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[2020] ZALMPPHC 22
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FirstrandBank Limited t/a Wesbank v Raesetsa Geberal Trading CC t/a RA Motors (5836/2019) [2020] ZALMPPHC 22 (14 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5836/2019
In
the matter between:
FIRSTRANDBANK
LIMITED
T/A
WESTBANK PLAINTIFF
And
RAESETSA
GENERAL TRADING
CC
T/A RA MOTORS
DEFENDANT
JUDGMENT
MG
PHATUDI J
Headnote:
Civil procedure – resisting Summary judgment application –
rule 33 (3) (b) – amended
Uniform rules of court –
delivery of opposing affidavit even though directory is conditio sine
quo non to ward off summary
judgment. Mere delivery of a plea not
constituting evidence as opposed to an affidavit.
Evidence:
purpose of affidavit
opposing summary judgment unlike plea delivery, is for
respondent to satisfy court (not to prove) that
it has a bona fide
defence to the action, set out nature of defence and grounds
therefore - such defence can be explicitly set
out in opposing
affidavit or with leave of the court permittingoral evidence –
failure to deliver opposing affidavit or lead
oral evidence if
permitted, is fatal to resisting summary judgment – held,
summary judgment is granted with costs.
[1]
The applicant in this mater caused combined summons to be issued in
this court on 05/09/2019, against
the respondent (defendant in the
main action) - for repossession of the goods sold and delivered to
the respondent namely a matter
vehicle a Isuzu FRT 850, 2018
model, with details better described in paragraph 5 of the
particulars of claim, and also sought
costs of suit on a punitive
scale.
[2]
The action being defended, coupled with a plea and a special plea
having been delivered, the applicant
proceeded to apply
on
20.11.2019
for summary judgment against the respondent in
the manner set out both in the particulars of claim and as in the
present application.
[3]
The summary judgment application conforms to Rule 32 (1) and 32 (2)
of the amended Uniform Rules of
court in as much as it brought
application after the plea was delivered in terms Rule 32(3) of the
said rules which took effect
on 01/07/2019.
[4]
I must remark this early in the judgment that
although Adv Mouton, Counsel for the respondent appeared to
oppose
the summary judgment application on the strength only of the plea
delivered on 30/10/2019, (pages 31 – 39 paginated
index) the
respondent’s attorneys failed to deliver an opposing affidavit
on the day of the hearing (13/02/2020) nor file
of record such an
affidavit of the proceedings in the court file. As required by rule
32(3) of the Uniform rules of court.
[5]
The foregoing observation finds approval from A reading of the
relevant rule which sounds as follows;-
Rule
32 (3) (b):
“
The
Defendant may –
(b)
satisfy the court by affidavit which shall be delivered five (5) days
before the day on which application
is to be heard, or with the leave
of court by oral evidence of such defendant or of any other person
who can swear positively to
the fact that the Defendant has a
bona
fide
defence to the action, such affidavit or evidence shall
disclose fully the nature and grounds of the defence and the material
facts
relied upon therefore.”
[6]
What, however, Mr Mouton has done, and without the leave of court nor
condonation being sought or granted,
purported to argue the matter
from the bar and placed before court arguments raised in the special
plea and the main plea. The
special plea the respondent raised would
have been relevant for consideration if leave to defend the summary
judgment application
were granted. For the sake of completeness, the
special plea relied upon is one in terms of the provisions of section
133 (1) read
with section 134 (1) (c) of the new Companies Act, 2008
(Act 71/2008).
[7]
In the main plea, the defendant admitted the existence of the
instalment sale agreement concluded by
and between the parties, but
surprisingly in the same plea, placed at issue the originality of the
very same contract whose existence
it does not dispute nor challenge.
This, in my views is a dichotomy, to say the least.
[8]
Assuming for a moment that the authenticity of the instalment sale
agreement is in issue, the respondent
(defendant) in paragraph 5.1 of
its plea, however unequivocally admits that it purchased the truck
sought to be re-possessed from
the applicant. I am unable to
conceive, how else could the responded have managed to acquire the
said truck without the conclusion
of the sale agreement,
whether it be original or by copy thereof being in
esse
or
(existence). I find this part of the plea not only blatantly
illogical, but also spurious, to sum it up.
[9]
Furthermore, the respondent in its plea, (paragraph 6) regarding
delivery the of the truck to it, this
fact is in itself readily
admitted. How then does defendant/respondent admit
possession/delivery of the merx, and by the same token,
deny the
existence of the instalment sale agreement. Again, I find the defence
raised to be predicated on narrow and shallow grounds.
These mutually
contradictory defences can only be better described as devoid of
genuine
bona fides
required in Rule 32(3) (b), as amended.
[10]
The non-compliance with the rule itself, with or without the required
affidavit setting out explicitly the nature
of defence and the
grounds thereof, is in my view, fatal to the respondent’s
resistance to the summary judgment application
sought by applicant.
[11]
Upon the hearing of the summary judgment application the respondent
failed to draw to the attention of the court
the existence of the
opposing affidavit, if any, to enable the court to assess if a
bona
fide
defence to the action is brought to bear sufficient to raise
any issue for trial. Furthermore, no condonation for non-compliance
with the sub rule had been sought, either,
[12]
The delivery of an affidavit even though directory, but raising a
bona fide
defence and the grounds of the defence is a
necessary
conditio sine quo non
, to resist a summary judgment
application. This the respondent had failed to do in as much as it
failed to seek leave to
lead oral evidence to establish a
bona
fide
defence.
[13]
Failure to do so had manifestly divested the court of an
opportunity to satisfy itself from the body of the
opposing
affidavit, of the particulars of the defence, the nature and the
grounds therefor. I find therefore that mere delivery
of a plea does
not constitute evidence necessary to be adduced in an affidavit
resisting summary judgment application.
13.1 I must point
out that although Rule 32(3) appears to be directory, I am unable to
appreciate how a litigant desirous
to ward off a summary judgment
application can successfully do so without first satisfying a court
by way of an affidavit, whose
purpose is to set out a defence, its
nature and grounds upon which it is predicated, not of course,
excluding its evidential value.
See also
Cinemark (Pty) Ltd v
AL feta Tune-up centre
1979 (4) SA 802
(W).
13.2 In principle, the
Respondent in the present instance was required to have set out in
its affidavit, if available facts, which
if proved, at the trial,
will constitute an answer to the applicant’s claim. See also,
Marsh v Standard bank of South Africa Limited
2004 (4) SA 947
(w) at 949 (C)
.
[14]
In the premises, and upon consideration of the submissions made
during argument, and having considered the merits,
I am much more
inclined to grant the summary judgment sought. In the result, I
pronounce the following order:-
(a)
Summary
judgment is granted against the Respondent for re-possession by the
applicant of a Motor vehicle Isuzu FTR 850 F/C C/C with
engine NO:
6HK1206013
,
chassis NO:
ACVFTR34H8G003545
(b)
The
respondent to pay the costs of application on attorney and client
scale.
MG PHATUDI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION,
POLOKWANE
Appearances:
1.
For the
Applicant/Plaintiff
: Adv F. Du Toit
Instructed by
: Rossouw Lesie Inc
2.
For the
Respondent/Defendant : Adv J.P. Morton
Instructed
by
: DDKK Attorneys
Polokwane
3.
Date for
hearing
: 13 February 2020
4.
Date to
delivered
: 14 February 2020