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[2021] ZAGPJHC 437
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Wesbank, a division of Firstrand Bank Limited v Mazel Foods (Pty) Limited t/a Ocean Basket and Another (2020/9286) [2021] ZAGPJHC 437 (21 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
2020/9286
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
21
SEPTEMBER 2021
In
the matter between:-
WESBANK,
a division of
FIRSTRAND
BANK LIMITED
Applicant/Plaintiff
and
MAZEL
FOODS (PTY) LIMITED
t/a
OCEAN BASKET
First Respondent/Defendant
CHARLES
VICTOR RENNEY
Second Respondent/Defendant
JUDGMENT
This
judgment is handed down electronically by circulation to the parties
or their legal representatives via email and by uploading
same onto
CaseLines. The handing down of this judgment is deemed to be 21
September 2021.
KHAN
AJ
:
Introduction
[1]
This matter came before me as an opposed
Summary Judgment Application, the Plaintiff seeks repossession of a
Maserati motor vehicle,
rectification of the Agreement to reflect the
proper description of the vehicle, postponement of its claim for
damages and costs.
[2]
The facts are as follows: -
2.1
On the 15 May 2019, the Plaintiff and the
First Defendant, represented by the Second Defendant entered into a
written instalment
sale agreement, (“the Agreement”), in
terms of which the First Defendant purchased a 2019 Maserati Levante
Diesel motor-vehicle,
with Engine number [....] and chassis number
ZN6TU61C00X27210, (“the vehicle”) for the purchase price
of R1,800,000,
together with VAT and interest amounting to R2 865
536.61.
2.2
The First Defendant undertook to make 72
payments in the amount of R34 232.91 to the Plaintiff commencing
on the 4 June 2019
with a final balloon payment of R435 000,00
payable on the 4 June 2025.
2.3
The Second Defendant bound himself as
surety and co-principal debtor with the First Defendant on the 15 May
2019 for the due payment
by the First Defendant to the Plaintiff of
all monies which the First Defendant owed to the Plaintiff. The
Second Defendant is
the sole director of the First Defendant.
[3]
The Agreement does not contain a correct
description of the goods, the engine number should read [....] and
the Chassis Number ZN6TU61C00X272
2
10.
Rectification is sought of the description of the vehicle; this is
not opposed by the Defendants’.
[4]
The Plaintiff alleges that the First
Defendant breached the terms and conditions of the instalment sale
agreement by failing to
pay the monthly instalments. As at 14 March
2020, the First Defendant was in arrears in the amount of R212,603.99
with a full outstanding
balance of R2,704,838.75. As a result of the
First Defendant’s breach the Plaintiff cancelled the instalment
sale agreement.
[5]
The First and Second Defendants oppose the
granting of the Summary Judgment application on the basis that the
Plaintiff’s
claims in terms of the rei vindicatio and the
Defendants’ were not in possession of the vehicle on the date
of institution
of the action and have not been in possession thereof
since.
[6]
The Defendants’ affidavit resisting
summary judgment has been filed late and condonation is sought from
the Honourable Court
in this regard. The Plaintiff does not object to
the late service of the Affidavit.
In
DENGETENGE HOLDINGS (PTY) LTD V SOUTHERN
SPHERE MINING & DEVELOPMENT COMPANY LTD AND OTHERS (619/12)
[2013] ZASCA 5
;
[2013] 2 ALL SA 251
(SCA)
at
para 11, Ponnan JA held that
“
factors
relevant to the discretion to grant or refuse condonation includes
the degree of non-compliance, the explanation therefor,
the
importance of the case, a respondent’s interest in the finality
of the judgment of the court below, the convenience of
this court and
the avoidance of unnecessary delay in the administration of justice.’
[7]
Having regard to the explanation for the
late filing of the Defendants affidavit opposing summary judgement,
the extent thereof-
4 days, the absence of opposition coupled with
the need to have this matter dealt with as expeditiously as possible,
the court
is of the view that the administration of justice would
best be served by condoning the late filing of the Defendants
affidavit.
