Firstrand Bank Limited t/a Wesbank v Linyana (1900/2015) [2015] ZAECGHC 80 (25 August 2015)

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. 1900/2015

DATE: 25 AUGUST 2015

In the matter between:

FIRSTRAND BANK LIMITED t/a WESBANK......................................................................Plaintiff

And

BUBELA LINYANA................................................................................................................Defendant

JUDGMENT

Bloem J

[1] This is an application for summary judgment. On 24 April 2015 the plaintiff issued summons against the defendant for the delivery of a certain 2009 VW Crafter 50 with chassis number [W………….], engine number [B……….] and registration letters and numbers [F……….] (the vehicle). After delivery of the defendant’s notice of intention to defend, the plaintiff delivered a notice of application for summary judgment with supporting affidavit. The defendant thereafter delivered his answering affidavit.

[2] The material facts upon which the plaintiff’s claim is based are that on 31 July 2009 it entered into an instalment sale agreement with a certain Mrs Ntombentsha (the purchaser) in terms whereof the plaintiff sold to the purchaser and the purchaser purchased from the plaintiff the vehicle. In terms of the agreement the purchaser was required to make 60 monthly payments of approximately R10 200.00 per month commencing from September 2009. The parties agreed that the plaintiff would remain the owner of the vehicle until all the amounts due under the agreement were paid. The purchaser furthermore agreed not to allow the vehicle to become subject to any attachment, lien, hypothec or any legal claim. By letter dated 26 January 2015, the plaintiff, through its attorneys, demanded the delivery of the vehicle from the defendant who was and still is in possession thereof. Since the defendant failed to deliver the vehicle to the plaintiff the latter issued summons against him for the delivery of the vehicle.

Its claim is based on the rei vindicatio.

[3] The defendant opposed the application for summary judgment on various grounds. He contended that this court does not have jurisdiction to entertain the plaintiff’s claim, that the purchaser has a direct interest in the subject matter of these proceedings and should accordingly have been joined as a party herein, that he has a lien over the vehicle and that the affidavit in support of the application for summary judgment is fatally defective in that it does not comply with the provisions of rule 32(2) of the Uniform Rules of Court.

Jurisdiction

[4] To dispense with the defendant’s contention that this court does not have jurisdiction to entertain the plaintiff’s claim, I only need to make reference to Thembani Wholesalers (Pty) Ltd v September and another 2014 (5) SA 51 (ECG) wherein the full court, after interpreting the relevant sections of the Superior Courts Act, 2013 (Act No. 10 of 2013), held

that this court, as the main seat of the Eastern Cape High Court, has jurisdiction over the entire Eastern Cape Province. The defendant and the purchaser reside (and the vehicle is) within the area of jurisdiction of this court. This court accordingly has jurisdiction

to entertain the plaintiff’s claim.

Non-joinder

[5] The relief sought is the delivery of the vehicle. The vehicle is still owned by the plaintiff because the purchaser has not fully paid the purchase price. In my view the joinder of the purchaser, in the circumstances of this case, is unnecessary because the issue in the action is between the defendant who is in possession of the vehicle and the plaintiff who wants delivery of the vehicle. The plaintiff, whose claim is based on the rei vindicatio, is entitled to claim its “property wherever found, from whomsoever holding it”. Chetty v Naidoo 1974 (3) SA 13 (A) at 20B. There is accordingly no merit to the defendant’s contention based on the purchaser’s non-joinder.

Lien

[6] The facts upon which the defendant, an attorney, relies for the contention that he has a lien over the vehicle are that the plaintiff repossessed the vehicle from the purchaser during 2013, the purchaser instructed the defendant to apply to court for an order that the vehicle be returned to her and the defendant secured a court order that the plaintiff return the vehicle to the purchaser. After the vehicle was returned to the purchaser, she and the defendant concluded a written agreement in terms whereof the defendant would keep the vehicle in his possession until the purchaser paid the full purchase price to the plaintiff. While the vehicle was in his possession the defendant would charge the purchaser a storage fee of R100.00 per day and in addition thereto a security fee of R50.00 per day. The agreement furthermore provides that the defendant would not release the vehicle unless “he

has been paid in full all the monies” due to the defendant by the purchaser and that if any person other than the purchaser wanted the vehicle, he or she would have to settle the defendant’s fees due by the purchaser.

