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[2017] ZAFSHC 127
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BMW Financial Services (South Africa) (Pty) Limited v Du Plessis N.O and Others (289/2017) [2017] ZAFSHC 127 (18 August 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 289/2017
In
the matter between:
BMW
FINANCIAL SERVICES (SOUTH
AFRICA)
Applicant
(PTY)
LIMITED
and
DANIEL DE WET DU
PLESSIS N.O
First
Respondent
DIANA VAN DER BIJL
DU PLESSIS N.O
Second Respondent
JAN FREDERIK TAUTE
DU PLESSIS N.O
Third
Respondent
DANIEL DE WET DU
PLESSIS N.O
Fourth Respondent
CORAM:
MHLAMBI J
HEARD
ON:
8 June 2017
DELIVERED
ON:
18 August 2017
MHLAMBI,
J
[1]
This is an application for summary judgment against the respondents
for:
1.1
Rectification in respect of the Agreement in respect of the Chassis
Number from
00C94735
to
WBAZW420900C94735;
1.2
Confirmation of the Cancellation of the agreement;
1.3
Against the 1
st
, 2nd and 3
rd
Respondents/Defendants for:
An
order authorising the Sheriff of the Court to take possession of and
to deliver to the Applicant/Plaintiff, the goods being:
VEHICLE
DESCRIPTION: 2014 BMW X5 xDrive 30d M-Sport A/T
ENGINE
NUMBER: 31708501
CHASSIS
NUMBER: WBAZW420900C94735
2.
Against the 4
th
Respondent/Defendant, together with the 1
st
,
2
nd
and 3
rd
Respondent/Defendant, jointly and severally the one paying the other
to be absolved for:
2.1
That judgment for the amount of damages that Applicant/Plaintiff may
have suffered, together with interest thereon, be postponed
sine
die,
pending
the return of the vehicle to the Applicant/plaintiff, the subsequent
valuation and sale thereof and the calculation of the
amount to which
the Applicant/Plaintiff is entitled.
2.2
Interest on the amount referred to in prayer 2.1 above at a Variable
rate of Prime plus
0.00%
per annum as from
27
September 2016
to date of final payment, such interest to be capitalised monthly.
3.
Costs of suit on Attorney and client scale;
4.
Further and/or alternative relief.
[2]
The applicant (plaintiff in the main action) sued the first
three respondents (first, second and third defendants in the
main
action) in their representative and official capacity as trustees of
the Baruk Property Trust and the 4
th
respondent as the surety and co-principal debtor of all debts
and obligations by the Baruk Property Trust.
[3]
The respondents opposed the application and applied for the
condonation of the late filing of the opposing affidavits and the
dismissal with costs of the application for summary judgment as they
contended that the applicant’s papers were not in order.
The
main issues raised by the respondents are briefly set out in the
opposing affidavit as follows:
“
6.
The plaintiff did not comply with the peremptory requirements of
National credit Act (Act 34 of 2005) (“the Act”).
7.
Its failure to follow the prescripts of the Act was already evident
when it failed to conduct a proper credit assessment regarding
the
affordability of the transaction to the Trust and myself as surety
and co-principle(sic) debtor. As such, no proper credit
assessment was done on either the Trust or myself.
8.
I have been advised that this would constitute reckless credit and
that there are certain statutory remedies available to a debtor
in
these circumstances. I need the opportunity to defend the matter to
enable me to obtain sufficient information and in this regard
to be
able to exercise my rights.
9.
I furthermore confirm that neither any of the trustees nor myself did
receive a Section 129 notice prescribed by the Act. I am
residing at
[...] P. R., D. P.,
Bloemfontein.
I am
the person responsible for taking out the mail and I can confirm that
such a registered slip was not delivered to the post
box. This even
more prejudicial to myself since I am cited as surety and
co-principal debtor.
10.
I have been advised that if we had obtained knowledge of the Section
129 notice certain options would have been available to
us. I wish to
have the opportunity to consider such options. We do intent to plead
in the main action that the hearing thereof
be stayed pending the
Plaintiff’s compliance with the Act.
11.
I was shocked to learn that the vehicle that was delivered to the
Trust was not the vehicle that the Trust agreed to purchase.
I have
been advised that the Plaintiff now wants to rectify the agreement to
change the agreement. I need to investigate this before
I can decide
whether I am to oppose the claim for rectification or agree to same.
18.
The Plaintiff is relying on a written agreement entered into between
the parties. The written agreement attached to the particulars
of
claim is not signed by all of the parties. It would follow that the
Plaintiff’s attached agreement is not the one as referred
to in
the particulars of claim. It would render the pleadings excipiable
and furthermore constitutes an irregular step”.
[4]
Ad
the condonation
The
deponent to the founding affidavit to the condonation application, Mr
Daniel de Wet du Plessis, admitted therein that, having
received the
summons, their attorneys were instructed to defend the matter and the
summary judgment application was enrolled for
30 March 2017. The
attorneys had instructions to settle the matter
[1]
.
[5]
The settlement offer was not accepted and the court made the
following order on 30 March 2017:
“
1.
The application for summary judgment is postponed to
8
June 2017;
2.
The defendants to file their opposing affidavits together with their
application for condonation on or before 20 April 2017;
3.
The plaintiff to file their opposing affidavit to the application for
condonation, if any, on or before 11 May 2017;
4.
The defendants to file their replying affidavit to the condonation
application, if any, on or before 25 May 2017;
5.
Heads of arguments to be filed by the plaintiff on or before 31
May 2017 and by the defendants on or before 2 June 2017;
6.
Costs to stand over.”