The
Defendants’ Defence
[8]
The First and Second Defendants’
defence is as follows:-
8.1
The First Defendant was introduced to
members of a syndicate with whom the Second Defendant had personal
interaction during December
2018 when the Second Defendant purchased
a vehicle for his wife from Mercedes-Benz in Malborough.
8.2
The Second Defendant had difficulty
obtaining finance for the purchase of the Mercedes-Benz and a sales
representative referred
him to 2 individuals to assist him, Abdul and
Bongani. Abdul and Bongani successfully procured finance for him
through Standard
Bank.
8.3
During or about February/ March 2019 the
Second Defendant approached Abdul and Bongani for assistance in
applying for an overdraft
facility. The First Defendant was not doing
well and needed the overdraft facility in order to tie the First
Defendant over during
months when expenses exceeded turnover while he
was looking for a buyer who would be interested in purchasing the
restaurant.
8.4
Abdul and Bongani analysed his financial
situation and concluded that the First Defendant needed to improve
his credit score before
an application for an overdraft facility was
likely to be granted. The Second Defendant was advised that the best
way to do this
would be for the First Defendant to enter into an
instalment sale agreement for a vehicle.
8.5
By April 2019, the Second Defendant was
desperate to relieve his financial pressures and to obtain the
overdraft facility and agreed
that Abdul and Bongani could organise
the finance for him. The Second Defendant was informed that a lady at
Wesbank, called Bernadette
had organised the approval of the grant of
the instalment sale agreement.
8.6
On the 3
rd
of May 2019, the Second Defendant received a visit from Martin, the
sales manager from Maserati and signed the paperwork that was
presented to him by Martin, he did not read the paperwork and cannot
remember what he signed.
8.7
On the 15
th
of May 2019 the Second Defendant went to Maserati Sandton and signed
the instalment sale agreement annexed to the Plaintiff’s
particulars of claim and took possession of the Maserati SUV, which
is the vehicle referred to in the instalment sale agreement.
8.8
During August 2019 the Second Defendant,
received confirmation that a credit card facility with a R50,000
credit limit had been
approved for him but the overdraft facility
promised to him had not materialised.
8.9
In September 2019, Bongani informed the
Second Defendant that he had found a purchaser for the Maserati and
that the selling price
of the Maserati would be paid into the Wesbank
account which would settle the amount outstanding due in terms
thereof. The Second
Defendant was eager to pay off the instalment
sale facility and agreed to the sale. Bongani arranged to collect the
vehicle from
him and that he gave the keys to the vehicle to Bongani.
8.10
That Bongani left with the vehicle, he
never received payment of the purchase price. The Second Defendant
appointed a private investigator
to assist him in tracing the vehicle
and reported the theft of the vehicle to the Booysens Branch of the
SAPS. Neither the private
investigator nor the police have been able
to trace the vehicle.
8.11
The Second Defendant alleges that he
trusted Bongani and had no reason to believe that he would steal the
vehicle. That the vehicle
was not insured at the time. That he
attempted to ascertain who Bernadette was who represented the
Plaintiff in approving the finance
for the First Defendant in terms
of the instalment sale agreement. He was told that there was a person
named Bernadette in the
employ of the Plaintiff at its Wesbank office
and that her surname was Ribeiro. He was told that she was a
corporate sales manager
of the Plaintiff’s Wesbank operations,
that he never dealt with the Bernadette who is part of the syndicate
personally and
admits that his enquiry does not prima facie establish
the identity of the employee in question.
8.12
That neither himself or the First Defendant
was requested to submit any financial documentation nor did they
undergo a credit assessment
process by the plaintiff.
8.13
That the Plaintiff, through its employee
who organised the granting of the instalment sale facility played an
integral role in the
fraudulent scheme devised by the syndicate which
ultimately lead to the theft of the vehicle and loss of the selling
price thereof.
