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[2023] ZAFSHC 194
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First Rand Bank Limited t/a Westbank v van Rensburg N.O (3795/2022) [2023] ZAFSHC 194 (22 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3795/2022
In
the matter between:
FIRST
RAND LIMITED
t/a
WESTBANK
Plaintiff
and
MADELEINE
JANSE VAN RENSBURG
N.O.
Defendant
HEARD
ON:
23
FEBRUARY 2023
CORAM:
JONASE AJ
DELIVERED
ON:
The judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and release to SAFLII
on 22 MAY 2023. The date and time for
hand-down is deemed to be 22
May 2023 at 15h00.
Introduction
[1]
This is an application for summary judgment following a summons
issued by the plaintiff
against the defendant. The defendant has also
brought an application for condonation for the late filing of the
opposing affidavit
and the plaintiff did not take much issue and did
not oppose it. As such, this Court granted the application for
condonation.
[2]
The plaintiff seeks the following order:
a)
delivery by the defendant to the plaintiff, of the 2011
Mercedes Benz AXOR 3340S/33 T/T C/C with engine number: 457[…]
and chassis number WDB[…], alternatively the Sheriff should
take into possession the said vehicle from whosoever’s
possession it may be found, and place the plaintiff in possession
thereof.
b)
alternatively to the above, the defendant be ordered to effect
payment in full the outstanding balance due in the amount
of R
182 574-71 together with interest on the abovementioned amount
at the rate of prime plus 0,75 % per month from 04 November
2022.
c)
Costs of the action.
Facts
[3]
The defendant is sued herein by virtue of her capacity as an
Executrix
in the deceased estate of one, J Naude Janse Van Rensburg
(“the deceased”), with Identity document number
681[…].
[4]
The plaintiff alleges that it is the owner of the vehicle described
in
its prayers in this court. In support of the said claim, it
annexed a copy of the certificate of registration which is marked as
ANNEXURE “C” in these proceedings.
[5]
The plaintiff further alleges that the deceased was in possession of
the
vehicle in terms of the instalment sale agreement, (“the
agreement”) entered into between the deceased and the
plaintiff.
The said agreement was allocated under account number:
852[…].
[6]
A copy of the said agreement is attached as ANNEXURES “D1”
and “D2” to the particulars of the claim.
[7]
The said agreement provides,
inter alia
, that upon the
consumer’s death, the plaintiff will be entitled, at its
election, to claim immediate payment of the outstanding
balance
together with the interest and all amounts owing or take repossession
of the goods in terms of an attachment order.
[8]
The deceased passed away on 01 March 2021 and the defendant was
appointed
as the Executrix and is duly authorised to liquidate and
distribute the deceased’s estate.
[9]
As
a
result of the deceased’s
death, the full balance owing in terms of the agreement became due
and payable.
[10]
By virtue of the defendant’s capacity as the Executrix of the
deceased estate,
the Executrix was obliged to effect the balance
payment to the plaintiff of the sum owing by the deceased estate in
accordance
with the provisions of the Administration of Estates
Act
[1]
.
[11]
On 14 April 2021, the plaintiff dispatched written correspondence to
the defendant
wherein the defendant was notified of the outstanding
balance and options available to finalise the matter in terms of the
agreement.
A copy of the notice is marked ANNEXURE “E”.
[12]
The last payment received in the account was made on 24 February 2021
and the defendant
was, after the deceased’s death, to take
possession of the said vehicle and to maintain payment on the account
or return
the vehicle should there be insufficient funds to sustain
the agreement.
[13]
The plaintiff elected to cancel the agreement and take repossession
of the said vehicle.
A copy of the cancellation letter addressed to
the defendant is marked ANNEXURE “F1”. The defendant
responded through
the letters marked “F2-F4”,
respectively.
[14]
In essence, the response was to inform the plaintiff about the change
of the defendant’s
attorneys of record and the subsequent
attorneys of record taking over to represent the defendant.
[15]
On 18 October 2022 the defendant filed a plea.
Defendant’s
plea
[16]
the defendant pleaded as follows, that;
a)
the estate is no longer in possession of the said vehicle by virtue
of a written sale agreement concluded with
a third party. A copy of
the said sale agreement is marked ANNEXURE “MJV1”.
b)
the third party claimed to be the owner of the said vehicle and
undertook to settle any outstanding amounts
with the plaintiff after
receiving payment from the fourth party, A copy of the email to that
effect is marked ANNEXURE “MVJ2”.
c)
Consequently, the third and fourth parties have a direct and
substantial interest in this matter and are necessary
parties to
these proceedings. As such, the defendant prays for the dismissal of
the plaintiff’s claim with costs.
[17]
On 8 November 2022, the plaintiff filed a summary judgment.
