About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 420
|
|
Firstrand Auto Receivables (RF) Ltd v Makgobatlou (12908/2020) [2021] ZAGPJHC 420 (8 September 2021)
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
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
no: 12908/2020
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
REVISED:
No
DATE
:
8 September 2021
In
the matter between:
FIRSTRAND
AUTO RECEIVABLES (RF) LTD
Plaintiff
and
MISS
EAULENDA MOKGADI MAKGOBATLOU
Defendant
JUDGEMENT
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. The time and date for
hand-down is deemed to be 13h00 on 8 September 2021.
PRETORIUS AJ:
[1]
In this application for summary judgment the plaintiff seeks
cancellation
of an instalment sale agreement and delivery of a motor
vehicle, a 2017 BMW 320i T/A (F30) with chassis number
WBA8A16020NU73914
and engine number [....] (“
the vehicle
”).
In support of its claim, the plaintiff relies on an instalment sale
agreement concluded between Wesbank, a division of
FirstRand Bank
Ltd, and the defendant on 25 August 2017 and executed by means of an
electronic signature in terms of section 13
read with section 1 of
the Electronic Communications and Transactions Act 25 of 2002 (“
the
ECTA
”). In terms of the agreement, a true copy of which the
plaintiff claims is annexure “B” to the particulars of
claim, the defendant purchased from Wesbank the vehicle for a
purchase price of R675 300 together with accessories, fees,
finance charges and VAT. The plaintiff contends that on 20 February
2019 Wesbank ceded all its rights, title and interest in and
to the
agreement to the plaintiff.
[2]
The plaintiff claims that the defendant breached the agreement in
that
she failed to make payment of the instalments as and when they
became due and payable. After the defendant referred the agreement
to
a debt councillor in terms of section 129(1) of the National Credit
Act 34 of 2005 (“
the NCA
”), the plaintiff accepted
an offer for a reduced monthly instalment. The defendant eventually
also failed to make payment
of the reduced monthly instalments. As a
result, the plaintiff claims cancellation of the agreement and
delivery of the vehicle.
[3]
The defendant has raised a number of defences in her plea and her
inordinately
prolix affidavit resisting summary judgment (“
the
opposing affidavit
”). Part A of the opposing affidavit
consists of so-called pertinent background information which
stretches over 39 pages
and in which reference is made to 19
annexures consisting of 56 pages. Apart from the absence of the
defendant’s personal
knowledge of the allegations (conceded by
her), she has not demonstrated the relevance of the allegations. The
plaintiff’s
counsel argued that part A of the opposing
affidavit is inadmissible and irrelevant. I agree.
[4]
The opposing affidavit contains a number of inconsistencies. One
example
is the defendant’s initial denial that she concluded
the agreement whilst she later conceded that she did. There are also
discrepancies between the defendant’s plea and her opposing
affidavit. In her plea the defendant admits that she received
a copy
of the agreement (albeit after a period) whilst in the opposing
affidavit this is denied.
[5]
The majority of the defences raised by the defendant pertain to
relief
which is not sought by the plaintiff at this stage, in
particular the payment of damages suffered by the plaintiff as a
result
of the defendant’s alleged breach.
The agreement
[6]
The main
defence pursued during the argument was whether or not the agreement
attached to the particulars of claim is the agreement
concluded
between the parties. In the opposing affidavit the defendant alleges
that she “
did
not enter into any agreement with the applicant [the plaintiff]
”
[1]
whilst later, in the same affidavit, she contended that she “
did
enter into a contract with the applicant
”.
[2]
[7]
The defendant does not deny having purchased the vehicle and does not
contend she is not in possession of the vehicle. I am however
persuaded that an agreement was concluded in respect of the vehicle.
The remaining issues for determination are whether the agreement was
ceded by Wesbank to the plaintiff and whether the terms of
the
agreement are those contained in annexure “B”.
[8]
Turning to
the contractual defences raised, the defendant, firstly, contends
that the agreement was not validly concluded in accordance
with the
provisions of the ECTA.
[3]
In
this regard the defendant contends that the agreement was not signed
despite the NCA requiring signature.
