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[2014] ZAGPPHC 228
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Absa Bank Ltd v Investment Property 42 (Pty) Ltd and Others (458/2014) [2014] ZAGPPHC 228 (25 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 458/2014
DATE: 25 APRIL 2014
In
the matter between:
ABSA BANK LIMITED
Plaintiff/Applicant
and
INVESTMENT PROPERTY 42
(PTY) LTD
First Defendant/
First
Respondent
WILLEM OTTO
Second Defendant/
Second
Respondent
GEORGE FREDERICK
DELPORT
Third Defendant/
Third
Respondent
JUDGMENT
MOTHLE
J
1.
This is an application for summary judgment
by the Plaintiff against the Third Defendant. I will
refer to the parties
as they are cited in the action proceedings.
2.
On the 8
th
January 2014 the Plaintiff issued summons against the three
Defendants for payment of an amount of R216, 992.02 arising out of
an
alleged agreement of sale
(“sale
agreement”)
of a motor vehicle to
the First Defendant, a company. The Plaintiff alleges that the
Second and Third Defendants had signed
as sureties for the debts of
the First Defendant.
3.
The First and Second Defendants failed to
enter appearance to defend the action while on 21 January 2014, the
Third Defendant delivered
his notice of intention to defend the
action.
4.
On the 7
th
February 2014 the Plaintiff delivered an application for summary
judgment in terms of Rule 32 of the Uniform Rules of Court.
The Third Defendant opposes the summary judgment.
5.
It
is trite that in an application for summary judgment, a
Plaintiff/Applicant must allege that the Defendant/Respondent has no
bona
fide
defence to the action and that he has simply entered appearance to
delay the proceedings.
[1]
The same rule requires of a Defendant/Respondent to disclose the
nature and grounds of his defence and the material facts
upon which
it is based in order to establish that he has a
bona
fide
defence to the action,
alternatively
raise an issue which ought to be tried.
[2]
6.
The Plaintiff, in the particulars of claim
attached to the summons pleads that the First Defendant is in breach
of the sale agreement
in that it purchased a motor vehicle, a 2007
Land Rover Discovery 3 TD V6 S with engine number 0249803276DT from
the Plaintiff,
but failed to make the necessary payments. The
Plaintiff further avers that the vehicle has not been recovered.
7.
In his opposing affidavit the Third
Defendant denies that the agreement on which the Plaintiff relies was
entered into on behalf
of the First Respondent and thus denies any
knowledge of the sale agreement and the delivery or whereabouts of
the said vehicle.
The Third Defendant however admits that there was a
general deed of suretyship signed long before the alleged sale
agreement.
8.
The
Plaintiff attached two separate copies of the deeds of suretyship
signed by the Second and Third Defendants.
[3]
It needs to be mentioned that after the Third Defendant delivered his
notice to defend the action, the Plaintiff filed a Lost Document
Affidavit stating that the originals of the instalment sale agreement
and the deeds of suretyship are “
misplaced
or lost for the time being”,
[4]
and thus it relies on copies to prove its claim.
9.
The Third Defendant in essence denies any
knowledge of the sale agreement and further disputes that the
signature which appears
on the alleged sale agreement is his.
10.
Apart from denying any knowledge of the
sale agreement, the Third Defendant also denies that he is indebted
to the Plaintiff in
the amount stated in that the Plaintiff has not
produced proof of delivery of the vehicle to the First Defendant.
11.
Counsel for the Plaintiff in argument
submits that summary judgment should be granted because the Third
Defendant has no
bona fide
defence in that he denies knowledge of the sale agreement and
therefore does not disclose the grounds upon which he disputes the
Plaintiff’s claim, with material facts underlying the disputes
raised.
12.
The
copy of the sale agreement attached to the summons and the affidavit
of the Plaintiff does not indicate the particulars of the
person who
contracted with the Plaintiff on behalf of the First Defendant. The
copy of the sale agreement only contains a signature.
In addition
thereto, the Plaintiff, in the particulars of claim, fails to plead
the particulars of the person who represented the
First Defendant and
whether such person had the necessary authority to conclude the sale
agreement on behalf of the First Defendant.
[5]
The deed of surety signed by the Third Defendant does not authorise
the Plaintiff to conclude sale agreements with undisclosed
persons
purporting to act on behalf of the First Defendant.
13.
The Third Defendant’s ground of
defence is that he denies any knowledge of the sale agreement or the
delivery of the vehicle
to the First Defendant. I am unable to see
how, as argued for the Plaintiff, he could state his ground of the
defence with reference
to “
material
facts underlying the dispute.”
The Plaintiff thus bears the onus to plead and proof the
existence of the sale agreement and the identity and/or authority
of
the person with whom it concluded the sale agreement. This is an
issue which in my view ought to be decided by the trial court.
14.
I am thus satisfied that the Third
Defendant in his opposing affidavit raises a
bona
fide
defence or issues which ought to
be dealt with at trial.
15
.
In the premises I am of the view that the
summary judgment must fail.
I
therefore make the following order:
1.
The application for summary judgment is
dismissed.
2.
The Third Defendant is granted leave to
defend the action.
3.
The costs of this application will be costs
in the action proceedings.
________________________
S
P MOTHLE
Judge
of the High Court
Gauteng
Division, Pretoria
[1]
Rule
32 (2) of the Uniform Rules.
[2]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A); Joob Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5)
SA 1 (SCA).
[3]
The
deed of surety signed by the Second Defendant is dated “9
Maart 2005” and that of the Third Defendant is dated
26 July
2005.
[4]
Page 53 of the paginated Court documents.
[5]
Rule
18 (6) of the Uniform Rules requires a party who relies on a
contract, to state when, where and by whom it was concluded.
Failure
to do so is an irregular step, Rule 18 (12).