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[2023] ZAKZPHC 26
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Wesbank, a division of Firstrand Bank v Silver Solutions 3138 CC (8400/2022P) [2023] ZAKZPHC 26 (7 March 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No:
8400/2022P
In
the matter between:
WESBANK,
A DIVISION OF FIRSTRAND BANK
PLAINTIFF
and
SILVER
SOLUTIONS 3138
CC
DEFENDANT
Coram:
Mossop J
Heard:
7 March 2023
Delivered:
7 March 2023
ORDER
Summary
judgment is granted against the defendant for:
1.
Confirmation of the termination of agreement concluded between the
parties on
29 March 2018;
2.
An order for the return of a 2018 Volkswagen Polo 1.0 Tsi Comfortline
DSG motor
vehicle bearing engine number [....] and chassis number
[....] (the motor vehicle);
3.
Costs of suit on the scale as between attorney and client, such to be
on the
regional magistrate’s court scale and are to include
such costs as the plaintiff may incur in locating, storing and
disposing
of the motor vehicle and are also to include the costs of
counsel’s reasonable fee on brief; and
4.
An order authorising the applicant to apply to this court on the same
papers,
supplemented insofar as may be necessary, for an order for
any damages to which it is entitled in which such proceedings the
plaintiff
shall allege and prove that it has complied with the
requirements set out in para 20.3 of the substituted order granted in
FirstRand Bank Limited t/a Wesbank v Davel
[2020] 1 All SA 303
(SCA).
JUDGMENT
MOSSOP
J:
[1]
This is an opposed summary judgment application. The plaintiff’s
cause of action is contractual in nature, it claiming to have entered
into a written instalment sale agreement (the agreement)
with the
defendant on 29 March 2018 in terms of which the defendant purchased
from the plaintiff a 2018 Volkswagen Polo 1.0 Tsi
Comfortline DSG
motor vehicle bearing engine number [....] and chassis number
[....] (the motor vehicle). It alleges that
the defendant breached
its repayment obligations and accordingly summons was issued against
the defendant in which, inter alia,
the cancellation of the agreement
is claimed. The defendant has pleaded to the plaintiff’s
summons and the plaintiff has
timeously delivered its application for
summary judgment. The defendant has delivered an affidavit opposing
the granting of summary
judgment.
[2]
The plaintiff delivered its short heads of argument and its practice
note
and was represented this morning when the matter was called by
Mr Anderton. The defendant has filed no heads of argument, whether
long or short, and has also not delivered a practice note. There was
no representation for the defendant this morning when the
matter was
called.
[3]
The plaintiff has pleaded its case in both the summons and the
application
for summary judgment with a degree of thoroughness that
has not really been matched by the defendant’s plea or by its
affidavit
resisting summary judgment. To state that both the plea and
the defendant’s affidavit resisting summary judgment are
tersely
worded is to understate the position.
[4]
While the defendant admits in its plea having received the motor
vehicle
from the plaintiff it, firstly, denies having concluded the
agreement relied upon by the plaintiff and it consequently denies the
terms of the agreement that have been extensively pleaded by the
plaintiff and secondly, it also denies that it is in arrears with
its
obligations. These are the principle issues that require
consideration arising out of the plea. Obviously the second issue
will only arise if it is found that the agreement was concluded, as
alleged by the plaintiff.
[5]
The defendant presumably denies the existence of a written agreement
because
there is no document before this court that bears its
representative’s manuscript signature. I am obliged to make
this assumption
because the basis for the denial by the defendant is
never explained in any of the documents that it has delivered. The
plaintiff
does not, however, rely on a document that bears a
manuscript signature: it relies on a document concluded
electronically. The
method of concluding such an agreement is stated
by Ms Sonja Viljoen in her affidavit prepared in support of the
application for
summary judgment. In summary, it involves:
(a)
A credit application being submitted electronically by the
defendant to the plaintiff;
(b)
On approval of the credit application by the plaintiff, an email
link to the plaintiff’s website is sent by SMS to the
defendant.