[4]
I do not agree. In terms of section 13(1):
“
Where the
signature of a person is
required by law
and such law does not
specify the type of signature, that requirement in relation to a data
message is met only if an advanced
electronic signature is used.”
[emphasis added]
[9]
The
defendant did not refer me to any law which requires the signature of
the agreement. Accordingly there is no merit in the defendant’s
contention.
[5]
[10]
A second
attack on the validity of the agreement pertains to the allegation
that the plaintiff acted
mala
fide
and with fraudulent intent when concluding the agreement.
[6]
This contention was not seriously pursued during argument. I cannot
find any persuasive support for the defendant’s contentions
on
the papers.
[11]
The
defendant further contends, as a third attack, that she was forced to
sign an agreement without having the opportunity to read
the
agreement.
[7]
The defendant’s
allegation that she signed the agreement under duress is inconsistent
with her allegation that the agreement
was not signed at all.
Nevertheless, I cannot find any support for the alleged duress on the
papers. To the contrary it appears
from the defendant’s version
that the conclusion of the agreement was preceded by a negotiation
process which included the
trade-in of a vehicle.
[12]
I am not
persuaded that any of the defendant’s attacks on the validity
of the agreement has merit. These defences were evidently
not raised
by the defendant until the commencement of the action. The
improbabilities of the defendant not raising the defence
earlier,
considering the defendant’s admission that she received a copy
of the agreement
[8]
and the
implementation of a debt counselling process, are overwhelming. I am
satisfied for purposes of summary judgment that a
valid agreement was
concluded.
Terms of the agreement
[13]
The
defendant disputes the terms of the agreement and alleges that the
plaintiff has “
unilaterally
and without consent amended the agreement between the parties.
”
[9]
In support of her defence, the defendant places certain specific
terms as set out in the written agreement relied upon the
plaintiff
[10]
in dispute. In
this regard the defendant contends:
(13.1)
firstly,
that the accessories (extras) amounting to R110 500 charged by
the plaintiff in addition to the purchase price were
either included
in the purchase price or were not ordered or received by the
defendant;
[11]
(13.2)
secondly,
that she traded in a Kia vehicle to the value of R240 000 which
should have served as a deposit;
[12]
and
(13.3)
thirdly,
that the balloon payment provided for in the agreement in the amount
of R162 578.55 was not agreed upon by the defendant.
[13]
[14]
The
defendant made payments of the monthly instalments
[14]
as reflected in the agreement. It is to be expected that the
defendant would not have done so if there was any merit in her
disputing
the mentioned terms. Although there are inconsistencies in
the defendant’s papers regarding her having received the
agreement,
[15]
it is unlikely
that she was not aware of the terms as contained in the agreement –
whether from the statements received from
Wesbank (or the plaintiff)
or from a copy of the agreement.
[15]
Nonetheless, the terms of the agreement disputed by the defendant do
not affect the relief
sought by the plaintiff at this stage. Those
defences may have an impact on the quantum of damages, which will be
determined only
after delivery of the vehicle to the plaintiff to
assess its value. Those defences can be raised by the defendant at
that stage
of the action.
[16]
The defendant however argues that it may be, should the defendant be
correct in respect
of the disputed terms, that the defendant is not
indebted to the plaintiff with the result that the plaintiff is not
entitled to
cancellation or delivery of the vehicle. Accepting that
the defendant is correct, that the accessories should be deducted and
that
the deposit should be increased, this may have an effect on the
monthly instalment, i.e. the principal debt would be substantially
less with the result that the monthly instalments would be less.
However, accepting the defendant’s version that she did
not
agree on a balloon payment, the absence thereof would have
substantially increased the monthly instalment with the result that
she would still have been in arrears and consequently in breach of
the agreement.
[17]
But there are further factors that I should take into account. Those
include the fact that
the defendant, even on her version, authorised
her bank to make payment of the instalments in accordance with the
instalment amount
as reflected in the agreement. The debit orders
were paid for a period of 19 months before the defendant fell into
arrears. In
April 2019 the debt was restructured pursuant to a debt
review process and a monthly instalment of R10 783.90 was
offered
to and accepted by the plaintiff. Only four of these
instalments were paid by the defendant before she again fell into
arrears.
