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2011
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[2011] ZANCHC 18
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Standard Bank of South Africa Ltd v BP Stopers CC (161/2011) [2011] ZANCHC 18 (26 August 2011)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE
NO: 161/2011
HEARD:
19/08/2011
DELIVERED:
26/08/2011
In the matter
between
:
STANDARD BANK OF
SOUTH AFRICA LIMITED
….....................
APPLICANT
and
B P STROPERS CLOSE
CORPORATION
…...............................
RESPONDENT
JUDGMENT
HUGHES-MADONDO, AJ
This is an application
for summary judgment which was argued on the 19 August 2011. The
applicant seeks the following order:
“
1.
An order directing the confirmation of termination of the agreement;
2. An order directing
the return of the CASE IH1010 KORING TAFEL ASSET, with serial number
JJC0308218 (herein referred to as “the
Asset”) to the
Plaintiff;
3. Forfeiture of all
amounts paid by the Defendant in terms of the agreement;
4. Attorney and own
client costs;
5. Further and/or
alternative relief.”
The application
proceeded as an opposed application. Advocate S. L. Erasmus appeared
on behalf of the applicant and Ms. S. Jordaan
appeared on behalf of
the respondent.
It is trite that in
terms of Rule 32 of the Rules of court a court might grant summary
judgment in respect of claims based on
a liquid document, for a
liquidated amount, for delivery of specified movable property and
for ejectment together with interest
and costs.
The respondent when
opposing an application for summary judgment is required to satisfy
the court that he or she has a ‘
bona fide’
defence to the action. In the respondent’s papers it must
disclose fully the nature and grounds of its defence and the
material facts that it relies upon. See
MAHARAJ V BARCLAYS
NATIONAL BANK Ltd
1976 (1) SA 418
(A) AT 426.
In essences the
set of facts set out must be such that if proven at trial they would
constitute a defence to the claim of the
plaintiff. See
BREITENBACH
V FIAT SA (Edms) Bpk
1975 (2) SA 226
(T) at 228B-D and D-E; TESVEN
CC AND ANOTHER V SA BAMK OF ATHENS 2000(1) SA 268 (SCA)
If the defendant fails
to set out a bona fide defence or to raise a triable and arguable
issue and the plaintiff can establish
its case clearly, then summary
judgment should be granted. On the other hand if the plaintiff has
an unanswerable case and it’s
reasonably possible that the
defendant has a good defence, then the defendant must be granted
leave to defend. See
MARSH AND ANOTHER V STANDARD BANK
2000 (4)
SA 947
(W) at 949-950.
The applicant entered
into an instalment sales agreement (the “agreement”)
with the respondent on 15 April 2008. In
terms of the agreement the
applicant sold to the respondent a CASE IH1010 KORING TAFEL (”the
Asset”).
In the plaintiff’s
particulars of claim, the plaintiff alleges that the defendant
failed to pay the instalment and or failed
to satisfy its obligation
in terms of the agreement and as such the plaintiff seeks;
cancellation of the agreement, return of
the Asset, retention of the
monies already paid, the difference between outstanding balance and
the value of the asset or re-sale
value whichever is greater,
interest and costs.
In the applicant’s
heads of argument the applicant stated that its cause of action as
set out in its summons and particulars
of claim is based on the
delivery of the specified movable property, being the Asset.
In opposing the
application for summary judgment, the respondent raises the
following defences:
8.1 that the
applicant’s cause of action is based on a liquid document and
as such in terms of Rule 32(2) the said document
was required to be
annexed to the applicant’s summary judgment application papers.
The applicant’s failure to do so
amounts to non compliance with
the aforesaid Rule;
8.2 the application was
instituted prematurely in that the applicant failed to comply with
Sections 129 and 130 of the National
Credit Act, 34 of 2005 (“the
NCA”). In that, the notification in terms of section 129
delivered by the applicant via
registered mail had not been received
by the respondent. The respondent states that at the time the notice
was delivered, its member
was abroad and as such the said notice
would have been returned to the sender;
8.3 there is no
provision in the agreement for cancellation, as the copy of the
agreement is illegible and not a clear copy;
8.4 that during August
and September 2010 the applicant removed the Asset from the
respondent premises; and
8.5 lastly, according
to the respondent’s last statement of account from the
applicant, the amount owing thereon indicates
that the applicant sold
the Asset after it removing it from the respondent’s property.
The issue that I am
required to decide is whether or not the defences raised by the
respondent are sufficient to resist summary
judgment and are they
defences envisaged in terms of Rule 32(3) (a).