Included in the SMS is a one-time pin number;
(c)
By following the email link to the plaintiff’s website, the
defendant is able to access the draft agreement that specifically
relates to it. Relevant details, including the one-time pin, must be
inserted by the defendant;
(d)
The defendant is required to view a number of pages and is
required to confirm that each page is correct by clicking on blocks
confirming
the correctness of what is stated on each page. This also
applies to the last page, which traditionally would be the signature
page;
(e)
The final agreement is then generated and will bear a watermark
on each page recording the identity of the person acting for the
defendant, and the date and time on which the agreement was
concluded. In this instance, the watermark records that the person
representing the defendant is one Ranesh Kawlasir, who concluded the
agreement on 29 March 2018 at 09:57:31. The person who deposed
to the
affidavit resisting summary judgment on behalf of the defendant is
the same Ranesh Kawlasir;
(f)
Once the agreement is concluded, the documentation may be taken
to the relevant dealership to collect the motor vehicle purchased.
[6]
The plaintiff states that this procedure complies with section 13(3)
of
the Electronic Communications and Transactions Act No. 25 of 2002
(the Act). That particular section deals with the electronic
signature of documents and states that:
‘
Where
an electronic signature is required by the parties to an electronic
transaction and the parties have not agreed on the type
of electronic
signature to be used, that requirement is met in relation to a data
message if-
(a) a method is used to
identify the person and to indicate the person’s approval of
the information communicated: and
(b) having regard to all
the relevant circumstances at the time the method was used, the
method was as reliable as was appropriate
for the purposes for which
the information was communicated.’
[7]
It seems to me that the procedure adopted by the plaintiff is
substantially
in accordance with what is contemplated by the Act. A
signature was required to prove acceptance of the agreement by the
defendant
but there was no agreement on the type of electronic
signature that was required. The method adopted was as previously
described.
[8]
As was said
in
Spring
Forest Trading v Wilberry
,
[1]
prior to the concept of electronic signatures, the approach of the
courts to signatures was pragmatic and not formalistic. Courts
looked
to whether the method of the signature used fulfilled the function of
a signature, namely to authenticate the identity of
the signatory,
rather than to focus on the form of the signature used.
[9]
At paragraph 27 of
Spring Forest Trading
, Cachalia JA stated
as follows:
‘
The Act describes
an electronic signature – which is not to be confused with an
advanced electronic signature – as ‘data
attached to,
incorporated in, or logically associated with other data and which is
intended by the user to serve as a signature’.
Put simply, so
long as the ‘data’ in an email is intended by the user to
serve as a signature and is logically connected
with other data in
the email the requirement for an electronic signature is satisfied.
This description accords with the practical
and non-formalistic way
the courts have treated the signature requirement at common law.’
This
seems to me to accord with what was intended, and what occurred, in
this matter.
[10]
That an agreement was concluded seems obvious and irresistible. The
admitted possession
by the defendant of the motor vehicle is not
explicable in any other way. The defendant has not provided any
evidence of an alternative
agreement that would have afforded it
possession of the motor vehicle. All that it has done is to deny the
existence of the agreement
relied upon by the plaintiff. At the very
least, the defendant would have to account for its possession of the
motor vehicle by
way of positive averments. None have been
forthcoming. I must therefore find that the agreement that permitted
the defendant to
possess the motor vehicle is the agreement relied
upon by the plaintiff.
[11]
Clause 6.6 of the agreement reads as follows:
‘
You agree that the
Seller may provide a certificate from one of its managers, whose
position it will not be necessary to prove,
showing the amount due to
the Seller and how it is calculated. Unless you disagree with such
amount and are able to satisfy the
court that the amount in the
certificate is incorrect, you agree that the Seller may take any
judgment or order it is entitled
to in law based on the facts
contained in the certificate, or such amount as the court may find to
be due.’
In
Nedbank
v Botha and Another
[2]
the court remarked that:
‘
Where
parties agreed in a loan agreement that a certificate of balance is
binding on the defendant, then such certificate constitutes
prima
facie proof of the amount of indebtedness.’
[12]
The defendant has pleaded that it does not admit the allegations
contained in the paragraph
in the particulars of claim which alleges
that a certificate of balance pertaining to the defendant’s
account with the plaintiff
is attached to those particulars of claim.
