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[2015] ZAGPPHC 564
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Firstrand Bank Ltd t/a Wesbank v Prescision SA 050207 CC (28366/2015) [2015] ZAGPPHC 564 (31 July 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 28366/2015
Date: 31 July 2015
In the matter between:
FIRSTRAND BANK LTD t/a
WESBANK
..............................................................
Plaintiff/Applicant
And
PRESCISION SA 050207
CC
............................................................................
Defendant/Respondent
JUDGMENT
PRETORIUS J,
[1] In this opposed summary judgment
application the respondent relies solely on points in limine. Summons
was served on the respondent
on 6 May 2015. The cause of action is
that the applicant and respondent had entered into a written
instalment sale agreement on
2 October 2013 in terms of which the
applicant sold to the respondent a vehicle for an amount of R336
789.92. The respondent failed
to make the requisite instalment
payments as agreed, thereby breaching the agreement. On 23 March 2015
the respondent was in arrears
of R229 948.21.
[2] The respondent relied on three
points in limine, that the verifying affidavit was not properly
commissioned; lack of personal
knowledge by the deponent to the
verifying affidavit and not meeting the requirements of section 129
of the National Credit Act,
34 of 2005, (“NCA”).
LACK OF VERIFYING AFFIDAVIT:
[3] According to the respondent the
verifying affidavit deposed to by Mr Fahim Ebrahim does not comply
with the requirements for
the making of an affidavit as required by
Regulation 3(1) of the Regulation for the Administering of an Oath or
Affirmation (made
in terms of the Justices of the Peace and
Commissioners of Oaths Act, 16 of 1963).
[4] It is set out at the end of the
affidavit by Mr Ebrahim:
“SIGNED and SWORN TO at FAIRLANDS
on this the 3rd day of June 2015 by the deponent who has stated that:
a. He knows and understands the
contents hereof and that same are true and correct.
b. He has no objection to taking the
prescribed oath.
c. He regards the prescribed oath as
binding on her conscience. ”
[5] It is clear that the reference to
Nkondo v Minister of Police and Another 1980(2) SA 362 (O) by the
respondent, is not applicable
as in the present instance it is stated
that the affidavit was “signed and sworn to”, whereas in
the Nkondo case there
was no reference that the deponent had “sworn
to” the veracity of the affidavit.
[6] I find that the applicant had sworn
to the affidavit and complied with the provisions of Regulation 3(1
){supra) and therefor
has discharged the onus by showing on a balance
of probabilities that he has placed evidence in a proper form before
the court
as set out in the Nkondo case.
LACK OF PERSONAL KNOWLEDGE BY THE
DEPONENT TO THE VERIFYING AFFIDAVIT:
[7] According to the respondent the
verifying affidavit does not confirm the personal knowledge of the
deponent of the facts upon
which the action is based.
The deponent set out in the affidavit:
“1.3 I have regard to the account
history on our Computerised System which shows the complete up to
date history of the account
since the credit agreement was entered
into. From the account history I have access to information such as
the outstanding balance,
interest, costs, the Defendant’s full
payment history on the account, the capital amount as well as the
amount in arrears.
1.4 The contents of this affidavit fall
within my personal knowledge and are true and correct.”
[8] The argument is that the deponent
does not specifically mention knowledge of the letter of demand which
was sent in terms of
section 129
of the
National Credit Act and
that
all reference to the letter in the summons is hearsay and should be
ignored.
[9] I am of the view that the decision
in Standard Bank of South Africa Limited v Secatsa Investments (Pty)
Ltd and Others 1999(4)
SA 229 (C) and Firstrand Bank Ltd v Carl Beck
Estates (Pty) Ltd and Another 2009(3) SA 384 (T) are correct and
applicable in the
present instance.
