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[2022] ZAFSHC 162
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Carospan (Ltd) t-a Nashua Bloemfontein v Manyoni and Gija Investment CC and Another (4213/2021) [2022] ZAFSHC 162 (24 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4213/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CAROSPAN
(LTD) t/a NASHUA BLOEMFONTEIN
Applicant
/ Plaintiff
[Registration
Number: 2012/001649/07]
And
MANYONI
& GIJA INVESTMENT CC
1st
Respondent/ Defendant
[Registration
Number: 2009/207718/23]
SIBONGISENI
SANELE NYAMBI
2
nd
Respondent/ Defendant
[Identity
number: 880916 5415 080]
HEARD
ON:
17
MARCH 2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 11h00 on 24 June 2022.
[1]
In this opposed summary judgment application, the applicant claims
from the respondents
arrear rentals for 12 motor vehicle Dash Cams,
CCTV and printing equipment (“the goods”) in the amount
of R472 846.30,
damages flowing early termination of the rental
agreements (“agreements”) in the amount of R981 430.78
and the
return of the goods.
[2]
The application arises from an action instituted by the applicant
against the respondents
based on a breach of the agreements concluded
between the applicant and the respondents on 27 May 2019 and 01
October 2019 respectively.
[1]
In
terms of the said agreements, the first respondent hired CCTV and
printing equipment from the plaintiff for a period of 60 months
at a
monthly rental of R14 950.00 and 12 Dash Cams for a period of 36
months at a monthly rental of R14 375.00. The first
respondent
fell into arrears with the instalments and by July 2021, the total
amount due was R472 846.30 thus entitling the
plaintiff to
cancel the agreements, claim payment for the outstanding rental
payments, damages resulting from the early termination
of the
agreements and related relief. The second respondent bound himself as
surety for the first respondent’s debt.
[3]
For the sake of convenience the parties are referred as cited in the
main action.
[4]
The application is premised on the grounds that the affidavit
resisting summary judgment
(“the opposing affidavit”)
does not raise a triable issue in that the defendants’ bare
denial regarding the non-applicability
the National Credit Act
[2]
(“the NCA”) and the delivery of goods does is not bona
fide. As alleged by the plaintiff in the particulars of
claim,
the NCA does not apply to these agreements as the goods remain vested
on the plaintiff as the “Rentor”
[3]
and the delivery and receipt of the goods was confirmed by the second
defendant who signed the confirmation of receipts, Annexures
“POC3”
and “POC4” of the particulars of claim.
[5]
Having regard to the defendants’ plea and the opposing
affidavit the rental
agreements and their essential terms are not in
dispute. The unpaid rental is also uncontroverted.
[6]
Pursuant to the amendment of rule 32, a defendant’s plea is
taken into consideration
together with the opposing affidavit in the
determination of whether the facts pleaded in the plea and averred in
the opposing
affidavit fully disclose the nature and the grounds of a
defendants’ defence which is both bona fide and good in law.
[7]
In the plea, except to merely deny the plaintiff’s allegations
that the agreements
are not governed by the NCA the defendants do not
substantiate their defence with facts upon which they rely by
pleading the reasons
for the denial. See rule 22(2). That being said,
the agreements germane to this matter do not fall within the
definition of credit
agreements as contemplated in either section 8
(4) (e) or (f) of the NCA because, they do not provide for deferred
payments for
the goods but for rental payments for a fixed period of
time upon which the goods must be returned to the “Rentor.”
[4]
[8]
As regards the defendants’ opposing affidavit, it falls short
of the requirements
contemplated in rule 32 (3) (b) of the Uniform
Rules. The defendants deny that they are obligated to pay the rentals
due to the
fact that not all the hired goods were delivered by the
plaintiff. Similarly, the defendants do not disclose which or how
many
of the 14 goods alleged to have been delivered by the plaintiff
were not delivered.
