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[2013] ZAGPPHC 300
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Nissan Finance t/a Firstrand Bank Ltd v van Aarde (76065/09) [2013] ZAGPPHC 300 (17 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO. 76065/09
DATE:17/10/2013
In
the matter between:
NISSAN
FINANCE T/A FIRSTRAND BANK
LTD
.......................................
APPELLANT
and
JOHAN VAN
AARDE
..................................................................................
RESPONDENT
JUDGMENT
HASSIM
A AJ
1.
This is an application for the interim attachment of a motor vehicle
by the Applicant pending the finalisation of a trial in
which the
Applicant seeks certain relief in satisfaction of the debt, including
damages.
2.
The Applicant is not the seller of the vehicle, but the finance
institution that concluded a Master Discounting Agreement with
the
seller. The seller is Atlantis Nissan, also referred to as Atlantis
Motors. During the hearing the Respondent's counsel made
much of the
different description of the seller, submitting that this, inter
alia, evidences the deficiency in the Applicant's
founding papers. It
is true that there is a discrepancy in the description of the name of
the seller. I did not understand counsel
for the respondent to be
arguing that this discrepancy, in itself, is fatal to the applicant's
case. It does however add to my
concern regarding the probity of the
applicant's evidence.
3.
The Respondent purchased the vehicle from the seller on 17 May 2005.
As at 5 February 2009 the Respondent was in arrears in the
amount of
R46 792.47. The Applicant has instituted action against the
Respondent, which action is pending.
4.
In the interim, the Applicant seeks an interim interdict for the
attachment of the vehicle in question to be held in 'safe-keeping'
by
the Applicant pending the outcome of the trial.
5.
The requirements for obtaining an interim interdict are long-settled:
Setlogolo v Setlogoio
1914 AD 221
at 227. In summary they are:
5.1.
That the applicant is able to satisfy a prima facie right;
5.2.
A well-grounded apprehension of irreparable harm if interim relief is
not granted and the main application is successful;
5.3.
That the balance of convenience favours the granting of interim
relief; and that
5.4.
The applicant has no other satisfactory remedy.
6.
In order to establish a prima facie right, the court will weigh the
allegations of both parties in order to determine whether
the
applicant could succeed in obtaining final relief. See Webster v
Mitchell
1948 (1) SA 1186
(W) at 1189.
7.
The right that the applicant seeks to assert is that it is the owner
of the vehicle. The Respondent filed a notice on a point
of law, in
terms of Rule 6(5)(d)(iii) of the Uniform Rules of the High Court
raising two objections: first, that the Applicant
failed to make an
allegation of authorization to have launched the application; and
second, that no prima facie right is established.
8.
On the question of authority, the R's counsel pointed to the fact
that there is no allegation by Ms Vorster in the founding affidavit
that she is authorized to bring the application on behalf of the
applicant. It is a salutary rule that where a company brings motion
proceedings that it has duly authorised the person bringing same:
Griffiths & Inglis (pty) Ltd v Southern Cape Blaster (Pty)
Ltd
1972 (4) SA 249
(C).
9.
Moll (Cape) (Pty) Ltd. v Merino Ko-operasie Bpk., 1957 F (2) SA 347
at 351 -352: "The best evidence that the proceedings
have been
properly authorised would be provided by an affidavit made by an
official of the B company annexing a copy of the resolution
but I do
not consider that that form of proof is necessary in every case. Each
case must be considered on its own merits and the
Court must decide
whether enough has been placed before it to warrant the conclusion
that it is the applicant which is litigating
and not some
unauthorised person on its behalf. Where, as in the present case, the
respondent has offered no evidence at all to
suggest that the
applicant is not properly before the Court, then I consider that a
minimum of evidence will be required from the
applicant."
10.
