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[2018] ZANCHC 40
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Nedbank Limited v Louw (2382/2017) [2018] ZANCHC 40 (22 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO:2382/2017
Heard
on: 23 March 2018
Delivered
on: 22 June 2018
REPORTABLE:
NO
CIRCULATE TO JUDGES:
YES
CIRCULATE TO MAGISTRATE:
NO
CIRCULATE TO REGIONAL
MAGISTRATES:
NO
In
the matter between:
NEDBANK
LIMITED
APPLICANT
and
RAYMOND
B
LOUW
RESPONDENT
JUDGMENT
VUMA
,
AJ
INTRODUCTION
[1]
This is an opposed
summary judgment application brought in terms Rule 32(1)(c) for the
delivery of a motor vehicle. In its Notice
of Motion dated 8 November
2017, the applicant, acting on behalf of its sister company MFG, is
seeking for an order in the following
terms:
'1. Confirmation
of the termination of the agreement;
2.
Return of the vehicle
described as 2014 Nissan NP 200 1.6
ale
Safety Pack P/U
SIC,
engine number:
K7MF710UJ16654, chassis number: ADNUSN1D5U0081921;
3.
Asset may be handed over
to a duly authorized representative of the plaintiff or the Sheriff;
4.
Authorization that the
Sheriff or the authorized representative of the plaintiff may attach
and remove the asset wherever it may
be found;
5.
Forfeiture of all amounts
paid by the defendant in terms of the agreement;
9.
Attorney and client costs
to be taxed; and
10.
Further and /or
alternative relief
Prayers 6, 7 and
8 to stand over for later determination.'(Sic)
FACTUAL
BACKGROUND
[2]
On 20 October 2014 at
Kimberley the applicant and the respondent concluded a written sale
agreement ('the Agreement") in terms
of which the applicant sold
a 2014 Nissan NP 200 1.6
ale
Safety Pack P/U S/C,
engine number: K7MF710UJ16654,
chassis
number:
ADNUSN1D5U0081921 to the respondent in the total amount of R173
692-98, which vehicle was delivered to the respondent.
[3]
The salient terms of the
Agreement were,
inter
alia,
that the
defendant shall pay an amount of R3 466-21 towards his first
installment payable on 1 December 2014 and thereafter 70 equal
monthly installments of R3 466-21 payable on each
corresponding day of each consecutive month. A final payment of R3
466-21 would be payable on 1 November 2020.
[4]
The Agreement further
states that should the respondent fail to pay the installment on due
date or fail to satisfy any of his obligations
in terms of the
Agreement, the applicant shall, without prejudicing any of its
other rights in law, be justified
in:
'4.1.
Cancelling the Agreement and in the instance of such cancellation:
4.1.1
Claim the return and
possession of the vehicle;
4.1.2
Be entitled to retain all
payments already made by the respondent;
4.1.3
To claim payment of the
difference between:
1.
The amount outstanding at
the date of cancellation of the Agreement less a rebate on finance
charges calculated from the date
of termination of the
agreement and;
2.
The amount at which the
vehicle is valued in terms of the agreement or re-sale value thereof,
whichever is the greater;
4.2
Interest;
4.3
Costs on attorney and
client scale.....'
[5]
At least according to the
applicant, as at 4 September 2017 the respondent was in arrears in
the amount of R10 762-14 and as at
8 September 2017 the
outstanding balance stood at R140 312-12.
[6]
On 19 September 2017 the
applicant complied with the requirements of section 129 of the
National Credit Act 34 of 2008 by sending
out a letter of demand to
the respondent's chosen address notifying the respondent that he has
failed to satisfy his repayment
obligations in terms of the Agreement
and that his arrears were in the amount of R10 762-14. It is alleged
by the applicant, despite
receiving the said Notice, the respondent
failed to respond to the said demand.
[7]
As a result of the above
alleged defaults by the respondent, the parties corresponded with
each by way of letters. In reply to queries
raised by the respondent
regarding his debit orders, the applicant's attorneys wrote to the
respondent requesting him to respond
to their email dated 27
September 2017 in which letter the following is stated:
'......We
kindly request that you provide us with the statements you perused to
ascertain that your debit orders did in fact go
through;
alternatively provide our office with proof of payments as our
records show that payments that you allege were debited
from your
account were in actual fact returned due to insufficient funds being
available in your account'.
