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[2012] ZAKZPHC 73
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Firstrand Bank Ltd t/a Wesbank v Govender (6791/2011) [2012] ZAKZPHC 73 (21 November 2012)
1
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 6791/2011
In the matter between:
FIRSTRAND BANK LIMITED t/a WESBANK
................................
Applicant
and
PRAGASEN GOVENDER
...............................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
This is an application for summary judgment. The
applicant instituted action against the respondent and two other
defendants during
July 2011. The claim is for the return of a
Mitsubishi Fuso vehicle (the vehicle) sold under an agreement (the
agreement) by
the applicant to the first defendant and costs on an
attorney and client scale. The respondent and the third defendant
had stood
as sureties and co-principal debtors for, inter alia, the
obligations of the first defendant under the agreement. The summons
claims that the first defendant defaulted under the agreement, that
as at 5 July 2011 the arrears under the agreement amounted
to
R204 659.39 and that the agreement was cancelled. There is no
challenge to these averments. On 19 August 2011 default
judgment was
granted against the other two defendants, who did not defend the
action, for the identical relief as that sought
against the
respondent. The respondent entered an appearance to defend and the
application for summary judgment was launched
timeously.
In his affidavit opposing summary judgement the
respondent has, in essence, raised two defences. The first is that
the application
for summary judgement is fatally defective in that
the deponent to the supporting affidavit has not set out sufficient
averments
to show that she has personal knowledge of the facts
relied upon by the applicant. The second is that it had been agreed
between
the applicant and the respondent that the vehicle would be
sold to a third party for R 530 000 and that the respondent would
make good any shortfall outstanding to the applicant.
The material parts of the affidavit in support of
summary judgement are paragraphs 1 and 2 which read as follows:
‘
1. I am the Legal Manager of the Applicant
Company in this matter and therefore duly authorised to attest to
this affidavit on the
Applicant's behalf. I state that I have had
personal control over the books and accounts relating to this matter
and I positively
verify that the facts herein contained are, except
where otherwise stated, within my own personal knowledge and belief,
and are
both true and correct.
2. I am aware of the facts stated in the Summons issued on the behalf
of the Applicant/Plaintiff against the First, Second and
Third
Respondents/Defendants as well as the Particulars of Claim endorsed
thereon. I confirm and verify that the First and/or Second
and/or
Third Respondents/Defendants are in possession of the
Applicant/Plaintiff's goods as set out in 3.1 hereunder and verify
the cause of action on the grounds set out in the
Applicant/Plaintiff's Particulars of Claim.’
Mr
Moola SC
, who appeared for the respondent,
submitted that it did not appear from the affidavit why the deponent
claimed to be a person
able to swear positively to the facts. In
this regard, he submitted, the transaction was concluded in
Newcastle, the deponent
signed her affidavit in Johannesburg and
never dealt with the respondent. Although she states that she has
personal control over
the books and accounts relating to the matter,
she does not state that she has in fact read or had regard to these.
Finally,
he submitted, the averment confirming that the first
defendant and/or second defendant and/or third defendant is in
possession
of the goods is contradictory and mutually destructive
and leads to the inescapable conclusion that she is unable to the
verify
the facts which she purports to verify.
It has long been accepted that artificial persons such
as banks cannot themselves depose to affidavits in support of
summary judgment.
A natural person in their employ does so. It has
also long been accepted that such a person, particularly in banks
dealing as
they do with clients over a long period of time and
relating to a potentially wide range of matters, is unlikely to have
personal
knowledge of each aspect of the dealings of the bank with a
client. As such, it has long been accepted that an employee deposing
to an affidavit in support of summary judgment will perforce rely on
documents kept by the bank relating to the dealings in question.
1
Each case will turn on the facts of that matter.
2
In
Maharaj
, there was no other averment than
that the deponent was the assistant branch manager and claimed to be
able to swear positively
to the affidavit. He did not claim personal
knowledge of the facts concerning the overdraft. The court took into
account that
the opposing affidavit in no way challenged the current
state of the defendant’s account. Nor did it allege that the
deponent
was not present when the arrangements for the overdraft
were made or could not have acquired the knowledge in the course of
his
duties. The real challenge was to the amount outstanding.