The respondent does
not deny that it failed to pay the instalment and is therefore in
default
On an examination of
the summons and the particulars of claim I cannot comprehend why the
respondent is of the view that the cause
of action of the applicant
is based on a liquid document. The particulars of claim set out
clearly that the Asset was sold to
the respondent subject to the
agreement and in term of the later it seeks return of the specified
Asset. The defence that the
applicants claim is based on a liquid
document and its failure to comply with Rule 32(2) must therefore
fail.
[12] The respondent
argued that section 129 requires of the applicant to “draw the
default to the notice” of the respondent.
In this case the
respondent submitted that the applicant failed to draw the default to
its notice, as the section 129 was returned
to the applicant.
[13] The applicant
argued that it has complied with section 129, in that, the notice was
sent by registered mail to the respondents
chosen domicilium as
appears in the agreement. It did not have to do anything further but
deliver the notice to the respondent,
which it did.
[14] The giving of
notice in terms of Section 129(1) (a) has been held to be peremptory.
This is in keeping with the Act, in order
to strike a balance between
the interest of the credit grantor and the credit receiver. The Act
requires that the notice in terms
of Section 129 be delivered to the
address nominated in the instalment agreement by the credit receiver.
It does not require that
the credit grantor prove receipt of such
notice. See
ROSSOUW V FIRST RAND BANK Ltd.
2010 (6) SA 439
(SCA)
[15] Further, in my
view the failure of the respondent to receive the notification lies
squarely upon the respondent’s shoulder,
as paragraph 16.3 of
the agreement clearly sets out, that it is the duty of the respondent
to advise the applicant of any change
of address, in respect of
notices, during the duration of the contract. In this instance the
respondent failed to do so.
[16] The respondent
concedes that the agreement would encompass a cancellation. However,
because the copy annexed by the applicant
was illegible, the
respondent submits that there is in fact no cancellation clause in
the agreement. The respondent argued that
in the circumstances the
principles in
ABSA BANK LIMITED V HAVENGA
2010 (5) SA 533
(GPN)
are applicable. In this case the court held that before embarking
on cancelling an agreement the credit provider must show a vested
right to do so.
[17] The applicant
argued that paragraph 12.3 of the agreement indicated their “vested
right” to cancel. This paragraph
makes provision for the
applicant to approach a court for an order to enforce the agreement.
[18] I have looked at
both the agreement and the particulars of claim and agree with the
applicant that
ABSA BANK LIMITED
is distinguishable to the
present case as, there is provision for cancellation in the agreement
and these provisions have also
been set out in the particulars of
claim paragraph 7 .
The allegation made by
the respondent that the Asset was attached, removed and sold by the
applicant, whilst the respondent’s
member was abroad, in my
view is based on mere assumptions and has not been corroborated. In
the respondents papers it alleged
that a friend of the member was
present when the applicant removed the Asset. What is strange is
that the respondent does not
put up a confirmatory affidavit of this
friend in support these allegations.
Based purely on the
say so of the friend the respondent assumes that it was the
applicant who removed the Asset. Even though in
the respondent’s
papers, it states that the Asset was attached to a “stroper”
that was financed by ABSA bank
and that both the Asset and the
“stroper” were removed.
In the face of these
allegations it cannot be concluded that the applicant removed the
Asset. Why then would the applicant be
seeking return of the Asset,
if it was already in possession of it? This defence must also fail.
Lastly, as the
respondents defence is based on assumptions, these assumptions in my
view cannot amount to a
bona fide
defence in law.
Accordingly the
defences raised by the respondent cannot succeed.
In the circumstances I
find that the applicant has made out a case in terms of Rule 32.
Further, that they have complied with
sections 129 and 130 of the
NCA and that the respondent has failed to show that it has a
bona
fide
defence in law.
In the result
summary judgment is granted and the following order is made:
That the
cancellation of the agreement is confirmed;
That summary
judgment is granted for the return of the CASE IH1010 Koring Tafel,
with serial number JJC0308218 to the plaintiff;
That the defendant
is ordered to pay the costs of the application for summary judgment
on a scale between attorney and client;
That the plaintiff
is granted leave to approach this court on the same papers for the
relief set out in paragraphs c, d, e, f,
and g of the particulars of
claim; and
The defendant is
granted leave to defend on the remaining issues.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
Northern Cape High
Court, Kimberley
:HgiHIghosts of such
procee
APPEARANCE
On behalf of the
Applicant
:
Adv. S.L ERASMUS
Instructed by DUNCAN
& ROTHMAN INC
On behalf of the
Respondent
:
Ms. S JORDAAN
JORDAAN ATTORNEYS