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[2016] ZANCHC 3
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Absa Bank Limited v Shikwambana (2370/15) [2016] ZANCHC 3 (10 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
no: 2370/15
DATE:
10 JUNE 2016
In
the matter between
ABSA
BANK
LIMITED
............................................................................................
Applicant/Plaintiff
And
FUMANI
SHIKWAMBANA
..............................................................................
Respondent/Defendant
JUDGMENT
ON SUMMARY JUDGMENT
Heard
on: 26/04/2016
Delivered on:
10/06/2016
PAKATI
J
[1]
The plaintiff, Absa Bank Limited, applies for summary judgment
against the defendant, Ms Fumani Shikwambana, in the following
terms:
“
1.
The Plaintiff’s cancellation of Instalment Sale Agreement is
confirmed.
2.
The Defendant is directed to forthwith return to the Plaintiff the
goods, being a
2011 RENAULT
MEGANE 1…….. 1.6 SHAKE IT …..
with
ENGINE NO: K4MR8………
and
CHASSIS NO: VF 1B…….
,
failing which the Sheriff is authorised to attach the aforesaid goods
and hand the goods to the Plaintiff;
3.
Costs of suit.”
[2]
The plaintiff issued summons against the defendant on 12 November
2015 for cancellation of the instalment sale agreement and
the return
of the motor vehicle described above. On 14 December 2015 the
defendant filed a notice of intention to defend the action.
Consequently, on 17 December 2015 the plaintiff filed a notice of set
down of the application for summary judgment for 15 January
2016. On
12 January 2016 the defendant filed a notice to oppose the
application accompanied by an affidavit disclosing the nature
and
grounds of opposition and the material facts upon which she relied
for her defence.
[3]
It is common cause that on 25 October 2012 at Kimberley the plaintiff
and the defendant entered into a written instalment sale
agreement in
terms of which the plaintiff provided motor vehicle finance to the
defendant upon payment of a deposit. In compliance
with the
agreement Audi Centre Johannesburg, a third party, delivered the said
motor vehicle to the defendant. The principal debt
was R311296-64
payable in 72 monthly instalments of R3616.62 from 01 December 2012.
The following were
inter alia
express, alternatively implied,
further alternatively, tacit material terms of the agreement:
3.1
Ownership of the goods would at all times remain vested in the seller
until the defendant has complied with all the obligations
in terms of
the agreement including payment of the outstanding balance to the
plaintiff from which date the defendant would be
the owner;
3.2
The agreement may be ended by surrendering the goods to the bank in
terms of Clause 21 which states in part:
“
21.1
Where you have sent us a written notice
to end this agreement (“termination notice”), you may, if
the goods are in our
possession, request us to sell the goods or
otherwise return the goods to us within 5 (five) business days after
the date of your
termination notice.”
[4]
Ms Shikwambana disputes that the instalment sale agreement was
cancelled by the plaintiff. She alleged that she returned the
motor
vehicle and thereby cancelling the agreement. She relies on Clause
19.3 of the agreement which reads:
“
19.3
If this agreement was entered into at any place other than our
registered business address, you may end this agreement within
5
(five) business days after the date on which it was signed by you,
provided you:
19.3.1
Deliver a notice in the prescribed form to us; and
19.3.2
Offer to return the goods to us.”
[5]
Ms Shikwambana disputes further that she filed the appearance to
defend solely for purposes of delay. She raised
two
points
in limine
, namely:
dies non
and
lis pendens
.
DIES
NON
5.1
The defendant contended that the plaintiff served the application for
summary judgment on 15 December 2015 and set the matter
down for
hearing on 15 January 2016 knowing that the period between 16
December 2015 and 15 January 2016 are
dies non
. It should be
noted that in argument Mr D Masia, counsel for the Ms Shikwambana, no
longer pursued this point.
5.2
LIS PENDENS:
Ms
Shikwambana instituted motion proceedings against the plaintiff (Absa
Bank) and other defendants in North Gauteng High Court
under Case No.
19332/15. She contends that the issues raised in that case are
similar to those advanced by the plaintiff in the
summons as well as
the application for summary judgment in this Court and the parties
are the same.
[6]
Ms Shikwambana maintained that she has a
bona fide
defence to
the plaintiff’s claim. She contended that the motor vehicle in
question had latent defects as a result of which
she returned it on
27 October 2012 to Audi Centre Johannesburg and that occurred within
24 hours of it being delivered to her.
According to her this is the
lis
that is still pending in North Gauteng High Court.
