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[2024] ZAKZPHC 95
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BMW Financial Services (South Africa) (Pty) Ltd v Gumede (4642/2024P) [2024] ZAKZPHC 95 (28 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
4642/2024P
In the matter between:
BMW FINANCIAL SERVICES
(SOUTH AFRICA) (PTY) LTD
PLAINTIFF
and
JOBHA THEMBINKOSI
GUMEDE
DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Plaintiff bought an application for summary judgment against
Defendant for the return of a certain
Land Rover Discovery Sport.
A plea was filed on behalf of Defendant but the attorneys who
represented Defendant at the time
of the plea thereafter withdrew as
attorneys of record. After the plea had been filed the
application for summary judgment
was brought by Plaintiff.
[2]
Defendant’s attorneys of record withdrew on 23 of July 2024.
The application for summary
judgment was issued on 13 June 2024 and
set down for 30 July 2024. A short answering affidavit was
filed on 14 August 2024
by Defendant stating that he was refused
legal aid and was appearing on his own. He stated that he
believed he has a
bona fide
defence and that he wished to
present his case through oral evidence.
[3]
On 16 August 2024 an order was then granted by Barnard AJ that
inter
alia
the Defendant be granted leave to adduce oral evidence in
opposition to the summary judgment application. Applicant was
directed
to appoint the services of an interpreter and it was then
adjourned to 22 October 2024.
[4]
On 22 October 2024 the matter came before me and Applicant had
arranged an interpreter, who was
a duly sworn interpreter and
Defendant was then sworn in and presented his oral evidence.
His evidence was as follows:
“
I
wish to explain how I got here. There are pending cases
before court in line with this case. This must be combined
with
the other matters before court. The people who opened the case
paid for the motor vehicle. At this point the money
to be paid
is not being paid because of pending cases. Also I wish to
state after the other cases I will be able to pay for
the motor
vehicle. My second request is if this case may be transferred
to the persons who pays for the motor vehicle, namely
one Duldlani
Zungu Sikhobuso Mngcwaba and one Mthembu. Lastly my request is
BMW that must pay for the vehicle. I will
be able to pay after
the case. I signed an agreement with BMW for the motor
vehicle. The motor vehicle is still with
me. I have
nothing else.”
This was then the
evidence of Defendant which constituted his affidavit in opposition
to the summary judgment application.
[5]
He was not cross examined as set out in Rule 32 (4). Both
Plaintiff’s representative
and Defendant then addressed the
court.
[6]
It was submitted by Mr. Moodley, on behalf of Plaintiff, that if
Defendant wishes to consolidate
various matters he must present
particulars of the other matters, who the parties are etc. No
details thereof were provided
and that there was therefore no case
for consolidation.
[7]
He further submitted that the agreement which appears at pages 52 to
59 of the indexed papers
sets out Defendants full name and
particulars, his identity number and his signature appears thereon as
was also confirmed by Defendant,
in his evidence that he did enter
into such an agreement. Further on page 57 of the indexed
papers was a release note where
he accepted the said vehicle which he
admits he took possession of. It was submitted that
there was compliance
with section 129 of the National Credit Act and
a certificate of balance was provided in terms of the said
agreement. In
paragraph 7 of his plea Defendant admits that he
failed to make due and punctual payments. In paragraph 13 of
the particulars
of claim it was set out that Defendant has not
returned the vehicle. In paragraph 13 of the plea, this is
admitted, which
was also admitted in his oral evidence. It was
submitted that there was no
bona fide
defence and that summary
judgment should be granted.
[8]
Thereafter Defendant addressed the court through the interpreter and
stated that he does not dispute
that he took delivery of the vehicle
but the money that has to be paid for the vehicle comes from the
church and he at the moment
does not have access to funds.
[9]
In Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426 it
was held that a defence must be fully disclosed, the nature and
ground thereof and the material facts upon which
t is founded.
On these facts does the Defendant have a defence, which is
bona
fide
and good in law? This test was confirmed in Joob Joob
Investments v Stocks Mavundla ZEK
2009 (5) SA 1
(SCA).
[10] It
is common cause that Defendant admits that he is in arrears with the
instalments and further that he is
still in possession of the said
vehicle. He raises the defence that the church must pay for the
vehicle and is not doing
so. He also refers to other cases but
without providing any detail thereof. It is therefore clear
from his plea, that
what he has stated in his evidence and the
submissions made that he has no
bona fide
defence to the
claim. He admits that the instalments are outstanding, that he
is still in possession of the vehicle and unfortunately
the fact that
the church is not paying the instalments is not a defence as he
personally was the person who entered into the agreement
with
Plaintiff and accordingly has the responsibility to pay for the said
vehicle. Further the fact that he has requested
BMW South
Africa to wait for the money is not something that this Court can
decide on as that is an indulgence which BMW South
African has to
decide on.
[11]
Accordingly Defendant has not set out any
bona fide
defence to
the said claim in his plea nor in his testimony in court and
accordingly Plaintiff is entitled to summary judgment.
Order:
I therefore grant Summary
Judgment in favour of Plaintiff against Defendant for.
1.
Confirming termination of the agreement.
2.
Authorising the Sheriff of the High Court
to attach, seize and handover the vehicle to the Plaintiff;
MOTOR VEHICLE: LAND
ROVER DISCOVERY SPORT 2.0i4 DHSE
ENGINE NUMBER:
1[...]
CHASSIS NUMBER:
S[...]
3.
Costs of suit;
4.
The Plaintiff shall allege and prove in its
action for any outstanding damages, that it has complied with the
requirements set out
in paragraph 20.3 of the order in Firstrand Bank
Limited t/a Wesbank vs Davel (1229/2018)
[2019] ZASCA 168
(29
November 2019).
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
22
OCTOBER 2024
JUDGMENT
HANDED DOWN ON:
28
OCTOBER 2024
COUSEL
FOR PLAINTIFF:
MR
D MOODLEY
Instructed
by:
Macrobert
Incorporated
Pretoria
Ref:
MGK MOSHOESHO/BM002348
Tel:
012 9401 6609
E-mail:
bmw@macrobert.co.za
c/o
Botha & Olivier Inc.
FOR
DEFENDANT:
IN
PERSON (MR. GUMEDE)
Tel:
082 8260665
E-mail:
jkjgumede@gmail.com