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[2023] ZAFSHC 40
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SA Taxi Development Finance (Pty) Ltd v Moleko (2655/2022) [2023] ZAFSHC 40 (16 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
2655/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SA
TAXI DEVELOPMENT FINANCE (PTY) LTD
Plaintiff
/ Applicant
and
LEHLOHONOLO
JACOB MOLEKO
Defendant
/ Respondent
CORAM
:
TSANGARAKIS, AJ
HEARD
ON
:
26 JANUARY 2023
DELIVERED
ON
:
16 FEBRUARY 2023
INTRODUCTION
[1]
This is an opposed application for summary judgment in terms of which
the applicant seeks an order in the
following terms:
“
1.
Return to the plaintiff of a
2017 TOYOTA 2.7 SESFIKILE 16S
with engine number
[….]
and
chassis number
[….]
;
2.
In the event of the Defendant failing to comply with paragraph 1
above within five days of service of
this order on the Defendant, the
Sheriff is authorised and directed to take the aforesaid vehicle into
his possession from wherever
he may find it and return the vehicle to
the Plaintiff;
3.
Costs of suit; and
4.
Further and/or alternative relief.
”
[2]
Pursuant to the applicant having delivered its application for
summary judgment, the respondent filed an amended
plea in terms of
which he introduced two new defences in respect of the applicants
claim(s) against him.
[3]
Thereafter the applicant caused to be filed a supplementary
affidavit. By way of that affidavit the applicant
sought to deal with
the two newly raised defences of the respondent as aforesaid.
[4]
In my view the litigious methodology adopted by the parties, in their
respective prosecution and defence of
the application, was correct.
[5]
In
Belrex
95 CC v Barday
2021
(3) SA 178
(WCC)
[
[1]
]
the court found that the defendant was not precluded from amending
his plea after the delivery of an application for summary judgment.
[6]
In
City Square Trading 522 (Pty) Ltd v Gunzenhauser Attorney
(Pty) Ltd & Another
2022 (3) SA 458
(GJ)
Fisher J
held that the plaintiff was entitled to make a consequential
adjustment to the “
documents filed by him
”. Fisher
J explained the position thus:
“
[19]
As long as the adjustment is strictly consequential on the amendment,
there is, to my mind, no reason why the affidavit,
although
supplemented, should not be read to conform to the description of the
subrule (2)(a) affidavit the purpose of which is
to provide
information as to the plaintiff’s case in a way that
‘explain[s] briefly why the
defence pleaded
does not raise any issue for trial.
[20]
To my mind, it stands to reason that if the pleaded defence changes,
the affidavit filed may need to be adjusted
to deal with the new
defence. The fact that a further affidavit is necessary for the
purpose of this adjustment does not change
the nature and
characterisation of the founding application. Indeed, the adjustment
may not be evidence dependent at all and may
require only the setting
out of a legal point. Such an adjustment would not, on any
interpretation, be hit by the prohibition in
subrule (4) which
applies only to ‘evidence’.
”
[7] I
accordingly find that the applicant’s supplementary affidavit
and the respondent’s amended plea
are both properly before me
and that their content falls to be considered in the adjudication of
this application for summary judgment.
THE PLEADINGS
[8]
On 9 June 2022 the applicant issued summons against the respondent.
[9]
The more pertinent allegations, evident from the applicant’s
particulars of claim for purposes of this
judgment, are these:
9.1 On or
about 30 October 2017, and at Midrand, a company referred to as
Potpale Investments (RF) (Pty) Limited (“Potpale”)
concluded a written credit agreement with Mofokeng Joshua Moleko (“Mr
Moleko”) in terms of which Potpale, as seller,
sold a
2017
TOYOTA 2.7 SESFIKILE 16S
with engine number
[….]
and
chassis number
[….]
(“the vehicle”) to Mr
Moleko, as purchaser (“the agreement”);
9.2 Pursuant
to the conclusion of the agreement, and on 4 January 2020, Mr Moleko
passed away. No letters of executorship
or letters of authority have
to date been issued relevant to Mr Moleko’s deceased estate;
9.3 Potpale,
after the conclusion of the agreement but before the passing of Mr
Moleko, and on 21 February 2018, sold
and/or ceded to the applicant
all of its rights, title and interest in and to the agreement;
9.4 The
agreement provides that notwithstanding delivery of the vehicle to Mr
Moleko, ownership of the vehicle would
remain vested in Potpale (and
by operation of law the applicant) up and until all amounts
outstanding in terms of the agreement
had been paid to the applicant
by Mr Moleko;
9.5 The
respondent is in unlawful possession of the vehicle and as at 6 June
2022 the capital, arrears and interest
in terms of the agreement
amounted to R100 516.33;
9.6 The
applicant seeks an order against the respondent in terms of the
relief reproduced in paragraph 1 above; and
9.7 The
applicant pleads that the terms and conditions of the agreement
should be read as if specifically incorporated
in its particulars of
claim.