The role of the employee was to ensure that the
instalment sale finance would be approved without any examination of
the creditworthiness
or financial position of the First or Second
Defendants.
8.14
The Second Defendant was coerced into
entering into the agreement based on the promise of an overdraft
facility being granted to
it. The Defendants accordingly contend that
agreement is illegal and unenforceable in that it is
contra
bonos mores
due to the participation of
the Plaintiff in the fraud perpetrated on the Defendants by the
syndicate.
Summary
Judgment Proceedings
[9]
MAHARAJ V BARCLAYS
NATIONAL BANK LTD,
1976 (1) SA 418
A at 426B-C
:
“
A
court considering whether to grant Summary Judgement or not must
consider whether
,
(i) the defendant has "fully" disclosed the nature and
grounds of his defence and the material facts upon which it is
founded, and (ii) 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
.”
[10]
BREITENBACH V FIAT S A (EDMS) BPK
1976 (2) SA 226
(T) AT 228 C AND 228 E…
I respectfully agree
... that the word “fully” should not be given its literal
meaning in Rule 32(3), and that no more
is called for than this: that
the statement of material facts be sufficiently full to persuade the
Court that what the defendant
has alleged, if it is proved at the
trial, will constitute a defence to the plaintiff’s claim. What
I would add, however,
is that if the defence is averred in a manner
which appears in all the circumstances to be needlessly bald, vague
or sketchy, that
will constitute material for the Court to consider
in relation to the requirement of bona fides.”
[11]
Jili v Firstrand Bank Ltd (763/13)
[2014] ZASCA 183
(26 November 2014)
,
Willis JA
:
“
It
is indeed trite that a court has a discretion as to whether to grant
or refuse an application for summary judgment. ……
It is
a different matter where the liability of the defendant is
undisputed: the discretion should not be exercised against a
plaintiff so as to deprive it of the relief to which it is entitled
Where it is clear from the
defendant’s affidavit resisting summary judgment that the
defence which has been advanced carries
no reasonable possibility of
succeeding in the trial action, a discretion should not be exercised
against granting summary judgment.
The
discretion should also not be exercised against a Plaintiff on the
basis of mere conjecture or speculation.”
[12]
The issue before this court is not to
consider the circumstances under which the instalment sale was
approved and whether or not
the First and Second Defendant had
provided necessary documentation to the Plaintiff in respect thereof.
The Defendants do not
deny signing the instalment sale agreement or
receiving delivery of the vehicle.
[13]
The Defendants’ were happy to rely on the
agreement and did not question the validity of the instalment sale
agreement or
how same was approved until after such time as they
parted with the vehicle and were called upon to pay the purchase
price.
[14]
The First and Second
Defendants have disclosed the nature and grounds of their defence and
the facts upon which it is founded, the
first stage of the enquiry
has thus been met, what the court now has to decide is whether on the
facts so disclosed the Defendants
have a defence which is both
bona
fide
and
good in law. Further whether
what
has
been alleged, if proved at the trial, will constitute a
defence to the Plaintiff’s claim.
[15]
The following is evident from the evidence before this court,
15.1 The
Defendants do not dispute the existence of the cause of action and
the instalment sale agreement.
15.2 The
Defendants do not deny signing the instalment sale agreement.
15.3 The
Defendants do not deny that the Plaintiff is the owner of the
vehicle.
15.4 The
Defendants do not deny taking possession of the vehicle.
15.5 The
Defendants do not deny being in default of payment in respect of the
vehicle or dispute the correctness of
the amounts claimed.
15.6 The
Defendants do not deny that the vehicle was not insured and that same
was voluntarily handed over to a third
party, without the Plaintiff’s
consent and in breach of the instalment sale agreement.
15.7
The
Second Defendant cannot prove any fraud or criminal syndicate or
involvement of the Plaintiff and admits that speaking to a
person by
the name of Bernadette in the employ of the Plaintiff does not
prima
facie
establish the identity of the
employee in question.
