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[2019] ZAGPPHC 250
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Firstrand Bank Limited t/a GMW Finance a division of Westbank v Goldberg (62331/18) [2019] ZAGPPHC 250 (18 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
NO
CASE
NO: 62331/18
18/6/2019
In
the matter between:
FIRSTRAND
BANK LIMITED t/a GWM FINANCE
A
DIVISION OF
WESTBANK
PLAINTIFF
And
BIANCA
GOLDBERG
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This is an opposed Summary Judgment.
BACKGROUND
2.
The plaintiff's cause of action is based
on a written agreement in terms of which the defendant purchased from
the Plaintiff:
1 X 2012 Nissan Juke 1.6
Dig T Tekna
Chassis Number: SJN FAAF 1526173693
The Instalment Sale Agreement was
electronically conducted between the parties on 7 February 2014.
3.
In terms of the agreement so conducted
the defendant was required to maintain regular payments as the
account and the plaintiff
shall remain the owner of the vehicle until
the defendant has paid all amounts and have complied with all its
obligations in terms
of the agreement.
4.
In breach of the terms of the agreement
the defendant as at 11 June 2018, was in arrears in the sum of R22
520, 20.
[1]
5.
Approximately, two years after
concluding the agreement the defendant applied to be placed under
debt review after the credit agreement
was referred to a debt
counsellor in terms of section 129(1) read with
section 130
of the
National Credit Act 34 of 2005
.
6.
In pursuance of the said referral, the
plaintiff as at 11 June 2018 directed a notice in terms of,
section
86(10)
of the
National Credit Act to
the defendant.
[2]
At paragraph 17 of the Particulars of Claim it is alleged that the
defendant has failed to respond to the said notice and further
that
the defendant has failed to surrender the motor vehicle to the
plaintiff as contemplated in
section 127
of the
National Credit Act.
7.
Pursuant to the issuing of the summons
on the 27 August 2018, it was served on the defendant on 31 August
2018. The defendant thereafter
entered an appearance to defend which
resulted in the plaintiff applying for summary judgment on 26
September 2018.
8.
In the matter Breitenbach v Fiat SA
(Edms) BPK at 227F - G, the Court held:
"To avoid summary judgment the
defendant is required in terms of Rule 32(3) (b) of the High Court
Rules to set out in an affidavit,
facts which if proved at trial,
will constitute an answer to the plaintiff's claim. The rule also
requires that the defendant satisfy
the court that the defence is
bona fide. This means the defendant must swear to
a
defence, valid in law in
a
manner which is not seriously
unconvincing. Finally it is required of a defendant that he discloses
fully the nature and grounds
of the defence and the material facts
relied upon therefore. This means that the statement of material
facts must be sufficiently
full to persuade the court that what the
defendant has alleged, if it is proved at trial will constitute
a
defence to the plaintiff's claim."
9.
In First National Bank of SA Ltd v
Myburg and Another 2002 (4) SA 176 (C) at 177D - F the Court held:
"The court will grant summary judgment
only where the plaintiff has an unanswerable case. If it has the
slightest doubt the
court will not grant summary judgment."
10.
In the opposing the application for
summary judgment the defendant have raised a number of challenges.
Firstly, she challenges the
locus
standi
of the plaintiff. Secondly
the defendant contends that the plaintiff has not complied with the
provisions of
section 86(10)
of the
National Credit Act 34 of 2005
and thirdly the defendant also challenges the jurisdiction of this
court to hear the application. In addition to the above the
defendant
also contends that the agreement entered into was reckless credit and
as such she is over indebted. Lastly she also mounted
a challenge to
the authority of the deponent to the founding affidavit.
AUTHORITY
OF DEPONENT
11.
As per the Affidavit Resisting Summary
Judgment, and more specifically paragraph 4.1 thereof the defendant
challenges the authority
of Ms. Lungile Madinana. The challenge
relates to the omission of Ms. Madinana's identify number for her to
be identified by. Secondly,
the defendant attacks the Certificate of
Authority attached to the founding affidavit which specifically
authorized Ms Madinana
to launch the summary judgment application and
lastly the defendant challenges whether Mr. De Kock the signatory of
the certificate
of authority is in fact employed as a director at the
plaintiff.
12.
As per the affidavit filed in support of
the application for summary judgment Ms Madinana alleges as follows:
"2. I am duly authorized to bring this
application and depose to this affidavit on behalf of the Applican.t
I refer in this
regard to the resolution of the Applicant annexed
hereto marked
' ".