The Respondent has offered no evidence in support of the objection
that the deponent is not authorized. At the hearing of this
matter
the applicant's counsel sought leave to hand up a supplementary
affidavit by one Ms Lynette Fourie, the head of Collection
Solutions,
a division of Wesbank, which is a division of the Firstrand Bank. Ms
Fourie states that she is duly authorized by the
Applicant to act on
its behalf. She confirms that that Ms Vorster has the necessary
authority and power to act on behalf of the
applicant, and she
annexed a certificate date 14 January 2013 in which such authority is
conferred upon Ms Vorster by Ms Fourie.
She further states that Ms
Vorster is on leave and therefore unable to file a supplementary
affidavit, but that she will do so
upon her return.
11.
This is far from the best evidence that could be provided by the
Applicant. However, I am prepared to accept it as minimum evidence
showing authority.
12.
The next question then is whether the applicant has established a
prima facie right of ownership in the motor vehicle.
13.
The approach to determining whether a prima facie right is
established was set out in Webster v Mitchell
1948 (1) SA 1186
(W) at
1189:
"The
use of 'prima facie established though open to some doubt' indicates
I think that more is required than merely to look
at the allegations
of the applicant, but something short of a weighing up of the
probabilities of conflicting versions is required.
The proper manner
of approach I consider is to take the facts as set out by the
applicant, together with any facts set out by the
respondent which
the applicant cannot dispute, and to consider whether, having regard
to the inherent probabilities, the applicant
could on those facts
obtain final relief at a trial. The facts set up in contradiction by
the respondent should then be considered.
If serious doubt is thrown
on the case of the applicant he could not succeed in obtaining
temporary relief, for his right, prima
facie established, may only be
open to 'some doubt'. But if there is mere contradiction, or
unconvincing explanation, the matter
should be left to trial and the
right be protected in the meanwhile, subject of course to the
respective prejudice in the grant
or refusal of interim relief."
14.
The Court was asked to have reference to the pleadings in the main
matter. Counsel for the applicant submitted that that both
the
particulars of claim in the main matter and the founding affidavit in
casu establish that the seller ceded all rights and title
in the
motor vehicle to the applicant. However all that is contained in
these pleading is a bald allegation that this is so. While
this may
be sufficient in particulars of claim for trial, it is not sufficient
in motion proceedings.
15.
In Hart v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D) at
469 C-E, Miller J held:
"where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings
by way of action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition, be sufficient
to resist an objection
that a case has not been adequately made out. The petition takes the
place not only of a declaration but
also of the essential evidence
which would be led at a trial and if there are absent from the
petition such facts as would be necessary
for determination of the
issue in the petitioner's favour, an objection that it does not
support the relief claimed is sound."
Counsel
for the Respondent referred the court to Swissborough Diamond Mines v
Government of the Republic of South Africa
1999 (2) SA 279
(T) at
343, where Joffe J applied the dictum in Hart, and held further (at
324) that:
"An
applicant must accordingly raise the issues upon which it would seek
to rely in the founding affidavit. It must do so by
defining the
relevant issues and by setting out the evidence upon which it relies
to discharge the onus of proof resting on it
in respect thereof”
16.
The applicant's counsel then referred the court to the Master
Discounting Agreement. The preamble to the Master Discounting
Agreement provides as follows :
"Whereas:
It is contemplated that the Bank shall in its sole discretion from
time to time:
A
- purchase all the right, title and interest of the Trader in
instruments of debt, including, but without restricting the
generality
thereof, negotiable instruments, written contracts or
agreements containing the terms and provisions of any transactions of
purchase
and sale, or letting and hiring, and/or rendering of
services, or advancing of money all of which are herein called
"instruments";
B
- purchase from the Trader vehicles, machinery, plant , equipment or
any other goods including all fittings, accessories and parts
thereto
for the purpose of selling or leasing the goods thus purchased from
the Trader to customers of the Bank."
17.