15.8
The
Defendants’ version is that Bernadette was Abdul and Bongani’s
contact, the Defendants’ did not at any time
speak to or meet
Bernadette.
15.9
Fortuitously for the Defendants, a person by the
name of Bernadette is employed by the Plaintiff, this is the only
link to the Plaintiff
that the Defendants have been able to establish
in the fraud they allege has been perpetrated by the Plaintiff.
15.10
The Defendants rely on the say so of Abdul and
Bongani that Bernadette arranged the finance, both of whom are
individuals of questionable
motives and integrity, who are now sought
by the police for the theft of the vehicle. It is apparent that these
individuals will
never attend Court and testify on behalf of the
Defendants’ at the trial of the matter.
15.11
The Second Defendant alleges that he was coerced
into entering the instalment sale agreement with the Plaintiff. This
is not so,
the Second Defendant sought the help of Bongani and Abdul,
both of whom had previously assisted him in December 2018 to obtain
finance through Standard Bank to purchase a Mercedes Benz motor
vehicle for his wife.
15.12
Abdul and Bongani were accordingly
the Defendants’ “contacts”
and not the Plaintiff’s agents.
15.13
The Second Defendant records that
there is no documentary evidence
that exists to support any of the contentions made in the plea or in
the opposing affidavit.
15.14
The Defendants have further not attached copies of
the Affidavits in support of the charge of theft as the docket cannot
be traced
by the SAPS.
[16]
I am, accordingly satisfied that there is
no evidence that the Defendants could procure or prove at trial to
substantiate the claim
that the Plaintiff is part of a criminal
syndicate. It may indeed be that the Defendants are victim of fraud
but this is a result
of their own actions and not the Plaintiff’s.
[17]
The Defendants argue that the Plaintiff
cannot succeed with the vindicatory order, as the Defendants have not
been in possession
of the vehicle since before the institution of the
action.
[18]
This then became the nub of the contention
between the parties at the hearing of the matter, i.e. whether the
court can grant an
order for restitution of the motor-vehicle given
that the Defendants are no longer in possession of the vehicle in
terms of
the rei vindicatio
or
whether the Plaintiff should have instituted a claim for damages in
terms of the
actio ad exhibendum
.
The parties were asked to submit additional heads on this issue.
[19]
The Plaintiff relies on the matter of
ALDERSON & FLITTON (TZANEEN) PTY LTD
V E G DUFFEYS SPARES (PTY) LTD AND PHILLIPS ROBINSON MOTORS (PTY) LTD
V N M DADA (PTY)
LTD
1975 (2) SA 420
(A).
Where Botha J, held
“
that
when a plaintiff owner sues a defendant in an actio ad exhibendum for
payment of the value of the owner’s property which
was formally
in the defendant’s position but which he is unable to restore
because of his having ceased to possess it, the
general principle to
be applied is that the onus is on the plaintiff to allege and prove
at least that at the time of the Defendants
loss of possession he had
knowledge of the Plaintiffs ownership or of his claim to ownership of
the property
.”
[20]
In
CHETTY V
NAIDOO
1974 (3) SA 13
(A) 20 B-C
Jansen
JA held,
“
in
order to succeed, it is incumbent on the claimant to prove the
following basic elements of the
actio
rei vindicatio
, i) that he or she is
the owner of the thing, ii) that the thing was in possession of the
Defendant at the time the action was
commenced and iii) that the
thing which is vindicated is still in existence and clearly
identifiable.
[21]
The Plaintiff submits that it is trite that
in order to succeed with a claim for
rei
vindicatio
, a Plaintiff need only prove
that his property was and/or is being held by the Defendant, the
second leg requires fictional or
notional fulfilment.
[22]
The submission that the second leg of this
enquiry requires only fictional fulfilment can, in terms of
CHETTY
V NAIDOO
1974 (3) SA 13
(A)
not be
sustained.
