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
>>
2012
>>
[2012] ZAFSHC 47
|
|
Firstrand Bank Ltd Wesbank v Steyl Game CC and Others (43/2012) [2012] ZAFSHC 47 (22 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 43/2012
In the matter between:-
FIRSTRAND BANK
LIMITED t/a WESBANK
…........................
Plaintiff
and
STEYL GAME CC
…........................................................
1
st
Defendant
M P STEYL
…..................................................................
2
nd
Defendant
E STEYL
….......................................................................
3
rd
Defendant
M P STEYN N.O.
…..........................................................
4
th
Defendant
C P STEYL N.O.
…...........................................................
5
th
Defendant
M M THOMPSON N.O.
….................................................
6
th
Defendant
_____________________________________________________
HEARD ON:
8
MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
22 MARCH 2012
_____________________________________________________
[1] This is an
application for summary judgment. The plaintiff sued the defendant in
terms of the so-called Master Instalment Sale
Agreement entered into
by the parties on 29 March 2008, as well as Schedule-Instalment Sale
Agreement, incorporating the terms
and conditions of the Master
Instalment Sale Agreement, also dated 29 March 2008.
[2] In terms of the said
Schedule-Instalment Sale Agreement, the plaintiff sold and delivered
to the first defendant a 2003 Robinson
R22 Beta 11 Helicopter.
[3] The plaintiff made
the following allegations in its particulars of claim in support of
the fact that the defendant breached
the agreement;
3.1 That the defendant
failed to insure the helicopter, as it was obliged to do in terms of
the agreement. The plaintiff then insured
the helicopter on behalf of
the first defendant and it added the premiums to the principal debt,
as it was entitled to do, in terms
of the agreement. The payment of
the insurance premiums had an effect of increasing the principal
debt, and consequently, the monthly
instalments also increased.
3.2 That the defendant
failed to pay any amounts in terms of the agreements as from 29
August 2011.
3.3 As at 2 December
2011, the defendant was in arrears in the amount of R286 539-29. Of
this amount, R81 148-00 represented the
shortfall on the instalments
caused by the increase brought about by the insurance premiums and
R205 391-29 represented the arrear
instalments.
[4] As a result of the
breach, the plaintiff cancelled the agreement as it is entitled to do
in terms of the agreement and claimed,
among others, return of the
helicopter forthwith and costs. I do not mention the other prayers
because Mr Becker, on behalf of
the plaintiff, said those are the
only orders that he will move for, and that is only in respect of the
first defendant.
[5] 5.1 In the affidavit
resisting summary judgment, the second defendant states that he is
duly authorised to make the affidavit
on behalf of the second to
fifth defendants. This meant that no affidavit was filed on behalf of
the first defendant. Mr. Van Rhyn
stated that he appeared on behalf
of the first defendant and confirmed that what is stated in the
affidavit is a true reflection
of the first defendant’s case.
5.2 In addition to the
said point, the parties had taken a number of technical objections
against each other. I adjourned the proceedings
for the parties to
discuss and agree on how the matter should be dealt with further, as
I was of the view that the matter could
not be argued on the merits,
before preliminary points are dealt with.
5.3 When the case
resumed, I was informed that all technical objections and preliminary
points were withdrawn by the parties and
the matter could be
proceeded with on the merits.
5.4 The plaintiff had
also prayed for recertification of the credit amount as Value Added
Tax was erroneously added to the cash
price, whereas the cash price
of R1 400 000-00 already included Value Added Tax. I am not going to
deal with this issue, in the
light of what I said earlier, that the
only prayers being moved for are delivery of the helicopter and
costs. I, however, specifically
mention this point, as it also has a
bearing on the merits, as I will show later.
[6] It was contended on
behalf of the defendant that the deponent to the affidavit in support
of an application for summary judgment,
Margaret Klee, cannot be said
to have personal knowledge of the facts, as she was not personally
involved during the negotiations
that led to the conclusion of the
contract. This argument was raised in respect of the prayer for
rectification of the contract
and since this is no more in issue, I
do not find it necessary to deal therewith.
[7] It is now trite that
the defendant who wishes to resist an application for summary
judgment, must show that he has a
bona fide
defence and he
must fully set out the nature and grounds of such defence. In
MAHARAJ
v BARCLAYS NATIONAL BANK LTD
1976 (1) SA 418
(A) at 426 C the
court, per Corbett JA, said the following in respect of this
requirement:
“
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 the defendant need not
deal exhaustively with the facts and the evidence relied
upon to
substantiate them, he must at least disclose his defence and the
material facts upon which it is based with sufficient
particularity
and completeness to enable the Court to decide whether the affidavit
discloses a
bona
fide
defence.”
