About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 180
|
|
Toyota Financial Services (South Africa) (Pty) Ltd v Fredericks (1890/2014) [2014] ZAFSHC 180 (18 September 2014)
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
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 1890/2014
DATE:
18 SEPTEMBER 2014
In the matter
between:
TOYOTA FINANCIAL
SERVICES
.............................................
Plaintiff
(SOUTH AFRICA)
(PTY) LTD
And
SARAH KATHLEEN
FREDERICKS
.....................................
Defendant
HEARD ON: 21
AUGUST 2014
JUDGMENT BY: E.K.
TSATSI, AJ
DELIVERED ON: 18
SEPTEMBER 2014
INTRODUCTION:
[1] This is an
opposed summary judgment against the defendant for the:
(a) Cancellation of
the agreement;
(b) an order in
terms of which the 2012 Toyota Hilux 3OD/4D Raider Xtra Cab P/U with
engine number IKD…… and chassis
number AHT……….
be delivered by the defendant to the plaintiff, alternatively that
the Sheriff takes possession
of the said vehicle from whichever
position it may be found, and place the plaintiff in possession
thereof;
(c) Damages be
postponed sine die until the return of the vehicle to the plaintiff
to determine the value thereof and the amount
due;
(d) Leave to
approach the Honourable Court on the same papers supplemented by a
damages affidavit;
(e) Interest on the
same amount of damages, to be determined at the applicable interest;
(f) Costs of the
action.
1.1 The defendant
applied for condonation for the late filing of the replying
affidavit.
FACTS
[2] This application
was based on an instalment sale agreement concluded on or about 14
May 2012, between the plaintiff and the
defendant. The said
agreement falls within the scope of the National Credit Act, Act 34
of 2005 and was identified and categorised
as a credit agreement. A
copy of the agreement was attached to the summons as annexure “A”.
The principal debt amounted
to R335 661.39 and finance charges
amounted to R149 032.52.
[3] The defendant
breached the agreement by not paying certain instalments. The breach
was common cause between the parties. The
plaintiff’s claim
arose from the said breach. The plaintiff alleged that the defendant
has fallen into arrears at the time
when summons were issued in the
amount of R25 030.78 and outstanding balance in the amount of R289
051.55.
[4] The defendant
opposed the application on the following grounds:
4.1 Non-compliance
by the plaintiff with the provisions of section 129 of the National
Credit Act;
4.2 The challenge of
Yolande Theresa Schoeman, the specialist collection manager in the
employ of the plaintiff, to depose to the
affidavit in support of the
application;
4.3 Non-compliance
with Uniform Rules of Court by the plaintiff, the plaintiff failed to
state “where, when and by whom the
contract was concluded”;
[5] Ms Yolande
Theresa Schoeman described herself as the specialised collection
manager of the applicant. She alleged in her affidavit
that she had
possession and control of all the applicant’s records accounts
and other documents relevant to the claims forming
the subject matter
of the action instituted against the defendant. She further
indicated that she had acquired personal knowledge
of the defendant’s
financial standing. She further indicated that she could swear
positively to the facts alleged and amounts
claimed.
ISSUES
[6] The issue in
this application is whether or not the defendant has a bona fide
defence to the plaintiff’s application for
the return of the
motor vehicle by way of summary judgment.
SUBMISSIONS
[7] The plaintiff
opposed the defendant’s application for late filing of her
replying affidavit. It was submitted on behalf
of the plaintiff that
defendant’s replying affidavit was vague, sketchy and bad.
Such affidavit did not set out a bona fide
defence. It was further
submitted on behalf of the plaintiff that the National Credit Act
does not envisage that a consumer may
claim to be over - indebted
whilst at the same time retaining possession of the goods which
formed the subject matter of the agreement.
Such goods should be
sold to reduce the defendant’s indebtedness – Standard
Bank of South Africa Ltd v Panayiotts
2009 (3) SA 363
(W) at 375.
[8] The defendant’s
counsel argued that the plaintiff was prohibited from enforcing the
agreement if the plaintiff failed
to comply with section 129 of the
National Credit Act. It was further submitted on behalf of the
defendant that the court was
not called upon to determine whether the
defendant’s defences which were raised would hold water at the
time of the trial.
The court must simply determine whether the
defendant raised a defence which if proved at trial will constitute
a bona fide defence
to the plaintiff’s claim – Grant v
Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 467 – 477. The
defendant was opposed to the amount that the plaintiff charged her.