An
application for a summary judgment
[18]
The plaintiff summed up its grounds for a summary judgment as
follows;
a)
The agreement was concluded between the plaintiff and the deceased in
terms whereof the plaintiff financed
the deceased for the said
vehicle.
b)
The total amount payable to the plaintiff by the deceased in terms of
the agreement was R 306 377-28 including
VAT and interest at a
linked prime interest rate plus 0.75 % per annum.
c)
It was a material term of the agreement that the amount payable would
be coverable in forty-eight monthly instalments
to be paid by the
deceased commencing on 28 May 2019 at an amount of R 6 382-86
until the final payment on or about 24 April
2023.
d)
The plaintiff duly complied with all its obligations in terms of the
agreement and delivered the said vehicle
to the deceased.
e)
The deceased passed away on 1 March 2021 and the defendant was
appointed as the Executrix and was duly authorised
to liquidate and
distribute the estate.
f)
As a result of the death of the deceased, and in her capacity as
Executrix, the defendant was obliged
to take possession of the
financed vehicle and to maintain the account or return the vehicle
should there be insufficient funds
to sustain the agreement.
g)
The defendant breached the agreement by failing to pay the monthly
instalment amounts or to deliver the vehicle
to the plaintiff and has
failed to rectify the breach despite the demand by the plaintiff.
h)
Consequently, the plaintiff is entitled to cancel the agreement and
take possession of their goods, alternatively,
claim immediate
payment of the full amount claimable and payable in terms of the
agreement.
[19]
The plaintiff contends that the defendant breached the agreement by
failing to
pay
the monthly instalment amounts or return the vehicle to the plaintiff
and
has
failed to remedy the breach despite the demand by the plaintiff.
[20]
Consequently, the defendant’s estate is indebted to the
plaintiff in the amount of R 162 574-71
plus interest calculated
at a rate of prime plus 0.75% per annum from 29 July 2022.
The
opposing affidavit
[21]
The defendant admits the following;
a)
the plaintiff is the owner of the vehicle,
b)
the conclusion of the agreement and its terms between the plaintiff
and the deceased; and
c)
following the deceased’s death, the plaintiff was entitled at
its election to claim immediate payment
of the outstanding balance
together with the interest and all monies or take repossession of the
goods in terms of an attachment
order.
[22]
The defendant denies that the estate is in possession of the said
vehicle or the estate is in
breach of the agreement and that the
deceased is liable towards the plaintiff.
Analysis
[23]
This application is brought in terms of the Rules
[2]
of this court.
[24]
Simply, the rule requires the plaintiff just to show that the
defendant does not have a bona
fide defence or a triable issue.
[25]
On the contrary, the defendant resisting a summary judgment should
establish a defence in law
[3]
.
Such defence should not only be
bona
fide
but it should be a good defence.
[26]
Summary judgment is a drastic remedy in that it closes the door to a
defendant who wishes to
defend the action. It should only be
granted if the plaintiff’s case is unimpeachable, or the
defence is bogus or bad
in law or where the giving of notice to
defend amounts to an abuse of the court process
[4]
.
[27]
A good defence is the one supported by the facts on the papers before
the court.
[28]
The defendant admitted that the plaintiff is the owner of the said
vehicle and the agreement
was concluded between the plaintiff and the
deceased.
[29]
It is the term of the said agreement that the plaintiff will retain
ownership of the goods until
the full outstanding balance has been
paid in terms of the agreement.
[30]
The defendant could not indicate in this court as to on whose
authority the deceased acted in
selling the said vehicle to a third
party.
[31]
Failure to prove such authority amounts to unlawful conduct and
brings this matter to an end.
[32]
The defendant’s alleged defence is not only bad in law but this
is also a clear abuse of
the court process.
[33]
The defendant has failed to introduce a triable issue for the hearing
in due course.
Costs
[34]
The plaintiff requested this court that in granting this application,
costs should include the
wasted costs occasioned by the dilatory
conduct of the defendant for failure to file the answering affidavit
on 02 December 2022.
The said answering affidavit was only filed on
19 January 2023 being the date this matter would have been heard and
finalised.
[35]
This court cannot agree less and otherwise with the plaintiff. The
defendant should carry those
wasted costs.
[36]
In the circumstances, I make the following order;
1.
Summary judgment is and hereby granted.
2.
The defendant is ordered to deliver to the plaintiff a 2011
Mercedes-Benz
AXOR
3340S/33 T/T C/C with ENGINE NUMBER: 457[…] and CHASSIS
NUMBER: WDB[…].
3.
The defendant must deliver the said vehicle, indicated in 2 above,
within 10 days (TEN) from the date of this
order.
4.
Should the defendant fail to comply with orders 1 and 2 above, the
Sheriff of this court is and hereby ordered
and authorised to take
into possession the said vehicle described in 2 above from whosoever
possession may be found.
5.
The defendant is and hereby ordered to pay to the plaintiff any
amount which may be due and payable, on delivery
of the said vehicle
which amount flows from the agreement concluded between the plaintiff
and the deceased.
6.
The said amount due and payable in terms of 5 above, will be
calculated with effect from the date the plaintiff
receives delivery
and/or repossession of the said vehicle.
7.
The defendant is ordered to pay costs of action, costs of the
application for the summary judgment including
costs occasioned by
the postponement on 19 January 2023.
_________________________
S.
JONASE AJ
On
behalf of the Plaintiff/Applicant:
Adv.
GC Steenkamp
Instructed
by:
Symington
De Kok Inc.
BLOEMFONTEIN
On
behalf of the Defendant/Respondent:
Adv
A Van Jaarsveld
Instructed
by:
Gous
Vertue & Ass.Inc.
BLOEMFONTEIN
[1]
ACT 66 OF 1965
[2]
RULE 32(2)
[3]
PETLEN PROPERTY (PTY) LTD v BOLAND CONSTUCTION 1973 SA (1) 434
[4]
MAHARAJ v BARCLAYS BANK LIMITED
1976 (1) SA 418
(A) at 423F-G