[8]
The respondent did not
respond to the above letter. On 10 October 2017 the applicant caused
Summons to be issued against the respondent
for an order in the
following terms as per the Particulars of Claim:
'1.
Confirmation of the termination of the agreement;
2.
Return of the vehicle as
referred to herein;
3.
Asset may be handed over
to a duly authorized representative of the plaintiff or the Sheriff;
4.
Authorization that the
Sheriff or the authorized representative of the plaintiff may attach
and remove the asset wherever it may
be found;
5.
Forfeiture of all amounts
paid by the defendant in terms of the agreement;
6.
Payment of the difference
between:
6.1
The amount of R140 312-12
(amount outstanding at date of termination of the agreement) less a
rebate on finance charges for the
period not yet lapsed at the
termination of the contract (to be calculated) plus any outstanding
finance charges (to be calculated)
AND
6.2
the amount the vehicle is
valued at or the re-sale value of the vehicle
,
whichever is the
greater.
7.
Interest on the amount
referred to in prayer (6) (being the total recalculated balance)
calculated at 12% per year,
alternatively
at the current
interest rate linked to the fluctuation of the interest rate
calculated from date of termination of the agreement
to the date of
payment;
8.
Expenses incurred for
removal, valuation, storage and sale of the vehicle;
9.
Attorney and client costs
to be
taxed;
10.
Further and
I
or alternative
relief.
[9]
On 26 October 2017 the
said Summons was served on the respondent by affixing same to his
principal door. A day thereafter, that
is, 27 October, the respondent
filed his Notice of intention to defend which resulted in the
applicant issuing this Application
for Summary Judgment on 8 November
2017. The respondent opposed the application by filing an Opposing
Affidavit on 13 December
2017 and attached to it correspondence
between himself and the applicant's attorneys and his bank statements
which he considered
to be relevant to the facts in issue. These bank
statements relate to,
inter
alia,
transactions
that include. debits by the applicant, reversals of such debits due
to insufficient funds in the respondent's account,
EFT payments by
the respondent and refunds to the respondent by the applicant.
APPLICANT'S
SUPPORTING AFFIDAVIT FOR THE SUMMARY JUDGMENT APPLICATION
[10]
The applicant's Supporting Affidavit in respect of this
Summary Judgment application was deposed to on 1 November 2017
by Ms Nicolean Ferreira, wherein she avers that she is the Manageress
of the Special Support and Litigation Department of the applicant
and
that she is competent and duly authorized to depose to the supporting
affidavit and that the contents of the said affidavit
fall within the
ambit of her personal knowledge and that she confirms the contents
thereof to be both true and accurate. She further
avers that she has
personal knowledge of the facts of this matter as set out in the
Summons and the Particulars of claim as set
out in her supporting
affidavit and that she verifies the cause of action; the facts upon
which the cause of action is based; and
the claimed amounts as set
out in the Summons, are correct. Lastly she states that it is her
opinion that there is no
bona fide
defence against this matter
by the respondent and that the Notice of intention to defend has been
delivered solely for the purpose
of delaying the action.
SUBMISSIONS
BY THE RESPONDENT
[11]
In his submissions, the
respondent started off by raising what may be termed a point
in
limine,
by contending
that the applicant has failed to comply with Rule 32 of the Uniform
Rules of Court due to the fact that its supporting
affidavit does not
sufficiently satisfy the requirements of Rule 32(2) of the Rules in
that the person who deposed thereto in support
of the summary
judgment application does state nor show that she has sufficient
personal knowledge of the relevant facts to the
matter nor that she
could verify all the facts in this matter, since all she does is
simply to refer the court to the particulars
of
claim. Further, it was submitted, the deponent has also failed to
state if she has access to the respondent's account.
[12]
Further, he submitted as
a result of this defect, the applicant's affidavit comes short of
what was held in the matter of
Joob
Joob Investments (Pty) Ltd v Stock Mavundla Zek Jint Venture [20091 3
All SA (SCA) par
31-32
,
where the court quoted what was held in
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(AD)
that
the courts must be satisfied that the person deposing to the
affidavit had sufficient personal knowledge and could verify all
facts in the matter. He submits that the deponent has not made out a
case of 'personal knowledge' to support the application and
submits
that for this reason the application must be dismissed with costs.