[7] The issue in this regard is whether the defendant has been able to establish that he has a lien over the vehicle vis-à-vis the plaintiff. A lien is the right to retain physical control of another’s property as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor on that property, until the claim has been satisfied. A lien merely affords a defence against an owner’s rei vindicatio. It is not a cause of action. Brooklyn House Furnitures (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (AD) at 270F.

[8] A real lien (salvage or improvement lien) is afforded a person who has expended money or labour with monetary value on another’s property without any applicable prior contractual relationship between the parties. The expenditure in question has to be incurred while the person asserting the lien is in possession of the property. Singh v Santam Insurance Ltd [1996] ZASCA 92; 1997 (1) SA 291 (AD) at 295J. Where a person has incurred expenditure on property in pursuance of a contractual obligation existing between himself or herself and a person enjoying a possessory right over the property, the right of retention against the latter is termed a debtor and creditor lien.

[9] The defendant claims that his right of retention arises from the agreement that he concluded with the purchaser. According to him that “agreement enabled [him] to obtain and retain physical possession” of the vehicle. He furthermore states that the agreement was concluded to secure expenses incurred by him. The expenses that the defendant incurred are “the sheriff’s fees as well as the storage costs and the costs to transport the motor vehicle from Mthatha to Flagstaff” which he paid on the understanding that the purchaser would repay those expenses. The onus of proving the lien upon which he relies rests on the defendant. Singh v Santam Insurance Ltd at 294I – J.

[10] In my view the facts upon which the defendant relies do not establish a lien. Those facts show that the vehicle was not in his possession when the defendant rendered legal services to the purchaser. The right of retention only exists where there is possession. United Building Society v Smookler’s Trustees and Golombick’s Trustees 1906 TS 623 at 627). In this regard Schutz JA said at 295 J in Singh v Santam Insurance Ltd that “[w]hat the law requires for a lien is that the outlay should occur while the party claiming it is in possession of the subject matter”. The above expenses were incurred to enable the purchaser to obtain possession of the vehicle. In other words, the purchaser obtained possession of the vehicle after the defendant had incurred those expenses and after he had rendered legal services to the purchaser. Furthermore the legal services were rendered to the purchaser. Although they related to the release of the vehicle from the plaintiff’s possession, such services had nothing to do with the improvement or enhancement in value of the vehicle. A third party, like the defendant in these proceedings, obtains a real lien over instalment sale property insofar as improvements effected by him to the property may be classified as either necessary or useful. T J Scott LAWSA 2nd Edition, Vol 15, part 2 par 79. In this case there

is no evidence of any (let alone necessary or useful) improvements to the vehicle by the defendant or that the services that he rendered to the purchaser enhanced the value of the vehicle. In any event, the defendant claims a debtor and creditor lien and not a salvage or improvement lien.

[11] Regarding the defendant’s reliance on the agreement with the purchaser, the position is that a debtor and creditor lien, arising ex contractu, is available only against the parties bound by the agreement. Such a lien is restricted within the limits of contractual privity. In other words, in a debtor and creditor lien the creditor’s right of retention is good only against the debtor or possibly if the true owner expressly or impliedly consents to expenses being incurred on his property. Wynland Construction (Pty) Ltd v Ashley-Smith en andere 1985 (3) SA 798 (A) at 818B – D, Fesi v Ketye 1994 (2) SA 507 (E) at 511D, Colonial Cabinet Manufacturing Co v Wiid 1927 CPD 198 at 200 and United Building Society v Smookler’s Trustees at 629 and 630. In this case the defendant cannot claim a lien against the plaintiff because there was no privity of contract between him and the plaintiff. There is also no evidence that there was express or implied consent by the plaintiff to expenses being incurred for the storage or security of the vehicle. The defendant concluded an agreement with the purchaser, to the exclusion of the plaintiff. In all the circumstances, he is not entitled to the protection of a lien.

Alleged non-compliance with rule 32(2)

[12] The defendant contended that the application for summary judgment is defective for non-compliance with the provisions of rule 32(2) for two reasons, namely:

12.1 that the plaintiff did not deliver the notice of application for summary judgment within 15 days after the date of delivery of the defendant’s notice of intention to defend; and

12.2 that the person deposing to the plaintiff’s affidavit in support of the application for summary judgment failed to swear positively to the facts verifying the cause of action.

