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[2015] ZAGPPHC 707
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Firstrand Bank Limited t/a Wesbank v Prescision SA 050207 CC (28366/2015) [2015] ZAGPPHC 707 (31 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 28366/2015
Date:
31/7/15
In
the matter between:
FIRSTRAND
BANK LTD tla
WESBANK
Plaintiff/Applicant
And
PRESCISION
SA 050207
CC Defendant/Respondent
JUDGMENT
PRETOR
I
US
J
,
[1]
In this opposed summary judgment application the
respondent relies solely on points
in
li
mine.
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
FAIRLANOS
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
(0)
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
domicilium
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.
JJNFAAJ10Z2707917 and engine no. HR16312719C 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 :
31/07/2015