ABSA Bank Limited v Shakgapicle Trading and Projects Pty Ltd and Others (M291/2022) [2023] ZANWHC 134 (21 April 2023)

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

NORTH WEST DIVISION, MAHIKENG

CASE NO: M291/2022

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

ABSA BANK LIMITED

Applicant

AND

SHAKGAPICLE TRADING AND

PROJECTS PTY LTD

1st Respondent

MOJAKI JOHNY LESUPI

2nd Respondent

GAOARABE REBECCA LESUPI

3rd Respondent

ORDER

The following order is made

1. The first Respondent and/or whomsoever may be in possession of:

1.1 2020 CIMC 40M3 SIDE TIPPER with engine number A[...]0 and chassis number A[...]9

1.2 2020 GWE 440 TT 6X4 AMT SR with engine number G[...]L and chassis number J[...]3

1.3 2020 CIMC 40M3 SIDE TIPPER with engine number A[...]8 and chassis number A[...]0

2. 2020 GWE 440 TT 6X4 AMT SR with engine number G[...]L and chassis number J[...]8 Hereinafter referred to as (“the assets”) is hereby ordered and directed to return and deliver to the applicant the assets.

3. In the event of the First Respondent and/or whosoever may be in possession of the assets failing to comply with the Order in terms of prayer 1 above, the sheriff or his deputy be and is hereby ordered and directed to forthwith take possession of the said assets and thereafter deliver same to the applicant.

4. The applicant is granted leave to approach Court, on the same papers, duly supplemented and amended, as may be necessary, in support of the relief claimed in part B of this application.

5. The relief sought in part B is postponed sine die, in order to afford the applicant an opportunity to value, and sell the assets, to determine the quantum of its claim against the

respondents, to be dealt with in part B of the application.

6. The costs occasioned by part A of this application, is reserved for determination at the hearing in part B of this application.

JUDGMENT

DJAJE DJP

[1] In this default judgment application the applicant seeks an order for the return of the following assets by the respondents:

(a) 2020 CIMC 40M3 SIDE TIPPER with engine number A[...]0andchassisnumber S[...]9;

(b) 2020 GWE 440 TT 6X4 AMT SR with engine number G[...]L and chassis number J[...]3;

(c) 2020 CIMC 40M3 SIDE TIPPER with engine number A[...]8andchassisnumber S[...]7;

(d) 2020 GWE 440 TT 6X4 AMT SR with engine number G[...]L and chassis number J[...]8.

[2] The first respondent entered into a sale instalment agreement with the applicant in terms of which the applicant would lend and advance money to the first respondent in a form of a loan to enable the first respondent to purchase the above mentioned assets. The second and third respondents signed as sureties and co-principal debtors of the first respondent. It was a term of the agreement that the first respondent will make monthly payments to the applicant whilst the applicant remains the owner of the assets until the first respondent complied with all its financial obligations. The first respondent breached the agreement and fell into arrears. The applicant cancelled the agreement on 24 May 2022 and demanded the immediate return of the assets.

[3] In contention the respondents raised a number of defences which I will deal with hereunder. The first defence raised was that the deponent to the affidavit in support of the default judgment does not have personal knowledge of the facts contained therein. It was submitted that the deponent to the affidavit relies on hearsay evidence which is inadmissible as she was not present when the agreements were entered into. The deponent to the affidavit in support of the application attached a certificate in terms of section 15(4) of the Electronic Communication and Transaction Act 25 of 2002 (ECTA) to the effect that the copies of the electronic or data messages are the actual copies of the printout of data stored on the applicant’s electronic media or computer system and that they were generated in the ordinary course of the applicant’s business.

[4] In terms of section 15(1) and (4) of ECTA:

“Admissibility and evidential weight of data messages

15. (1) in any legal proceedings the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence-

(a) on the mere grounds that it is constituted by a data message; or

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

(2) ..

(3)..