However counsel argued that there
was dispute regarding the amount.
THE LAW
[9] In Maharaj v
Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A – E it
was stated that one of the ways in which a defendant may successfully
oppose a claim for summary judgment,
was by satisfying the court by
affidavit that he had a bona fide defence to the claim. Here the
defence was based upon facts
in the sense that material facts alleged
by the plaintiff in his summons or combined summons were disputed. In
addition if new
facts were alleged constituting a defence, the court
does not attempt to determine those issues or to determine whether or
not
there was a balance of probabilities in favour of the one party
or the other. All that the court enquired into was:
(a) Whether the
defendant has “fully” disclosed the nature and grounds of
her defence and the material facts upon which
it was founded; and
(b) Whether on the
facts so disclosed the defendant appeared to have, as to whether the
whole or part of the claim, a defence which
was bona fide and good in
law.
If satisfied on
these matters the court must refuse summary judgment, either wholly
or in part, as the case may be. The word “fully”
as used
in the context of the Rule (and its predecessors) has been the cause
of some judicial controversy in the past. It connotes
in my view,
that while defendant needed not to deal exhaustively with the facts
and the evidence relied upon to substantiate them,
she must at least
disclose her defence and the material facts upon which it was based
with sufficient particularity and completeness
to enable the court to
decide whether the affidavit disclosed a bona fide defence. (See:
Herb Dyers (Pty) Ltd v Mahomed and Another
1965 (1) SA 31
(T).)
[10] Section 129 of
the National Credit Act provides that:
“129 Required
procedures before debt enforcement
(1) If the consumer
is in default under a credit agreement, the credit provider-
(a) may draw the
default to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a
debt counsellor, alternative
dispute resolution agent, consumer court or ombudsman with
jurisdiction, with the intent that the
parties resolve any dispute
under the agreement or develop and agree on a plan to bring the
payments under the agreement up to
date; and
(b) subject to
section 130 (2), may not commence any legal proceedings to enforce
the agreement before-
(i)first providing
notice to the consumer, as contemplated in paragraph (a), or in
section 86 (10), as the case may be; and
(ii) meeting any
further requirements set out in section 130.”
[11] The summary
judgment is regarded as drastic and should only be granted upon the
satisfaction of the requirements of Rule 32(2).
The Rule provides
that:
“(2) The
plaintiff shall… 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.”
[12] Section 23 of
the Uniform Rules of Court provides that:
“Where any
pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the
case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may set it down
for hearing…”
APPLICATION OF
THE LAW
[13] The defendant
was required, in asserting that she had a bona fide defence, to fully
disclose the nature and grounds of the
defence and the material facts
relied upon therefore. This was lacking in the defendant’s
affidavit. The defendant has
instead listed procedural objections
that she raised as I have indicated above. It was not enough for
this defendant just to list
procedural objections, because once
stripped off these objections, there was concern if the defence
raised was bona fide. This
was insufficient and fails to comply with
the rules.
[14] As far as the
complaint that there was non-compliance with section 129 of the
National Credit Act, was concerned it was clear
from the court
documents attached to the summons that a registered letter was sent
to the defendant’s chosen domicilium citandi
et executandi in
terms of the agreement attached to the summons. The fact that the
defendant may not have received the notice,
does not mean that the
plaintiff has not complied with its obligations. As far as
cancellation or termination of the agreement
was concerned, counsel
for the plaintiff submitted that the registered letter stated that
failure by the defendant to respond within
10 days will result in
plaintiff approaching the court. The purpose of approaching the
court would be to enforce the agreement.
Enforcing agreement meant
cancellation of the said agreement.
[15] Since the
decision of Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A)
the authority of the affidavits in support of summary judgments were
discussed. There were decisions which have relaxed the
requirement
of personal knowledge and those which still persisted in the
deponent’s personal knowledge. In Shackle ton Credit
Management (Pty) Ltd v Microzone Trading 88 CC and Another
2010 (5)
SA 112
(KZP) and Firstrand Bank Ltd v Beyer
2011 (1) SA 196
(GNP) the
court found that a deponent who acquired his knowledge from documents
to which he had access cannot swear positively
to the facts.
[16] In Standard
Bank of SA Ltd v Secatsa Investments (Pty) Ltd and Others
1999 (4) SA
229
(C) a different view was held and the court held as follows:
“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.”