[7]
Mr JA Fourie, counsel for the plaintiff, argued that the point of
dies non
raised by the defendant is not applicable in an
application for summary judgment. He argued further that no
lis
is pending between the parties.
[8]
Rule 26 and 32 (2) of the Uniform Rules of Court provide
respectively:
““
26
Failure to deliver pleadings-barring
Any
party who fails to deliver a replication or subsequently pleading
within the time stated in rule 25 shall be ipso facto barred.
If any
party fails to deliver any other pleading within the time laid down
in these rules or within any extended time allowed in
terms thereof,
any other party may by notice served upon him require him to deliver
such pleading within five days after the day
upon which the notice is
delivered. Any party failing to deliver the pleading referred to in
the notice within the time therein
required or within such further
period as may be agreed between the parties, shall be in default of
filing such pleading, and ipso
facto barred:
Provided
that for the purposes of this rule the days between 16 December and
15 January, both inclusive shall not be counted in
the time allowed
for the delivery of any pleading.”
(My
emphasis)
“
32
(2
) The plaintiff shall within
15 days after the date of delivery of notice of intention to defend,
deliver notice of application
for summary judgment, together with an
affidavit made by himself or by any other person who can swear
positively to the facts verifying
the cause of action and the amount,
if any, claimed and stating that in his opinion there is no bona fide
defence to the action
and that notice of intention to defend has been
delivered solely for the purpose of delay. If the claim is founded on
a liquid
document a copy of the document shall be annexed to such
affidavit
and the notice of
application for summary judgment shall state that the application
will be set down for hearing on a stated day
not being less than 10
days from the date of the delivery thereof.”
(Emphasis
added)
[9]
Clearly the days between 16 December and 15 January cannot be
reckoned in the computation of days allowed for delivery of any
pleading as contained in the proviso in Rule 26 above. “Any
pleading” means just that. Summary judgments were not made
an
exception. The plaintiff’s conduct is therefore inconsistent
with the rules and practise of this Court. This application
was not
urgent and the departure from established filing and sitting times of
the court was irregular. The matter was accordingly
set down
pre-maturely.
Be
that as it may, I will deal with the other point
in limine
and
the merits of this matter for the sake of completeness.
[10]
The requirements for a defence of
lis
pendens
are
set out by Miller AJ in the case of
SIKATELE
AND OTHERS v SIKATELE AND OTHERS
[1]
as follows:
“
The
requisites of the defence are: (a) that there must be pending
litigation. See Van As v Appollus
1993 (1) SA 606(C)
; (b) that the
pending proceedings had to be based on the same cause of action. See
Mtshali v Mtambo
1962 (3) SA 469
(G); and (c) that the other
proceedings must be pending between the same parties or their
privies. See Cook v Muller
1973 (2) SA 240
(N). The onus of proving
the requisites rests on the party raising the defence. See Dreyer v
Tuckers Land and Development Corporation
(Pty) Ltd
1981 (1) SA 1219
(T) at 1231. ”
In
terms of the authorities a court still retains a discretion to stay
either of the proceedings.
[11]
Ms Shikwambana, in proving that there is pending litigation in North
Gauteng High Court, attached Court Papers in Case No.
19332/15
wherein she made an application against Audi Centre Johannesburg as
the first respondent and Absa Bank as the fourth respondent
seeking
an order in the following terms:
“
1.
An Order be given declaring the sale agreement between the Applicant
and the First Respondent, Second Respondent, Third Respondent[s],
as
cancelled, and unenforceable between the parties.
2.
An Order directing and enforcing the First, Second, Third Respondent,
to take all the necessary steps to refund all the monies
in the
amount of R223 074.99 paid to them by the Fourth Respondent and
that such money should be paid or refunded to either
the Applicant
(Fumani Shikwambana) or the Fourth respondent (Absa Bank).
3.
An Order in the alternative, that pursuant to prayer 2 above and on
condition that the Fourth Respondent (Absa Bank) accepts
such refunds
or payments from the First, Second and Third Respondent, the
Applicant (Fumani Shikwambana), be excused and released
from paying
any /all instalments and/or all interests due to the Fourth
Respondents in relation to any other sale agreement thereto.
4.
Ordering Respondents, jointly and severally, payment by the one, the
other to be absolved, to pay Applicant’s costs of
this
application, only in the event, and if, any of the Respondents opt to
oppose this application or relief to prayer(s) 1, 2
and 3 above.”
