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[2018] ZAKZPHC 12
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McCarthy Finance, a Division of Wesbank, a Division of Firstrand Bank Limited v Mbambo (13056/2017P) [2018] ZAKZPHC 12 (8 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 13056/2017P
In
the matter between:-
McCARTHY
FINANCE, A DIVISION OF WESBANK,
A
DIVISION OF FIRSTRAND BANK
LIMITED
PLAINTIFF
and
KHANYISILE
LUCIENDRA PRECIOUS
MBAMBO
DEFENDANT
JUDGMENT
CHETTY
AJ
[1]
This is an opposed application for summary judgment, in which
the Plaintiff, in the main, seeks an order for the return of a 2012
model Toyota Quantum 2.5D-4D Sesfikile motor vehicle bearing engine
number: 2KD5917418 and Chasis Number: AHTSS22P007001281from
the
Defendant (the vehicle).
[2]
Pursuant to the application for summary judgment being made,
the Defendant, duly represented, filed her affidavit resisting
summary
judgment.
[3]
The matter was set down on the opposed
roll, for the 26th April 2018, and the Defendant failed to comply
with the practice directive
for opposed applications.
[4]
On the date set down, counsel for the Defendant requested an
adjournment of the application and having listened to argument by
counsel
in favour of the application for the adjournment and with the
Plaintiff no doubt opposing same, I granted an
ex tempore
judgment refusing the application for the adjournment.
[5]
At that juncture counsel
for the Defendant handed into court a duly prepared and signed notice
of withdrawal as attorneys of record
on behalf of the Defendant. In
all the circumstances, it would appear that there was good reason for
the refusal of the adjournment
and the subsequent withdrawal as
attorneys of record appears to me, simply to be an abuse of the
process of court. The application
for summary judgment was served on
the Defendant's attorneys on the 26th January 2018, and despite the
lapse of time, not only
was there no compliance with the practice
directive, but in addition thereto, matters appear to have been left
for the last moment,
hoping, that with the appearance of counsel at
an opposed application, the adjournment would simply be granted upon
a mere request
therefore. In refusing the application for summary
judgment, I was mindful of the threshold set out by Mahomed A J A (as
he was
then) in the case of
Mvburg
Transport v Botha TIA
S
A
Truck Bodies
[1]
having regard to the fact that the true reason for the Defendant's
unpreparedness was not fully explained and furthermore the
application for a postponement was not timeously made, the court was
of the view that the application for the postponement was not
bona
fide.
[6]
With the court expressing its concern regarding the
Defendant's conduct, leave was granted to counsel to withdraw on
behalf of the
Defendant and counsel for Plaintiff addressed the court
with regard to the granting of summary judgment.
[7]
This is not the usual kind of action that one would find as a
matter of course, when goods are sold or monies advanced by finance
institutions but an action which set out a
causa
for
unlawful possession.
[8]
By way of background, it is pleaded by Plaintiff that on the
2nd November 2012, and at Pinetown, a written instalment sale
agreement
(the agreement) was concluded with a certain Thulani Mkhize
(the deceased). In terms of the aforesaid agreement, the vehicle was
sold to the deceased.
[9]
A deposit of R100 000.00 was paid in respect of the purchase
price and the monthly instalments, which attracted interest at 16.5%
per annum was the sum of R5905.42 per month. The deceased passed away
on the 5th October 2013 and since that date there has been
no payment
received in respect of the vehicle. In addition thereto, no executor
had been appointed to deal with the estate of the
deceased and for
reasons which are not detailed in the summons, the Defendant was in
possession of the vehicle.
[10]
The
agreement which is in accordance with the Act
[2]
,
makes provision for the following:
"4. Ownership
4.1
we will remain the owner of the Goods until you have paid all the
amounts due under this Agreement;
12. Breach
12.1.1
if you do not comply with any of the terms and conditions of this
Agreement (all of which you agree are material); or
12.1.2
you fail to pay any amounts due under this agreement; or 12.1.3
12.1.4
12.1.5
12.1.6
12.1.7
you, being a natural person dying or being a juristic person undergo
a material restructure, or ...
