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[2023] ZAECMKHC 115
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Toyota Financial Services (SA) Ltd v JXL Trading Services (Pty) Ltd (133/2023) [2023] ZAECMKHC 115 (24 October 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 133/2023
In
the matter between:
TOYOTA
FINANCIAL SERVICES (SA) LTD
PLAINTIFF
and
JXL
TRADING SERVICES (PTY) LTD
DEFENDANT
JUDGMENT
Rugunanan
J
[1]
This is an application for summary judgment.
[2]
The plaintiff’s claim arises from an
instalment sale agreement concluded with the defendant on 19
September 2019.
[3]
A copy of the agreement is attached to the
particulars of claim as annexure ‘B’.
[4]
The agreement is not subordinated to the
provisions of the National Credit Act for the reason that it is a
large agreement with
a monetary threshold exceeding R250 000.00.
[5]
The subject matter of the agreement concerns the
sale by the plaintiff to the defendant of a Toyota Hilux motor
vehicle. It is alleged
in the particulars of claim that the defendant
is in default of his obligations under and in terms of the agreement
and is in breach
by having defaulted on his payment of the arrears
amounting to some R79 245.00.
[6]
In its notice of application for summary judgment
filed on 7 July 2023, the plaintiff seeks an order (all sic):
‘
(a)
Cancellation of the agreement.
(b)
Return of the 2019 Toyota Hilux 2.8 GD-6 RB Raider A/T P/U motor
vehicle with engine number 1GD[…],
Chassis number AHT[…]
(c)
Costs of suit.’
[7]
The action is defended.
[8]
Under
the present amended formulation of uniform rule 32, summary judgement
proceedings are competent once a defendant has delivered
a plea. The
plaintiff’s supporting affidavit now falls to be made in the
context of the deponent’s knowledge of the
content of the
delivered plea. A plaintiff must engage with the content of the plea
in order to substantiate its averments that
the defence is not
bona
fide
and
has been raised merely as a delaying tactic.
[1]
[9]
Although
the amended rule has raised the bar and onus on a plaintiff for
securing summary judgment
[2]
,
some of the well-known and settled requirements that have to be
established by a defendant to avoid summary judgment remain intact.
[10]
A
defendant is still obliged to show that it has a defence which is
bona
fide
and
good in law
[3]
. A
bona
fide
defence
requires full disclosure of the nature and grounds of the defence and
the material facts relied upon in support thereof.
[4]
To satisfy these requirements a defendant will have to engage
meaningfully with the additional material now required to be
contained
in a plaintiff’s affidavit in support of summary
judgment.
[5]
The issues
[11]
To begin with, the agreement and its material
terms are admitted, save that the defendant avers that the copy of
the agreement attached
to the particulars of claim is unsigned and
does ‘not comply with the law’.
[12]
In its particulars of claim the plaintiff makes
the following allegation:
‘
9.
The Defendant is in default and has up to date of the commencement of
the enforcement
proceedings, remained in breach and was in arrears
with the amount of R79 245.00 with its obligations in terms of
[the agreement]
for a period of at least 20 business days.’
[13]
To this, the defendant pleads (all sic):
‘
Contents
of this paragraph are denied, the defendant does not owe this amount
our client was owing an amount of R56 015.51
per letter of
plaintiff but now the amount is R42 015.51 as defendant paid
R14,000…’.
[14]
To sum up, what can be discerned from the plea –
though not very elegantly expressed – is that it purports to
bear emphasis
on two issues: First, the defendant alleges that the
agreement attached to the particulars of claim is unsigned and does
not comply
with the law; and second, it disputes being indebted to
the plaintiff.
[15]
The plaintiff’s affidavit in support of the
application for summary judgment gives a succinct and to the point
response to
these issues.
[16]
Dealing with the issue of the unsigned agreement,
the plaintiff’s deponent states:
‘
7.3.
[T]he defendant, through its representative, Xolile Lunque, signed
the agreement electronically on
19 September 2019 as can be seen from
the face of the watermark appended to the face of the agreement…
7.4
Further thereto, and in terms of section 13(3)(a) and (b) of the
Electronic Communications
and Transactions Act [Act 25 of 2002],
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 method is used to identify the person and to
indicate the person’s approval of the information communicated,
and having
regard to all 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.
7.5.
The aforementioned requirement was met by the placing of a watermark
on each page of the agreement
…’
[17]
Despite the brevity and simplicity of the
plaintiff’s response, which can be taken no higher, Mr Lunque,
who deposes in answer
for the defendant merely contends himself by
averring:
‘
Contents
of these paragraphs are admitted and I still maintain that this
agreement does not comply with law.’
[18]
In its formulation, the manifest inconsistency and
contradiction of the extract is self-evident, and does not raise a
triable issue
for adjudication.
[19]
In addressing the defendant’s avowed denial
of its indebtedness, the plaintiff’s case, once again is
elucidated in the
following terms:
‘
8.2
At the time the summons under the aforementioned case number was
issued on the 25
th
of January 2023, the defendant
was in arrears in the amount of R79 245.00.
8.3
The defendant, subsequent to service of the summons, made payment to
the plaintiff in the
amount of R14,000 on the 11
th
of May
2023, as stated at paragraph 4 of its plea.
8.4
However, the defendant had previously undertaken to settle the
contractual arrears by the
end of April 2023, while still proceeding
with monthly instalments as per the agreement. The defendant failed
to adhere to his
undertaking and at the end of April 2023 the amount
owed by the defendant to the plaintiff was R67 250 22.
8.5
The defendant was again afforded another opportunity in which to
settle the arrears owed
to the plaintiff, and in this regard was
granted until the close of business on the 29
th
of May
2023 by which to settle the contractual arrears. A copy of the
correspondence from the plaintiff’s attorneys of record
confirming same is annexed…
8.6
The defendant again failed to adhere to the terms by settling the
contractual arrears by
the 29 May 2023 and accordingly the plaintiff
was entitled to continue with the matter. A copy of the detailed
customer statement
is annexed hereto…’
[20]
The gist of the plaintiff’s case is that the
defendant defaulted on his arrear payments. In argument I was
referred to the
customer statement which sets out the appropriation
of payments. It is evident that the contractual arrears were not made
good.
[21]
Despite the version put up by the plaintiff in its
affidavit aforementioned, the defendant made no attempt to engage
with the averments
made by the deponent nor with the annexures to
which she makes reference.
[22]
In the circumstances, the defendant’s denial
of its indebtedness does not raise a triable issue.
[23]
The plea does not set up a
bona
fide
defence good in law.
[24]
In the event, the following order issues:
The plaintiff is granted
summary judgment in accordance with prayers 1 and 2 of its
Notice of Application for Summary Judgment
filed on 7 July 2023.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff:
S
Sephton
, Instructed by Huxtable Attorneys, Makhanda.
For
the Defendant:
T
Qina
, T Qina and Sons Attorneys c/o Yokwana Attorneys,
Makhanda.
Date
heard:
1
August 2023
Date
delivered:
24
October 2023
[1]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
[2020] ZAWCHC 28
paras 21-22.
[2]
Standard
Bank of SA Ltd v Rahme and Another
[2019] ZAGPJHC
287 para 8.
[3]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A) at 426.
[4]
Saglo
Auto (Pty) Ltd v Black Shades Investments (Pty) Ltd
[2020] ZAGPPHC
808 para 48.
[5]
Standard
Bank of SA Ltd and Another v Five Strand Media (Pty) Ltd and Others
[2020] ZAECPEHC
33 para 12.