BMW Financial Services (SA) (Pty) Limited v Pather (29638/2018) [2019] ZAGPJHC 337 (13 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 29638/2018

In the matter between:

BMW FINANCIAL SERVICES (SA) (PTY) LIMITED PLAINTIFF

AND

PATHER: SIVASANGARAN DEFENDANT

JUDGMENT

TWALA J

[1] In this opposed application for summary judgment, the applicant seeks an order against the respondent in the following terms:

1. That the cancellation of the agreement between the parties is confirmed;

2. That the defendant shall forthwith return the 2017 BMW X5 M motor vehicle with engine number 20431553 and chassis number WBSKT620800C90726 (“the vehicle”) to the plaintiff. In the event that the defendant fails to return the vehicle, the Sheriff is directed to remove the vehicle from wherever it may be found and return it to the plaintiff;

3. That the defendant shall pay the costs of this application on the attorney and client scale.

[2] It is common cause that the on the 21st of July 2017 and within the jurisdiction of this Court, the plaintiff and the defendant concluded an instalment sale agreement in terms whereof the plaintiff sold and delivered to the defendant a certain 2017 BMW X5 M motor vehicle with chassis number WBSKT620800C90726 and engine number 20431553. It is further not in dispute that the defendant has failed to meet its obligations in terms of the

agreement in that it has failed to make payment of the agreed monthly instalments and has fallen into arrears in the amount in excess of R262 201.75.

[3] Counsel for the defendant submitted that the affidavit filed in support of the summary judgment application is defective in that the commissioner of oath certified in his certificate that the deponent is a male person whereas the deponent described herself as a female. It was contended further that this suggests that the deponent did not deposed to the affidavit in the presence of the commissioner of oaths and therefore there is no affidavit before this Court in support of the summary judgment application. The Court has no discretion to condone this defect and the application should be dismissed.

[4] Further, it was contended by counsel for the defendant that, although the commissioner of oath to the summary judgment affidavit is in the employ of another company, his company also does work for the plaintiff – thus he is therefore incompetent to commission the affidavit for he has an interest to bring to finality a matter of his client. He is conflicted in this case since the plaintiff is a client of his company.

[5] Counsel for the plaintiff contended that the defendant is raising technical defences which do not address the merits of the case. The Court has discretion to condone any matter where there is sufficient compliance with the regulations. Further, there is no merit in the argument that the commissioner of oath is conflicted in this case since his company is also doing work for the plaintiff. The commissioner of oath is employed by a different company from the attorneys of the plaintiff and cannot therefore to be said he is conflicted in this case.

[6] In Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) which was quoted with approval in Life Healthcare Group (Pty) Ltd v Mdladla & Another (42156/2013) [2014] ZAGPJHC 20 (10 FEBRUARY 2014) the court stated the following:

“No doubt parties and their legal advisers should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

[7] I agree with counsel for the plaintiff that the defendant has raised only the technical defences and has not answered the case of the plaintiff. There is no merit in the argument that the certificate by the commissioner describes the deponent as a male whereas she testified that she was a female. The deponent has testified in his affidavit and confirmed her testimony before the commissioner of oaths. The regulation prescribes that an affidavit must be commissioned by a commissioner of oath and this has been done. It is therefore my considered view that there was sufficient compliance with the regulation. Further, the defendant did not establish any prejudice that is meted against it in this regard and therefore I am inclined to allow the affidavit to stand.

[8] I do not agree with counsel for the defendant that the commissioner of oath has an interest in this case. Nothing has been placed before this Court to show that the commissioner of oath is conflicted except to say that his firm of attorneys is also doing work for the plaintiff. It is my respectful view that such a contention is far-fetched. A commissioner of oath does not normally read the contents of the affidavit but only ascertain from the deponent that he or she knows the contents of the affidavit. It cannot therefore be said that, when he commissioned the affidavit in this case, he had an interest to bring the case of his client to finality.

[9] It is trite that for a defendant to successfully resist an application for summary judgment, it must satisfy the Court that it has a bona fide defence and must disclose fully the nature of the grounds of the defence and the material facts relied upon for such defence.

[10] In the case of Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA), the Court stated the following:

“The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of her/his day in court. After almost a century of successful application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj case at 425 G-426E, Corbett JA, was keen to ensure first, an examination of whether here has been sufficient disclosure by the defendant of the nature and grounds of his defence and the facts upon which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good in law. A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of the defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.”

[11] In the present case, the defendant has filed an affidavit resisting summary judgment which affidavit contained only the technical

defences as enunciated above. In my view, it is not that the defendant did not understand what the plaintiff’s claim is about, but deliberately avoided to establish a bono fide defence and to set out the nature and grounds of its defence and the facts upon which it is based with sufficient clarity to satisfy the Court that the defendant has a bona fide defence which is good in law.

[12] In the circumstances, I make the following order:

The draft order marked “X” and annexed hereto is made an order of Court.

__________________

TWALA M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

Date of hearing: 6th August 2019

Date of Judgment: 13th August 2019

For the Plaintiff: Adv K Meyer

Instructed by: Smit Jones & Pratt

Tel: 011 532 1500

For the Defendant: Adv. C A du Plessis

Instructed by: Nkosi Rodgers Attorneys

Tel: 011 475 4458