...
then we may
(without affecting any of our other rights) proceed with the
enforcement or termination of the Agreement
as
set out in the
Act;
12.2
Upon the occurrence of any of the above mentioned
events, we shall be entitled at our election and without prejudice
to:-
12.2.1
claim immediate payment of the outstanding balance
together with the interest and all amounts owing or claimable by
us,
irrespective whether or not such amounts are due at that stage; or
12.2.2
take
possession
of the goods in terms of an
attachment order, retain all payments already made in terms thereof
by yourself and claim
as
liquidated damages, payment of the
difference between the balance outstanding and the market value of
the
Goods
determined in accordance with clause 11.2.3 which
amount shall be immediately due and payable."
[11]
The Plaintiff in its summons deals with conclusion of the agreement
with the deceased and contends that the Plaintiff performed
all its
obligations in terms of the Agreement, adding that the Defendant had
no lawful right to be in possession of the vehicle
and therefore
sought an end to Defendant's unlawful possession, requesting return
of the vehicle.
[12]
The Defendant in opposing the grant of summary judgment raised
3 points
in limine:-
[i]
Firstly the Defendant contended
that the deponent to the summary judgment affidavit, one Sunette
Stewart (Stewart) did not deal
with the Defendant personally and
therefore did not have any personal knowledge of the facts and
particulars relating to this action,
essentially, disqualifying her
from launching the application. In proffering this defence, the
Defendant placed reliance on the
judgment of Wallis J (as he then
was) in the case of
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88
cc
&
Another
[3]
.
The Defendant challenged
the authority of Stewart to depose to the affidavit stating that
there was no proof that she was authorised
to depose to the affidavit
in the form of a resolution by the directors of the Plaintiff
authorising Stewart to institute the proceedings
against Defendant;
[ii] Secondly the Defendant contended
that Stewart was not properly authorised to depose to the affidavit
in support of summary
judgment.
[iii] Thirdly the Defendant
raised Plaintiffs apparent non-compliance with the provisions of the
Act and contended that there
had been no compliance with Section 129
(1) read with the provisions of Section 130 of the Act.
[13]
In dealing with the first point raised by the Defendant, it is
necessary to recite that portion of the affidavit in support of the
application for summary judgment. The affidavit reads as follows:-
"/,
the
undersigned, Sunette Stewart, do hereby make oath and state:
1.
I
am the Manager, Specialised Collections KZN of the Plaintiff and am
duly authorised to depose to this affidavit.
2.
I
do hereby:
(a)
Confirm that the facts herein deposed to are within my
personal knowledge, save where the contexts indicates otherwise, and
are
true and correct;
3.
(b)
In referring to certain details regarding the
Instalment Sale Agreement and the associated accounts and
transactions, I have relied
on information from the Plaintiff's
documents as amplified below;
(c)
In my capacity as Manager of the Plaintiff I have
access to, and have under my control, all documents, records and
information to
enable me to monitor and determine:
(i)
The Instalment Sale Agreement (the Agreement) sued upon
in this action and the compliance of the Defendant in terms of the
Agreement;
(ii)
The circumstances under which the debt claimed was
incurred;
(iii)
The total indebtedness of the Defendant to the
Plaintiff in terms of the Agreement;
(iv)
The transaction history of all payments made, the
arrears and the outstanding balance from time to time, under the
Agreement;
(v)
Whether, when and how notices under the various
provisions of the
National Credit Act 34 of 2005
were sent.
(d)
Swear positively that the Defendant
is
indebted
to the Plaintiff on the grounds set forth in the Summons;
(e)
Verify the Plaintiff's cause of action
as
set
out in the summons.
4.
In my opinion the
Defendant
has
no bona
fide defence to this action and a Notice of Intention to Defend
has
been delivered solely for the purposes of
delay.
WHEREFORE I pray that
summary judgment be entered against the Defendant,
as
set out in the
summons".
[14]
In the affidavit resisting summary judgment the Defendant
records that:
6.2
All Stewart could do
was
access the main
information system, as many other employees would be capable of
doing;
6.3
She
has
never once personally dealt with me or
interacted with me on any level;
6.4
Stewarts affidavit resultantly constitutes inadmissible
hearsay which cannot advance the Plaintiff's case any further (or at
all)
in fact".