Significantly, the court in
Maharaj
quoted with approval the
dictum of Miller J in
Love
to the following effect:
‘
We are concerned here with an affidavit
made by the manager of the very branch of the bank at which overdraft
facilities were enjoyed
by the defendant. The nature of the
deponent’s office in itself suggests very strongly that he
would in the ordinary course
of his duties acquire personal knowledge
of the defendant’s financial standing with the bank. This is
not to suggest that
he would have personal knowledge of every
withdrawal of money made by the defendant or that he personally would
have made every
entry in the bank’s ledgers or statements of
account; indeed, if that were the degree of personal knowledge
required it is
difficult to conceive of circumstances in which a bank
could ever obtain summary judgment. It goes without saying that a
manager
of a bank who claims to have personal knowledge of the extent
to which a client has overdrawn his account must needs rely upon the
bank records which show the amounts paid into his account and the
amounts withdrawn by the client.’
3
There is a long line of cases dealing with the
essential averments in an affidavit made in support of summary
judgement by a natural
person purporting to represent an artificial
person such as the applicant. In a recent judgement in this
division, it was recognized
that:
‘…
where the applicant is a corporate
entity, the deponent may well legitimately rely on records in the
company's possession for their
personal knowledge of at least certain
of the relevant facts and the ability to swear positively to such
facts.’
4
As was stated in
Shackleton,
however, none of the cases goes:
‘
so far as to say that the deponent to an
affidavit in support of an application for summary judgment can have
no personal knowledge
whatsoever of the facts giving rise to the
claim, and rely exclusively on the perusal of records and documents
in order to verify
the cause of action and the facts giving rise to
it.’
5
The present deponent is a legal manager. She states
that she is aware of the facts stated in the summons and particulars
of claim.
She states further that she confirms and verifies the
cause of action on the grounds set out in the particulars of claim.
She
has personal control over the books and accounts relating to
this matter. This is a far cry from a person who has no personal
knowledge of the necessary facts. Although she does not say that she
concluded the agreement on behalf of the applicant, this
does not
disqualify her. A person testifying on behalf of a bank is not
expected to be someone who has dealt at every stage and
in every
detail with the matter. She is entitled to rely on the applicant’s
records in regard to those matters in which
she was not personally
involved.
6
No attack was launched by the respondent on any of the
averments made by her. He could not do so since he states that he
sold
his interest in the first defendant Close Corporation early in
2010 and has had no dealings with it since then. He would therefore
not know of the deponent’s dealings with the first defendant.
The respondent satisfies himself with asserting that the
application
is defective since the deponent is not in a position to verify the
applicant's cause of action, claiming that her
averments do not meet
the requirements of Uniform rule 32.
The respondent relies, in particular, on the case of
Firstrand Bank Ltd v Beyer
7
,
claiming that in that matter the present applicant was
deprived of summary judgement on similar grounds. However, in that
matter,
the deponent was an employee of the plaintiff which, it was
stated, was entitled to act as an agent of another bank which had
concluded the agreement with the defendant. No indication was given
in the affidavit in support of summary judgement why she would
have
knowledge of facts relating to a transaction between a different
entity and the defendant. In the present case, the transaction
is
between the applicant and the first defendant and the deed of
suretyship was executed by the respondent in favour of the
applicant. They are thus direct parties to the agreements sued upon.
As indicated above, it was also submitted that the
deponent confirms conflicting factual situations as regards the
person in possession
of the vehicle. This is not a necessary
averment in the action against the three defendants. The averment
was made in the summons
that the vehicle had been delivered to the
first defendant. Sureties undertake to ensure that the obligations
of the principal
debtor to the creditor are met. It is therefore
competent to seek summary judgement against them for delivery of
movable property
even when they are not themselves in possession of
that property. The present averments are therefore entirely
distinguishable
from those in
Three Ball
Construction (Pty) Ltd v Lipschitz
8
relied on by the respondent.
In the present matter, accordingly, the deponent has
claimed personal knowledge of facts relating to the matter and
access to
records of the applicant which relate to the matter. No
factual challenge was raised by the respondent to these claims. The
first
basis relied upon by the respondent to resist summary
judgement is accordingly without merit.
