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[2018] ZAGPPHC 337
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Investec Bank Limited t/a Investec Private Bank v Ferreira (35667/2017) [2018] ZAGPPHC 337 (23 February 2018)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG HIGH
COURT, PRETORIA)
Case
No: 35667/2017
23/2/2018
In the matter between:
INVESTEC BANK LIMITED t/a
INVESTEC PRIVATE BANK
PLAINTIFF
and
GERHARDUS LOURENS
FERREIRA
DEFENDANT
JUDGMENT
NGOBENI, AJ:
[
1]
The
Plaintiff is Investec Bank Limited t/a Investec Private Bank, a
private bank, registered as such, with registration No.
1969/004763/06
a company registered in terms of the company laws of
the Republic of South Africa in the duly registered as a commercial
bank by
virtue of the provisions of the Bank Act 94 of 1990 (as
amended) as well as a registered credit provider in terms of
Section
40
of the
National Credit Act 34 of 2005
with chosen domicilium
citandi et executandi at the corner of Atterbury & Klarinet
streets, Menlo Park, Pretoria.
[2]
The
defendant is Gerhardus Lourens Ferreira, an adult male with [….],
Pretoria, Gauteng province.
[3]
The
Plaintiff in this matter brought a summary judgment application in
terms of section 32 of the Uniform Rules of the High Court
pursuant
to an action he instituted against both the Defendant in the amount
of R1 091 350, 19 together with interest calculated
at the rate of
9.5% calculated from the 29th of March 2017 and costs.
[4]
The
plaintiff's claim emanates from a contract attached to the
particulars of claim marked annexure " A" whereby the
plaintiff alleges to have issued, and delivered a credit card to the
defendant which he signed for at 13H30 the 30th of March 2016.
In
terms of the contract the credit card entitled the defendant to
effect transactions within the credit limit an extra account
credit
limit and within an applicable spending limit.
[5]
In
view of the allegations made by the plaintiff per the particulars of
claim which are not denied, as well as averments made by
the
defendant in its opposing affidavit and the submissions by the
counsels during argument of the matter, the following appears
to be
common cause:
5.1
The
defendant accepted delivery of the credit card and accordingly used
the said credit card to the amount of R1 091 350, 19 by
29 March 2017
.
5.2
The
plaintiff consequently cancelled the credit facility.
[6]
Save
to accept delivery and the use of the credit card to the said amount
mentioned above the defendant denied the existence of
any agreement
between himself and the plaintiff. The defendant has tendered what is
commonly called a bare denial.
[7]
Rule
32 (3) "Upon the hearing of an application for summary judgment
the defendant may - (b) Satisfy the court by affidavit
(which shall
be delivered before noon on the court day but one preceding the day
on which application is to be heard) or with the
leave of the court
by oral evidence of himself or of any other who can swear positively
to the fact that he 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 therefor."
[8]
'Satisfy'
as mentioned in rule 32 (3)(b) does not mean prove. What the rule
requires is that the defendant set out in his affidavit
facts which,
if proved at the trial, will constitute an answer to the plaintiff's
claim. When the defendant advances his contentions
in resistance to
the plaintiff's claim he must do so with a sufficient degree of
clarity to enable the court to ascertain whether
he has deposed to a
defence which, if proved at the trial, would constitute a good
defence to the action (Breitenbach v Fiat SA
(Edms) Bpk
1976 (2) SA
226
(T). It is not sufficient for a defendant to state that he has no
knowledge of the allegations in the plaintiff's summons (Hendricks
v
Saacks
1945 CPD 270).
[9]
On
perusing the opposing affidavit as well as listening to arguments by
the defence counsel during the application I battled to
understand
what the defence is that the defendant was providing. The defendant
could not explain how he accepted delivery of the
credit card and
continued to use it to the extent that he did which is in line with
the credit limit provided by the plaintiff
in terms of the disputed
agreement, without any contract whatsoever existing between himself
and the plaintiff. Interestingly the
following has been stated on the
document entitled Investec deliver form dated the 30
th
of March 2016 on which the defendant acknowledged receipt of the
credit card: " ... I hereby accept delivery of my card and
or
quotation. I agree that I will be bound by the Investec Private Bank
Terms and Conditions and accept the terms of the Pre -
Agreement
Quotation that I have been given... I acknowledge that the Investec
Private Bank Terms and Conditions are available on
printable webpage
and that I can access the Investec Private Bank Account Terms and
Conditions on hyperlink..·".
[10]
The defendant further alleges that the plaintiff's claim is not a
liquidated one. He however, failed
to give an explanation in what
respect is the claim not liquidated.
[11]
The doors of the Court should be closed to a defendant only if there
is no doubt that the plaintiff
has an unanswerable case. It is clear
from his affidavit that the defendant advanced a defence simply to
delay the obtaining of
a judgment to which he well knows that the
plaintiff is justly entitled.
[12] I
accordingly make the following order:
1.
Summary judgment is granted against the
defendant for payment of the amount of R1 091 350, 19 with interest
calculated at the rate
of 9.50% calculated from 29 March 2017;
2.
The Defendant is to pay costs of this
application on an attorney and client scale.
NGOBENI AJ
ACTING
JUDGE OF THE HIGH COURT