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[2013] ZAFSHC 124
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Firstrand Bank Ltd t/a Wesbank v Hattingh (1325/2013) [2013] ZAFSHC 124 (4 July 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1325/2013
In the matter between:-
FIRSTRAND BANK
LIMITED t/a WESBANK
..........................
Applicant
and
CHRISTIAAN SMITH
HATTINGH
........................................
Respondent
_____________________________________________________
HEARD ON:
13 JUNE 2013
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
4 JULY 2013
_____________________________________________________
[1] This is an
application for summary judgment. The plaintiff sued the defendant in
terms of an instalment agreement entered into
by the parties on 7
February 2012. The said agreement had been signed online by the
defendant, using his nominated username and
pin code, to access his
online account.
[2] In terms of the said
agreement, the plaintiff sold to the defendant a 2007 Mercedes Benz
SL 65 AMG, with engine number 27598160004073
and chassis number
WDB2304792F130207.
[3] The plaintiff avers
in its particulars of claim that the defendant has breached the
agreement in that he has failed to pay the
instalments in terms of
the agreement and that he has been in default for at least 20
business days. On 14 March 2013, the defendant
was in arrears in the
amount of R52 386,49. A notice in terms of section 129 of Act 34
of 2005 was sent to the defendant,
but he (defendant) has failed
and/or refused to make the required payment.
[4] As a result of
defendant’s breach, the plaintiff cancelled the agreement, as
it is entitled to do in terms of the agreement
and claimed, among
others, return of the vehicle. I do not mention the other prayers,
because Mr Roux, on behalf of the plaintiff,
said that is the only
order that he moves for.
[5] In his affidavit
resisting summary judgment, the defendant states that the aforesaid
vehicle had latent defects, which existed
at the time of the sale,
which latent defects substantially impaired its utility or
effectiveness for the purpose for which it
had been sold or for which
it was commonly used. He further tenders return of the vehicle
concerned, against repayment of the amount
he had already paid to the
plaintiff in respect of the said vehicle. That the plaintiff and/or
its duly appointed agent made false
representations to him in respect
of the vehicle, which misrepresentation induced him to purchase the
vehicle at the agreed price
and if he had known the true facts, he
would not have purchased the vehicle at all. He accepted the
plaintiff’s repudiation
of the said agreement and cancels same.
[6] During the hearing of
the matter, counsel for the plaintiff conceded that the defendant has
raised a triable issue in respect
of whether it is the plaintiff or
defendant who has committed the breach of the contract and repayment
of the amount already paid
by the defendant to the plaintiff for the
vehicle. He, however, contended that since the defendant does not
dispute that the plaintiff
remains the owner of the vehicle and that
all that the plaintiff requires at this stage is return of the
vehicle, the court should
grant summary judgment only on the basis of
return of the vehicle to the plaintiff and the other issues to be
determined during
the trial.
[7] The plaintiff’s
right to claim return of the vehicle is based on the fact that the
defendant has breached the contract.
Defendant denies that he has
breached the contract and the plaintiff concedes that this issue can
only be resolved at the trial.
I therefore find it difficult to
comprehend how the court can order return of the vehicle to the
plaintiff before deciding whether
the defendant has breached the
contract, as there would be no basis on which such an order is made.
The plaintiff is not entitled
to use a non-performance for which it
is responsible as a foundation for a claim of cancellation and
damages. I have also not been
referred to any authority that the
court can order restitution in piecemeal fashion in that part of
restitution is ordered at summary
judgment stage and the other part
after the trial.
[8] On the basis of the
above, I find that summary judgment cannot be granted and therefore
the application for summary judgment
is dismissed.
[9] The next question to
consider is the one of costs. Counsel for the defendant argued that
pursuant to the filing of the opposing
papers, the plaintiff became
aware of the defendant’s defence and should not have proceeded
with its application after becoming
aware of same. The defendant
therefore argues and prays that the plaintiff should pay his costs
occasioned by the hearing of this
matter on an opposed basis. I,
however, find that it was not unreasonable for the plaintiff to
proceed with this matter to hearing
on an opposed basis and that the
defendant can still argue the costs of this application at the end of
the trial.
[10] I therefore make the
following orders:
The plaintiff’s
application is dismissed.
The defendant is granted
leave to defend.
The costs of application
to be costs in the cause.
_________________
N.W. PHALATSI, AJ
On
behalf of applicant: Adv L.A. Roux
Instructed
by:
Strauss
Daly Inc
BLOEMFONTEIN
On
behalf of respondent: Adv C.A. Human
Instructed
by:
Horn
and Van Rensburg Attorneys
BLOEMFONTEIN
/spieterse