In
BREITENBACH v FIAT SA (EDMS) BPK
1976 (2) SA 226
(T)
t
he court held that the bald statement
by the defendant that he or she has paid, is not enough to resist an
application for summary
judgment.
[8] The first defendant
denies that it is in arrears and to this end, it has raised three
defences.
8.1 The first defence is
that the first defendant is not obliged to pay for the insurance
premiums, as the insurance policy is useless
to the second defendant,
as it does not insure him as the pilot of the helicopter. Although
this defence was argued at length during
the hearing, it has no
bearing on whether the first defendant is in arrears or not. Even if
it can be accepted that the first defendant
is not obliged to pay the
insurance premiums, it is clear that the fist defendant would still
be in arrears, as is apparent from
paragraph 3.3 above. I therefore
find it not necessary to deal with this defence, as it has no bearing
on the outcome of the case.
The second defence is
that since the plaintiff admits that the first defendant had been
paying instalments in higher amount
that it was obliged to, it
(first defendant) cannot be said to be in arrears. In terms of the
credit agreement, the first defendant
was paying monthly
instalments of R32 694.21 from 1 May 2008, and in the particulars
of claim, the plaintiff concedes that
the correct amount should
have been R27 970-59 from 1 May 2008. No calculations have been
made by the first defendant to show
that the amount by which it had
been overcharged covered the amount of the arrears. It is, however,
clear that even if the
first defendant is credited with the
difference of the two amounts for 40 Months, being form 1 May 2008
to 29 August 2011,
the total amount thereof is still less that the
amount of arrears as at 2 December 20011, as pleaded by the
plaintiff. I therefore
find that this defence does not show that
the first defendant was not in arrears, and consequently not in
breach of the contract,
entitling the plaintiff to cancel same.
In response to the
averment by the plantiff that first defendant failed to pay any
amounts in terms of the credit agreement
as from 29 August 2011,
the first defendant says the following in the affidavit resisting
summary judgment:
“
Eeste
Verweerder het nooit versuim om ‘n paaiement te betaal nie”.
No attempt is made by the
first defendant to attach any documents in support of this argument,
which is a classical example of a
bare denial. I therefore find that
this “defence” falls short of a defendant’s duty in
an affidavit resisting
summary judgment, as set out in the
BREITENBACH
and
MAHARAJ
-cases, quoted
above, and it stands to be rejected.
It
was further argued on behalf of the first defendant that summary
judgment is a drastic procedure, which shuts the door for
the
defendant and which should therefore not be easily granted. Perhaps
this is an opportune moment in this regard, to quote
the following
to passages by Navsa JA, in the matter of
JOOB JOOB
INVESTMENTS (PTY) LTD v STOCKS MAVUNDLA ZEK JOINT VENTURE
2009 (5) SA 1
(SCA)
at 11 and 12 par. [32] and
[33], with which I concur.
“
[32]
The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out.”
“
[33] Having
regard to its purpose and its proper application, summary judgment
proceedings only hold terrors and are 'drastic' for
a defendant who
has no defence. Perhaps the time has come to discard these labels and
to concentrate rather on the proper application
of the rule, as set
out with customary clarity and elegance by Corbett JA in the
Maharaj
case at 425G - 426E.”
Indeed, the first
defendant’s affidavit resisting summary judgment is fraught
with bald statements that lack in both detail
and particularity, in a
futile attempt to create triable issues.
[9] In the light of these
findings, I am satisfied that the first defendant has not succeeded
in showing that it is not in arrears,
nor that it has a
bona fide
defence to the plaintiff’s claim and the plaintiff is
consequently entitled to be granted summary judgment in its favour.
[10] I therefore make the
following order:
The first defendant is
directed to forthwith return to the plaintiff 1 x 2003 Robinson R22
Beta 11 Helicopter with serial number
3518, engine number
L-39345-36A and registration number ZS-PZJ, failing which, the
sheriff is authorised to attach the helicopter
wherever he may find
same and to hand the said helicopter to the plaintiff;
10.2 The fist defendant
to pay the plaintiff’s costs on attorney and client scale.
_________________
N.W. PHALATSI, AJ
On
behalf of plaintiff: Adv. F.J. Becker
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of defendants: Adv. A.J.R. van Rhyn SC
Instructed
by:
Webbers
BLOEMFONTEIN
/sp