[18]
For these reasons, I am satisfied that, notwithstanding the disputed
terms, the defendant
breached the agreement and that the plaintiff is
entitled to the relief sought at this stage.
Cession
[19]
The
defendant denies that Wesbank ceded all its rights, title and
interest in and to the agreement to the plaintiff. In support
of the
denial, the defendant contends that the plaintiff has a residual
obligation towards the defendant and that the cession could
not have
been executed without her permission or input.
[16]
[20]
In terms of clause 16.2 of the agreement:
“
We [Wesbank] may
without notice to you [the defendant], transfer any of our rights
and/or obligations and you agree that you will
recognise the
transferee’s [the plaintiff] rights.”
[21]
The defendant did not challenge clause 16.2 in her plea or opposing
affidavit. When confronted
with clause 16.2, the defendant’s
counsel submitted during argument that the terms is
contra bonos
mores
. This was not raised by the defendant in either her plea or
opposing affidavit but I will briefly deal with the submission.
[22]
In
Barkhuizen
[17]
it was held:
“
[30] In my view
the proper approach to the constitutional challenges to contractual
terms is to determine whether the term challenged
is contrary to
public policy as evidenced by the constitutional values, in
particular, those found in the Bill of Rights. This
approach leaves
space for the doctrine of
pacta sunt servanda
to operate,
but at the same time allows courts to decline to enforce contractual
terms that are in conflict with the
constitutional values even though
the parties may have consented to them.”
[23]
In
Bredenkamp
[18]
it was held:
“
[38] This court
in
Sasfin
consequently restated the obvious, namely that
our common law does not recognise agreements that are contrary to
public policy.
Our courts have always been fully prepared to reassess
public policy and declare contracts invalid on that ground.
Determining
whether or not an agreement was contrary to public policy
requires a balancing of competing values. That contractual promises
should
be kept is but one of the values. Reasonable people,
irrespective of any philosophical or political bent, might disagree
whether
any particular value judgment was 'correct', ie more
acceptable. Didcott J, for one, believed, in relation to restraint of
trade
cases, that the sanctity of contract trumped freedom of trade,
whereas AS Botha J (a former member of this court who also died
recently), together with Spoelstra AJ, thought otherwise, while
Vermooten J agreed with Didcott J. The view of Didcott J was
eventually
adopted by this court in
Magna Alloys
. The
disagreement in
Sasfin
between the majority and the
minority did not affect the principle, but its application to
particular clauses and severability.
Public policy considerations are
also not static and their weight may change as circumstances change.”
[24]
As mentioned, the defendant did not raise in her papers that clause
16.2 of the agreement
is
contra bonos mores
. Accordingly, no
specific public policy considerations which the court is required to
take into account have been raised. For these
reasons I am not
persuaded that there is merit in the defendant’s contentions.
[25]
The
defendant further alleges in her opposing affidavit that the cession
affected her in that Wesbank had a residual obligation
to transfer
ownership to her. The defendant contends that “
it
is trite
”
that residual obligations cannot be ceded.
[19]
When asked for authority in support of this contention, the
defendant’s counsel could not provide any. Nevertheless, I am
not persuaded that Wesbank had any residual obligation towards the
defendant. Ownership of the vehicle would have passed to the
defendant upon payment (by the defendant) of the last instalment. The
defendant was already in possession of the vehicle.
Novation
[26]
In par 13.2 of her plea, the defendant contends that the plaintiff’s
acceptance of
the debt review restructuring constitutes a novation of
the original agreement and that the plaintiff should have claimed on
the
novated cause of action. The defendant abandoned this defence
during argument.
Authority and personal
knowledge of the deponent
[27]
The
defendant contends that the deponent to the affidavit in support of
summary judgment is not authorised to act on behalf of the
plaintiff.