[13]
Regarding the merits of
the claimed arrear amounts, the respondent submitted that he has a
bona tide
defence
since he does not owe the applicant contrary to its allegations in
the particulars of claim and the summary judgment application,
arguing that the applicant had in fact recovered the 3 (three) months
payments he had missed by debiting his account on dates not
agreed to
in the Agreement. He further argued that even the summons was
issued prematurely since he was still in the process
of obtaining
clarity on the alleged arrears from the applicant's attorneys and was
surprised when the applicant issued summons.
He argued that despite
the fact that the applicant had sent him a letter on 3 October 2017
to which he still had to respond, he
was surprised when on 25
October 2017 he found summons which were issued on 10 October 2017
affixed
to
his door. He argued that the period between 3 October 2017
through the 25th thereof was not sufficient enough for
him
to could have responded to the applicant's letter and that
otherwise, this court process could have been avoided.
[14]
He further submitted that
in terms of the laws relevant in
casu,
the courts should not
only look at the agreement terms between the parties but the
interests of the consumer and their protection
against abuse and
unfair practices by the service
provider.
[15]
He further submitted that
despite the fact that the applicant sent him a letter terminating the
Agreement, the applicant continued
to debit his account in
re
the installments
payments and requested this court to order that the applicant refund
him all such payments received after the termination
of the Agreement
since they are unlawful.
SUBMISSIONS
BY THE APPLICANT
[16]
With regard to the point
in limine
raised
by the respondent
re
the non-compliance by
the applicant with Rule 32 provisions, the applicant submits that the
respondent's objection is without merit
since it is clear from the
reading of the papers as a whole that the deponent, by virtue of
holding the position of the Manageress
of the Special Support and
Litigation Department of the applicant, it must safely be assumed
that she has personal knowledge as
she had averred. She submitted
that her argument is borne by what was held in
Absa
v Le Roux and others
2014
(1) SA 475 (WCC) at par 15
that
first-hand knowledge by the deponent should not be required
and that the court can only receive assurance from the deponent (see
Mahara
j
above).
[17]
She further submitted
that from the papers as a whole, the court has assurance that the
deponent has acquired personal knowledge
in respect of this matter
and that she did work on this matter during the course of her
duties.
[18]
With regard to the arrear
amounts, the applicant's counsel submitted that the respondent is in
arrears and thus in breach of the
Agreement. She further
submitted
that
even
from the bank statements relied on
by the respondent, it
was evident
that he misinterpreted the transactions therein, confusing
returned debits for honoured ones.
[19]
Regarding the
respondent's submission that the applicant's attorneys failed to
afford him enough time to respond to the letter which
he had
received on 3 October 2017, the applicant's counsel
submits that the respondent had failed to comply with the
applicant's
attorneys' request as set out in their letter first sent out
on 27 September 2017. The applicant's counsel
submitted that the
applicant is entitled to the relief as set out in its Notice of
Application for Summary Judgment dated 8 November
2017,
excluding prayers 5 and 6
thereof.
ISSUES
[20]
Based on the above, this court is called upon to make a determination
in respect of the following issues, namely:
1.
Whether the person who
deposed to the applicant's supporting affidavit has full knowledge of
the facts of the matter or that she
can verify the cause of action.
2.
Whether the respondent
has a
bona tide
defence to the
applicant's claim and that in fact he is ahead with his
payments.
LEGAL
POSITION
[21]
In the matter of
Joob Joob Investments (Pty) Ltd v Stock
Mavundla Zek Jint Venture [2009) 3 All SA (SCA) par 31-32,
the
court quoted what was held by Corbett JA in
Mahara
j
at 425G-426E. The Learned Judge held that the court must first
ensure and make an examination of whether there has been sufficient
disclosure by a defendant, of the nature and grounds of his defence
and the facts upon which it is founded. The second
consideration
is that the defence so disclosed must be both
bona
tide
and good in law. A court which is satisfied that this
threshold has been crossed is then bound to refuse summary judgment.
Corbett
JA also warned against requiring of a defendant the precision
apposite to pleadings However, the learned judge was equally astute
to ensure that recalcitrant debtors pay what is due to a creditor.
