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[2021] ZAKZPHC 92
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Absa Bank Limited v Mansoor (8325/2019) [2021] ZAKZPHC 92 (16 November 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8325/2019
In
the matter between:
ABSA
BANK
LIMITED PLAINTIFF
and
IDREES
MANSOOR
DEFENDANT
IDENTITY
NO: […]
ORDER
(a) The
application for summary judgment is refused;
(b) The
defendant is given leave to defend the action;
(c) Costs
are reserved for determination by the trial court.
JUDGMENT
MOSSOP
AJ:
[1] This
is an opposed application for summary judgement.
[2] The
application has its genesis in a transaction between the plaintiff
and the defendant in terms of which
the defendant purchased a BMW
motor vehicle (henceforth ‘the motor vehicle’) from the
plaintiff on an instalment sale
basis. The agreement was concluded in
April 2018, but in October 2018 the defendant decided to sell the
motor vehicle. He consequently
placed an advert for the motor vehicle
on an online website known as ‘Gumtree’ and the
advertisement duly attracted
the attention of a Mr Mohammed Essa
(henceforth ‘Mr Essa’). Mr Essa agreed to purchase the
motor vehicle for a purchase
consideration of R679 000.
[3] On
14 November 2018 Mr Essa sent the defendant a message on the online
social media application ‘WhatsApp’
requesting him to
check with the plaintiff whether the purchase price that he had paid
had been received by it and credited to
the vehicle transaction
account (henceforth the AVAF account’). The defendant did so
and contacted the plaintiff’s
call centre. He was advised that
two separate payments had indeed been made in the amounts of R495,000
and R186 000 respectively
into the AVAF account. Such payments,
he was advised, were in the form of electronic funds transfers
(henceforth ‘EFT’).
This was the mode of payment that the
defendant had agreed upon with Mr Essa.
[4] Thereafter,
the defendant made a payment of approximately R97,000 into the AVAF
account, being the shortfall
on the motor vehicle due to the
plaintiff following the payment by Mr Essa. A short while thereafter,
the defendant again contacted
the plaintiff’s call centre and
was advised that the plaintiff had closed the AVAF account and that a
letter to that effect
had been emailed to him in which it was also
confirmed that the AVAF account had been settled in full. The
defendant asked the
defendant’s representative whether he could
release the vehicle to Mr Essa and was advised that it was safe to do
so as the
AVAF account had been closed by the plaintiff. On 17
November 2018 he according released the vehicle to Mr Essa.
[5] Two
days later, a representative of the plaintiff contacted the defendant
and informed him that the original
NATIS documents were ready for
collection by him from the plaintiff’s Windermere branch. He
also received a letter, dated
16 November 2018, confirming that the
AVAF account had been paid in full. This letter came after the
telephone calls to the plaintiff’s
call centre and after he was
told that it was safe to release the motor vehicle to Mr Essa. The
letter contained a warning that
the payments could be returned and
the confirmation contained therein was given without prejudice. The
next day, the defendant
collected the NATIS documents from the
plaintiff’s Windermere branch and gave them to Mr Essa. The
plaintiff also provided
him with a statement of account, dated 15
November 2018, which reflected the receipt of both his and Mr Essa’s
payments.
[6] The
inevitable happened: the payments made by Mr Essa were reversed. It
transpired that the payments made by
Mr Essa had been made by way of
two cheques and not two EFT transactions, contrary to the agreement
the defendant had with him,
and contrary to the advice he had
received from the call centre operative.
[7] The
plaintiff thereafter issued summons against the defendant,
essentially, for the reversed payments of Mr
Essa. The defendant
having entered an appearance to defend the action and having pleaded,
the plaintiff now seeks summary judgment
against him.
[8] The
defence raised by the defendant is essentially one of an estoppel. He
asserts that the plaintiff, through
its various representatives, made
four misrepresentations to him, namely:
(a) that
the AVAF account had been paid in full and had been closed by the
plaintiff;
(b) that
it was safe for him to release the vehicle to Mr Essa;
(c) it
provided him with the original NATIS documents for the motor vehicle;
and
(d) it
provided him with a statement indicating that it had received the
amount of R777,700 in respect of
the motor vehicle.
[9] To
this I think could profitably be added a misrepresentation that the
payments made by Mr Essa had been made
by two EFT transactions when
they had actually been made by two cheque transactions.
[10]
The
plaintiff contends that a defence of estoppel is not available to the
defendant and relies heavily on the matter of
Absa
v Wolmarans
.
[1]
This
is a full bench appeal judgment of the Cape High Court. The facts of
that matter bear a passing resemblance to the facts of
the present
matter. That matter also involved the sale of a vehicle in respect of
which payments by the purchaser were subsequently
dis- honoured. In
Wolmarans
,
the lower court upheld the defence of estoppel but on appeal the
order of the lower court was reversed and judgment was entered
against the defendant.
[11] There
are, however, in my view, several factors that distinguish that
matter from this one:
(a)
Wolmarans
was an appeal after a trial at which all the relevant facts were
ventilated through evidence;
(b) In
Wolmarans
, the bank provided nothing in writing to the
defendant – everything was done and discussed orally; and
(c) In
the present matter, the plaintiff’s representative advised the
defendant that payment had been
made by EFT, as agreed between him
and Mr Essa. Factually, this was incorrect.
[12] The
disclosure that the payments were made by EFT may have persuaded the
defendant that there was nothing
amiss. In
Wolmarans
, there
was trenchant criticism by Desai J, who delivered the judgment of the
court, that the defendant in that matter had made
no inquiries about
the form of payment. That criticism cannot be levelled at the
defendant in this matter. Had he been informed
that payment had been
made by cheque, as it had been, he may well have been alerted to what
Mr Essa was up to, but he was incorrectly
advised by the plaintiff.
[13]
The
defendant has disclosed in crystal clarity what his defence is. I
cannot find that it is not bona fide as many of the facts
disclosed
by him are not challenged by the plaintiff. The plaintiff alleges
that it discloses no defence in law. I am not persuaded
that is the
case. In
Wolmarans
,
the court found that the plea of estoppel would fail if the defendant
would probably have become aware of the true facts upon
making a
proper enquiry.
[2]
It seems to
me that the defendant did make a proper enquiry in this matter and he
did not discover the true facts. Why that is
the case can best be
ascertained by allowing the matter to go to trial. Whether the
defence succeeds at trial remains to be seen
but for the purposes of
summary judgment I am satisfied that it passes muster.
[14] I
accordingly grant the following order:
(a) The
application for summary judgment is refused;
(b) The
defendant is given leave to defend the action;
(c) Costs
are reserved for determination by the trial court.
MOSSOP
AJ
APPEARANCES
Counsel
for the applicant: Mr J.
Eastes
Instructed
by:
Delport
van den Berg Inc.
Care
of
Shepstone
and Wylie
15
Chatterton Road
Pietermaritzburg
Counsel
for the respondent: Mr A. C. Roestorf
Instructed
by:
Maharaj
Moodley Attorneys
348
Rivonia Boulevard
Rivonia
Care
of:
Hay
and Scott Attorneys
1
George MacFarlane Lane
Pietermaritzburg
Date
of Hearing: 16
November 2021
Date
of Judgment: 16
November
2021
[1]
ABSA v Wolmarans
(30763/03)
[2010] ZAWCHC 33
(24 February 2010).
[2]
At
para 21.