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2024
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[2024] ZAGPJHC 1004
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Firstrand Bank ta Wesbank v McCallum (2020/5463) [2024] ZAGPJHC 1004 (7 October 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1)
NOT
REPORTABLE
(2)
NOT
OF
INTEREST TO OTHER JUDGES
Case
NO
:
2020-5463
DATE
:
7
th
October 2024
In the matter between:
FIRSTRAND
BANK LIMITED t/a WESBANK
Plaintiff
and
JUSTIN
DAVID McCALLUM
Defendant
Coram:
Adams J
Heard
:
3 September 2024
Delivered:
7 October 2024 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to
CaseLines
and by release to
SAFLII. The date and time for hand-down is deemed to be 14:30 on 7
October 2024.
Summary:
Summary judgment – application for –
bona fide
defence raised – defendant given leave to defend action
Application for summary judgment
dismissed – defendant granted leave to defend main action.
ORDER
(1)
The
plaintiff’s application for summary judgment is dismissed.
(2)
The defendant
is granted leave to defend the action.
(3)
The cost of
the application for summary judgment shall be in the course of the
main action.
JUDGMENT
Adams J:
[1].
This is an
opposed application by the plaintiff for summary judgment against the
defendant. The plaintiff’s cause of action
is based on an
electronic instalment sale agreement (‘the credit agreement’)
concluded between the parties on 31 January
2018, in terms of which
the plaintiff sold to the defendant a 2018 Ford Roush Mustang 5.0 GT
Automatic motor vehicle (‘the
motor vehicle’) at an
agreed purchase price of R2 298 263.86, inclusive of
R652 009.53 finance charges and
R201 563.69 value added tax
(‘VAT’). The cash price of the motor vehicle, inclusive
of accessories and other extras,
was the sum of R1 646 254.33.
The said gross purchase price was to be paid over a period of
seventy-one months, the first
instalment of R28 354.20 being
payable on 29 March 2018, with a final balloon payment of R285 022.60
payable on 29 February
2024.
[2].
During or
about February 2019, the defendant was in breach of the credit
agreement in that he had fallen into arrears with his monthly
instalments. The plaintiff ‘called up’ the agreement and
took repossession of the motor vehicle as it was entitled
to do in
terms of the agreement. During March 2019 the plaintiff, after having
formally cancelled the agreement, sold the vehicle
for R371 090
(excluding VAT), which amount was credited to the account of the
defendant together with an amount of R184 667.24,
being in
respect of input VAT credit received. In the main action the
plaintiff accordingly claimed from the defendant the nett
amount of
R1 012 673.41, calculated as follows: R1 568 430.65
(settlement value of the credit agreement), less
R371 090
(proceeds of the sale of the vehicle) = R1 197 340.65, less
R184 667.24 (input VAT Credit received)
= R1 012 673.41.
This is also the amount claimed by the plaintiff in the summary
judgment application which came before
me in the opposed motion court
on 3 September 2024.
[3].
The defendant
resists the application for summary judgment on the basis that he did
not sign the agreement relied upon by the plaintiff
in its
particulars of claim. It is, as alleged by the defendant, that the
copy of the agreement attached to the particulars of
claim does not
contain the defendant’s signature and therefore, so it is
contended by the defendant, the plaintiff is precluded
from relying
on its terms.
[4].
Insofar as the
plaintiff alleges that the agreement was concluded electronically, it
is the case of the defendant that the plaintiff
does not allege that
the agreement was signed as contemplated by the Electronic
Communications Act 36 of 2005 (‘ECA’),
neither is there
any evidence of such signature. In that regard, the defendant rejects
the plaintiff’s contention that a
so-called ‘watermark
signature’ on each of the pages of the agreement constitutes an
electronic signature of the agreement.
[5].
The defendant
also raises as a defence that the agreement was entered into
recklessly. Whilst he provides little evidence in support
of this
defence, the defendant maintains that the plaintiff did not satisfy
itself that he, as the consumer, would be able to satisfy
at the time
of the loan in a timely manner all his or her obligations under all
his or her credit agreements, including the prospective
credit
agreement, before the credit provider will be able to validly
conclude the credit agreement with him.