[12]
In para 3.5 of the Founding Affidavit attached to the Notice of
Motion in the North Gauteng High Court application Ms Shikwambana
described the fourth respondent (Absa Bank) as follows:
“
The
Fourth Respondent is
ABSA BANK
LIMITED
an authorised financial
services provider being a company with limited liability, duly
incorporated in terms of the Company Laws
of the Republic of South
Africa, with registered office at 170 Main Street, 3
rd
Floor, Absa Towers East, Johannesburg,
cited
herein as an interested party
and the financer of the deal between [the] applicant and the First,
Second and Third Respondent[s].” (Emphasis added).”
[13]
From the above it is clear that the application in the North Gauteng
High Court was for cancellation of the agreement because
the motor
vehicle had defects. Absa Bank was merely cited as an interested
party. In my view, the cause of action in that case
is different from
the cause of action in the instant case. I am therefore not satisfied
that the defendant discharged the
onus
resting on her in terms
of the requisites in para 10 above.
[14]
To succeed in resisting an application for summary judgment a
defendant is in terms of Rule 32 of the Uniform Rules of Court
required to disclose fully the nature and grounds of his/her defence
and his/her defence has to be
bona
fide
and good in law. Navsa JA in
JOOB
JOOB INVESTMENTS v STOCKS MAVUNDLA ZEK
[2]
referred with approval to the case of
MAHARAJ
v BARCLAYS NATIONAL BANK LTD
[3]
as follows:
“
[32]
…Corbett JA was keen to ensure, first, 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 fide 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.
[33]
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 and to concentrate rather on the proper
application of the rule…”
[15]
Paras 6 to 10 of the answering affidavit dated 02 July 2015, filed by
Absa Bank in Case No. 19332/2015 (North Gauteng) the
deponent, Ms
Zamakhize Stofile, made the averment that:
“
6.
Although the Fourth Respondent [Absa Bank] took delivery of the
vehicle the Applicant [Ms Shikwambana] returned the vehicle to
the
First Respondent [Audi Centre-Johannesburg] on or about 27 October
2012, as a result of an apparent dispute between the Applicant
and
the First Respondent.
7.
The First Respondent informed the Fourth Respondent that the vehicle
in question was on the premises of the First Respondent
and further
informed the Fourth Respondent that the Applicant refused to collect
the vehicle.
8.
As a result of the aforementioned the Fourth Respondent uplifted the
vehicle from the First Respondent’s premises on or
about 23
April 2013.
9.
The Fourth Respondent uplifted the vehicle in order to secure the
vehicle and to take it to a safe location as Fourth Respondent
was
concerned that the vehicle may be damaged or stolen.
10.
The aforementioned vehicle is
still in safe storage with the Fourth Respondent [Absa Bank] at its
storage facility in Boksburg.”
(Emphasis
added)
[16]
It is apparent from the above that the plaintiff is indeed in
possession of the vehicle. Though Mr Fourie conceded that the
motor
vehicle is in the storage facility of the plaintiff he argued that
the plaintiff is in
de facto
possession and that Ms
Shukwamabna is the one in possession. Clause 16 of the agreement
stipulates:
“
16
OWNERSHIP
We
are and will remain the owner of the goods, until you have fulfilled
all your obligations to us under the agreement, at which
point
ownership of the goods will pass to you.”
[17]
The argument by Mr Fourie has no merit, taking into account Clause 16
supra
. In
my view, the facts alleged by Ms Shikwambana in her opposing
affidavit constitute a
bona fide
defence as required by Rule 32 of the Uniform Rules of Court. In
terms of the agreement the plaintiff is still the owner of the
motor
vehicle which is kept in its safe storage facility in Boksburg and
therefore has control over it. By returning the motor
vehicle Ms
Shikwambana duly cancelled the agreement. The application for summary
judgment has to be dismissed with costs.
In
the circumstances I make the following order:
1.
The application for summary judgment
by the applicant, Absa Bank Limited, is dismissed with costs.
2.
The respondent, Ms Fumani
Shikwambana, is granted the opportunity to enter and defend the
action.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the applicant: Adv JA Fourie
Instructed
by: C/OVAN DE WALL & PARTNERS
On
behalf of the respondent: Adv D Masia
Instructed
by:C/O VAN DEN HEEVER ATTORNEYS
[1]
[1996]
1 ALL SA 445 (Tk)
[2]
2009
(5) SA 1
(SCA) at 12B-D
[3]
1976
(1) SA 418
(A) at 425G-426E