Para 1 of Part 1 then provides that the terms and conditions of Part
1 shall apply to each and every transaction as contemplated
in para A
in the preamble. . Para
2.1
and 2.2 set out how the rights, title and interest are to be sold to
the Bank. They provide:
"2.1
In every instance in which the Trader wishes to sell to the Bank its
rights, title and interest in any instrument, including
if
applicable, the ownership in and to the goods, forming the subject
matter of such instrument ('the Goods'), the Trader shall
deliver to
the Bank the relevant instrument and all documents of the nature
described in 2.2.3.
2.2
Delivery of the instrument and documents referred to in 2.1 shall
constitute an offer by the Trader to the Bank, to sell and
cede to
the Bank upon and subject to all the terms and conditions contained
herein and at such price as may be agreed upon between
the Trader and
the Bank:
2.2.1
all the Trader's rights, title and interest into and under the
instrument;
2.2.2
the ownership of the Goods described therein;
2.2.3
the benefits of and rights to all bills of exchange, promissory
notes, guarantees, suretyships, policies, acknowledgments,
ancillary
agreements or other documents which in any way pertain to or are
supplementary or incidental to such instruments which
are held by the
Trader relating to the instrument."
18.
No evidence is put up by the applicant to show that those paragraphs
have been complied with.
19.
During the hearing, counsel for the Applicant stated that he could
take it no further than para 4.2 of the founding affidavit,
which
simply asserts as follows" the Seller's right, title and
interest were ceded to the Applicant on 17 May 2005".
20.
However, on the applicant's own version there is considerable doubt
that any cession actually took place on that date. Further,
there is
a discrepancy regarding the date upon which the cession ostensibly
occurred. Paragraph 5 of the particulars of claim,
bearing the stamp
of the Registrar of the Court and the Sheriff, Pretoria East states
that the seller's right, title and interest
was ceded to the
plaintiff (applicant in this matter) on 14 December 2005.
21.
The Applicant also relied upon the Instalment Sale Agreement between
Atlantis Nissan and the respondent. According to the applicant,
the
two page annexure that accompanies the agreement provides for cession
of ownership to the applicant. However, during argument
counsel
conceded that these two pages that were included in the record are
not signed or initialed by the respondent.
22.
Counsel for the Respondent also referred the court to the judgment in
Nedcor Bank Ltd v Absa Bank Ltd
1998 (2) SA 830
(W), in which Cloete
J held that floor plan agreements between a motor vehicle dealer and
a financial institution are no more than
a pledge to secure a loan
against the security of motor vehicle without financial institution's
taking possession, and with ownership
of the vehicle not transferring
to the financial institution. In the light of this, evidence other
than reference to the Master
Discounting Agreement and Instalment
Sale Agreement becomes necessary. In this case, the relevant pages of
the Instalment Sale
Agreement are not signed by the Respondent.
23.
Based on the discrepancies within the applicant's own case, I find
that a prima facie right is not established.
24.
With regard to the apprehension of harm, the applicant's case is that
the vehicle will depreciate in value as time passes, and
there is a
risk that the respondent may have a motor vehicle accident that will
affect its value. If they were to secure the motor
vehicle they could
avert this harm. The vehicle was purchased for R185 000.34, excluding
finance charges. As at February 2009 the
arrears payments stood at
R46 792.47. The court was not informed as to any further payments
since then. There is no evidence from
the respondent as to the
prejudice that he will suffer if the interim interdict is granted.
Barring, obviously, the fact he will
be deprived of the motor
vehicle.
25.
It is inherent in financial schemes of this nature that the goods at
issue may depreciate in value pending the outcome of the
trial. It
has been over three years since the main action was instituted. I am
not persuaded that the balance of convenience favours
the Applicant,
especially in the light of the questions surrounding the Applicant's
right to ownership.
26.
In addition, the Applicant is entitled to a remedy by way of damages,
an order that is already being sought in the main action.
27.
In the circumstances, I make the following order:
27.1.
The application is dismissed.
27.2.
The applicant is directed to pay the costs of this application.
JUDGE
HASSIM A AJ