[22]
With regard to the deponent's extent of knowledge of the matter's
salient facts for purposes of deposing to a supporting
affidavit, in
ABSA
above,
the court held that 'in the result it follows on the construction of
the sub-rule given in Maharaj that unless it appears
from a
consideration of the papers as a whole that the deponent to the
supporting affidavit probably did have sufficient
direct knowledge of
the salient facts to be able to swear positively to them and verify
the cause of action, the application for
summary judgment is fatally
defective and the court will not even reach the question whether the
defendant has made out a
bona tide
defence... .'
ANALYSIS
[23]
It is common cause that as on the date of the hearing of this
application, the respondent had not,
inter a/ia,
surrendered
the vehicle to the applicant nor brought the disputed arrears amounts
up-to-date.
[24]
With regard to the point
in limine
raised by the
respondent, it is so that the deponent in respect
of the applicant's supporting affidavit
is Ms Nicolean Ferreira who
is the Manageress of the Special Support and Litigation Department of
the applicant. When one considers
what was held in
ABSA
above that unless it appears from a consideration of
the papers as a whole that the deponent to the supporting affidavit
probably
(My emphasis) did have sufficient direct knowledge of
the salient facts to be able to swear positively to them and verify
the cause
of action, the application for summary judgment is fatally
defective, then that is where the story should end. The
requirement to meet the test of sufficient direct knowledge is
not to be based on the actual fact but a
probability
of a
sufficient direct knowledge will suffice, at least according to ABSA
v Le Roux. When one takes into account the deponent's
employment
position, I am of the view that if an inference was to be drawn that
by virtue of holding such employment position,
the probability that
she has a sufficient direct knowledge of the salient facts to be able
to swear positively to them and verify
the cause of action would not
be far-fetched.
[25]
Based on the above, I
find that from the reading of the papers as a whole, I am satisfied
that the deponent does have a sufficient
direct knowledge as she has
averred in the affidavit and that the respondent's point
in
limine
is frivolous
and thus dismissed.
[26]
In respect of the claimed
arrears, when one looks at the respondent's bank statements, the
following is
evident:
1.
There are a couple of
debited amounts which were reversed due to insufficient funds; and
2.
In his opposing
affidavit, the respondent incorrectly indicates such reversals as a
payment and/ or additional
payments.
[27]
Despite the respondent's
bank statements confirming the applicant's version or contentions
that the respondent
had not
been honoring his monthly installments
payments
for reasons stated above, the respondent's counsel was still that all
the payments were up to date.
RESULT
[28]
I am satisfied that in
respect of the issue regarding the arrear payments, the applicant has
made out a good case and that the respondent
does not have a
bona
tide
defence.
[29]
I find the respondent's
argument that but for the applicant's attorneys not affording him
enough time to respond to their letter
dated 2 October 20127, this
application should not have taken place not persuasive. The reason is
because when takes into account
that the requested information was in
relation to the respondent's bank statements which are now before
court, from which no
bona
fide
defence arise
for the respondent, it therefore becomes common cause that this
application would still have taken place, even if
the respondent had
been afforded a much longer period. It must further be borne in mind
that the period complained of as being
not sufficient is one of 29
days.
[30]
Regarding the
respondent's argument that the applicant continued to debit his
account in
re
the
installments payments and that this court should order that the
applicant refund him all such payments received after the termination
of the Agreement since they are unlawful given, I am of the view that
this court cannot make such an order due to the fact that
the
respondent never made any such prayer in his opposing affidavit since
all he asks for therein is an order to dismiss the applicant's
claim
with
costs.
[31]
In the premise, I make
the following order:
ORDER
1.
Prayers 1;2;3;4; and 5 of
the Notice of Application for Summary Judgment dated 8 November 2017
are
granted.
2.
Prayers 6, 7 and 8 to
stand over for later
determination.
__________________
L
Vuma
Acting
Judge
Northern
Cape High Court
Head
on: 23 March 2018
Judgment
delivered: 22 June 2018
A
pp
earances
For
Applicant: Adv. Sieberhagen Instructed by:
Kemp & Associates
For
Respondent: Adv. Pillay
Instructed
by: Justin Pillay
&
Associates