The preceding view
was supported by Satchwell J in Firstrand Bank Ltd v Carl Beck
Estates (Pty) Ltd and Another
2009 (3) SA 384
(T) at 391F – G.
Technology has made it easy for people to interact with each other
without meeting face to face. Nowadays
transactions are made
electronically. People are able to hold teleconferences and meetings
whilst they are geographically apart.
[17] In light of the
preceding and in my view, Ms Yolande Theresa Schoeman was well
qualified to depose to the summary judgment
affidavit. She had
acquired personal knowledge of the defendant’s financial
standing in the ordinary course of her duties.
In addition, she
stated that she could swear positively to the facts alleged and the
amounts claimed in the plaintiff’s
particulars of claim. To
hold otherwise will be to frustrate the commercial goods of the
plaintiff’s business. This view
was also expressed in Stamford
Sales & Distribution (Pty) Limited v Metraclark (Pty) Limited
(676/2013)
[2014] ZASCA 79
(29 May 2014) quoting Maharaj, supra,
where it was said that:
“One of the
aids to ensure that the claim of the plaintiff is unimpeachable and
that the defendant’s defence is bogus
or bad in law is that the
verifying affidavit should be deposed to by the plaintiff or by
someone who has personal knowledge of
the facts. If however the
affidavit fails to measure up to these requirements the defect may
nevertheless be cured by reference
to other documents relating to the
proceedings which are properly before the court….. The
principle is that, in deciding
whether or not to grant summary
judgment, the court looks at the matter ‘at the end of the day’
on all the documents
that are properly before it…..”
[18] The appeal
court in Stamford Sales, supra, dealt with the issue also in Dean
Gillian Rees v Investec Bank Limited (330/13)
[2014] ZASCA 38
(28
March 2014), said the following in para [15]:
“As stated in
Maharaj, ‘undue formalism in procedural matters is always to be
eschewed’ and must give way to commercial
pragmatism. At the
end of the day, whether or not to grant summary judgment is a
fact-based enquiry. Many summary judgment applications
are brought by
financial institutions and large corporations. First-hand knowledge
of every fact cannot and should not be required
of the official who
deposes to the affidavit on behalf of such financial institutions and
large corporations. To insist on first-hand
knowledge is not
consistent with the principles espoused in Maharaj.”
The court went on
and said that:
“….. as
long as there is direct knowledge of the material facts underlying
the cause of action, which may be gained
by a person who has
possession of all of the documentation is sufficient.”
[19] Regarding the
defendant’s submission that the plaintiff did not comply with
the Uniform Rules of Court, I am of the view
that in that case the
defendant should have excepted to the plaintiff’s particulars
of claim, which she failed to do.
[20] The defendant
was not paying the monthly instalments and at the same time she had
possession of the motor vehicle. The plaintiff
reserved ownership of
the said vehicle. I am accordingly satisfied that the defendant
failed to disclose a bona fide defence to
the claim of the plaintiff.
ORDER
[21] The following
order is made:
Summary judgment is
granted in favour of the plaintiff against the defendant for:
21.1 Cancellation of
the agreement between the parties;
21.2 Return of the
2012 Toyota Hilux 3D/4D RAIDER XTRA CAB P/U with ENGINE NUMBER:
IKD…………… and
CHASSIS NUMBER:
AHTG…………….., failing which the
Sheriff is directed and authorised to attach
the vehicle wherever it
may be found and to place the plaintiff in possession thereof.
21.3 Damages
postponed sine die until the return of the vehicle to the plaintiff
to determine the value thereof and the amount due.
21.4 Leave to
approach the court on the same papers duly supplemented by a damages
affidavit after possession of the vehicle, evaluation
thereof and
calculation of damages.
21.5 Interest on the
same amount of damages to be determined at the applicable interest
rate in terms of the agreement.
21.6 The defendant
is granted condonation for filing her replying affidavit late.
21.7 The defendant
is to pay the costs of this action.
E.K. TSATSI, AJ
On behalf of
plaintiff: Adv S.J. Reinders
Instructed by:
Kutlwana
Mohaleroe
c/o Symington
& De Kok BLOEMFONTEIN
On behalf of
defendant: Adv R van der Merwe
Instructed by:
Claude Reid
Attorneys
BLOEMFONTEIN