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[2016] ZANCHC 76
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Wesbank, A division of Firstrand Bank Limited v Henderson (1143/2016) [2016] ZANCHC 76 (25 November 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 High Court, Kimberley)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
1143/2016
DATE
HEARD:
18/11/2016
DATE
DELIVERED:
25/11/2016
In
the matter between:
WESBANK,
A DIVISION OF FIRSTRAND BANK
LIMITED
Applicant
and
JACOB
C R
HENDERSON
Respondent
Coram:
Olivier
J
JUDGMENT
Olivier
J:
[1.]
This
is an application by the plaintiff, Wesbank (a division of Firstrand
Bank Limited) for summary judgment. The defendant
is Mr JCR
Henderson. The application was initially opposed, but the
defendant never filed an opposing affidavit. At
the hearing of
this matter there was no appearance and a notice to abide, filed by
the defendant’s attorneys on the day of
the hearing, was handed
up by plaintiff’s counsel, Ms Tyuthuza.
[2.]
In
view of what follows the chronology of the service and filing of
certain pleadings and affidavits is relevant. Summons
was
issued on 2 June 2016, and it was served on the respondent on
21 June 2016. On 28 June 2016 the defendant
gave
notice of his intention to defend the action.
[3.]
On
15 July 2016 the defendant filed a plea to the plaintiff’s
particulars of claim. According to the stamp of the
plaintiff’s
attorneys the plea was filed around 13:30 on that day.
[4.]
On
the same day, but it is not clear at what time, the affidavit
supporting the application for summary judgment was deposed to.
[5.]
On
19 July 2016 this application for summary judgment was lodged
and filed. That was on the 15
th
day after notice of intention to defend had been given, and therefore
in time.
[6.]
Although
it is not clear whether the deponent for the plaintiff had been aware
of the existence of the plea at the time of deposing
to the
supporting affidavit, it is clear that the application for summary
judgment was lodged with full knowledge of the fact that
a plea had
been filed, and presumably also of the contents of that plea.
[7.]
In
theory nothing would prevent a plaintiff from applying for summary
judgment after a plea has been filed, but the contents of
such plea
will then be taken into account in considering such an
application
[1]
.
[8.]
The
cause of action set out in the particulars of claim is an alleged
breach of a so-called “
online
”
instalment sale agreement and, according to an allegation in
paragraph 4 thereof, annexure ‘C’ to the particulars
of
claim is supposed to be “
a
copy of the Agreement
”.
[9.]
Annexure
‘C’ to the particulars of claim is comprised of a number
of different documents, each bearing what appears
to be a watermark
reading “
Agreement
entered into by JACOB HENDERSON Account Number [8...] 2013/10/31
23:49:27
”.
The defendant’s personal particulars indeed also appear on some
of the documents.
[10.]
What
does not, however, appear on any of the particular documents is the
defendant’s signature, or any visible sign of him
having
approved and accepted the terms set out in the different documents.
On a page titled “
contract
COVER SHEET
”
[2]
reference is made to a list of so-called “
DIGITALLY
SIGNED DOCUMENTS
”,
but none of the documents referred to in the list bear any sign of a
signature, digital or otherwise. Ms Tyuthuza
could also not
point out any signature of the defendant.
[11.]
She
submitted that the watermark is the plaintiff’s standard method
of proof of signature, and of the fact that the person
whose
particulars appear in the watermark had consented to the terms of the
agreement. She was constrained to concede that
the particulars
of claim contain no allegations to this effect.
[12.]
This
in itself, and even without having regard to the contents of the
plea, is problematic. The absence of a copy of a written
agreement relied upon in particulars of claim would render such a
pleading non-compliant with the provisions of Uniform Rule 18(6).
Insofar as annexure ‘C’ may, at least on the face of it,
in fact not be a copy of an agreement entered into by the
defendant,
as alleged by the plaintiff, this would render the annexure
inconsistent with the allegation in paragraph 4 of the particulars
of
claim, and could arguably result in the pleading being excipiable.
[13.]
This
is not, however, the end of the matter. In the plea the
defendant explicitly denied having entered into an agreement
as
alleged with the plaintiff, and went on to make allegations to the
effect that the plaintiff had, despite being requested to
do so,
failed to provide the defendant with a “
signed
Agreement
”.
[14.]
It
is apposite at this point to deal with an affidavit which was filed
on behalf of the plaintiff on 7 June 2016, and therefore
after the
issue of summons. It therefore also did not form part of the
summons which had been served on the defendant.
The affidavit
is titled “
AFFIDAVIT
IN RESPECT OF SCANNED DOCUMENTS
”.
In it the deponent explained that, due to a lack of storing space,
the plaintiff had begun “
storing
its documents on a computer as scanned images
”
and that, once original documents had been scanned and stored in this
way, they were destroyed. With reference to
annexure ‘C’
to the particulars of claim, the deponent stated that it had been
“
retrieved
”
from the computer system and that it is a “
true
copy of what is stored on the … computer system
”.
The particular deponent went on to submit that the document annexed
to the particulars of claim as annexure ‘C’
is admissible
evidence because it constitutes the best evidence of the existence of
the agreement and because it in any event constitutes
a data message
as envisaged in section 15(4) of the
Electronic
Communications and Transactions Act
[3]
(“
the
Act
”).
[15.]
