About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 121
|
|
Nedbank Limited v Dlamini (17574/2022P) [2023] ZAKZPHC 121 (20 October 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 17574/2022P
In
the matter between:
NEDBANK
LIMITED
PLAINTIFF
and
THANDI
MARGARET DLAMINI
DEFENDANT
Coram:
Davis AJ
Heard:
17 October 2023
Date
of Judgment: 20 October 2023
ORDER
The
following order is granted:
1.
Summary judgment against
the defendant is refused;
2.
The defendant is given leave to defend the action;
3.
The costs occasioned by the application for summary judgment are
reserved for decision
by the trial court.
JUDGMENT
Davis
AJ:
Introduction
[1]
Plaintiff seeks summary judgment against the defendant directing the
defendant to
forthwith deliver to the plaintiff the vehicle described
as a Hyundai H-1 2.5 CRDI Wagon, with chassis number K[...], and with
engine number D[...]. Plaintiff also seeks, upon return of this
vehicle, to be granted leave to apply for judgment for any
outstanding
damages in which action the plaintiff shall aver and
prove that it complied with the requirements in paragraph 20.3 of the
order
in
First
National Bank Limited t/a Wesbank v Davel.
[1]
The plaintiff seeks cost of the suit.
[2]
The plaintiff is a registered credit provider as contemplated in
section 40(1)
of the
National Credit Act 34 of 2005
. The plaintiff
entered into an instalment sale agreement with Mr. Siyabonga Dlamini
whereby it sold to him the vehicle described
above. The principal
debt amounted to R 1 432 049.76 and Mr. Dlamini took
delivery of the vehicle on or about 1 May 2016.
[3]
Mr. Dlamini passed away on 6
November 2021, and since then there has been no payments made
in
accordance with the instalment sale agreement. A certificate of
balance, dated 16 September 2022, reveals that Mr. Dlamini or
his
estate is indebted to the plaintiff in the amount of R209 152.02.
At the time of this application for summary judgment
no executor has
been appointed to wind up the estate of Mr. Dlamini.
[4]
In terms of the agreement between Mr. Dlamini and the plaintiff if
the Mr. Dlamini
dies, this constitutes a breach of the contract and
justifies inter alia the plaintiff cancelling the agreement, claiming
the return
and possession of the vehicle and related relief in
respect of any damages that the plaintiff may have sustained.
[5]
The defendant is Ms Thandi Margaret Dlamini, she is the sister of the
late Mr. Dlamini,
she resided at the same address as him during his
lifetime and at the time he entered into the contract. They lived in
Avoca Hills,
Durban North.
Condonation
[6]
The defendant applied for condonation for the late filing the heads
of argument and
practice note. The condonation application was not
opposed by the plaintiff. Having regard to the explanation for the
late filing
of the defendant’s papers, the extent thereof, the
absence of opposition, coupled with the need to have this matter
dealt
with as expeditiously as possible, I was of the view that the
administration of justice would best be served by condoning the late
filing of the defendant’s heads of argument.
Pleadings
[7]
The plaintiff pleads that the defendant obtained possession of the
motor vehicle when
the debtor died and remains in unlawful possession
of the vehicle. The defendant, despite demand, failed and/or refused
to return
the vehicle to the plaintiff, or, and in the alternative,
the plaintiff pleads that if it is found that the defendant is no
longer
in possession of the vehicle and/or disposed of the vehicle,
the plaintiff alleges that the defendant parted possession with the
vehicle with knowledge of the plaintiff’s ownership.
[8]
The defendant filed a notice of an intention to defend and thereafter
her plea, this
included a special plea submitting that the citing of
the defendant is in fact a misjoinder. This contention was correctly
abandoned
by the defendant’s counsel at the hearing of the
application. In terms of the vindicatory relief sought the defendant
is
correctly cited.
[9]
In respect of the averment by the plaintiff that the defendant is in
possession or
parted with possession of the vehicle when the
defendant was aware of the plaintiff’s ownership of the
vehicle, which averment
is essential to the relief sought by way of
rei vindicatio
, the following plea somewhat incongruously
appears, ‘defendant cannot admit or deny same the plaintiff is
put to the proof
thereof (sic) the averments contained herein.’
[10]
On the back of this plea the plaintiff applied for summary judgment.
In its founding affidavit
the plaintiff states that the defendant’s
plea does not disclose any triable defence in law but is a bare
denial,
[2]
and therefore the
plaintiff is entitled to summary judgment. The plea to the averment
in the founding affidavit of the plaintiff
stating that the defendant
cannot admit or deny that the defendant was in possession of the
vehicle, as this information would
clearly be within the personal
knowledge of the defendant.
[11]
T
he
law is clear, the contents of the plea are material when determining
whether the defendant has a
bona
fide
defence
or not. Moreover,
[3]
‘
a
plea constitutes a bare denial when the defendant does not clearly
and concisely state the material facts upon which he relies
for his
defence, alternatively does not state his defence with sufficient
particularity to enable the plaintiff to reply thereto.’
