BMW Financial Services (South Africa) (Pty) Ltd v Mbulelo Paul Gladstone Notyawa (547/2018) [2018] ZAECGHC 49 (12 June 2018)

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

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 547/2018

Date Heard: 08 May 2018

Date Delivered: 12 June 2018

In the matter between:

BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY) LTD

(REG NO: 1990/11467/07) Applicant

and

MBULELO PAUL GLADSTONE NOTYAWA

(IDENTITY NO: [….])

Respondent

JUDGMENT

JAJI J:

[1] This is an opposed application for summary judgment. The applicant sought the following order:

(i) Confirming the cancellation of the instalment agreement;

(ii) Authorising the Sherriff of the High Court to attach, seize and handover the vehicle to the plaintiff;

Motor Vehicle: BMW X3 X Drive 351 M-Sport A/T_ (05047820-2012)

Engine number: 03497882

Chassis number: WBAWX72060LK69773

(iii) Costs of suit;

(iv) Leave to approach the Honourable Court in these proceedings for the relief sought under prayers 5 set our below;

(v) Payment of the sum due to the plaintiff after deduction of the proceeds of the sale of the vehicle in terms of section 131 of the National Credit Act 34 of 2005 with costs, be postponed sine die.

[2] On 22 March 2018, a certain Bavika Chhotalal, deposed to a supporting affidavit confirming that she was assigned to this matter and have access to and control over all the files, accounts and other documents relating to the written instalment agreement concluded between the parties. She confirmed the correctness and swore positively to all the facts set out in the summons and particulars of claim.

[3] Ms Chhotalal, confirmed that the respondent was indebted to the applicant in the sum of R 61 562.41 on the grounds as stated in the summons and particulars of claim. She went further to say she verified the cause of action as set out in the summons and particulars of claim.

[4] In the particulars of claim, paragraph 4.7, it is alleged that “the defendant purchased from the plaintiff a 2012 BMW X3 Drive 35i M-Sport A/T motor vehicle with engine number 03497882 and chassis number WBAWX72060LK69773” (the same vehicle that the sheriff

was being authorised to attach, seize and handover to the applicant) See the notice of application for summary judgment.

[5] Paragraph 4.7 of the particulars of claim stated that “a certificate issued by a manager of the applicant/plaintiff, whose authority need not be proven by the plaintiff would be sufficient proof of the amount owing by the defendant/respondent in terms of the instalment sale agreement.

[6] As per paragraph 6.1 of the particulars of claim, “in breach of the instalment sale agreement, the defendant has failed to make due and punctual monthly payments to the plaintiff and is in arrears in the sum of R61 562.41 as at the time hereof and

the outstanding balance due by the defendant to the plaintiff in terms of the Instalment Sale Agreement. Certificate of balance

attached with reference NOTYAWA 12011866 which is the same as agreement number NOTYAWA 12011866 as per annexure “B”,

being the instalment sale agreement comprising of engine number and chassis number similar to the notice of application for summary

judgment.

[7] In the affidavit, in terms of section 129, Ms Chhotalal once again confirming that she had access and control over all accounts and other documents relating to the instalment sale agreement under account number NOTYAWA 12011866 which is the same as the agreement number.

[8] The section 129 notice dated 10 January 2018, also refer to the same chassis number and engine number as the notice of application for summary judgment.

[9] In its opposing affidavit, the respondent contended that the applicant was paid out in full by Alexander Forbes Insurance, who provided comprehensive motor vehicle insurance when the vehicle to which this matter relates was damaged beyond repairs on 09 December 2012. (Same vehicle which is sought to be attached, seized and handover as per the notice of application for summary judgment).

[10] It was further alleged that the applicant’s assessors confirmed that the vehicle was a write-off. The respondent alleged that his insurance settled the amount in full. He then proceeded to buy another vehicle from the applicant.

[11] On 04 may 2018, 4 days before the application was to be heard, the applicant served and filed a notice inclusive of documents in the form of statement of account, payment history by the defendant and a substitution letter by applicant to defendant.

[12] (i) The applicant referred to the substitution letter in the filing notice

contending that nothing changed between the applicant and the respondent, it submitted that it was the same agreement number;

(ii) The plaintiff was now claiming an amount of R43 695.96 due to the payments made by the respondent;

(iii) It claimed that it was undisputed that the contract is the same;

(iv) Substitution did not change anything;

(v) Plaintiff belatedly admitted that the vehicle which was the cause of action was written off;

(vi) Accordingly the applicant was not proceeding with the prayer for attachment, seizure and handover. Applicant did not make submissions regarding the rest of its prayers as per the notice of application for summary judgment especially prayers 4 & 5;

(vii) Applicant submitted that substitution does not take away rights to claim. The contract is the same, only is the description;

(viii) Further submitted that respondent continued to make payments and as such could not argue prescription;

(ix) Contended that if the respondent was arguing that the pleadings were vague and embarrassing, it should have filed exception;

(x) Applicant contended that defendant entered appearance to delay. Even if leave to defend was granted, on trial the same argument would be made;

(xi) It contended that the amount sought was R43 965.96 and legal costs on trial would be out of proportion in the High Court if one has regard to the claim. It argued that plaintiff made a proper case in terms of the contract. It claimed that plaintiff was entitled to the amount even if the vehicle was written off.

