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[2018] ZAGPPHC 723
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Firstrand Bank Limited v Cornnelius (82666/2017) [2018] ZAGPPHC 723 (20 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 82666/2017
20/3/2018
FIRSTRAND
BANK LIMITED
PLAINTIFF/APPLICANT
and
BRANDON
CORNNELIUS
DEFENDANT/RESPONDENT
JUDGMENT
HATTINGH
AJ
BACKGROUND
[1].
On 12 December 2013, the parties entered· into a written
instalment sale agreement ("the
agreement").·
[2].
The parties will hereinafter be referred to as the applicant and
respondent.
[3].
The agreement falls within the scope of the National Credit Act 34 of
2005 ("the NCA").
It is not in dispute that the applicant
is duly registered as a credit provider in terms of section 40 of the
NCA.
[4].
In terms of the agreement the respondent purchased the following
vehicle from the applicant:
Huyndai 120 1 .6, 2010 model, Engine
Number G4FC8U512879, Chassis No: MALBC51DR9M062420 ("the
vehicle").
[5].
The applicant seeks in a summary judgment application for an order
that the vehicle be returned
by the respondent.
[6].
The applicant contends that the respondent is in material breach of
the agreement in that he
is in arrears with his instalments.
[7].
The respondent applied to be placed under debt review in terms of
section 86 of the NCA. The
applicant has not received any payment as
specified in the application for debt review. The applicant proceeded
to terminate the
respondent's debt review in terms of section 86(10)
of the NCA. There is thus no debt review process pending.
[8].
The applicant in the application for summary judgment submits that
the respondent does not have
a
bona fide
defence.
[9].
The first point of defence turned on the contention that the deponent
of the founding affidavit
lacks authorization and personal knowledge.
This defence is of no moment.
[10]. The
deponent to the affidavit in support of the summary judgement
application specifically states that he
has acquired the requisite
personal knowledge after he has perused the source documentation
relevant to the matter at hand.
[11]. The court
is
prima facie
satisfied that the deponent has the ability to
swear positively to the facts essential to the effectiveness of the
affidavit as
the basis for summary judgment.
[12]. Any person
who can swear positively to the facts may make an affidavit in
support of the application for
summary judgment. Rule 32(2) does not
require that the supporting affidavit be made by the plaintiff
himself.
[13]. The court
was referred to the matter of
Barclays
National Bank Ltd v Love
[1]
where it was held that the nature of the deponent's office in itself
may suggest very strongly that he would in the ordinary course
of his
duties acquire personal knowledge of the defendant's financial
standing with the bank.
[14]. In
Shackleton Credit
Management v Microzone Trading 88 CC &
Another
[2]
it was held in
paragraph 13 that
"first-hand
knowledge of every fact which goes to make up the applicant's cause
of action is not required, and where the applicant
is a corporate
entity, the deponent may well legitimately rely on records in the
company's possession for his personal knowledge
of at least certain
of the relevant facts and the ability to swear positively to such
facts".
[15]. In the
same way as the deponent to an affidavit in motion proceedings need
not be authorised by the party
concerned to depose to the affidavit,
so it is that the deponent to the verifying affidavit filed in terms
of rule 32(2) need not
be authorised by the plaintiff to depose to
the affidavit
[3]
.
[16]. The
counsel for the respondent also conceded that this point
in limine
does not hold any substance.
[17]. On the
merits of the issue the respondent denies that the monthly instalment
amount payable was an amount
of R2,989.08 (Two Thousand Nine Hundred
and Eighty Nine rand and Eight Cents). He however confirms that the
applicant deduct an
amount of R3,046.06 (Three Thousand and Forty Six
Rand and Six Cents) monthly from his account.
[18]. He further
states as follows:
"4.4.
I
wish
to confirm that following payments were deducted from my bank account
and paid over to the applicant. These payments do not
reflect on the
schedule of the applicant nor are these payments deducted from the
alleged outstanding amount as per particulars
of claim:
PAYMENT LISTED ON
BANK STATEMENT
Date
Amount
Total
01-08-2016
R 7,500.00
R 7,500.00
02-08-2016
R 3,500.00
R11,0000.00
02-08-2016
R 3,046.00
R 14,046.06
05-10-2016
R 6,000.00
R 20,046.06
05-10-2016
R 3,046.08
R 23,092.14
30-10-2016
R 6,500.00
R 29,592.14
31-10-2016
R 6,500.00
R 36,092.14
04-12-2016
R 3,100.00
R
39,192.14
4.5.
I
furthermore confirm that from January 2017 up and until April 2017,
the monthly instalments were made in cash deposits directly
to the
Applicant.
4.6
.
These
payments also do not reflect on the schedule of the Applicant nor is
it deducted from the alleged outstanding amount as per
summons.
4.7.