(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

[5] The deponent in her affidavit states that:

“1. I am an adult female and a Manager of the On Balance Sheet Recoveries Department Commercial Asset Finance in the Business Banking Recoveries Department of the Applicant. I am an authorised representative of the Applicant, and I am duly authorised to depose to this affidavit. I have access to the books and accounts relating to this matter and have perused such books and accounts. The facts herein deposed are within my personal knowledge and belief unless indicated to the contrary by the context and are both true and correct. I attach hereto a copy of the resolution authorizing me to depose to this affidavit on behalf of the Applicant and mark same annexure “A”.”

[6] It is clear that the deponent in this matter as the Manager of the On Balance Sheet Recoveries Department Commercial Asset Finance in the Business Banking Recoveries of the applicant has access to the books and accounts relating to this matter and perused same. There can be doubt that she has insight into the matter. As stated above she also attached a certificate in terms of section 15(4) of ECTA which renders the documents that she relied on admissible. The respondents’

point in limine has no basis and should be dismissed.

[7] As far as lack of personal knowledge of the deponent is concerned the applicant correctly referred to the matter of Barclays National Bank Ltd v Love 1975 92) SA 514 (D) at p516H-517A where it was stated that:

“17. PERSONAL KNOWLEDGE OF DEPONENT

17.1 In Barclays National Bank Ltd. v. Love. 1975 (2) SA 514 (D) at pp. 516H- 517A Miller J at the time said in relation to an affidavit supporting summary judgment.

“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 suggest 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.” It appears that the underlying premise of cases dealing with the adequacy of such affidavits in summary judgment proceedings is both the reliability and probative value of the evidence of the bank official, who by reason of the duties he or she is obliged to perform would in the ordinary course acquire personal knowledge of the current status of the credit receiver’s account as well as have accessed the relevant bank records while performing such duties, and the reliability of the bank’s records (by which I include the

record of transactions on the account and the credit receiver’s file records) and their probative value.”

[8] The deponent in her position with the applicant is better placed to have the necessary knowledge relating to this matter. Her reliance on the records and documents and her ability to swear positively thereto is sufficient. On that basis the point in limine stands to be dismissed.

[9] Another point in limine raised as a defence by the respondents is that the deponent was not authorised to institute these proceedings on behalf of the applicant as there was no resolution attached to the founding affidavit. The respondents criticize the document attached to the founding affidavit titled “Absa resolution–Signing Authorities within Relationship Banking- Risk Office”. It was submitted that this document does not grant the deponent the authority to institute and prosecute legal proceedings on behalf of the applicant.

[10] In contention the applicant argued that the respondents failed to challenge the authority to institute legal proceedings by serving a notice in terms of Rule 7 of the Uniform Rules of Court. This submission was correctly made by the applicant and reference made to the matter of Ganes and Another v Telecom Namibia Ltd 2004(3) SA 615 (SCA) where the following was stated:

“ …In determining the question whether a person has been authorised to institute and prosecute motion proceedings, it is irrelevant whether such person was authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings and the prosecution thereof that must be authorised. The remedy of a respondent who wishes to challenge the authority of a person allegedly acting on behalf of the purported applicant is not to challenge the authority in the answering affidavit but instead to make use of Rule 7(1) of the Uniform Rules of Court

The debtors did not avail themselves of the procedure provided for in Rule 7(1), and it is thus not open to them to challenge the authority of the deponent to the Applicant’s founding affidavit either in regard to deposing to affidavits or in regard to deposing to affidavits or in regard to instituting the application. During argument this line of attack on the deponent’s personal knowledge is without merit.

In this matter, the personal knowledge of the deponent to the Applicant’s founding affidavit is not relevant; what is relevant is whether or not the Applicant has made out a case on the papers and whether or not the Debtors have disclosed a defense to the relief sought by the Applicant”

It is indeed so that the respondents have failed to file a notice in terms of Rule 7 to challenge the authority to institute legal proceedings. However, the applicant did attach the general authority in the replying affidavit. This point in limine has no merit as well and stands to fail.

[11] The other defences raised by the respondents related to the fact that the proceedings were premature as the applicant failed to send the respondents the notices of cancellation of the agreement.