Factually, there is such a certificate of balance attached to the
particulars of claim.
Why the defendant has chosen to dispute this is
not immediately clear but it appears to me to be the result of
slovenly draughtsmanship.
It appears to me that it is more likely
that what the defendant intended to do was to dispute the accuracy of
the certificate of
balance, not to dispute its existence. If this is
correct, then it must immediately be stated that the basis for that
dispute has
not been explained. The defendant has not, for example,
suggested that it made payments to the plaintiff that have not been
taken
into account by the plaintiff. It is simply a bald denial,
devoid of any explanation or reason. In the circumstances of a
summary
judgment application, it is insufficient.
[13]
I do not lose sight of the fact that I am not required at this stage
to determine the subjective
merits of the defence raised by the
defendant, nor am I required to consider whether that defence, such
as it is understood to
be, will ultimately succeed at trial. All that
I am required to consider is whether the pleaded defence is genuinely
advanced:
‘…
as
opposed to a sham put up for purposes of delay’.
[3]
[14]
In
Tumileng Trading
, the court further stated that:
‘
The assessment of
whether a defence is bona fide is made with regard to the manner in
which it has been substantiated in the opposing
affidavit, viz upon a
consideration of the extent to which 'the nature and grounds of the
defence and the material facts relied
upon therefor' have been
canvassed by the deponent. That was the method by which the court
traditionally tested, insofar as it
was possible on paper, whether
the defence described by the defendant was 'contrived', in other
words, not bona fide.’
[4]
[15]
The defence as revealed in the plea does not pass muster and can only
be described as contrived.
It is simply comprised of denials and
lacks positive contrary allegations or facts.
[16]
In the defendant’s affidavit opposing summary judgment further
defences are raised
that were not mentioned at all in the plea. The
defences raised are bereft of any detail. So truncated are they that
they can be
quoted verbatim without occupying an excess of space in
this judgment:
‘
5.
Since the inception of the agreement I was stabbed on two different
occasions which caused my business
not to operate. As a result, many
accounts went into arrears.
6.
Covid-19 also played a role which caused performance of obligations
to be impossible
at times.
7.
As a result of Covid-19 and the supervening impossibility of
performance, I do
have a bona fide defence and defending this claim
was not done solely for the purposes of delay.’
[17]
The defence alluded to is thus supervening impossibility and the
finer details of such
a defence must be considered. In terms of our
common law doctrine of supervening impossibility, each party’s
obligation to
perform in terms of an agreement, and their respective
rights to receive performance under that agreement, will be
extinguished
in the event that such performance becomes objectively
impossible as a result of unforeseeable and unavoidable events, which
are
not the fault of any party to that agreement.
[18]
As a
general rule, impossibility of performance brought about by
vis
major
or
casus
fortuitus
will excuse performance of a contract. But this is not invariably so.
In each case it is necessary to consider the nature of the
contract,
the relation of the parties, the circumstances of the case, and the
nature of the impossibility invoked by the one party,
to see whether
the general rule ought, in the particular circumstances of the case,
to be applied.
[5]
[19]
The rule
will not avail a party if the impossibility is self-created, nor if
the impossibility is due to that party’s fault.
[6]
Save possibly in circumstances where a plaintiff seeks specific
performance, the onus of proving the impossibility will lie upon
the
party raising it.
[20]
The event
may also render performance absolutely or objectively impossible. The
fact that
vis
major
or
casus
fortuitus
has made it uneconomical for a party to carry out its obligations,
however, does not mean that performance has become impossible.
[7]
[21]
Impossibility
of performance may also be either total or temporary. Temporary
impossibility of performance does not of itself bring
a contract to
an immediate end. A party is entitled to treat a contract as being at
an end only whilst performance is temporarily
impossible where the
foundation of the contract has been destroyed, or where all
performance is already, or would inevitably become,
impossible, or
where part of the performance has become, or would inevitably become,
impossible and that party is not bound to
accept the remaining
performance.
