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[2018] ZAKZDHC 31
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FirstRand Bank Limited t.a Volkswagen Financial Services & Wesbank v Achievers Security Training Centre CC (4032/2017) [2018] ZAKZDHC 31 (4 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
Case
No: 4032/2017
In
the matter between:
FirstRand
Bank Limited, t/a Volkswagen Financial Services
&
Wesbank Applicant
and
Achievers
Security Training Centre
CC Respondent
Judgment
Lopes
J:
[1]
The applicant seeks summary judgment against the respondent,
directing the respondent forthwith to deliver to the applicant
a
2011
Audi Q5
motor vehicle (‘the Audi’). The respondent
was the first defendant in an action instituted by the applicant
against
both the first defendant and Kitesh Singh (‘Singh’)
as surety for, and co-principal debtor with the respondent, for
the
debts which it owed to the applicant.
[2]
The applicant’s cause of action against the respondent may be
summarised as follows:
(a) On the 4
th
of April 2011, CGK Motors CC t/a Alpine Motors concluded an agreement
with the respondent in terms of which Alpine Motors sold
the Audi to
the respondent. On the same day Alpine Motors ceded its right,
title and interest in and to the sale agreement
and suretyship, and
transferred its ownership in the Audi to the applicant.
(b) As at the 8
th
of April 2017, the respondent had defaulted in the repayment of
instalments to the applicant, in a total amount exceeding R87 000.
(c) The applicant seeks
summary judgment for the return of the motor vehicle, having alleged
that by the issue of summons it cancelled
the agreement between the
parties.
(d) The respondent’s
defences to the summary judgment application are as follows:
(i) A first point
in
limine
that the terms of the sale agreement make no reference
to the applicant, FirstRand Bank Limited, and accordingly the
applicant
has failed to establish a legal connection to justify
instituting these proceedings.
(ii) A second point
in
limine
that, in failing to join Singh as a second respondent
in the summary judgment proceedings, Singh’s right to be heard
on the
basis of the principle of
audi alteram partem
has been
denied to him.
(iii) Within six months
of purchasing the Audi, the respondent experienced mechanical
problems with it. It took the Audi back to
Alpine Motors many times,
and was advised that those problems were teething problems, which
would settle once the vehicle had had
time to ‘run in’.
Eventually the vehicle broke down completely and for the last year
has been with Audi Centre, Pinetown
for repairs. The respondent
took up the matter initially with Alpine Motors, and thereafter with
Volkswagen Financial Services
/ Wesbank as the trading arms of
FirstRand Bank Limited. The respondent was allegedly given
assurances by Volkswagen Financial
Services / Wesbank that they would
take the matter up with Alpine Motors, but nothing materialised.
The respondent has been
advised by Audi Centre Pinetown that the cost
of repairs exceeds R100 000. Any claim that the respondent
would have
had against Alpine Motors, has now become prescribed.
Accordingly, the respondent ceased making instalment payments to
Volkswagen
Financial Services / Wesbank because it no longer derives
any financial benefit from the use of the Audi. In the premises, the
respondent submits that:
(aa) The sale agreement
was premised on the fact that the vehicle would be in perfect working
condition, free of all defects, latent
or otherwise. The agreement
was concluded on a common, material,
bona fide
mistake on the
part of the seller and the respondent concerning the state of the
vehicle, and that this renders the sale agreement
void, alternatively
voidable at the instance of the respondent.
(bb) The applicant has
stepped into the shoes of Alpine Motors by virtue of the cession.
The respondent’s right of recourse
against the original seller
having prescribed, it is prejudiced by that prescription and its
right of recovery lies against the
applicant.
(cc) The respondent
relies on the principle of estoppel, in view of the empty promises
made to it by the applicant, which distracted
it from pursuing its
rights against the initial seller.
(dd) The Audi is
currently with Audi Centre Pinetown which has a lien over the vehicle
for repairs and the respondent accordingly
cannot comply with any
order for the delivery of it.