What
the Defendant sought to do, and incorrectly in my view, was to use
the
dicta
in the Wallis judgement to set up a defence to the
application. Not only was this a clear misdirection but also
factually incorrect
as Stewart categorically records (as an employee
of the Plaintiff) and as manager of specialised collections
KZN
she had access to and had under her control all documents,
records and information to deal with this matter. In the Shackleton
Credit
Management case
(supra)
the Applicant took
cession of a number of claims from a bank including agreements
concluded between the bank and the First Respondent.
Of necessity
this included the cession of certain suretyship agreements that were
provided by the Second Respondent. In an application
for summary
judgment the affidavit was deposed to by the attorney for the
Applicant who alleged
inter alia
that the facts deposed
to in the affidavit where within
"his personal knowledge and
belief"
The learned Judge in conducting a clear and decisive
analysis of
Rule 32
and no doubt making reference to various cases
came to the conclusion that the attorney had no direct or personal
knowledge in
relation to those claims. At paragraph [11] the Learned
Judge says
"he states unequivocally that his personal
knowledge"
of the facts giving rise to the Applicant's cause
of action derived from the documents that he has inspected and that
this constitutes
his investigation of the claim. In other words, his
affidavit is entirely hearsay when he purports to verify the facts
giving rise
to the claim and the amount of that claim.
He
is in no different position from any other attorney who has been
given instructions by their client and furnished with documents
in
support of those instructions. Any resultant affidavit is then
nothing more than an affidavit of information and belief'. The
facts
in the Shackleton Credit Management case are clearly distinguishable
from the facts in this matter. Stewart in her capacity
as manager of
the Plaintiff had access to and control of all the relevant
documentation regarding this matter. On the contrary,
and on a close
introspection, there is clearly no one in a better position than
Stewart to depose to such an affidavit.
[15]
In
Maharaj
v. Barclays National Bank Limited
[4]
,
Corbett J. A. stated
"generally speaking,
before a person can swear positively to facts in legal proceedings,
they must be within his personal knowledge.
For this reason the
practice
has
been
adopted, both in regard to the present
Rule 32
and in regard to
some
of its provincial
predecessors and the similar rule in the Magistrate's court, of
requiring that a deponent to an affidavit in support
of summary
judgment, other than the Plaintiff himself, should state, at least,
that the facts are within his personal knowledge
or make
some
other averment to that
effect unless such direct knowledge appears from the facts stated".
The Learned Judge added
[5]
"the mere assertion by
a deponent that he "can swear positively to the facts"(an
assertion which merely reproduces
the wording of the Rule)
is
not regarded as being
sufficient, unless there are good grounds for believing that the
deponent fully appreciated the meaning of
these words.
[16]
The court in
Stamford
Sales
&
Distribution
(Pty/ Ltd v. Metraclark (Pty) Ltd
[6]
,
reiterated
the application of this Rule with Swain A J A (as he was then)
reiterating at paragraph 10
"in
my view
as
long
as
there
is
direct
knowledge of the material facts underlying the cause of action, which
may be gained by a person who
has
possession
of
all the documentation, that
is
sufficient".
The
Learned Judge at paragraph 12 stated
"to
insist
on
personal knowledge by the deponent to the verifying affidavit on
behalf of the cessionary of all the material facts of a claim
of the
cedent against the debtor,
emphasis
formalism
in procedural matters at the expense of commercial pragmatism".
Surely
then, with Stewart confirming that all the facts in the affidavit
were within her personal knowledge, the threshold that
is required is
met, and therefore the criticism by the Defendant falls to be
rejected.
[17]
The second point
in
limine
raised by the
Defendant was that Stewart made no allegation that she was properly
authorised to depose to the affidavit in support
of summary judgement
In the founding affidavit Stewart records that in her capacity as
manager, she is duly authorised to depose
to this affidavit The court
in
Ganes and Another v.
Telecom Namibia Ltd
[7]
,
held in determining the
question whether a person has been authorised to institute and
prosecute motion proceedings, it is irrelevant
whether such person
was authorised to depose to the founding affidavit The deponent to
the affidavit in motion proceedings need
not be authorised by the
party concerned to depose to the affidavit It is the institution of
the proceedings and the prosecution
thereof that must be authorised.
Thus,
where, as in the present case, the motion proceedings were instituted
and prosecuted by a firm of attorneys purporting to
act on behalf of
the Applicant and in an affidavit filed with the notice of motion, it
was stated by the deponent thereto that
he was a director in the firm
of attorneys acting on behalf of the Applicant and that such firm of
attorneys was duly appointed
to represent the Applicant and such
statement is not challenged by the Respondent, it must be accepted
that the institution of
proceedings were duly authorised.