[12]
Since the amendments to Uniform
rule 32
, a plaintiff is constrained
to apply for summary judgment only after the delivery of the plea.
Previously,
[4]
‘
summary
judgment proceedings could be instituted upon the notice of intention
to defend being filed. The rationale behind the amendments
was so
that summary judgment proceedings could be adjudicated on the basis
of the defendant’s pleaded defence.’
[13]
Bragan
Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd
[5]
explains
the rationale of the amended
rule 32
process:
‘
It
sets out the intention of the legislature to address the shortcomings
of the position under the old rule bearing in mind that
the plaintiff
is required to bring a summary judgment application at the time when
a possible defence to the claim has not yet
been disclosed in the
plea. The amended rule now requires an affidavit in support of
summary judgment to be filed only once the
defendant’s defence
to the action is apparent, by virtue of having been set out in a
plea.’
[14]
The role of pleadings in litigation is well-known, the
[6]
‘
object
of pleadings is to define the issues upon which a court will be
called upon to adjudicate and to enable the parties to prepare
for
trial on the issues as defined. A plea is the answer by a defendant
to the claims made against it by the plaintiff and in which
his
defence is set out.’
[15]
Uniform
rule 22(2)
stipulates:
‘
The
defendant shall in his plea either admit or deny or confess and avoid
all the material facts alleged in the combined summons
or declaration
or state which of the said facts are not admitted and to what extent,
and shall clearly and concisely state all
material facts upon which
he relies.’
[16]
In a matter where the primary issue is whether or not the defendant
is in possession of the vehicle,
to plead in the manner described
above
appears
to me to be the result of slovenly draughtsmanship which is
unacceptable. This is especially so when the defence to the
claim is
peculiarly within the knowledge of the defendant.
Opposing
affidavit and
bona fide
defence
[17]
The defendant then filed a replying affidavit, the germane averments
are, ‘I deny to be
in possession of the vehicle or parted
possession with the vehicle’
[7]
and
‘furthermore the defendant is not in possession of any
plaintiff’s vehicle.’
[8]
In
Bragan
Chemicals (Pty) Ltd
[9]
Basson J said,
‘
I
accept that there may be circumstances in which a defendant in
summary judgment may well be able to raise a defence in the affidavit
resisting summary judgment but which was not raised in the plea.’
[18]
The plaintiff’s relief is founded in the
rei
vindicatio
.
The requirements in order to obtain relief under the
rei
vindicatio
is:
[10]
‘
An
owner who institutes the
rei vindicatio
to recover his or her
property is required to allege and prove that
(a)
he or she is the owner of the thing;
(b)
the thing was in the possession of the defendant at the commencement
of the action; and
(c)
the thing which is vindicated is still in existence and clearly
identifiable.’ (footnotes omitted)
[19]
In the defendants replying affidavit for the first time, in
perfunctory terms, the defendant
avers that she denies being in
possession or parted possession with the vehicle.
[11]
The defendant supplies no further amplification with regard to the
factual basis of her denial at all. It is another example of
inadequate drafting of the defence to the claim.
[20]
In
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
,
[12]
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.’
[21]
I am in agreement with
South
African Securitisation Programme (RF) Ltd v Cellsecure Monitoring and
Response (Pty) Ltd
[13]
where it stated as follows:
‘
[33]
I am mindful that a
bona fide
defence is assessed upon a
consideration of the extent to which the nature and grounds of the
defence and the material facts relied
upon have been canvassed.
Bona
fides
does not mean that the defendant has to satisfy the court
that his version is believed to be true. All the defendant is
required
to do is to swear to a defence valid in law, in a manner
which is not seriously unconvincing. Put differently, he should show
that
there is a reasonable possibility that the defence he advances
may succeed on trial.
[34]
I am further mindful that at this stage of the proceedings, the court
is not required to decide the disputed issues or determine
whether or
not there is a balance of probabilities in favour of another. The
court merely considers whether the facts alleged by
the defendant
constitute a good defence in law and whether that defence appears to
be
bona fide
.’ (footnote omitted)
[22]
The manner in which the defence is disclosed leaves a lot to be
desired, without doubt those
involved in the drafting of the
defendant’s papers ought to have disclosed some factual basis
for their denial, the rules
and precedent are sufficient pointers to
that. However, it cannot be said that the denial of possession does
not raise a defence
or a triable issue, but the manner in which it
has been ventilated is disappointing. They place their client’s
case in jeopardy
as a result. Notwithstanding the shortcomings in the
defendant’s plea and opposing affidavit it does even if it is
in the
barest of terms disclose a valid or
bona fide
defence
to the claim. Consequently, plaintiff’s claim must fail and
summary judgment is refused.
[23]
The Supreme Court of Appeal (SCA) in
NPGS
Protection and Security Services CC v FirstRand Bank Ltd
[14]
warned:
‘
The
ever-increasing perception that bald averments and sketchy
propositions are sufficient to stave off summary judgment is
misplaced
and not supported by the trite general principles developed
over many decades by our courts.’