[10]
The respondent initially joined issue with the
locus standi
of
the applicant to prosecute both the main action proceedings and the
present application. This defence was abandoned during argument
by
counsel for the respondent and need, under the circumstances, not be
considered further.
[11]
The remaining two defences raised by the respondent are evident from
paragraph 7 of his amended plea the content of which
is reproduced
verbatim:
“
7.1
The Defendant denies the content and pleads as follow:
7.2
After the deceased passed away, the Defendant and the Plaintiff
entered into a verbal agreement (‘the Agreement’)
on or
about February 2020 and at Midrand, the Defendant in his personal
capacity and the Plaintiff duly represented by an authorized
representative.
7.3
The express, alternatively tacit, to the further alternative implied
terms of the aforesaid were that the Defendant
would forthwith accept
liability for all of the deceased remaining obligations in terms of
the original finance agreement, and
the Plaintiff would perform
towards Defendant reciprocally on such terms.
7.4
The Defendant duly performed in that payment was made to the
Plaintiff in terms of the aforesaid agreement.
7.5
The Plaintiff accepted the payments and allowed the Defendant to be
in possession of the vehicle.
7.6
The Plaintiff has not cancelled the Agreement and therefore cannot
claim return of the vehicle.
”
[12]
It is convenient to deal with the raised defence of the applicants
failure to cancel the agreement first.
THE FIRST DEFENCE: THE
APPLICANT’S FAILURE TO CANCEL THE AGREEMENT
[13]
In offence of the provisions of
inter alia
Rule 18(4) the
applicant pleads that the terms and conditions of the agreement
should be read as if specifically incorporated in
its particulars of
claim.
[14]
Notwithstanding the lack of a concise statement of material facts, in
respect of the terms and conditions of the agreement,
it being the
fundamental basis relied upon by the applicant in support of its
claim against the respondent, it is evident from
the pleadings of
record that the applicant has failed to plead any event of breach of
the agreement. So too has it failed to plead
a cancellation thereof.
[15]
Fourie J, in the matter of
ABSA Bank v De Villiers and Another
2009 (5) SA 40
(C),
explained the position relevant to
cancellation as follows:
“
[18]
According to our law of contract,
restitution
is the normal result following from the cancellation of a contract.
By cancelling the instalment sale agreement, applicant,
as the
innocent party, would seek to set aside the agreement and return to
the status quo ante, by claiming repossession
of the
vehicle,
and to claim damages for breach of contract.
[19]
It follows from the aforesaid that, in terms of the general
principles of our law of contract,
an
order authorising the attachment of a vehicle which is the subject of
an instalment agreement, would be granted by the court
as a claim
ancillary to the cancellation of the instalment agreement.
”
(Bold
font my emphasis)
[16]
The fact that the death of Mr Moleko constitutes an event of breach
of the terms and conditions of the agreement (paragraph
25.1.8) is of
no moment, within the context of this application, as paragraph 26.1
of the agreement provides:
“
If
you are in default under this Agreement, the credit provider
may
terminate
this Agreement before the time, provided it does
so in compliance with the provisions of the NCA relating to
enforcement and termination.”
(Bold
font my emphasis)
[17]
Clearly therefore the death of Mr Moleko does not in and of itself
automatically terminate/cancel the agreement. On an
objective and
proper interpretation of the agreement the death of Mr Moleko merely
clothes the applicant with the entitlement to
exercise its right of
termination/cancellation should it so choose.
[18]
Although it is so that the applicant reserves ownership of the motor
vehicle in terms of the agreement, possession of
the motor vehicle
contractually vested in Mr Moleko. The agreement provides on this
score as follows:
“
6.3
You undertake at all times to:
6.3.1
keep the Vehicle in your possession and control;
”
[19]
Mr Moleko’s right to possession of the motor vehicle was upon
his death transferred, by operation of law, to his
estate.
[20]
As a general rule the rights and obligations in terms of an agreement
are transferred to the estate of a party to a contract
at the same
time of his or her passing. The executor is entitled to sue upon a
contract if the deceased could have sued, had he
been alive. By the
same token, the executor may be sued by a party to a contract who was
entitled to sue another party prior to
the latter’s death.