[23]
The Defendant
contends that
it is established law
that in order for an owner to succeed in vindicating its thing from
another person, it must prove,
inter
alia
, that the party from whom it is
sought to be vindicated was in possession thereof at the moment of
institution of the action. The
rationale for this requirement is that
an order ought not to be made which a defendant will not be able to
comply with. In
MEHLAPE V MINISTER OF
SAFETY AND SECURITY 1996(4) SA 133 (W),
“
The
rei vindicatio
is
not instituted in respect of an act that has been performed, it is
instituted in respect of a factual situation pertaining at
the time
of the institution of the legal proceedings... legal proceedings
based on the
rei vindicatio
therefore
always have to relate to the physical control being exercised by the
respondent over the object in question at the time
of the institution
of the legal proceedings. Possession a calendar month prior to the
institution of the legal proceedings based
on the
rei
vindicatio
is irrelevant to those legal
proceedings.”
The
Defendant then referred the court to various judgements in terms of
which the Court ordered damages and not the return of the
object.
[23]
A closer look at the matter of
ALDERSON
& FLITTON (TZANEEN) (PTY) LTD v E G DUFFEYS SPARES (PTY) LTD
1975
(3) SA 41
(T),
reveals
that there are exceptions to the general rule that a vindicatory
action should be brought against the person who is in possession
of
the goods claimed:
”
if
it
is established that the Defendant disposed of the vehicle wrongfully
and unlawfully with full knowledge of the Plaintiff’s
ownership, the Plaintiff’s claim is no longer for the return of
the vehicle but for delictual damages on the grounds of the
Respondents unlawful alienation of the property.
In Vulcan
Rubber Works (Pty.) Ltd. v South African Railways &
Harbours,
1958
(3) SA 285 (AD)
,
Dealing generally with the remedies of an owner of property,
SCHREINER. J.A., said at p. 289: "Subject to special
defences
our law gives the owner of property the right to recover it
from anyone who is in possession of it. He may moreover recover its
value from anyone who has been in possession of it but has parted
with possession after he has had notice of the owner's right.
(Aspeling, N.O. v Joubert,
1919 AD 167
at pp. 170, 171). The two
cases quoted above show that it is not enough for a plaintiff
claiming the value of his property merely
to allege and prove that
the defendant was at one time in possession of it; and the
allegation and proof that the defendant
had parted with the
possession with knowledge of the plaintiff's claim is but one way of
completing a cause of action in respect
of the claim for payment of
the value. In general terms it is a way of alleging and proving a
particular state of mind on the part
of the defendant at the time of
his loss of possession of the property. Voet, 6.1.10, at the end
of the second paragraph of
the passage quoted above, equates the
position of a possessor who sells off or uses up the property
with knowledge of the
owner's title, with the position of one who has
in "ill fraud ceased to possess", a position which he
discusses more
particularly in 6.1.32. This latter passage was
referred to in the case of Sadie v Standard Bank,
7 S.C. 87
at
pp. 92 - 3, by DE VILLIERS, C.J.: "It is quite correct, as a
general rule, to say that the vindicatory action should
be
brought against the person who is in possession of the goods claimed,
but
this rule is subject to well-established exceptions. One of these
exceptions is where a possessor, whether a bona fide or mala
fide possessor, parts with the goods intentionally with
knowledge and in power (sic) of the real owner's rights
.
A loss of the goods through negligence before litis
contestatio would, according to Voet, 6.1.33, relieve
a bona
fide possessor from liability to the vindicatory
action, whatever other remedy there might be against him, but it is
clear that Voet does not there refer to the species of
negligence known as culpa lata which in law is equivalent
to dolus (Voet, 12.3.2). The deliberate sale and delivery of
goods, with full knowledge of the owner's claim to his rights
of
ownership, cannot be regarded as an ordinary loss by negligence.
It
is a wrongful act, which the person committing it cannot avail
himself of as a defence to an action for the redelivery of the
goods,
or, failing such delivery, for the value (Digest, 6.1.68; Voet,
6.1.32)." (
my
emphasis).
