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
>>
2013
>>
[2013] ZAFSHC 153
|
|
Firstrand Bank Ltd t/a Wesbank v Dobie (2388/2013) [2013] ZAFSHC 153 (19 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2388/2013
In
the matter between:-
FIRSTRAND
BANK LIMITED t/a WESBANK
.............
Applicant/Plaintiff
and
THOMAS
ROBERT DOBIE
.................................
Respondent/Defendant
_____________________________________________________
HEARD ON:
5
SEPTEMBER 2013
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
19 SEPTEMBER 2013
_____________________________________________________
[1] This is an
application for summary judgment. Plaintiff is Firstrand Bank Limited
t/a Wesbank and defendant is Thomas Robert
Dobie an adult male
residing at Bethlehem.
[2] Plaintiff instituted
an action against the defendant for the following:-
“
1.
Confirmation of termination of the agreement;
2. Return of the
vehicle as referred to herein;
3. An order authorising the Plaintiff
to apply to the Court on the same papers, supplemented insofar as it
may be necessary, for
judgment in respect of any damages and further
expenses incurred by the Plaintiff in the repossession of the said
vehicle, which
amount can only be determined once the vehicle has
been repossessed by the Plaintiff and has been sold;
4. Interest at 11%
a temporae morae
to date of final payment;
5. Party and party costs to be taxed;
6. Further and/or alternative relief.”
[3] The prayers in
respect of summary judgment are the same as prayers in the summons.
Plaintiff in his heads of argument stated
that he is only pursuing
prayer 2, i.e.
“
That the
Defendant is directed to forthwith return to the Plaintiff the
following goods: 2006 Isuzu KB 300 TDI LX P/U D/C, with
engine number
4JH1303140 and chassis number ADMTR77D5C294551 failing which the
sheriff is authorised to attach the aforementioned
goods, whenever
same is found, and to hand the goods to the plaintiff.”
[4] Plaintiff is thus
stating that he is proceeding in terms of
rei vindicatio
on
the basis that he is the owner of the said vehicle and that the
defendant is in possession of the vehicle. Counsel for the plaintiff
submitted that plaintiff will not pursue other relief sought except
for an order of costs. Counsel for the defendant submitted
that due
to the fact that defendant’s wife did not consent to the
purchasing of the vehicle by the defendant, the agreement
between
plaintiff and defendant is void, reference is made to the Matrimonial
Property Act
1984, Act 88
of 1984 and specifically section 15(2)(f).
[5] Both plaintiff and
defendant entered into a written instalment sale agreement on 9 March
2012. In terms of the agreement, the
plaintiff sold a 2006 Isuzu
motor vehicle to defendant. The defendant breached the terms of the
agreement in that he failed to
pay the instalments due. As a result
of the breach, plaintiff claims that it is entitled to the return of
the vehicle.
[6] Rule 32(2) of the
Uniform Rules states as follows:
“
The
Plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, 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 purposes of delay”.
Rule 32(3)(b) requires
the defendant to satisfy the court by affidavit that he has a
bona
fide
defence and shall disclose fully the nature and the grounds
of the defence and the material facts relied upon.
[7] Plaintiff submitted
that he is proceeding by way of
rei vindicatio
and that all
the elements of
rei vindicatio
have been proven. Defendant
argued that the instalment sale agreement is void for reasons that
the defendant’s wife did not
consent to the instalment sale
agreement, hence the validity of the said agreement can only be
properly adjudicated at the trial.
Further argued that the granting
of summary judgment would prevent the defendant from pleading that
the agreement is invalid and
counter claiming on restitution.
[8] It is not in dispute
that the plaintiff is the owner of the vehicle neither is it disputed
that the defendant is in possession
of the vehicle Isuzu. For a
plaintiff to succeed on the claim of
rei vindicatio
he has to
allege and prove that he is the owner of the property claimed and
secondly that the defendant was in possession of the
said property at
the time the action was instituted.
See:
Goudini Chrome
(Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(AD).
As mentioned earlier,
there has been no dispute on these two requirements and consequently
I am of the view that plaintiff succeeded
in verifying the cause of
action as it appeared on the particulars of claim.
[9] The next question to
be decided is whether the defendant has set out a
bona fide
defence, i.e. whether the defendant has disclosed the nature and
grounds of his defence and secondly, whether on the facts so
disclosed the defendant appears to have a defence which is
bona
fide
and good in law.
See:
Maharaj v
Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426.
[10] The purported
defence raised by the defendant is not good in law. The fact that the
defendant’s wife did not consent
to the agreement, is
per se
not a defence for a claim of
rei vindicatio
. It is common
cause that the plaintiff is the owner of the vehicle in question and
that the defendant is in possession of the vehicle.
[11] The
bona fides
of
the defendant is also questionable. The defendant’s wife had
disposed of an affidavit stating that she did not consent
to the sale
and state that she has no knowledge of the vehicle in question. This
averment is also stated by the defendant that
his wife has no
knowledge. If indeed, his wife does not have any knowledge of the
vehicle and her being an interested party, why
was she not joined in
the proceedings as a second defendant.
[12] From the defendant’s
own averment, even if I had to consider his version that the contract
is invalid, then it calls
for the defendant to return the vehicle
because he is holding the vehicle based on an invalid contract.
[13] Defendant argued
that the granting of summary judgment will preclude the defendant
from pleading that the contract is invalid,
as well as instituting
restitution counter claim. I am of the view that defendant can still
institute his action of restitution,
while the vehicle is returned to
the plaintiff if he feels that there are substantial merits in his
case.
[14] In the circumstances
I come to the conclusion that the defendant had not raised any
bona
fide
defence to the plaintiff’s claim. The application for
summary judgment thus succeeds.
[15] Plaintiff also made
an application for condonation for late filing of the application for
summary judgment. He did that under
mistaken believe that his
application was out of time, whilst not. Defendant did not oppose as
the application was within the time
period. Defendant thus requested
court to order costs against plaintiff for that application. I am of
the view that the plaintiff
is to pay costs for the unnecessary
application he brought to court.
[16] The following order
is made:
Summary judgment is
granted.
Defendant is directed to
return the 2006 Isuzu KB 300 TDI LXP/4D/C with engine number
4JH1303140 and chassis number ADMTR77D5C294551
to the plaintiff,
failing which the sheriff is authorised to attach the aforesaid
vehicle, wherever same is found, and to hand
it to the plaintiff.
Defendant to pay costs.
Plaintiff to pay costs
for the unnecessary application for condonation of late filing of
summary judgment.
_________________
S.J. THAMAGE, AJ
On
behalf of plaintiff/applicant: Adv L.A. Roux
Instructed
by:
Strauss
Daly Inc
BLOEMFONTEIN
On
behalf of defendant/respondent: Adv J. Els
Instructed
by:
Wessel & Smith
BLOEMFONTEIN
/spieterse