[6].
Furthermore,
and importantly, the defendant opposes the application for summary
judgment on the basis that the plaintiff’s
claim is one for
contractual damages and is therefore not a claim for a liquidated
amount susceptible to an application for summary
judgment. Moreover,
so the defendant contends, the plaintiff was obliged by the credit
agreement, as well as by the provisions
of the National Credit Act 34
of 2005 (‘NCA’), to sell the vehicle at its market value
or as close thereto as reasonably
possible. Section 127(4)(b) of the
NCA, so the defendant points out, required the plaintiff to sell the
goods ‘for the best
price reasonably obtainable’.
[7].
There appears
to be merit in this contention on behalf of the defendant. The fact
that the vehicle was sold for far less than half
of what the
defendant paid for it a few months prior to the resale thereof,
affords support for the defendant’s contention
that the vehicle
was not resold for the best price reasonably obtainable. The point
about this defence is that, according to the
defendant, the quantum
of the damages claimed is wholly unreasonable and unrealistic. It is
indeed, as contended by the defendant,
that the plaintiff is obliged
to produce evidence to show that the price received was the best
price reasonably obtainable in the
circumstances, lest it fall afoul
of section 127(4)(b) of the NCA. I am not convinced that in the
application for summary judgment
such evidence was produced on behalf
of the plaintiff.
[8].
The issue
which I have to adjudicate is whether the defendant is entitled to be
granted leave to defend in view of the aforegoing
defences raised by
the defendant.
[9].
The defendant
alleges that the defence relating to the quantum of the claim is
without merit as the claim was quantified in terms
of the provisions
of the agreement. I am not persuaded. The simple point is that the
provisions of s 127(4)(b) finds application
and the defendant
has made out a case at least on paper based on the aforesaid
provision,
[10].
As pointed out
by the author, Erasmus: Superior Court Practice, Uniform Rule of
Court 32(3)(b) requires the defendant to satisfy
the court by
affidavit that he has a
bona
fide
defence to the plaintiff’s claim. ‘Satisfy’ does
not mean ‘prove’. What the rule requires is that
the
defendant sets out in his affidavit facts which, if proved at the
trial, will constitute an answer to the plaintiff’s
claim. If
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff in his summons are disputed
or new facts are
alleged constituting a defence, the court does not attempt to decide
these issues or to determine whether or not
there is a balance of
probabilities in favour of the one party or the other.
[11].
In terms of
subrule (5): ‘The court may enter summary judgment.’ The
word ‘may’ in this subrule confers
a discretion on the
court, so that even if the defendant’s affidavit does not
measure up fully to the requirements of subrule
(3)(b), the court may
nevertheless refuse to grant summary judgment if it thinks fit. The
discretion, clearly, is not to be exercised
capriciously, so as to
deprive a plaintiff of summary judgment when he ought to have that
relief.
[12].
Applying these
principles
in
casu
, I am
satisfied that in his resisting affidavit the defendant has
demonstrated a
bona
fide
defence on the merits of the plaintiff’s claim, and he is
accordingly entitled to leave to defend.
[13].
As regards
costs, I am of the view that costs should be ordered to be in the
course of the main action.
Order
[14].
In the result, the order which I grant is
as follows: -
(1)
The
plaintiff’s application for summary judgment is dismissed.
(2)
The defendant
is granted leave to defend the action.
(3)
The cost of
the application for summary judgment shall be in the course of the
main action.
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
HEARD ON:
3
rd
September 2024
JUDGMENT DATE:
7
th
October 2024
FOR THE PLAINTIFF:
K Meyer
INSTRUCTED BY:
C F Van Coller Incorporated,
Lambton, Germiston
FOR
THE DEFENDANT:
W
Isaaks
INSTRUCTED
BY:
Van
Hulsteyns Attorneys, Sandown, Sandton