[24]
The Second Defendant at the time of handing
over the vehicle to Bongani was aware of the Plaintiff’ s claim
and that he had
no right to hand same over,
the
deliberate sale and delivery of goods, with full knowledge of the
owner's claim to his rights of ownership, is a wrongful act,
which
the person committing it cannot avail himself of as a defence to an
action for the redelivery of the goods, or, failing such
delivery,
for the value.
[25]
Having regard to the Second Defendant’s
intentional handing over of the vehicle to Bongani to sell on his
behalf I am not
convinced that this court is precluded from ordering
the return of the vehicle. I am, further puzzled by the Defendants
motivation
in making a payment in November 2019 after the vehicle was
allegedly no longer in its possession. The First Defendant submits
that
he no longer uses the FNB Current account from which the vehicle
was paid and that there was only sufficient funds therein because
UberEats did not timeously update the First Defendant’s banking
details. It seems unlikely to me that someone as cash strapped
and in
such dire financial circumstances as the Defendants would not know
when money was deposited into their accounts, more especially
when
the account was still in operation.
[26]
The Plaintiff argues
that the
very purpose of the return
of the vehicle is to quantify the extent of the Plaintiff’s
loss after the sale in execution of
the vehicle and will actually
reduce the Defendants indebtedness once the vehicle is sold in
execution.
[27]
The Plaintiff as owner is entitled to seek
its vehicle wherever it may find it and to establish for itself
whether the vehicle cannot
be found. The Plaintiff argues that it
cannot rely on the vague and sketchy sequence of events as submitted
by the Defendants’
to prove that the vehicle has indeed gone
missing.
[28]
The Defendants admit that they would
welcome a search for the vehicle, yet oppose the relief sought. The
Defendant has not set out
what prejudice it will suffer if such an
Order is made. To my mind such an order can only benefit the
Defendants, in the event
the vehicle is found, this will reduce the
Defendants indebtedness.
[29]
I submit that a Court is allowed to look
beyond the papers if the interest of justice calls for this.
I
am guided by the approach of Schreiner JA in
TRANS-AFRICAN
INSURANCE CO. LTD V MALNLEKA
1956 (2) SA 273
(A) AT 278F
,
where he emphasised that:
"
No doubt parties and their Legal advisers should not be encouraged to
become slack in their observance of the Rules, which
are an important
element in the machinery for the administration of justice. But on
the other hand technical objections to less
than perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if possible,
inexpensive decision
of cases on their real merits.”
[30]
The overriding
factor to be considered is prejudice, The Defendants have not
indicated what their prejudice would be, should an
order be made that
the Applicant attempt to recover the vehicle wherever it may be
found. The Defendants have made out a case for
the Plaintiff’s
to be awarded damages, but I am of the view that this would operate
harshly against the Defendants.
[31]
In the circumstances, I make an
order in the following terms:
1.
The Agreement is rectified to
reflect the motor-vehicle more fully described as a 2019 Maserati
Levante Diesel with Chassis Number
ZN6TU61C00X272210 and Engine
Number [....];
2.
The First Defendant is ordered to
immediately return the vehicle to the Plaintiff;
3.
In the event of the First Defendant
failing to return the vehicle, the sheriff of this Court is directed
and authorised to give
effect to this order and repossess the
vehicle;
4.
The Plaintiff’s damages claim
is postponed
sine die
pending the return of the motor-vehicle and determination of the
value thereof;
5.
The Plaintiff may approach the
court, on duly supplemented papers for the damages claim;
6.
The First and Second Defendants are
ordered to pay cost on an attorney-and-client scale, jointly and
severally, the one paying the
other to be so absolved.
J.L.
Khan
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
25 May 2021
Judgment:
21 September 2021
Applicant’s
Counsel:
Adv. L. Peter
Instructed
by:
Rossouws Leslie Inc.
Respondent’s
Counsel: Adv. E. R. Venter
Instructed
by:
Greg Morris