[6]
The respondents failed to file their opposing affidavit and the
condonation application on or before 20 April 2017, but only
on 25
April 2017. The orders contained in paragraphs 3, 4 and 5 of the said
order were not given effect to by the parties.
[7]
The main thrust of the respondents’ argument for condonation is
the late communication of the rejection of their offer
by the
applicant on 30 March 2017 and the latter’s refusal to agree to
a postponement or the condonation for the late filing
of the opposing
affidavit. No reasons were advanced for the non-compliance of the
court order and the subsequent late filling of
the opposing affidavit
and condonation application. It was contended on their behalf in oral
argument that the applicant had granted
condonation as per
applicant’s letter dated 31 May 2017 (which was admitted in
court during the hearing by the applicant’s
representative);
but no proper grounds were advanced why the affidavit in support of
the condonation application was filed outside
the time stipulated in
the court order and why the court’s indulgence was not sought
or set out in the papers.
[8]
The first two grounds relied on in the opposing affidavit were not
persisted with in oral argument. It was contended on behalf
of the
respondents that the two aspects which were in issue were the
rectification of the contract and the contract itself. It
was
contended that for the court to grant the rectification of the
contract, a common error between the parties must be shown to
exist.
Furthermore, Moleboheng Molefe, the applicant’s collections
supervisor, was not a party to the agreement between the
parties and
as the section 129 notice was defective, an affidavit by a secretary
or saleslady who sold the vehicle should have
been attached for the
rectification of the contract to be granted.
[9]
Respondents referred me to the PCL Consulting
[2]
decision in support of their argument and in particular paragraph 4.
For the sake of completeness I quote both paragraphs 4 and
5:
“
4. I
therefore with respect agree with the judgment of Coetzee J in
Malcomess Scania (Pty) Ltd v Vermaak and Another to the extent
that
it holds that a plaintiff who alleges that a written contract should
be rectified is confined to what the plaintiff alleges
is the true
agreement between the parties, and cannot (in the absence of an
express indication to the contrary) rely in the alternative
upon the
terms of the written agreement as they stand; but I am constrained to
disagree with that judgment to the extent that it
suggests that
summary judgment is incompetent, even where both parties are ad idem
as to the respects in which their written contract
does not correctly
reflect the agreement between them.
5.
In summary judgment proceedings a plaintiff is required, in terms of
rule 32(2), to 'verify the cause of action' - not to verify
that it
will be able to prove the cause of action. The cause of action in the
present matter is that the defendant hired the 4th
floor office in
Fedsure Towers from the plaintiff, in consequence of which it became
obliged to pay amounts totalling R396 188,
35 to the plaintiff, which
it has failed to do. There was no dispute as to the terms of the
agreement and, in particular, the identity
of the premises let. The
plaintiff was therefore not obliged to cross the evidential hurdle of
proving that, despite the provisions
of the written lease which
referred to the 6th floor office, it was the 4th floor office which
was in truth let to the defendant.
Had
the defendant placed in issue what the terms of the agreement were,
the plaintiff would have been obliged to prove its version
of the
agreement at a trial, and summary judgment would have had to have
been refused. But the defendant did not do this. The question
then
becomes: Should the court of first instance have been satisfied that
the defendant had a bona fide defence to the claim for
the arrears
pursuant to the agreement alleged by the plaintiff (the terms of
which are not disputed)? I turn to consider this question.
(My
emphasis)
[10]
It was contended on behalf of the applicant that the respondents did
not provide a defence to the claim, but merely suggested
that they
might have a claim. The rectification of the agreement is in respect
of the chassis number from 00C94735 to WBAZW20900C94735
as provided
for and reflected in the registration document attached to the
particulars of claim as the correct description of the
goods. The
description of the chassis number as 00C94 735 reflected the
correct last digits of the chassis number and clearly
showed that
it was a typographical error and the respondent did not deny that it
was indeed so. The section 129(1) notice,
despite the respondent’s
protestations, was correct as it referred to the correct engine
number, account number, vehicle
description, the instalment amount
and the amount in arrears. For the respondent to raise the incorrect
chassis number as a point
of dispute is unjustifiable. The respondent
was clearly engaging in delaying tactics in the circumstances.
[11]
The signed written agreement between the parties, annexed to the
particulars of claim referred to what the applicant alleged
were the
wrong chassis number. The plaintiff is therefore obliged to seek
rectification of the written agreement in order to enable
it to lead
evidence that what it alleged were the correct goods were sold to the
respondents.
[3]
[12]
In the light of the above, I am not persuaded that there are
prospects of success for the respondent in the main action and
that
sufficient grounds have been provided for and/ or good cause shown
for the court to grant condonation in this matter. Consequently
the
application for condonation must fail and the applicant should
succeed in its application for summary judgement.
[13]
I therefore make the following order
ORDER
Prayers
1, 2 & 3 of the Notice of Motion are granted.
_______________
JJ
MHLAMBI, J
Counsel
for Applicant:
Adv. A. P Berry
Instructed
by:
Hugo &
Bruwer Attorney
129 Zastron Street
BLOEMFONTEIN
Counsel
for Respondents: Adv. LA Roux
Instructed
by:
Van Der Berg Van Vuuren Attorneys
149 Pres Reitz Avenue
Westdene
BLOEMFONTIEN
[1]
Paragraph 9: Founding affidavit:
Condonation
[2]
PCL Consulting (Pty) Ltd t/a Phillips
Consulting SA v Tresso Trading 119 (Pty) Ltd 2009 (4) SA 68 (SCA)
[3]
See PCL Consulting, supra, paragraph 3