As
already explained, the affidavit does not form part of the
particulars of claim and it accordingly also is not part of what was
verified and confirmed in the founding affidavit to the application
for summary judgment. As could be expected
[4]
no mention was made, in that affidavit, of the existence of the
affidavit of 7 June 2016. Ms Tyuthuza did not attempt to
argue
that the contents of the June affidavit would be admissible in the
application for summary judgment. In any event,
and as will be
explained in due course, the contents of the affidavit do not really
take the issue of the copy any further.
[16.]
As
regards the submission that annexure ‘C’ to the
particulars of claim is the best available evidence of a so-called
online agreement having been concluded between the parties, it was
not pleaded in the particulars of claim what an “
online
”
agreement entailed. There are, of course, also no allegations
in the particulars of claim to the effect that annexure
‘C’
is actually a copy of a so-called scanned image of the original
agreement, neither was it pleaded what exactly
the scanning process
would have entailed. The particulars of claim also contain no
explanation for the fact that no signatures
are visible in annexure
‘C’, not even in the documents listed as those with
so-called “
digital
”
signatures. What exactly a “
digital
”
signature is, was also not pleaded, and Ms Tyuthuza could not point
out any such signature. I have already dealt with
the argument
regarding the so-called watermark.
[17.]
Even
if the contents of the June affidavit were to be admissible, these
aspects were also not explained in that document.
[18.]
In
the present context the word “
scan
”
could possibly mean to “
convert
(a document or picture) into digital form for storage or processing
on a computer
”
[5]
,
but neither in the particulars of claim nor in the June affidavit is
there any explanation of such a process of “
conversion
”,
or of the role and effect of such a conversion on “
digital
”
signatures.
[19.]
Coming
back to the submission, in the alternative, that annexure ‘C’
is admissible evidence because it is a data message
as envisaged in
the Act, the first question that would arise is whether the alleged
digital signatures referred to would indeed
constitute “
electronic
signatures
”
as envisaged in sections 1 and 13 of the Act. No attempt was
made in the particulars of claim, or even in the June
affidavit, to
make out such a case.
[20.]
If
it is, however, for the moment assumed that the intention was to
refer to “
electronic
signatures
”,
the question would be what method of “
signature
”
was used (and which appears
ex
facie
the so-called message) to indicate the defendant’s approval and
acceptance, and why that method was the best in the particular
circumstances
[6]
. Even if
it is to be assumed that the watermark could constitute an acceptable
method for the purposes of section 13 of the
Act, I have already
pointed out that the particulars of claim contain no allegations in
this regard.
[21.]
The
position would be even worse in a case where the signature of a
person is required by law, because in such a case only an “
advanced
electronic signature
”
would suffice, which would mean that the particulars of claim would
have to contain an allegation that the particular electronic
signature resulted from a process accredited by the Authority, as
provided for in section 37 of the Act
[7]
.
[22.]
It
is so that provision is made in section 15(1)(b) of the Act for the
admissibility of a data message into evidence even though
it is not
in its original form, but that would only be the case if the
particular message is “
the
best evidence that the person adducing it could reasonably be
expected to obtain
”.
No allegation to this effect was made in the particulars of claim, or
even in the June affidavit.
[23.]
In
any event, and as regards the evidential weight of annexure ‘C’
as a data message, the particulars of claim contain
no allegations
regarding the factors set out in sub-paragraphs (a) to (c) of section
15(3) of the Act, neither does the June affidavit.
[24.]
The
fact that the defendant has not filed an opposing affidavit, and that
he has indeed chosen to abide the Court’s decision,
but that
does not mean that cognisance cannot and should not be taken of the
defence/s raised by him in his plea. As already
said, however,
the plaintiff has in my view in any event on its own papers not made
out a case for summary judgment
[8]
.
[25.]
There
is no reason why costs should not in this case follow the result, and
none was suggested in argument. In the premises
the following
orders are made:
1.
THE
APPLICATION FOR SUMMARY JUDGMENT IS DISMISSED WITH COSTS.
2.
THE
DEFENDANT IS GRANTED LEAVE TO DEFEND THE ACTION.
3.
FURTHER
PLEADINGS AND PAPERS ARE TO BE FILED AND SERVED AS IF NOTICE OF
INTENTION TO DEFEND HAD BEEN GIVEN ON THE DATE OF THIS ORDER.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv T Tyuthuza
(Instructed
by Duncan & Rothman Inc.)
For
the Respondent:
Mr Mzuzu
(Mzuzu
Attorneys)
[1]
Compare
Vesta Estate
Agency v Schlom
1991 (1) SA 593
(C) at
594H – 595H;
Steeledale
Reinforcing (Cape) v HO HUP Corporation SA (Pty) (Ltd)
2010 (2) SA 580
(ECP) para [8];
Ramsamy
v Nonxuba
2008 JDR 1055 (O) para [22];
African Bank Ltd v Mjali
[2005] JOL 13366
(Tk) at p4
[2]
Papers: page 36
[3]
25 of 2002
[4]
Compare
Man Truck &
Bus (SA) (Pty) Ltd v Singh and Another (1)
1976 (4) SA 264 (N)
[5]
The Concise Oxford English Dictionary,
10
th
Edition (Revised), page 1276
[6]
See the provisions of section 13(3) of the Act.
[7]
See section 1 of the Act.
[8]
Compare
Gulf Steele
(Pty) Ltd v Rack-Rite Bop (Pty) Ltd
1998 (1) SA 679
(O)