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[2009] ZAGPPHC 146
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Mercedes Benz Financial Services South Africa (Pty) Ltd v Reddy (19311/2009) [2009] ZAGPPHC 146 (19 November 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2009-11-19
UNREPORTABLE
Case Number:
19311/2009
In the matter between:
MERCEDES BENZ FINANCIAL SERVICES
SOUTH AFRICA
(PTY) LTD
Applicant/Plaintiff
and
GEEVARATHNAM
REDDY
Respondent/Defendant
JUDGMENT
SOUTHWOOD J
[1]
The
plaintiff applies for summary judgment against the defendant for the
return of Jeep Cherokee 2.8 CRD LIMITED motor vehicle with
engine
number 4W280800 and chassis number 1J8GM585X4W280800 (‘the
vehicle’) and costs on the scale as between attorney
and
client. The defendant failed to file an answering affidavit
timeously and applies for condonation for the late filing of his
answering affidavit and has filed a separate answering affidavit.
The issue of whether the defendant has a
bona
fide
defence
will determine whether or not condonation is granted. Counsel
addressed argument based on the contents of both affidavits.
[2] In its
particulars of claim the plaintiff alleges that:
(1) on 22 January
2008 it entered into a written instalment sale agreement
(‘the
agreement’) with the defendant in terms of which it sold the
vehicle to the defendant;
(2)
in
terms of the agreement –
(i) notwithstanding
delivery of the vehicle ownership remained vested with the plaintiff;
(ii
) the
defendant was obliged to pay a total amount of R156 416,72 to the
plaintiff in accordance with the agreement’s payment
schedule:
i.e. a first instalment of R5 912,04 on 1 February 2008; 17 monthly
instalments of R5 912,04, commencing on 1 March
2008 and a final
(residual) instalment of R50 000 on 1 July 2009;
(iii
) if
the defendant failed to pay any amounts payable in terms thereof and
remained in default after the plaintiff had given notice
of such
default, the plaintiff would be entitled to cancel the agreement,
obtain return of the vehicle, retain all payments already
made and
recover such damages as it is entitled to;
(3
) the
plaintiff delivered the vehicle to the defendant on 22 January 2008;
(4
) the
plaintiff has performed all its obligations in terms of the
agreement;
(5
) the
defendant failed to pay the instalments payable in terms of the
agreement and on 26 November 2008 was in arrears in respect
of such
instalments in the amount of R35 777,32;
(6
) on
26 November 2008 the plaintiff gave notice in writing to the
defendant of the extent of the arrears and demanded payment of
the
outstanding balance;
(7
) the
defendant failed and/or refused to make payment and the plaintiff
cancelled the agreement alternatively gave notice in the
summons that
it cancelled the agreement;
(8
) on
5 March 2009 the defendant owed the plaintiff the sum of R127 872,78.
[3] The plaintiff served the summons
on the defendant in April 2009.
[4] To avoid
summary judgment the defendant is required by Rule 32(3)(b) to set
out in his affidavit facts which if proved at the
trial will
constitute an answer to the plaintiff’s claim. The Rule also
requires that the defendant satisfy the court that
the defence is
bona
fide
.
This means that the defendant must swear to a defence, valid in law,
in a manner which is not inherently and seriously unconvincing.
Finally, it is required of the defendant that he set out the facts on
which he relies ‘fully’. This means that the
statement
of material facts must be sufficiently full to persuade the court
that what the defendant has alleged, if it is proved
at the trial,
will constitute a defence to the plaintiff’s claim. If the
defence is averred in a manner which appears in
all the circumstances
to be needlessly bald, vague or sketchy, that will constitute
material for the court to consider in relation
to the requirement of
bona
fides
–
see
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T)
at
227G-228F.
[5] The defendant
does not deny any of the plaintiff’s abovementioned
allegations. He admits most and does not pertinently
dispute the
rest. On the strength of these undisputed facts the plaintiff is
entitled to the return of the vehicle.
[6] The defendant
relies on certain occurrences which all took place after the summons
was served in April 2009. In order to have
a defence to the
plaintiff’s claim for return of the motor vehicle the defendant
had to allege that a new agreement had been
entered into in terms of
which he was entitled to possession of the vehicle until he had paid
off the amount owing to the plaintiff.
Nowhere in the defendant’s
two affidavits does he allege such an agreement. At best for the
defendant it appears that the
parties were negotiating about the
refinancing of the amount still outstanding in terms of the
agreement. This is not a defence
to the plaintiff’s claim for
return of the vehicle. The defendant has therefore not set up a
bona
fide
defence
to the plaintiff’s claim for return of the vehicle and the
plaintiff is entitled to summary judgment.
Order
[7] 1. The defendant’s
application for condonation is refused;
2. S
ummary
judgment is granted against the defendant and the defendant is
ordered to deliver to the plaintiff forthwith, Jeep Cherokee
2.8 CRV
LIMITED motor vehicle with engine number 4W280800 and chassis number
1J8GM585X4W280800;
3. The defendant is
ordered to pay the costs of the application on the scale as between
attorney and client.
___________________________
B.R. SOUTHWOOD
JUDGE
OF THE HIGH COURT
CASE NO:
19311/2009
HEARD
ON: 17 November 2009
FOR
THE APPLICANT/PLAINTIFF: ADV. S.G. MARITZ
INSTRUCTED
BY: Strauss Daly Incorporated
FOR
THE RESPONDENT/DEFENDANT: ADV. H. ENGELBRECHT
INSTRUCTED
BY: KG Reddy & Associates
DATE
OF JUDGMENT: 19 November 2009