[13] (i) In reply, the respondent submitted that the applicant has to stand and

fall by his papers. He cannot rely on a document which is new;

(ii) Rule 32(4) “No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in sub rule (21), nor may either party cross-examine any person who gives evidence viva voce or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it considers may elucidate the matter.” Therefore the applicant could not introduce new evidence by filing new documents which were not part of the founding affidavit. As the papers stand, the applicant cannot say its case is unanswerable;

(iii) In the application, there is a vehicle “A” described in all the documents, it is alleged that defendant fell in arrears but the applicant does not allege in the application that there was a new vehicle that substituted the first one;

(iv) Page 58 of the respondent’s opposing papers, a submission is made regarding the settlement by the insurance. On these basis alone, the claim could not be unanswerable. The application was materially defective. The applicant falls short on statutory requirements;

(v) The certificate of balance attached is completely different from the amount claimed in court, i.e R43 965.96, in the section 129 notice, reference is about a vehicle A (written off) no where do we see vehicle B, clearly, the applicant fall short of statutory

requirements. The court cannot say that the claim is unanswerable. The application is materially defective and as such no proper case has been made before court. Instead, the applicant sought to introduce evidence through the back door by a filing notice comprising of new documents. The applicant must stand and fall by its papers;

(vii) The vehicle which is the subject of this application no longer exists. The obligations were discharged by insurance settlement of Alexander Forbes.

[14] Respondent prayed for the application to be dismissed with costs on the High Court scale which include costs to date of argument.

[15] Applicant submitted that the amount owing at the time of argument was R43 965.96. It claimed it was unethical to claim high amount when it was less. Regarding costs, it insisted on costs on the Magistrate’s court scale because even the defendant at paragraph 28 in its opposing affidavit asked for Magistrate’s court scale costs.

APPLICABLE LEGAL PRINCIPLE

[16] It is trite that “unless a plaintiff presents a clear case on technically correct papers in strict compliance with Rule 32, summary judgment must be refused. The test applicable for summary judgment is trite and established, namely, whether the defendant’s affidavit discloses a defence at law, which, if established at the trial, will be a complete answer to plaintiff’s case, the so called bona fide defence.

“Where a defence is based on facts (that is, where the defendant disputing facts alleged by plaintiff in summons or raising new facts in defence) the court is not to determine the balance of probabilities, it will only determine:- (i) whether, on facts disclosed, defendant having bona fide defence good in law. The word “fully” requiring the defendant to disclose defence and material facts upon which it is based with sufficient particularly and completeness to enable the court to divide whether the affidavit discloses bona fide defence.” (See Tesven CC and another v South African Bank and Another 2000 (1) SA 268 (SCA).)

[17] It was held in summary judgment application that the issue was not whether the defence raised was likely to succeed or fail but merely whether it was bona fide (See Muller and Others v Botswana Development Corporation Ltd 2003 (1) SA 621 (SCA).)

[18] In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 “if the defence is based on facts, all the court enquired into is ‘whether on the facts so disclosed the defendant appears to have as either the whole or part of the claim, a defence which is both bona fide and good in law. If, satisfied on these, the court must refuse summary judgment.”

[19] In application proceedings the applicant must make its case in the founding affidavit and not thereafter as the applicant has done by introducing new documents through the filing notice. The founding affidavit embodies both pleadings and evidence. Documentary evidence may be attached in support of the allegations in the founding affidavit, but an applicant may not justify its case by relying on facts which emerged from annexures which had not been attached. Rule 32(4) speaks to this point as well.

[20] On the facts, having heard both counsel, it could not be said that the applicant’s claim is unanswerable and accordingly summary judgment is refused and leave to defend granted with cost on Magistrate’s court scale.

[21] I, therefore make the following order:

(1) Summary judgment is refused;

(2) Leave to defend is granted;

(3) Costs on the Magistrate’s court scale.

N.P JAJI

JUDGE OF THE HIGH COURT

Appearances

Counsel for the applicant : Adv Olivier

Instructed by

: Nolté Smit Attorneys

City Chambers

115 High Street

GRAHAMSTOWN

Counsel for the respondent : Adv Claudius

Instructed by

: Enzo Meyers Attorneys

100 High Street

Ref: AF Bassoon/nn/N017