The second basis raised concerns an agreement which the
respondent claims was concluded with the applicant relating to the
sale
of the vehicle to a third party. The defence can be summarised
as follows. The respondent had been the member of the first
defendant
but sold his members’ interest at the beginning of
2010 and thereafter had no personal knowledge of the activities of
this
defendant. He became aware in March 2011 that the first
defendant had fallen into arrears under the agreement. He contacted
the
legal department of the applicant and agreed with a person there
that the most convenient and realistic way of resolving the problem
was for him to find a buyer for the vehicle and to take
responsibility for any shortfall which would still be owed to the
applicant
after the purchase price had been paid. This he did. The
applicant had accepted that this would take place and accepted that
the third party, Country Meat, would purchase the vehicle for
R530 000. Despite this, action was instituted.
There are a number of difficulties with this defence.
In the first place, it is not averred that the respondent was
authorised
to represent the first defendant. It was not averred that
this gave rise to a variation to the agreement. It is not averred
that
this gave rise to an agreement on the part of the applicant not
to cancel the principal agreement which it says without challenge,
has been cancelled. As such, the action is vindicatory in nature.
The defence does not show that any of the defendants has a
right to
possession of the vehicle. If anything, the defence requires
repossession by the applicant in order for delivery to
take place to
the purchaser. It is not averred that agreement was reached that the
applicant would not institute action against
the two defendants and
himself if this deal was struck. It is clear that what is set out in
the affidavit would, in any event,
not have bound the applicant
since it is not reduced to writing and signed by both parties which
a variation to the agreement
sued upon requires. The respondent says
he was required to send a signed letter of consent by himself. All
that he says thereafter
is that he ‘e-mailed Jabulani Mbatha
my consent’ and attaches a copy of the email. It does not
indicate that any
attachment was sent with it. It is not signed and,
even if his signed consent had been scanned and attached, this does
not meet
the requirement set by the applicant for the conclusion of
the agreement relied upon by the respondent. In addition, even if
the agreement contended for was concluded, there appears to be
nothing preventing such an agreement being put into effect once
the
applicant obtains possession of the vehicle pursuant to the default
judgments and if summary judgment is granted against
the respondent.
It is my view, accordingly, that no defence is raised in the
affidavit.
It is so that a court nevertheless has a discretion to
refuse summary judgement. Counsel for the respondent was unable to
make
any submissions as to why this discretion should be exercised
in favour of the respondent in the present instance. I can think
of
no basis for exercising this discretion. In the first place, default
judgements have already been granted and, for all I know,
the
vehicle may already have been delivered into the possession of the
applicant. If there is an agreement that the vehicle will
be sold to
the third party mentioned by the respondent, and if the applicant
breaches that agreement, the respondent or third
party may, in any
event, have an action for damages against the applicant. I put it no
higher than that and nothing in this judgment
must be construed as
any finding in that regard.
After this matter was argued on 8 December 2011, the
parties requested an opportunity to resolve the matter. I indicated
that,
if they were unable to do so, I would prepare and hand down a
judgment. On 8 November 2012 the registrar of this court received
a
letter requesting a judgment because the matter had not been
settled.
In the result summary judgment is granted in terms of
prayers 1 and 2 on pages 31 and 32 of the indexed papers, such
judgment is
to be joint and several with the default judgment granted
against the first and third defendants.
DATE OF HEARING: 8 December 2011
DATE OF JUDGMENT: 21 November 2012
FOR THE APPLICANT: S FRANKE, instructed by VENN, NEMETH
& HART INC.
FOR THE RESPONDENT: FM MOOLA SC, instructed by OSSIE
LAKHI & ASSOCIATES, locally represented by YASHICA CHETTY
ATTORNEYS.
1
Barclays
National Bank Ltd v Love
1975 (2) SA 514
(D) at 515H-517A.
2
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at
3
At
516H-517A.
4
Per
Wallis J in Shackleton Credit Management (Pty) Ltd v Microzone
Trading 88 CC & another
2010 (5) SA 112
(KZP) para 13.
5
Ibid.
6
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 423H-424H.
7
2011
(1) SA 196
(GNP)
8
1987
(2) SA 663
(W)