The
first point in
limine
[3]
In both the heading to the summons and paragraph 1 of the particulars
of claim, the plaintiff is described as ‘FirstRand
Bank Limited
trading as Volkswagen Financial Services and Wesbank’. The sale
agreement concluded between the applicant and
the respondent is
headed ‘Volkswagen Financial Services a Division of Wesbank a
Division of FirstRand Bank Limited,…’.
A similar heading
is contained on the pre-agreement statement for the instalment sale
agreement, which sets out the terms and conditions
of the sale
agreement as well as the suretyship and other documents. The
applicant alleges at paragraph 9 of its particulars
of claim that the
original seller ceded its right, title and interest in and to the
agreement, and transferred its ownership, to
the applicant. It is
clear from the respondent’s answering affidavit in the summary
judgment application, that it does not
dispute the cession.
[4]
In my view, there is no objection in law to a corporate entity using
different trading names. [See:
Two Sixty Four
Investments (Pty) Ltd v Trust Bank
1993 (3) SA 384
(W)]. Those
trading names are fully set out in the documentation and the
particulars of claim and clearly establishes the title
of the
applicant to sue the respondent and Singh. In my view, the
first point in
limine
has no merit.
[5]
The second point in
limine:
The
complaint that the failure to join Singh as a second respondent in
the summary judgment proceedings has no merit. I say
this
because the summary judgment application seeks delivery of the Audi
which was not alleged to be in the possession of Singh,
but in the
possession of the respondent. I cannot conceive of any
prejudice to Singh as a result of not having been joined
in the
summary judgment application. Indeed, had he been joined, he
may well have legitimately complained that the joinder
was incorrect
and that he had to incur unnecessary costs in defending himself.
Any defence which Singh may have had arising
out of the sale
agreement is fully explored by the respondent in its opposing
affidavit. In those circumstances, there is
no breach of the
a
udi alteram partem
principle. Accordingly, the second
point in
limine
must fail.
The
main defence:
[6]
The complaints of the respondent regarding the condition of the Audi
do not, in my view, provide a defence to the summary judgment
application. I say this because the agreement of sale was concluded
in 2011 and some seven years later the respondent has taken
no steps
to institute legal proceedings against the applicant or the original
seller. The fact that the respondent’s
right of recourse
against the original seller may have become prescribed does not
operate to the prejudice of the respondent.
It has had every
opportunity to institute action over the last seven years’, and
has failed to do so. [See:
Spilhaus
& Co Ltd v Coreejees
1966
(1) SA 525
(c) at 529,A-H].
[7]
The respondent also raises an estoppel based on allegedly empty
promises made to it by the applicant which prevented it from
pursuing
its rights against the initial seller. The requirements of
estoppel are not set out in the opposing affidavit and,
in my view,
would in any event not provide a defence for the respondent.
[8]
Finally, the respondent complains that it is no longer in possession
of the Audi which is at Audi Centre Pinetown for repairs
and that
company has a lien over the vehicle for the cost of the repairs.
That is no defence to the summary judgment application
because the
prayers sought provide in the alternative for the Sheriff to take
possession of, and deliver the goods, to the applicant.
In the
event that the possessor of the vehicle claims a lien, the applicant
will have to satisfy that lien if it wishes to obtain
possession of
the Audi or bring some other legal proceedings to demonstrate its
entitlement to delivery of it, as against the lien
holder.
[9]
In all the circumstances I grant summary judgment in the following
terms:
(a)
The
respondent is directed forthwith to deliver to the applicant a
2011
Audi Q5
3.0 TDI Quattro S Tronic motor vehicle bearing chassis
number WAUZZZ8RXBA079627 with engine number CCW116003 (‘the
vehicle’). In the event of the respondent failing to do so, the
Sheriff of this court is authorised and directed to take possession
thereof and deliver it to the applicant.
(b)
The
respondent is to pay the applicant’s costs of the summary
judgment application, calculated on the scale
(c)
as between
attorney and client.
____________________
Lopes
J
Dates
of hearing: 24
th
April 2018.
Date
of Judgment: 4
th
May 2018.
Counsel
for the Applicant: Mr K Gounden (instructed by Legator, McKenna
Incorporated).
Counsel
for the Respondent: Attorney Ms R Nathanael (instructed by Ronell
Nathanael & Company).