Such a finding will be strengthened if the Respondent does not avail
himself to the procedure provided by
Rule 7
of the uniform Rules of
Court. In this matter upon defence of the action, no notice in
accordance with the provisions of the
Rule 7
was filed. On this
basis, yet again, there is no merit in the defence set out by the
Defendant.
[18]
The third point
in limine
raised by the
Defendant relates to the Act. When one has regard to the principles
of privily of contract, reliance can be placed
upon the Act if the
action was instituted against the representative of the deceased's
estate having regard to the demise of the
deceased and the alleged
breach of the agreement. In those circumstances, the contentions
raised by the Defendant would have merit.
Ex facie
the
summons, that is clearly not the position as the Defendant was not a
contractual party to the agreement. Furthermore having
regard to the
allegations that the Defendant is in unlawful possession of the
vehicle and the Plaintiff instituting the action
as it did, was
asserting its rights as owner, the provisions of the agreement, which
I have referred to
supra
makes provision for this
vindicatory action. There is accordingly no cogency in this defence
as well.
[19]
The enquiry however does
not end there. Whilst it is admitted that summary judgment is an
extraordinary procedure, a
bona
fide
and triable
defence has and will generally stand the test of time. The Court in
Joo
b
Joob
Investments v Stocks Mavund/a
[8]
stated that
"the
rationale for summary judgement proceeding
is
impeccable. The procedure
is
not intended to deprive the
defendant on a triable
issue
or a sustainable defence of
her I
his
day
in Court'.
More importantly
the Learned Judge Navsa J.A. referring to the defence in the
affidavit resisting summary judgment stated
"what
is
conspicuously
absent
is
the
substance of the a triable defence".
So
too in this matter absent the points
in
limine
there is no
compliance whatsoever with the Rules with
Rule 32
(3) (b)
[9]
.
[20]
It is perhaps relevant at this stage to
state that in assessing the application for an adjournment, as the
court did at the commencement
of the hearing, the court was
influenced by the fact that there was no proper defence to the
Plaintiff's claim. It is trite law
that the more meritorious a
defence is, the more likely that a court, would lean in favour of the
Defendant. In this instance,
this was clearly not present.
[21]
On the issue of costs, counsel for the Plaintiff, correctly in
my view, conceded that this application could have been launched in
the Regional Court.
[22]
In the circumstances I grant summary judgment as prayed for by
Plaintiff, save that costs shall be on the appropriate Regional Court
tariff.
____________________
CHETTY
A. J
Date
of Hearing
25
th
April 2018
Date
of Judgment
8
th
May 2018
APPEARANCES:
Counsel
for Applicant
Advocate A. J Boulle
Instructed
by
Allen Attorneys Incorporated
Counsel
for Defendant
Advocate Naidoo
Instructed
by
Manoj Haripersad & Associates
[1]
Myburg Transport v Botha Tl A S A Truck Bodies,
1991 (3) SA 310
at
page 310 H - J and at page 311 A - F
[2]
National Credit Act, Act
34 of 2005, as amended from time to time
[3]
Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC &
Another, (2011] 1 ALL SA 427 (KZP)
[4]
Maharaj v. Barclays National Bank Limited, 1976 (l) SA 418 at page
423 B - C See also Rees and Another v. Investec Bank 2014
(4) SA at
page 220
[5]
Page 423 at D - E
[6]
Stamford Sales & Distribution (Pty) Ltd v. Metraclark (Pty) Ltd,
Supreme Court of Appeal of South Africa case number
676/2013
[7]
Ganes and Another v. Telecom Namibia Ltd
2004 (3) SA 615
G - I
[8]
Joob Joob Investments vs Stocks Mavundla 2009 (5) SA page I at page
11 H
[9]
'Satisfy the court by affidavit (which shall be delivered before
noon on the court day but one preceding day on which the application
is to be heard) or with leave of the court by oral evidence of
himself or of any other person who can swear positively to the
fact
that he has a bona fide to the action, such affidavit or evidence
shall disclose fully the nature and grounds of the defence
and the
material facts relied upon therefor (my emphasis).