[12] The applicant attached a letter of cancellation addressed to the respondents dated 24 May 2022. The said letter was served by the Sheriff at the chosen domicilium of the respondents and also by registered post as it is evident from the Track and Trace reports. See:Rossouw v FirstRand Bank Limited 2010 (6) SA 439 (SCA).

[13] Section 129 of the National Credit Act 25 of 2005 (NCA) requires a creditor to send a letter of demand to the debtor informing of the debt before the commencement of legal proceedings. This will only be done if the National Credit Act is applicable to the credit agreement between the parties. In terms of section 4(1) of the NCA the Act does not apply to the consumer who is a juristic person whose annual turnover together with the combined assets at the time of the agreement equals or exceeds the threshold value determined by the Minister, which is the amount of R2 million rand. As such the NCA is not applicable in this matter. In any event the applicant did send a cancellation notice to the respondents before commencement of `legal proceedings. The defence of premature proceedings is not sustainable.

[14] The respondents argued that the surety agreements relied on by the applicant were not valid and therefore cannot be enforced. It was argued that the said agreements were not completed entirely and do not contain the relevant particularity. Further that the agreements required that the options that are not applicable be deleted, which was not done.

[15] The surety agreements attached to the applicant’s papers clearly refer to the second and third respondents binding themselves as surety and co-principal debtors in favour of the first respondent. The argument of the agreement not being completed in its entirety is not substantiated. It is not clear how it affects the validity of the surety and its enforceability. This argument by the respondent cannot succeed.

[16] The respondents argued that the assets delivered were not in working order and as such not fit for the purpose the first respondent wanted to use them for. In the instalment sale agreement signed by the parties there is a clause relating to delivery and acceptance of the assets which stipulates that:

“21.3 Clause 3 of the agreements under the heading: Delivery and Acceptance” stipulate

“Before you accept delivery of the Asset from the supplier you will that it is”.

· What you want or ordered

· Fit for the purpose for which you intend to use it

· In good working order; and

· Free of any defects.

We will pay for the asset when you have accepted it and ownership will pass to us, unless we already own the Asset in terms of a Sale and Purchase Agreement or interim loan agreement we have entered into with you.

Any claims or potential claims that you may have in relation to the Asset including but not limited to claims for:

· Defects

· Incompleteness

· Non-compliance with compulsory specifications

· Fitness for purpose; or

· Late or non-delivery

Are for you to pursue against the supplier and we shall have no liability whatsoever”.

[17] It is clear from a reading of the above clause that the respondent does not have a claim against the applicant if the assets were not in working order. Instead the claim should lie against the supplier of the assets.

[18] It is my view that the respondents did not raise any valid defence to the applicant’s claim and as such the relief as prayed for in Part A of the notice of motion should be granted.

Order

[19] Consequently, the following order is made:

1.4 2020 GWE 440 TT 6X4 AMT SR with engine number G[...]L and chassis number J[...]8 Hereinafter referred to as (“the assets”) is hereby ordered and directed to return and deliver to the applicant the assets.

2. In the event of the First Respondent and/or whosoever may be in possession of the assets failing to comply with the Order in terms of prayer 1 above, the sheriff or his deputy be and is hereby ordered and directed to forthwith take possession of the said assets and thereafter deliver same to the applicant.

3. The applicant is granted leave to approach Court, on the same papers, duly supplemented and amended, as may be necessary, in support of the relief claimed in part B of this application.

4. The relief sought in part B is postponed sine die, in order to afford the applicant an opportunity to value, and sell the assets, to determine the quantum of its claim against the

respondents, to be dealt with in part B of the application.

5. The costs occasioned by part A of this application, is reserved for determination at the hearing in part B of this application.

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT, MAHIKENG

APPEARANCES

DATE OF HEARING: 13 FEBRUARY 2023 JUDGMENT RESERVED: 10 MARCH 2023 DATE OF JUDGMENT: 21 APRIL 2023 COUNSEL FOR THE PLAINTIFF: ADV WILLIAMS SC COUNSEL FOR THE DEFENDANT: ADV W LUSENGA