[13] The contention that the application for summary judgment was not timeously delivered is factually incorrect. The notice of intention to defend was delivered on 1 July 2015 and the application for summary judgment was delivered on 22 July 2015. The latter date was the last of the 15 day period referred to in rule 32(2) during which the plaintiff could deliver the application for summary judgment. In the circumstances, the plaintiff delivered its application for summary judgment within 15 days after the delivery of the defendant’s notice of intention to defend, in compliance with the provisions of rule 32(2).

[14] Rule 32(2) requires of the deponent of an affidavit in support of an application for summary judgment to swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. The affidavit in support of the application for summary judgment (the affidavit) was deposed to by the plaintiff’s legal manager. Paragraphs 3, 4 and 5 of that affidavit read as follows:

“3. The facts contained herein are within my knowledge, are true and correct and I can swear positively to the facts verifying, the cause of action and the amount claimed.

4. I have acquainted myself with the facts constituting the Applicant’s cause of action and as such facts accordingly falls within my personal knowledge and I can, therefore positively swear to the facts constituting the Applicant’s cause of action.

5. In view of my personal knowledge of the facts constituting the Applicant’s summons and confirm that the Respondents are indebted to the Applicant in the amount claimed in the summons, together with interest thereon and costs on the scale as between attorney and client, on the grounds as stated in the said Summons”.

[15] As pointed out above, the plaintiff’s claim against the defendant is for the delivery of the vehicle. The plaintiff does not claim any amount of money in the summons against the defendant, as alleged by the plaintiff’s legal manager. Secondly, there is only one defendant (respondent). What the plaintiff’s legal manager verified was the defendant’s alleged monetary indebtedness to it, a non-existent debt. To that extent the affidavit was clumsily drafted. One would expect better from a litigant like the plaintiff, especially in view of the fact that its deponent is its legal manager.

[16] In order to comply with the provisions of rule 32(2), an affidavit in support of an application for summary judgment must:

16.1 be made by the plaintiff or any other person who can swear positively to the facts;

16.2 contain a verification of the cause of action and the amount, if any, claimed; and

16.3 contain a statement by the deponent that in his opinion there is no bona fide defence to the claim and that the appearance to defend has been entered solely for the purposes of delay.

[17] The first and third requirements are not in issue in these proceedings because the legal manager is a person who can swear positively to the facts set out in the particulars of claim. She also stated that, in her opinion, there is no bona fide defence to the plaintiff’s claim and that the appearance to defend has been entered solely for the purposes of delay. Verification is done by reference to the facts alleged in the summons or particulars of claim, which facts support the cause of action. In other words, the deponent must swear positively to the facts which make up the cause of action. In paragraph 3 of the affidavit the legal manager stated that she “can swear positively to the facts verifying, the cause of action and the amount claimed”. She furthermore stated in paragraph 4 thereof that she acquainted herself with the facts constituting the plaintiff’s cause of action, that such facts fall within her personal knowledge and that she can, therefore, positively swear to the facts constituting the plaintiff’s cause of action. Did the affidavit satisfy the requirements of rule 32(2) which require a deponent to “swear positively to the facts verifying the cause of action”? In my view the above paragraphs make it clear that the legal manager swore positively to the facts which make up the cause of action. The fact that she erroneously referred to an amount allegedly claimed and confirmed an alleged or non-existent monetary indebtedness by the defendant to the plaintiff does not detract from the fact that she swore positively to the facts which verify the cause of action set out in the plaintiff’s particulars of

claim. The erroneous allegations contained in the affidavit caused no prejudice to the defendant. In the circumstances, I am of the view that the plaintiff complied with the provisions of rule 32(2).

Conclusion

[18] In all the circumstances, the plaintiff, as the owner of the vehicle, is entitled to the delivery thereof by the defendant. Summary judgment should accordingly be granted in favour of the plaintiff against the defendant.

[19] In the result, the defendant is ordered:

19.1 to deliver, within five (5) days from the date of this judgment, the 2009 VW Crafter with chassis number [W…………], engine number [B……….] and registration letters and numbers [F………] to the plaintiff; and

19.2 to pay the costs of the action, inclusive of the application for summary judgment, on the scale as between party and party.

G H BLOEM

JUDGE OF THE HIGH COURT

For the plaintiff: Adv. K L Watt, instructed by Huxtable Attorneys, Grahamstown

For the defendant: Mr D Mili (Attorney) of Mili Attorneys Grahamstown

Date of hearing: 11 August 2015

Date of delivery of the judgment: 25 August 2015