[9]
As much as the defendants are not expected to deal exhaustively with
the facts and
the evidence they rely upon to substantiate their
defence, they must at least disclose the grounds for their defence
and the material
facts upon which their defence is based with
sufficient particularity and completeness to enable the court to
decide whether a
bona fide defence which raises a triable issue has
been disclosed.
[5]
The absence
of sufficient particularity in the defence averred herein casts doubt
on the defendants’ bona fides.
[10]
Nevertheless, there is no merit to the defendants’ defence, the
second defendant has confirmed
delivery of all the goods and that
they were installed accordingly as provided for in the agreements by
signing the “ACCEPTANCE
CERTIFICATE” embodied in the
written agreements and the “CONFIRMATION OF RECEIPT OF THE
GOODS,” Annexures “POC3”
and “POC4” of
the particulars of claim. The veracity of the second defendant’s
signature is not disputed.
[11]
The defendants seem to be of the view that in addition to presenting
the signed certificates
signifying delivery of the goods the
plaintiff must also prove by way of oral evidence that delivery was
in fact effected.
[12]
I disagree. clause 5 of the agreements clearly stipulates that:
“
signature
by User of the acceptance certificate shall be an acknowledgement
that the User has fully inspected and approved the Goods
and that
same are in every way satisfactory to User and that the Goods were
delivered to User
.”
[13]
Having admitted the veracity of the second defendant’s
signature, it is for the defendants
to explain the circumstances
under which the certificates acknowledging proper delivery were
signed. It is important to note
that the agreements commenced
with effect 1 June 2019 and 1 October 2019 respectively. On the
available facts, the defendants duly
paid the monthly rentals until
about a year after the agreements were concluded without raising the
issue of non-delivery of the
goods which in my view, lends credence
to the plaintiff’s case that the goods were delivered as per
the agreements.
[14]
In an attempt to rectify the shortcomings in the opposing affidavit,
the defendants sought to
amplify their defence in the heads of
argument by essentially disputing the plaintiff’s ownership of
the goods, the plaintiff’s
capacity to institute the claims
against the defendants, the liquidity of the claims and by also
invoking the provisions of the
Conventional Penalties Act 15 of 1962.
[15]
Heads of argument are purely submissions made in favour or against
the relief sought they do
not constitute evidence. I agree with the
submissions proffered by counsel for the plaintiff that a defence to
resist summary judgment
must be raised in the opposing affidavit. It
is highly irregular to raise it in the heads of argument.
[16]
Having regard to the facts of this matter, I’m satisfied that
the plaintiff’s claims
against the defendants have been clearly
established. I’m not persuaded that the defendants’
defence as pleaded
and also set out in the opposing affidavit
discloses a bona fide defence that is good in law to result in a
triable issue.
[17]
In the circumstances,
following
order is granted:
Order
1.
Judgment is granted against
the first and the second defendants, jointly and
severally,
one paying the other to be absolved for;
1.1.
Payment of the sum of R472 846.30;
1.2.
Interest on the said amount, at the
legal rate of interest, a tempore morae from the date of demand till
the date of final payment;
1.3.
Payment of the sum of R981 430.78;
1.4.
Interest on the said amount, at the
legal rate of interest, a tempore morae from the date of demand till
the date of final payment;
1.5.
Return of the goods as contained in the
schedules of the rental agreements; and
1.6.
Cost of suit on an attorney and client
scale.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. A. Sander
Instructed
by:
Peyper Attorneys
BLOEMFONTEIN
Counsel
on behalf of the respondents: Adv.
K. Naidoo
Instructed
by: Blair
Attorneys
BLOEMFONTEIN
[1]
Annexures “POC1” and “POC2” of the
particulars of claim.
[2]
Act 34 of 2005.
[3]
See clause 2 of the rental agreements
[4]
Absa Technology v Michael’s Bid a House
[2013] ZASCA 10
paras
13 to 17.
[5]
Maharaj
v Barclays National Bank
1976 (1) SA 418
(A) at 426A to E;
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228-229.