[20]
If I follow the
argument correctly, the defendant relies on the fact that the
deponent states that he is employed by the plaintiff,
not Wesbank,
and that he is authorised to depose to the affidavit on behalf of the
plaintiff. However, so the defendant contends,
the resolution upon
which is relied by the deponent is issued by Wesbank’s CFO on
20 July 2020 whereas the cession was effected
on 20 February 2019. As
a result, so the defendant contends, the deponent is employed by
Wesbank and not the plaintiff and therefore
not authorised.
[28]
Ex facie
the resolution signed by Wesbank’s CFO, Wesbank
is a division of FirstRand Bank Limited (“
FirstRand
”).
The CFO of Wesbank was authorised to sign the resolution by a
resolution passed by the board of directors of FirstRand
on 31 August
2016 and the Delegation Authority Policy of the Wesbank Group in
terms of which the mentioned “
officers
” of Wesbank
were authorised to act on behalf of the plaintiff.
[29]
In
Unlawful
Occupiers
[21]
the
Supreme Court of Appeal, held that the remedy of a respondent
who wished to challenge the authority of a person allegedly
acting on
behalf of a purported applicant, is provided for in rule 7(1). In
this regard Brand J held:
“
However,
as Flemming DJP has said, now that the new Rule 7(1) remedy is
available, a party who wishes to raise the issue of authority
should
not adopt the procedure followed by the appellants in this matter, i
e by way of argument based on no more than a textual
analysis of the
words used by a deponent in an attempt to prove his or her own
authority. This method invariably resulted in a
costly and wasteful
investigation, which normally leads to the conclusion that the
application was indeed authorised. After all,
there is rarely any
motivation for deliberately launching an unauthorised application. In
the present case, for example, the respondent’s
challenge
resulted in the filing of pages of resolutions annexed to a
supplementary affidavit followed by lengthy technical arguments
on
both sides. All this culminated in the following question: Is it
conceivable that an application of this magnitude could have
been
launched on behalf of the municipality with the knowledge of but
against the advice of its own director of legal services?
That
question can, in my view, be answered only in the negative.”
[30]
The defendant did not employ the process provided for in rule 7(1).
As a result, I am not
persuaded that there is any merit in the
defendant’s contentions.
[31]
The
defendant further denies that the deponent can swear positively to
the facts and the amounts claimed.
[22]
[32]
A deponent to an affidavit in support of summary judgment, other than
the plaintiff himself, is
required to state that the facts are
within his personal knowledge, unless such knowledge appears from
other facts stated. The
deponent should also state the grounds for
his knowledge but even if he does not, the court will not hold the
affidavit to be defective
for that reason, as long as the deponent is
someone who would ordinarily be presumed to have personal knowledge
of the matter.
[33]
In
Absa
Bank Ltd v Le Roux
[23]
when
referring to
Maharaj
[24]
it was held:
“
It is not the
allegations which the defendant puts in issue that determine the
extent of the knowledge that the deponent to the
supporting affidavit
must have. The deponent must have direct knowledge of most, if not
all, of the facts that the plaintiff will
have to prove to establish
its claim in the action.”
[34]
I am satisfied that the deponent has sufficiently stated the grounds
for his knowledge
of the facts that the plaintiff is required to
prove for its claim.
Commissioning of
affidavit
[35]
The
defendant contends that the application should be dismissed because
the commissioner of the affidavit in support of the application
for
summary judgment was uncertain about the gender of the deponent.
[25]
This, the defendant contends, is evident from the deponent describing
himself as a “
Legal
Manageress
”
and the use of the word “
she
”
in the commissioner’s certificate.
[36]
The
defendant relies on
ABSA
Bank v Botha
[26]
where Kathree-Setiloane J upheld an objection in terms of rule 30 to
an affidavit in support of summary judgment and found that
the
affidavit was irregular.
[37]
Botha
is distinguishable from the present matter as it was
decided pursuant to a rule 30 application in which the defendant in
that matter
raised the issue and argued that the application for
summary judgment constitutes an irregular proceeding. In the present
matter
the defendant did not employ the rule 30 remedy available to
her. Instead, the defendant filed an opposing affidavit, thereby
condoning
any irregular step.