3. In my capacity as the Debt Review
Manager, I have in my possession and under my control all the
Applicant's accounts, records
and other documents relevant to the
claim forming the subject-matter of the action instituted against the
Respondent under the
above case number (“the action”).”
'
13.
The defendant save to allege that it
cannot be said with certainty as to whether Ms. Madinana is in fact
the same person mentioned
in the attached Certificate of Authority,
no cogent reason is put forward by the defendant to challenge the
authority or her identity.
The challenge to her authority is made
badly without setting out the basis challenging her authority.
14.
In Rees and Another v Investec Bank
[3]
the Court held the following:
"Undue formalism in procedural matters
is always to be eschewed and must give way to commercial pragmatism.
At the end of the
day whether or not to grant summary judgment is a
fact-based enquiry. Many summary judgment application are brought by
financial
institutions or large corporations. First-hand knowledge of
every fact cannot and should not be required of the official who
deposes
to the affidavit on behalf of such financial institutions or
large corporations. To insist on first-hand knowledge is not
consistent
with the principles espoused in Maharaj."
15.
In the present instance Ms. Madinana set
out in her affidavit, that she has under her control all the
applicant's records, documents
and accounts relevant to the claim and
as such she possesses the requisite knowledge to depose to the
affidavit on behalf of the
applicant.
16.
Consequently I am satisfied that she
possesses the requisite authority to depose to the affidavit or
behalf of the applicant.
JURISDICTION
OF THIS COURT
17.
In this regard and more specifically the
defendant alleges that the plaintiff's claim falls within the
monetary jurisdiction of
the Magistrate's Court and as such this
claims ought to have been instituted in a Magistrate's Court and not
a High Court. In addition
to this the defendant alleges that the
residential address of the defendant is situated within the
jurisdiction of the High Court
of South Africa, Gauteng Local
Division Johannesburg. Coupled to the above the defendant also
asserts that albeit that the defendant
have failed to sign the Terms
and Conditions of the installment Agreement, paragraph 22.8
specifically records that the defendant
would have consented to the
jurisdiction of the Magistrate's Court.
[4]
18.
As per the Particulars of Claim the
plaintiff alleges that the Defendant's residential address and chosen
domicilium citandi et
executandi is situated within the jurisdiction
of the above Honourable Court.
[5]
19.
If one has regard to the relief sought
by the plaintiff in the summary judgment application, at this stage
the plaintiff merely
seeks the cancellation of the installment sale
agreement and the repossession of the motor vehicle and in the event
of there being
a shortfall once the vehicle is sold after
repossession, the plaintiff now already seeks an order that any
damages claim in future
should be postponed
sine
die.
20.
Section 19 of the Superior Court Act 10
of 2013 provides as follows:
"(1) (a) A provincial or local division
shall have jurisdiction over all persons residing or being in and in
relation to all
causes arising and all offences triable within its
area of jurisdiction and all other matters of which it may according
to law
take cognizance, and shall subject to the provisions of
subsection (2) in addition to any powers or jurisdiction which may be
vested
in it by law........... ."
21.
Mr. Venter appearing on behalf of the
defendant had argued that the defendant with reference to paragraph
22.8 of the Terms and
Conditions have consented to the jurisdiction
of the Magistrates Court and it is on this basis that counsel has
argued that this
court lacks the necessary jurisdiction. Counsel
however did concede during argument that this court have concurrent
jurisdiction
with the Gauteng Local Division Johannesburg but had
argued that given the heavy court rolls that this court should
transfer the
matter to its Local Division or the Randburg
Magistrate's Court.
22.
As per the affidavit resisting summary
judgment and more specifically paragraph 8.2 thereof, the defendant
denies having been a
signatory to the terms and conditions attached
to the Instalment Sale Agreement and she further disputes the
contents thereof.
23.
The defendant having denied being a
signatory of the Terms and Conditions so mentioned cannot place
reliance on the provisions of
paragraph 22.8 thereof. In additions to
this, the provisions of section 19 of the Superior Courts Act,
clearly permits the plaintiff
to have instituted proceedings in this
Court, as this Court has concurrent jurisdiction with its Local
Division.
24.
Furthermore, it simply would not
be cost effective as suggested by Mr. Venter to transfer an
application which is already
opposed and having been argued, to
another court simply for this matter to be argued again.