It
therefore wish to confirm that there are no amount due and owing to
the Applicant for reasons as set out above.,,
[19]. In this
matter the respondent must satisfy the court by affidavit that he has
a
bona fide
defence.
[20]. In so far
as the
bona fide
defence is
concerned what is required of the respondent is to set out a defence,
valid in law, in a manner which is not inherently
or seriously
unconvincing
[4]
. In addition to
Breitenbach's
case in
Standard
Bank of South Africa Ltd v Roestoff.
[5]
[21]. The remedy
provided by rule 32 has been described as drastic and extraordinary.
It effectively closes the
door of the court to the respondent. It is
based on the supposition that the respondent's claim is unimpeachable
and that the defendant's
defence is bad in law.
[22]. Summary
judgment applications must accordingly be approached with great
circumspection and with a reluctance
to grant. In this regard see
Dawson &
Dobson Industrial Ltd v van der Wert.
[6]
[23].
It
was also stated in Maharaj v Barclays National Bank Ltd
[7]
:
"The extraordinary and
drastic nature of the remedy of summary judgment in its present form
has often been judicially emphasised....
The grant of the remedy is
based upon the supposition that the plaintiff's claim is
unimpeachable and that the defendant's defence
is bogus or bad in
law."
[24]. A more
preferred approach would be that of
Navsa
JA in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture (2009) 3 All SA 407 (SCA)
[8]
:
"Having regard to its
purpose and its proper application, summary judgment proceedings only
hold terrors and are 'drastic'
for a defendant who has no defence.
Perhaps the time has come to discard these labels ('extraordinary'
and ‘drastic’)
and to concentrate rather on the proper
application of the rule, as set out with customary clarity and
elegance by Corbett JA in
the Maharaj case at 425 G
-
426E.”
[25]. The
abovementioned matter was as in this case concerned with whether the
defendant presented
a sustainable defence or triable issue in order
to prevent summary judgement being granted against it.
[26]. In
Standard Bank of
SA Ltd v Secatsa Investments (Pty) Ltd
[9]
at 2361
-
237A
the court
suggested that the case law quoted to it all predated our
Constitution and whereas there was a traditional insistence
on strict
compliance with the requirements of rule 32(2), it is at least
arguable that since coming into operation of the Constitution
this
should even be more so. Section 34 of the Constitution provides that
everyone has the right to have his/her dispute resolved
in a fair,
public hearing before a court, or where appropriate such other forum
as mentioned.
[27]. It
is stated in Herbstein & Van Winsen, The Civil Practice of the
Supreme Court of South Africa, Fourth
Edition, Juta as follows:
"The
affidavit filed by the defendant must set out his defence fully. This
has been held to mean that while the defendant need
not deal
exhaustively with the facts and the evidence relied upon to
substantiate them he must at least disclose his defence and
the
material facts upon which it is based with sufficient particularity
and completeness to enable the court to decide whether
the affidavit
discloses a bona fide defence. A bona fide defence is disclosed if
the defendant swears to a defence, valid in law,
in a manner that is
not inherently or seriously unconvincing. In other words, the
affidavit must set out facts that, if proved
at the trial, would
constitute a defence to the plaintiff's action".
[28]. It
is further stated in Erasmus, Superior Court Practice, Second
Edition, Van Loggerenberg, Volume
II, Juta:
"Bona fide
defence: All that the court requires in deciding whether the
defendant has set out a bona fide defence is: (a) whether
the
defendant has disclosed the nature and grounds of his defence; and
(b) whether on the facts
so
disclosed the
defendant appears to have, as to either to the whole or part of the
claim, a defence which is bona fide and good in
law...
”
[29]. In other
words if the respondent's affidavit shows that there is a reasonable
possibility that the defence
he advances may succeed on trial he must
be allowed the opportunity to defend the case.
[30]. It is
indeed so that the respondent did not attach proof of these payments
nor did the respondent attach
any deposit slips in terms of cash
deposits.
[31]. That,
however, does not detract from the fact that the affidavit clearly
set out facts that, if proved at
trial, would constitute a defence to
the plaintiffs action.
[32]. It is
therefore ordered as follows:
32.1. The
defendant/respondent is granted leave to defend the plaintiff's
action.
32.3. The costs of the
application for summary judgment are costs in the cause of the
action.
HATTINGH
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
[1]
1975 (2) SA 514 (D).
[2]
2010 (5) SA 112 (KZP)
[3]
First Rand Bank Limited v Ellis
2010 (6) SA 565
(ECP) AT 569 C- G.
[4]
Breitenbach v Flat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228 .
[5]
2004 (2) 492 (WLD).
[6]
1981 (4) SA 417
(C) at 419 .
[7]
1976 (1) SA 418
AD at 423 E - H.
[8]
2009(5) SA 1 (SCA) at para (33).
[9]
1999
(4) SA
229
(C)