a result of my employment with and the position which
I hold with the Plaintiff.
4.
I verify the cause of action and the amount claimed, such appearing
from the
Particulars of Claim.”
[3]
Rule 32, in relevant part, provides:
“
(1)
The plaintiff may, after the defendant has delivered a plea, apply to
court for summary judgment
…
(2)(a)
Within 15 days after delivery of the plea, the plaintiff shall
deliver a notice of application for summary judgment,
together with
an affidavit made by the plaintiff or by any other person who can
swear positively to the facts.
(b) The plaintiff shall,
in the affidavit referred to in subrule (2)(a) verify the cause of
action and the amount, if any, claimed
…”
[4]
Emphasising
the extraordinary and drastic nature of summary judgment proceedings,
Maharaj
v Barclays National Bank
[2]
laid down the trite principle that a deponent other than a plaintiff
must have personal knowledge of the facts before he/she can
swear
positively to them.
[3]
The
rationale therefor is that the grant of the remedy is premised on the
supposition that the plaintiff’s claim is unimpeachable
and
that the defence put forward by the defendant is either bad in law or
bogus. To achieve this end, the deponent must either
be the plaintiff
himself or someone who has personal knowledge of the facts. Where the
affidavit does not measure up to these requirements
the defect may be
cured by reference to other documents which are properly before the
court, such that in deciding whether or not
to grant summary
judgment, the court “
at
the end of the day”
looks at the matter on all the documents before it.
PERSONAL
KNOWLEDGE
[5]
Nowhere in
her affidavit does the deponent swear positively to the facts. While
conceding technical non-compliance with the rule
Ms Masiza who
appeared for the plaintiff, urged that the deponent bases her
assertion of personal knowledge on “matters”
over which
she has direct supervision and control in the course of her
employment.
[4]
To my mind this
source of personal knowledge, in its sweep, is insufficient where
there is no pertinent reference to the defendant’s
account or
payment history, nor any indication of precisely what documents
were perused to acquire such knowledge. In its
breadth the deponent’s
averment as to source of personal knowledge is insufficient. It is
tantamount to a mere rubber stamping
of the amount claimed and the
cause of action pleaded in the particulars of claim. Regard to the
above, the deponent’s designation
as Operational Manager does,
moreover, not assist in attributing personal knowledge.
RELEVANT
DOCUMENTS
[6]
It is
alleged in paragraph 4 of the particulars of claim that the agreement
attached thereto was retrieved from the plaintiff’s
computer as
a data message and that “
[it]
complies with the requirements of section 14 of the Electronic
Communications and Transmissions Act No. 25 of 2002.”
The
legislation is inaccurately pleaded, and although it is properly
acknowledged as the Electronic Communications and Transactions
Act,
it is unnecessary to decide whether the latter could be of assistance
to the plaintiff. The deponent unthinkingly purported
to confirm the
inaccurate content of a carelessly drafted particulars of claim.
Otherwise stated, the particulars were not read
on an informed basis
and this court is left without the assurance that she could indeed
have verified the cause of action to render
the plaintiff’s
claim unimpeachable. Improper attention to the drafting of
particulars of claim and the supporting affidavit,
as in this case,
should not leave the plaintiff surprised if the application is
refused in the exercise of the court’s discretion.
[5]
In the circumstances I am of the view that the present is not a case
when at the end of the day, if all the documents are considered
as a
whole, one can be satisfied that the deponent to the supporting
affidavit has the requisite personal knowledge (
Maharaj
supra
).
COSTS
[7]
In the
normal course of events costs ordinarily follow the result. I am
mindful that I may have adopted an unduly stringent approach
to the
supporting affidavit and it is conceivable that it may be established
at a later stage that the deponent did in fact have
the personal
knowledge that she claimed. I think the most equitable order as to
costs would be that they be reserved for determination
by the trial
court. That court would be better appraised of the true facts and
would be better suited to make an appropriate order
as to the costs
of the application for summary judgment (
Meddent
Medical Scheme v Avalon Brokers (Pty) Ltd
[6]
).
[8]
I accordingly make the following order:
(a)
The application for summary
judgment is refused;
(b)
The defendant is granted
leave to defend;
(c)
The costs of the application
are reserved for decision by the trial court.
____________________________
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Plaintiff: Ms A. N. Masiza
instructed by Joubert Galpin Searle, Port Elizabeth, (Ref:
Ms. S.
Ahmed/Wes3/1153), Tel: 041 396 9200), Email:
shakiraa@jgs.co.za
For
the Defendant: In person, Tel: 072 9175 839,
Email:
jonathanmerrington@ymail.com
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release on
the
SAFLII website. The date and time for hand-down is deemed to be 10H30
on 20 August 2020.
[1]
Act
No. 34 of 2005
[2]
1976
(1) SA 418
(AD) at 423B-H
[3]
See
also Erasmus, Superior Court Practice, Vol 2 at D1-394, [Service 10,
2019]
[4]
See
Wesbank
v Hart
(4015/2015)
[2015] ZAECGHC 131 (10 November 2015)
at paragraph [10] wherein reference is made to
Shackleton
Credit Management v Microzone Trading 88
2010
(5) SA 112
(KZP)
which
referred to “reasons connected with a person’s
employment that would result in their acquiring sufficient personal
knowledge of the facts to depose to an affidavit …”.
[5]
Erasmus
op
cit
at D1-402A [Service 3, 2016]
[6]
1995
(4) SA 862
(D&CLD)