[38]
Not
only has a court a discretion to refuse an affidavit which does not
comply with the
Regulations,
[27]
a court also has a discretion to condone non-compliance with the
Regulations. In
Lohrman
[28]
Nestadt
J
held that:
“
...
it seems to me that where an attorney (who is an officer of this
Court) describes the statement as being a “beëdigde
verklaring”, it can and must be accepted that it was sworn to
on oath. To require that, in addition to these words, there
should
again in conjunction with “geteken” be added the word
“beëdig” would be to insist on an unnecessary
duplication of allegations.
Even,
however, if this approach be insufficiently formalistic, it
nevertheless seems to me that the document in question is an
affidavit. It is now settled (at least in the Transvaal) that the
requirements as contained in regs 1, 2, 3 and 4 are not peremptory
but merely directory; the Court has a discretion to refuse to receive
an affidavit attested otherwise than in accordance with the
regulations depending upon whether substantial compliance with them
has been proved or not (
S v Msibi
1974 (4) SA 821
(T)). In
Ladybrand Hotels v Stellenbosch Farmers'
supra a similar
conclusion was arrived at. In that case the admissibility of an
affidavit was attacked on the basis that the certification
did not
state that the deponents' had signed it in the presence of the
commissioner of oaths. It was held that the maxim
omnia
praesumuntur rite essa acta
applied, that there was an onus on
the person who disputes the validity of the affidavit to prove by
evidence the failure to comply
with the prescribed formalities and
that in the absence of such evidence the objection taken failed. In
any event, it was held
that if the affidavit was defective it should
be condoned.
It
is of course a question of fact in each case whether there has been
substantial compliance or not."
[39]
In
Capriati
[29]
Peterson AJ dealt with a similar issue raised as a point in limine.
Petersen AJ dismissed the point in limine, in my view correctly so.
Although the issue was raised by the defendant in the present
matter
in her opposing affidavit (unlike
Capriati
),
the defendant has similarly not advance any evidence that the
founding affidavit was not sworn to properly or evidence why the
said
affidavit, commissioned by an attorney, does not comply substantially
with the Regulations. Similar to
Capriati
,
the defendant in the present matter did not employ rule 30 but
instead filed an opposing affidavit, thereby condoning any irregular
step.
[40]
In my view the following factors should
be considered:
(40.1)
The
requirements as contained in regulations 1, 2, 3 and 4 of the
Regulations
are
not peremptory but directory;
[30]
(40.2)
When disputing the validity of an
affidavit, the defendant has an onus to advance evidence of the
failure to comply with the prescribed
formalities;
(40.3)
The court should accept that where an
attorney of the court attested the affidavit, there is substantial
compliance with the Regulations,
unless there is evidence to the
contrary;
(40.4)
The defendant objects to the regularity
of the affidavit and therefore the objection should be raised in
terms of rule 30. The filing
of the opposing affidavit instead
constitutes condoning the alleged irregular step; and
(40.5)
The court is vested with a discretion to
condone non-compliance with the Regulations and to admit an
affidavit.
[41]
Considering the aforesaid factors in the
context of this matter, I find that there is no merit in the
defendant’s objection
in her opposing affidavit and that it
must accordingly fail.
Certificate of balance
[42]
The defendant takes issue wit
h clause
22.5 of the agreement which pertains to a certificate of balance and
which reads as follows:
“
We may provide a
certificate from any of our managers, whose position it will not be
necessary to prove, showing the amount that
you owe to us. You agree
that we may take any judgment or order that we are entitled to in law
based on the amount contained in
the certificate, unless you disagree
with such amount and are able to satisfy the court that the amount in
the certificate is incorrect.”
[43]
The relevance of the defendant’s challenge is not clear. The
plaintiff does not rely
upon or attach to its papers a certificate of
balance in terms of clause 22.5.
The affidavit resisting
summary judgment
[44]
Before concluding it is appropriate to make a few remarks regarding
the opposing affidavit
in general. As mentioned before, the opposing
affidavit is inordinately prolix and consists of a portion (39 pages
in the affidavit
and 19 annexures attached thereto consisting of 56
pages) of allegations which are irrelevant, inadmissible and which do
not fall
within the defendant’s personal knowledge. In
addition, the opposing affidavit contains a number of
inconsistencies, both
inherent and with the defendant’s plea.