[24]
The SCA reiterated that the correct approach to summary judgment is
as follows:
[15]
‘
Where
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff in his summons, or combined summons,
are
disputed or new facts are alleged constituting a defence, the Court
does not attempt to decide these issues or to determine
whether or
not there is a balance of probabilities in favour of the one party or
the other. All that the Court enquires into is:
(a) whether the
defendant has “fully” disclosed the nature and grounds of
his defence and the material facts upon which
it is founded, and (b)
whether on the facts so disclosed the defendant appears to have, as
to either the whole or part of the claim,
a defence which is both
bona fide
and good in law. If satisfied on these matters the
Court must refuse summary judgment, either wholly or in part, as the
case may
be.’
[25]
Accordingly summary judgment must be refused.
Costs
[26]
Counsel for the defendant initially sought a costs order against the
plaintiff as opposed to
the usual order that a court grants in
summary judgment matters. That would not be appropriate in this
matter. The plaintiff on
the basis of the manner that the defendant
pleaded to the particulars of claim were perfectly entitled to seek
summary judgment.
[27]
This matter unfortunately highlighted the slovenly manner in which
the defendant pleaded to the
claim, to mulct the plaintiff with an
order of costs in such circumstances is untenable. Counsel at the
conclusion of the argument
withdrew his prayer for costs, wisely so
in my view.
Order
[28]
I accordingly make the following order:
1.
Summary judgment against
the defendant is refused;
2.
The defendant is given leave to defend the action;
3.
The costs occasioned by the application for summary judgment are
reserved for decision
by the trial court.
DAVIS
AJ
APPEARANCES
For
the applicant:
Ms.
N. Nicol
Instructed
by:
Strauss
Daly Daly Attorneys
9
th
floor, Strauss Daly Place
41
Richefond Circle
Ridgeside
Office Park
Umhlanga
Email:
vnaidu@straussdaly.co.za
Ref:
V Naidu/kc/MFC2/6266
Care
of: Botha and Olivier
239
Peter Kerchoff Street
Pietermaritzburg
3201
KwaZulu-Natal
For
the respondent
Mr L
Mahloba
Instructed
by
M. M.
Ntanzi Attorneys
32
DPP House, 1st floor
Dullah
Omar - Masonic Grove
Durban
KwaZulu-Natal
C/O
LLM Attorneys
51A
Maud Avenue
Pietermaritzburg
Date
of hearing:
17
October 2023
Date
of Judgment:
20
October 2023
[1]
FirstRand
Bank Limited t/a Wesbank v Davel (University of the Free State Law
Clinic as amicus curiae)
[2019] ZASCA 168; [2020] 1 All SA 303 (SCA).
[2]
Nedbank
Ltd v Magadla
[2023]
ZAKZPHC 54 paras 13-14.
[3]
South
African Securitisation Programme (RF) Ltd and others v Cellsecure
Monitoring and Response (Pty) Ltd and others
[2022] ZAGPPHC 925 para 10, see also
Wesbank,
a division of Firstrand Bank v Silver Solutions 3138 CC
[2023] ZAKZPHC 26, and
Bragan
Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd and another
[2020] ZAGPP 387.
[4]
South
African Securitisation Programme (RF) Ltd and others v Cellsecure
Monitoring and Response (Pty) Ltd and others
[2022] ZAGPPHC 925 para 22.
[5]
Bragan
Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd and another
[2020] ZAGPP 387 para 14, referencing
FirstRand
Bank Ltd v Shabangu and others
2020 (1) SA 155
(GJ) paras 16-19.
[6]
Bragan
Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd and another
[2020] ZAGPP 387 para 15.
[7]
Court bundle, at 52
,
para 5.3.1.
[8]
Court bundle, at
53,
para 6.1.
[9]
Bragan
Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd and another
[2020] ZAGPP 387 para 16.
[10]
G Muller, R Brits, JM Pienaar & ZZ Boggenpoel
Silberberg
and Schoeman's: The Law of Property
6ed (2019) at 270, which reference to
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20A-E per Jansen JA.
[11]
Court Bundle at
52
para 5.3.1.
[12]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
2020 (6) SA 624
(WCC)
[2020] ZAWCHC 28
,
2020 (6) SA 624
(WCC) para
25.
[13]
South
African Securitisation Programme (RF) Ltd and others v Cellsecure
Monitoring and Response (Pty) Ltd and others
[2022] ZAGPPHC 925, see also DE van Loggerenberg
Erasmus:
Superior Court Practice
(Revision Service 21, 30 April 2023) at D1-411.
[14]
NPGS
Protection and Security Services CC and another v FirstRand Bank Ltd
[2019] ZASCA 94
;
2020 (1) SA 494
(SCA);
[2019] 3 All SA 391
(SCA)
para
14.
[15]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A-C