[8]
[22]
It will be
discerned from the above brief discussion that the issue of
supervening impossibility is complex and is largely fact
driven. It
cannot simply be mentioned by name and then assumed that it has been
established. It must be given substance by the
facts disclosed by the
party raising it.
After all, in terms of Uniform rule 32(3)(b) a defendant must in
its affidavit resisting summary judgment disclose fully the
nature
and grounds of the defence and the material facts relied upon
therefor. The defence must not be set out in a manner that
is vague
and sketchy. A defendant also cannot merely rely on conclusions in
law but must set out the actual evidence that allows
those
conclusions to be validly drawn. A defendant must thus go beyond the
mere formulation of a dispute and must disclose the
grounds upon
which it disputes a plaintiff's claim with reference to the material
facts underlying the disputes raised.
[9]
[23]
In my view, the defendant has not done this. It has adopted the
incorrect approach: rather
than being generous with the facts that
allegedly give rise to the defence of supervening impossibility, it
has chosen to be frugal
with its disclosures. No dates are disclosed
by it when the events upon which it relies allegedly occurred.
Details of the alleged
stabbings are not mentioned or their
seriousness. While the deponent to the defendant’s affidavit
resisting summary judgment
states that Covid-19 ‘played a role’
in the defendant’s misfortunes, he goes no further and does not
provide
any information on the extent of that role. Indeed, what is
stated in the affidavit resisting summary judgment are conclusions
shorn of any supporting facts.
[24]
In my view there simply is insufficient factual material disclosed by
the defendant upon
which to assess whether a bona fide defence has
been raised.
[25]
In the result, I grant the following order:
Summary
judgment is granted against the defendant for:
1.
Confirmation of the termination of agreement concluded between the
parties on
29 March 2018;
2.
An order for the return of a 2018 Volkswagen Polo 1.0 Tsi Comfortline
DSG motor
vehicle bearing engine number [....] and chassis
number [....] (the motor vehicle);
3.
Costs of suit on the scale as between attorney and client, such to be
on the
regional magistrate’s court scale and are to include
such costs as the plaintiff may incur in locating, storing and
disposing
of the motor vehicle and are also to include the costs of
counsel’s reasonable fee on brief; and
4.
An order authorising the applicant to apply to this court on the same
papers,
supplemented insofar as may be necessary, for an order for
any damages to which it is entitled in which such proceedings the
plaintiff
shall allege and prove that it has complied with the
requirements set out in para 20.3 of the substituted order granted in
FirstRand Bank Limited t/a Wesbank v Davel
[2020] 1 All SA 303
(SCA).
MOSSOP
J
APPEARANCES
Counsel
for the appellant
: Mr S. P. Anderton
Instructed
by:
: Allen Attorneys Incorporated
Locally represented by:
Botha
and Olivier
239
Peter Kerchoff Street
Pietermaritzburg
Counsel
for the respondent
: No appearance
Instructed
by
: Faizel Kara Attorneys
Locally represented by:
N
Nhlapo Attorneys
Section
1B Central Park Office
221
Boom Street
Pietermaritzburg
Date
of Hearing
: 7 March 2023
Date
of Judgment
: 7 March 2023
[1]
Spring
Forest Trading v Wilberry
(725/13)
[2014] ZASCA 178
para 26.
[2]
Nedbank
v Botha and Another
2016
JOL 36735
FB
[3]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
2020 (6) SA 624
(WCC) para 23.
[4]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
supra para 25.
[5]
MV Snow
Crystal, Transnet Ltd t/a National Ports Authority v Owner of MV
Snow Crystal
[2008] ZASCA 27
;
2008
(4) SA 111
(SCA) para [28].
[6]
MV
Snow Crystal, Transnet Ltd t/a National Ports Authority
,
supra.
[7]
Yodaiken
v Angehrn and Piel
1914 TPD 254
at 260.
[8]
World
Leisure Holidays (Pty) Ltd v Georges
2002 (5) SA 531 (W).
[9]
Chairperson, Independent Electoral
Commission v Die Krans Ontspanningsoord (Edms) Bpk
1997
(1) SA 244
(T)
at 249F-G.