[45]
Affidavits
must contain admissible evidence. In motion proceedings, affidavits
serve a dual function of both pleadings and evidence.
[31]
[46]
In
Venmop
[32]
Peter
AJ held:
“
The role of legal
representatives has two key aspects. First is the supervision,
organisation and presentation of evidence of the
witnesses and,
secondly, the formulation and presentation of argument in support of
a litigant's case. The diligent observation
of those roles
facilitates the role of the judicial officer, which is to arrive at a
reasoned determination of the issues in dispute,
in favour of one or
other of the parties. Where practitioners neglect their roles, it
leads to the protracted conduct of the litigation
in an
ill-disciplined manner, the introduction of inadmissible evidence and
the confusion of fact and argument, with the attendant
increase in
costs and delay in its finalisation, inimical to both expedition and
economy.”
[33]
“
Save in urgent
applications for interim relief to restrain irremediable injury and
to keep matters in status quo, where otherwise
inadmissible hearsay
might be permitted (
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another
1984
(4) SA 149
(T) at 157E–G), there is no authority that the
admissibility of the evidence of a witness in motion proceedings is
somehow
different from that in a trial action.”
[34]
“
Disputes of fact
ought not to be disguised in a mass of indignant argument,
expostulation and other useless verbiage.”
[35]
[47]
The defendant’s opposing affidavit is replete of protracted
quotations of legislation,
irrelevant matter and inadmissible hearsay
allegations. Even the part of the opposing affidavit dealing with the
actual facts of
this matter are mostly irrelevant to the relief
sought by the plaintiff at this stage of the proceedings. Litigants
and their legal
representatives employing this practice of abuse
should be penalised with an appropriate order as to costs.
In conclusion
[48]
In conclusion I am persuaded that there was an agreement in terms of
which the defendant
purchased and came into possession of the
vehicle. The inconsistencies in the opposing affidavit aside, the
defendant cannot dispute
concluding an agreement nor does she dispute
being in possession of the vehicle.
[49]
The defendant’s challenges of the terms of the agreement relate
to the defendant’s
indebtedness and not the relief sought at
this stage. Even if they constitute triable issues, they can be
raised by the defendant
at the next stage of the action. This was
conceded by the plaintiff during the hearing of the application.
[50]
The
defendant conceded in the opposing affidavit that she cannot afford
the instalments of the vehicle. The plaintiff’s statement,
[36]
which is not disputed, demonstrates that the defendant fell in
arrears with the instalments before and after the restructuring
of
the indebtedness pursuant to debt review proceedings. The defendant
does not sincerely dispute that she is indebted to the plaintiff
–
she merely disputes the quantum of such indebtedness.
[51]
The plaintiff seeks cancellation and delivery of the vehicle at this
stage. On any version
of the agreement, the defendant has breached
the agreement which entitles the plaintiff to cancellation. Should
the defendant continue
not paying instalments and retain possession
the vehicle, it would lead to the untenable situation where the
defendant will continue
to use the vehicle, of which the plaintiff is
the owner, at least until such time as the action is finalized. This
will prejudice
not only the plaintiff but also the defendant in whose
interest it is that the value of the vehicle be assessed as soon as
possible
in order to mitigate any indebtedness the defendant may
have.
In
the circumstances I make the following order:
1.
The cancellation of the instalment sale agreement concluded
by the
defendant for the sale of a 2017 BMW 320i T/A (F30) with chassis
number WBA8A16020NU73914 and engine number [....] (“
the
vehicle
”) is confirmed;
2.
The Defendant is ordered to deliver the vehicle to the plaintiff
within five days of date of this order;
3.
The relief sought in paragraphs 4 to 7 of the plaintiff’s
particulars of claim is postponed
sine die
;
4.
The defendant will be entitled to raise as defences to the postponed
relief all the contractual defences raised by her during the summary
judgment application pertaining to her indebtedness to the
plaintiff.