[
[2]
]
[21]
The onus is on the applicant to plead and prove a valid
termination/cancellation of the right to possession of the motor
vehicle held at present by Mr Moleko’s estate.
[22]
Absent a pleaded termination/cancellation of the agreement, and
restitution of the right of possession of the motor vehicle
to the
applicant, the applicant’s right to demand possession of the
motor vehicle from the respondent cannot lawfully arise.
[23]
As such the claim of the applicant, as presently formulated, cannot
pass judicial muster or scrutiny as it does not disclose
a cause of
action.
[24]
In
Chetty v Naidoo
1974 (3) SA 13
(A)
Jansen JA
explained the position on page 20 at paragraphs E - H as follows:
“
If
he concedes in his particulars of claim that the defendant has an
existing right to hold (e.g.,
by conceding a lease or a
higher-purchase agreement, without alleging that it has been
terminated
: Boshoff v Union Government,
1932 T.P.D. 345
at
p. 351; Henning v Petra Meubels Beperk,
1947 (2) S.A. 407
(T) at p.
412)
his statement of claim obviously discloses no cause of
action. If he does not concede an existing right to hold, but,
nevertheless,
says that the right to hold now would have existed but
for a termination which has taken place, then ex facia the statement
of
claim he must at least prove the termination, which might, in the
case of a contract, also entail proof of the terms of the contract.
This is dealt with by Greenberg J., in Boshoff v Union Government,
1932 T.P.D. 345
at p. 351:
“
I
do not think that any court would be entitled to decree an order for
ejectment, when a plaintiff comes to Court and says: ‘
I
am the owner of the ground; I let that ground to the defendant on a
lease which covers the present period, without some allegation
that
the lease is no longer in force or no longer gives the defendant the
right of occupation.’
It may be that the cause of
action in such a case, is the ownership of the ground, but where the
plaintiff’s own allegations
in his declaration, or what is
equivalent to his declaration, show that he is not entitled to
ejectment, it does not appear to
me that any Court would be entitled
to decree ejectment in his favour.
The Court would require
something to show that notwithstanding the right that he has given to
the defendant, the defendant no longer
has a right to remain in
possession.”
(Bold
font my emphasis)
[25]
Accordingly, the application for summary judgment unavoidably stands
to fail on this point alone.
DOES
THE VERBAL AGREEMENT BETWEEN THE APPLICANT AND THE RESPONDENT
CONSTITUTE A
BONA FIDE
DEFENCE?
[26]
In Summary Judgment, A Practical Guide, Issue 10, paragraph 11.2.3 on
page 11 - 10 the learned authors hold at as follows:
“
The
whole procedure of summary judgment was created to benefit
plaintiffs.
At the very least, therefore, it is expected of
a plaintiff, in presenting his case, to place him squarely within the
four corners
of the remedy.
Any defects in the
presentation of his case which are not merely technical and, for that
reason cannot be condoned, will have as
their consequence a refusal
of summary judgment, even if no bona fide defence has been disclosed
by the defendant.
A court will not assist a
plaintiff by breathing life into a poorly presented case – on
the contrary, the court will consider
itself bound to the terms in
which the plaintiff has elected to formulate his claim.
Should it appear that the plaintiff does have a claim, but not that
presented as the cause of action in the summons, the court
will
refuse summary judgment as it cannot be granted on a cause of action
other than pleaded.
”
(Bold
font and underlining my emphasis)
[27]
In light of my findings in respect of the first defence, it is under
the circumstances unnecessary to deal with the merits
of the second
defence raised by the respondent and I refrain from doing so.
COSTS
[28]
As a general rule the
award of the costs remains in the discretion of the Court. Counsel
for the respective parties agreed that
in the event that the
application for summary judgment is refused that costs of the
application are to be costs in the action.
I can think of no valid
reason, in the judicial exercise of my judicial discretion, why this
should not be so.
ACCORDINGLY,
I GRANT THE FOLLOWING ORDER
:
1.
The application for summary judgment is refused.
2.
Leave to defend the main action is granted to the respondent.
3.
Costs to be costs in the main action.
S.
TSANGARAKIS, AJ
On
behalf of the Applicant: Adv
F.F. Jacobs
Instructed
by: Bokwa
Attorneys
Bloemfontein
On
behalf of the Respondent: Adv M.C.M. Pieterse
Instructed
by: Kruger
Venter Attorneys Inc.
Bloemfontein
[1]
Paragraphs 30 to 39
[2]
Lorentz
v Melle
1978
(3) SA 1044
(TPO) at 1057 C to F.