[10] Satchwell J held in the Firstrand
case (supra) at page 391:
“In the present case the deponent
does not ask the court to rely inferences to be drawn. He states that
the facts contained
in the affidavit fall within his personal
knowledge and are based on records and documents available to him. He
is indeed pre-eminently
the person who would have knowledge of the
relevant facts. It may well be that the ‘relationship managers’
with whom
the second respondent dealt created or accessed the same
records and documentation to which the deponent had access and upon
which
he relied in deposing to the affidavit.” (Court’s
emphasis)
[11] Van Heerden AJ found in the Carl
Beck Estates case (supra) at page 235:
“It is clear from the case law
that first hand knowledge of every fact which goes to make up the
plaintiff’s cause of
action is not required and that, where the
plaintiff is a corporate entity, the deponent may well legitimately
rely for his or
her personal knowledge of at least certain of the
relevant facts and his or her ability to swear positively to such
facts, on records
in the company’s possession. ’’
(Court’s emphasis)
[12] It is quite clear from Mr
Ebrahim’s affidavit that he had all the information pertaining
to this case available when
he deposed to the affidavit. It is not
necessary in the modern era of computers for Mr Ebrahim to have had
personal interaction
with the respondent. He has all the necessary
information at his disposal to depose to the respondent’s
indebtedness to the
applicant. This point in limine has to be
dismissed.
THE REQUIREMENTS OF
SECTION 129
OF THE
NATIONAL CREDIT ACT:
[13
] The summons was served on 6 May
2015 and the application for summary judgment was served on 10 June
2015. The
section 129
letter was attached to the summons, so the
respondent had received the letter, at least, on 6 May 2015. This
application was heard
on 27 July 2015. The respondent had at least
eleven weeks after receiving the summons and the letter to apply for
business rescue
if it wished to do so. Nothing had been done by the
respondent up to the hearing of the application for summary judgment.
[14] Apart from the letter attached to
the summons the applicant had mailed a letter in terms of
section
129(1)(a)
of the
National Credit Act to
the respondent’s chosen
domiciiium citandi et executandi by registered mail. A track and
trace report was furnished to show
that
the letter had been collected at the
Post Office.
[15] Due to the fact that counsel for
the respondent conceded during argument that the respondent had
received the letter, albeit
attached to the summons, I find that this
point in limine cannot succeed. It would serve no purpose to dispatch
the notice in terms
of
section 129
a second time, as conceded by
counsel for the respondent, as form should not be placed above
substance.
[16] In the opposing affidavit the
respondent set out:
“I am advised that, in light of
the point in limine as raised by the Defendant, it is not necessary
to provide the nature
and grounds of the Defendant’s bona fide
defence against the claim of the Plaintiff.”
[17] Therefor the court cannot find on
a balance of probabilities that the respondent has a bona fide
defence. I find that the applicant
has proved on a balance of
probabilities that summary judgment should be granted, as all the
points in limine should be dismissed
for the reasons set out in the
judgment.
[18] At this stage the applicant is
only requesting the court to grant an order directing the respondent
to return the vehicle in
question, as well as the cancellation of the
agreement and costs on the scale between attorney and client.
[19] I make the following order:
Summary judgment is granted as follows:
1. The cancellation of the credit
agreement is confirmed;
2. The respondent/defendant is ordered
to return the vehicle, a 2013 NISSAN QASHQAI 1.6 VISIA with chassis
no. [J…………]
and engine no. [H………….]
to the applicant/plaintiff and the Sheriff of the High Court in whose
area
of jurisdiction the vehicle is found is authorised to attach and
remove it and deliver it to the applicant/plaintiff.
3. The respondent/defendant is ordered
to pay the applicant/plaintiff’s taxed costs of suit on the
scale as between attorney
and client.
Judge C Pretorius
Case number: 28366/2015
Appeal heard on: 27 July 2015
For the Applicant: Adv. JH
Groenewald
Instructed by: Bruce Loxton Inc.
For the Respondent: Adv. JAY May
Instructed by: Lampen Attorneys
Date of Judgment: 31 July 2015