25.
Consequently, I conclude that this Court
has the necessary jurisdiction over the person of the defendant and
in the result the point
is also without merit.
DISAVOWAL
OF THE AGREEMENT
26.
The plaintiff's cause of action is
premised on Annexure B annexed to its particulars of claim, which is
a true copy of the electronic
installment agreement entered into
between the parties.
[6]
27.
In paragraph 8.3 of the affidavit
resisting summary judgment, the defendant denied that Annexure Bis a
true copy of the agreement
reached between the plaintiff and the
defendant, more so that her signature does not appear on the
agreement. The defendant further
disputes the amount of VAT which was
payable on the sale of the vehicle and also the amount levied in
respect of the accessories.
Important though is that the defendant
does not deny accepting delivery of the vehicle being the
subject-matter of this dispute.
28.
ln this regard, Mr. Du Plessis appearing
on behalf of the plaintiff had argued, that where the defendant
challenges the terms agreed
upon when the agreement was concluded and
by extension disavowed the agreement as alleged by the plaintiff this
would result in
her having no legal basis to retain possession of a
vehicle which in law the plaintiff is the owner. It is on this basis
alone
he had argued would entitle the plaintiff to obtain a
repossession order as sought from this court.
29.
This submission as made by Mr. Du
Plessis finds favour with this court. Where the defendant challenges
the terms agreed upon surrounding
the vehicle forming the
subject-matter of this dispute, the defendant in all good honesty
cannot retain the vehicle if no agreement
was reached prior to her
taking possession of the vehicle. On this basis alone, the vehicle
ought to be returned to the plaintiff.
DEFENCES
IN TERMS OF THE
NATIONAL CREDIT ACT
30.
In
this regard, the defendant alleges
that at the time the plaintiff, granted credit to her, it failed to
perform the requisite credit
assessment that she was completely
over-indebted in that same amounted to reckless credit.
[7]
The defendant further alleges that at the time when the plaintiff
extended credit to her, she was completely over-indebted and
as such
could not afford the credit extended to her.
[8]
31.
The
National Credit Act
[9
]
does not envisage that a consumer may claim to be over-indebted
whilst at the same time retaining possession of the goods which
form
the subject-matter of the agreement. Such goods should be sold to
reduce the defendant's indebtedness.
[10]
32.
As per the particulars of claim, the
plaintiff alleges, that it terminated the debt review process in
terms of the provisions of
section 86(10)
, which termination the
defendant had refuted in her affidavit resisting summary
judgment.
[11]
The said notices of termination were dispatched to the chosen
domicilium address of the defendant and to her debt counsellor as
required by the NCA and it therefore begs the question, as to why the
defendant had not received same.
33.
Consequently, this court is not
persuaded that the defendant has satisfied this court that she has a
bona fide defence which if
proved at trial will constitute a defence
to the plaintiffs claim.
ORDER:
In
the result Summary Judgment is entered in favour of the Plaintiff
against the Defendant for:
1.
Cancellation of the Agreement as from 14
June 2019.
2.
Delivery of the 2012 Nissan Juke 1.6 DIG
- T Tekna with
CHASSIS NUMBER:
SJNFAAF 1526173693 AND ENGINE NUMBER: MR16099253A
3.
Cost of suit.
4.
Claim for Damages postponed
sine
die.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances
as follows:
For Plaintiff:
Adv.
C.A. Du Plessis
Attorney
of the Plaintiff:
Rossouws, Leslie
Inc.
For
Defendant:
Adv. W.P. Venter
Attorney
for the Defendant:
George Smith Attorneys
Date
of Hearing:
14 February 2019
Date
of Judgment:
18 June 2019
[1]
Particulars of Claim para 14 pg. 6.
[2]
Particulars of Claim para 15.
[3]
2014 (4) SA 220 (SCA)
[4]
Affidavit Resisting Summary Judgment paragraph 8.1 and 8.2 p 7
[5]
Particulars of Claim para 2
[6]
Particulars of Claim para 3
[7]
Affidavit Resisting Summary judgment paragraph 8.12 p 13
[8]
Affidavit Resisting Summary judgment paragraph 8.15 p 11
[9]
Act 34 of 2005
[10]
Standard Bank of South Africa Ltd v Panayiotts
2009 (3) SA 363
(W)
at 370
[11]
Affidavit Resisting Summary Jud gment paragraph 8.23