JF
PRETORIUS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
DATE
OF HEARING:
10
August 2021
DATE
OF JUDGMENT:
8
September 2021
COUNSEL
FOR THE APPLICANT:
L Peter
INSTRUCTED
BY:
Rossouws Leslie Inc
COUNSEL
FOR THE RESPONDENT: D Keet
INSTRUCTED
BY:
C
Bester Inc
[1]
Par
5 of the opposing affidavit (005-47/5)
[2]
Par
43 of the opposing affidavit (005-88/430. See also paras 52 and 54
of the opposing affidavit (005-92/52 and 54)
[3]
Paras
3.2 and 4.2 of the plea (003-5/3.2, 4.2)
[4]
Par
50 of the opposing affidavit (005-91/50)
[5]
See
Spring
Forest
Trading CC v Willberry (Pty) Ltd t/a Ecowash and Another
2015 (2) SA 118
(SCA) for related principles on this issue.
[6]
Paras
10.3 and 10.4 of the plea (003-12/10.3-10.4)
[7]
Par
6.3.3 of the plea (003-6/6.3.3)
[8]
Paras
6.3.4 and 10.5 of the plea (003-7/6.3.4 and 003-9/10.5)
[9]
Par
6.3.6 of the plea (003-7/6.3.6)
[10]
“
B”
to the particulars of claim (001-13)
[11]
Par
6.2 of the plea (003-6/6.2). See also par 7.2.2 of the plea
(003-7/7.2.2) and par 56 of the opposing affidavit (005-93/56)
[12]
Paras
6.3.1-6.3.2 of the plea (003-6/6.3.1-6.3.2). See also par 7.2.1
(003-7/7.2.1) and 12.2 (003-10/12.2) of the plea and par
55.3 of the
opposing affidavit (005-93/55.3)
[13]
Par
6.3.5 of the plea (003-7/6.3.5. See also par 7.2.3 (003-7/7.2.3) of
the plea and par 60 of the opposing affidavit (005-95/60)
[14]
“
S2”
to the founding affidavit (005-16)
[15]
In her plea (par 6.3.4) the defendant pleads that the plaintiff
provided her with a copy of the agreement “
after
a period of 12 months
”
after she requested a copy.
See
also par 10.5 of the plea (003-9/10.5).
In
par 44 of the opposing affidavit
(005-88/44)
the
defendant alleges that she requested a copy on 5 September 2019.
See
further par 55 of the opposing affidavit (005-92/55)
[16]
Par
11 of the plea (003-9/11)
[17]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) [30]
[18]
Bredenkamp
and Others v Standard Bank of South Africa Ltd
2010 (4) SA 468
(SCA) [38]
[19]
Par
5.3 of the opposing affidavit (005-48/5.3)
[20]
Paras
72-74 of the opposing affidavit (005-102/72-74)
[21]
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) [16]
[22]
Par
75 of the opposing affidavit (0005-103/75)
[23]
2014
(1) SA 475
(WCC) [13]
[24]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418 (A)
[25]
Par
80 of the opposing affidavit (005-105/80)
[26]
ABSA
Bank Ltd v Botha N.O. and Others
2013
(5) SA 563 (GNP)
[27]
The
Regulations
Governing the Administering of an Oath or Affirmation, GNR.1258 of
21 July 1972 (“
the
Regulations
”)
[28]
Lohrman
v
Vaal Ontwikkeling
1979 (3) SA 391
(T) 398E-399A
[29]
Capriati
v Bonnox (Pty) Ltd and Another
(101816/2016)
[2018] ZAGPPHC 345 (10 May 2018)
[30]
S
v Msibi
1974 (4) SA 821
(T) 825A;
S
v Munn
1973 4 All SA 96 (NC)
[31]
Choice
Holdings Ltd v Yabeng Investment Holding Co Ltd
2001
(3) SA 1350
(W) [34]
[32]
Venmop
275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd
2016
(1) SA 78
(GJ) [7]-[16]. See also
Knoop
NO v Gupta
2021
(3) SA 88
(SCA) [145]
[33]
Venmop
[7]
[34]
Venmop
[9]
[35]
Venmop
[12].
See also
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 279
(T) 323D;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC) [17]
[36]
“
S2”
to the founding affidavit (005-16)