First Rand Bank Limited t/a Wesbank v Twin Corner Construction and Projects 7 t/a Twilight Electrical Installations and Maintenance and Others (1178/2019;1179/2019;1180/2019;1192/2019 & 1193/2019) [2019] ZAECGHC 130 (12 December 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE Nos. 1178/2019; 1179/2019; 1180/2019; 1192/2019 & 1193/2019

In the matters between:

FIRST RAND BANK LIMITED T/A WESBANK Plaintiff

and

TWIN CORNER CONSTRUCTION AND PROJECTS 7

T/A TWILIGHT ELECTRICAL INSTALLATIONS AND

MAINTENANCE

First Defendant

THEMBEKA DELIWE

Second Defendant

THUNZI DELIWE

Third Defendant

JUDGMENT

RUGUNANAN, AJ:

[1] Before me are five applications for summary judgment involving the same parties and substantially similar causes of action. In each matter, the plaintiff’s claim is founded on an instalment sale agreement concluded with the first defendant for the sale of a light delivery motor vehicle.[1] The material terms of the agreement include, inter alia, an allegation that “The plaintiff would be entitled to provide a certificate from one of its managers showing the amount due by the defendant and how the amount is calculated.” [2] Allied to the instalment sale agreements are suretyship agreements concluded between the plaintiff and the second and third defendants,

the latter having bound themselves jointly and severally for the punctual payment of sums due to the plaintiff by the first defendant.

In each case the main relief claimed against the defendants entails “(i) Confirmation of cancelation (sic) of the Agreement; (ii) return of the vehicle and (iii) Damages” [3] plus interest.

[2] The applications interceded after the amendment of uniform rule 32 with effect from 1 July 2019. While the amended rule has introduced several substantive amendments, it is not necessary for present purposes to undertake a detailed analysis of the amendments. This judgment only deals with the following issues, viz:

(i) whether the affidavit in support of the application for summary judgment complies with the requirement in rule 32(2)(a) that it be made by a person who can “swear positively to the facts”; and

(ii) whether in terms of rule 32(2)(b) the said person did “verify the cause of action and the amount, if any, claimed”.

[3] The deponent to the supporting affidavit states, in each case, as follows:

“1. I am a Recoveries Manager of the Applicant firm herein, and I am therefore duly authorised to make this affidavit.

2. In my capacity as a Recoveries Manager, I have control of and access to all records of any recoveries handled by the Applicant and I have had access to the records pertaining to the matter.

3. I have acquainted myself with the facts constituting the Applicant’s cause of action as such facts accordingly fall within my personal knowledge.

4. The facts contained herein are further true and correct.

5. In view of my personal knowledge of the facts constituting the Applicant’s cause of action, I therefore verify the cause of action is set out in the Applicant’s Summons.

6. In my opinion that (sic) the 1st, 2nd and 3rd Respondents have no bona fide Defence to the Applicant’s claim and the Appearance to Defend has been entered solely for the purpose of delaying the action.

7. ….”

[4] It is immediately apparent that the deponent does not expressly state that he verifies the amount claimed as is required by rule 32(2)(b). In each of the matters an essential element of the cause of action is the defendants’ indebtedness to the plaintiff, which indebtedness the plaintiff proves by way of “a certificate from one of its managers showing the amount due by the defendant and how the amount is calculated.” Because the requisite certificates have not been annexed to the combined summonses I am not persuaded that the deponent’s

assertions in paragraphs 3 and 5 supra comply with the terms of rule 32(2)(b). This leaves me in doubt about whether, in relying on his own knowledge, it is inherently probable that on the information gathered from the content of the papers as a whole,[4] that the deponent has direct knowledge of most (if not all) of the material or salient facts, particularly the amount claimed in the combined summons. I am unable to accept at face value that he is able verify the cause of action without expressly asserting that he could swear positively to the facts (rule 32(2)(a)) contained in the combined summons. The omission to verify the amount is probably the consequence of improper attention having been given to the drafting of the supporting affidavit in each of the matters before this Court.

[5] In the circumstances the deponent’s mere assertion that he is able to verify the cause of action is insufficient to support the applications for summary judgment as there are no grounds for believing that he fully appreciated the meaning of these words.[5] This is particularly so for the reason that the affidavit gives no indication of what he definitively considered are the relevant

“records pertaining to the matter.” One must assume that in present circumstances the deponent meant the documents in copied form attached to the combined summons. Absent the certificate, there is accordingly no basis to qualitatively assess whether the amount claimed in each instance may be ascertained from such documents.

[6] Regard being had to the above, I need not consider whether the defendants have made out a bona fide defence.

[7] The following order issues:

(i) The application for summary judgment in each of the aforementioned

cases is dismissed with costs and the defendants are granted leave to defend the action in each case.

______________________

S. RUGUNANAN

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: Adv. Knott

Instructed by Huxtable Attorneys

Makhanda / Grahamstown

For the Defendants: Adv. Ntlokwana

Instructed by Yokwana Attorneys

Date heard:

17 September 2019

Date delivered

12 December 2019

[1] Case No. 1178/2019 involves a 2016 Ford Ranger 3.2 TDCI Wildtrack 4x4 with engine and chassis numbers more fully set out in paragraph

5 of the particulars of claim; Case No. 1179/2019 involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim; Case No. 1180/2019 similarly involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim; Case No. 1192/2019 also involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim; Case No. 1193/2019 similarly involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim;

[1] Case No. 1178/2019 involves a 2016 Ford Ranger 3.2 TDCI Wildtrack 4x4 with engine and chassis numbers more fully set out in paragraph

5 of the particulars of claim;

Case No. 1179/2019 involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim;

Case No. 1180/2019 similarly involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim;

Case No. 1192/2019 also involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim;

Case No. 1193/2019 similarly involves a 2017 Nissan NP200 1.6 with engine and chassis numbers more fully set out in paragraph 5 of the particulars of claim;

[2] Clause 6.6 of the agreement attached to the particulars of claim reads: “You agree that the Seller may provide a certificate

from one of its managers, whose position it will not be necessary to prove, showing the amount due to the Seller and how it is

calculated.”

[3] The amounts vary in each of the cases: R355 273, 37 in Case No. 1178/2019; R131 623, 33 in Case No. 1179/2019; R139 402,

42 in Case No. 1180/2019; R131 186, 53 in Case No. 1192/2019; and R139 938, 38 in Case No. 1193/2019

[4] In other words by reference to other documents relating to the proceedings which are properly before the court. see Maharaj v

Barclays National Bank Limited 1976 (1) SA 418 (AD) at 423 H. The principle is that in deciding whether or not to grant summary judgment, the court looks at the matter at the end of the day on all the documents before it (Sand and Co. Ltd v Kollias 1962 (2) SA 162 (W) at 165 B-C

[5] cf. Maharaj supra at 423 D-E