Firstrand Bank Limited t/a Wesbank v Sayelo (Pty) Ltd t/a Giani Dry Cleaners and Laundry (2023-039069) [2024] ZAGPPHC 1282 (29 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2023-039069

(1) REPORTABLE: Yes/ No

(2) OF INTEREST TO OTHER JUDGES: Yes/ No

(3) REVISED.

DATE: 29/11/2024

SIGNATURE

In the matter between: FIRSTRAND BANK LIMITED T/A WESBANK Plaintiff And SAYELO (PTY) LTD T/A GIANI DRY CLEANERS AND LAUNDRY Defendant

JUDGMENT

MBONGWE, J:

INTRODUCTION

[1] This is an opposed application for summary judgment in proceedings the Plaintiff (hereinafter ‘the Applicant’) instituted against the Defendant (‘the Respondent’) following allegations that the latter has, by its failure to effect payments of agreed amounts of monthly instalments in respect of goods sold and delivered, has breached the terms of two written credit agreements between them. In Claim A, the Applicant seeks full payment of the balance outstanding in the purchase price of the goods concerned plus interest and costs and, in Claim B, the return of the specified movable goods concerned.

[2] In its filed plea to the claims against it, the defendant; on the one hand, disputes the validity of the agreements on the alleged premise that same had ;- not been signed; do not record the agreed amounts

and payments and that, therefore, the Applicant’s claims are not liquid, not for liquidated amounts in money and are not founded on liquid documents as required in Rule 32(2). The Respondent contends that the Applicant is not entitled to summary judgment in these circumstances. On the other hand, and in direct contrast, the Respondent admits the agreements, but asks that the court invokes the provisions of section 83 of the National Credit Act 34 of 2005 and exonerate the Respondent from the obligations imposed on it by the agreements. In essence, the defendant, a juristic entity, disputes the allegations in the agreements that at the time the agreements were concluded it had an asset value and/ or turnover of more than R1 000 000 and that the loan amounts concerned were in excess of R2 500 000 and that, consequently, the agreements were not subject to the provisions of the National Credit Act. Put differently, the Respondent contends that its financial position at the time of the conclusion of the agreements with the plaintiff

placed it within the parameters of the application of the National Credit Act and that, therefore, the Applicant had been reckless in lending it the loans and should, consequently, bear the consequences of such recklessness.

[3] Notably, in its answering affidavit resisting summary judgment, the Respondent is silent on the defences it raised in its pleas to the plaintiff’s claims and has instead not only raised points in limine, but also put up additional defences. In the points in limine the Respondent disputes the eligibility of the deponent to the founding affidavit to depose to the facts in support of the application for summary judgment.

BACKGROUND FACTS

CLAIM A

[4] On 14 June 2019 and at Centurion the plaintiff, represented by a duly authorised representative and the defendant, represented by Raquel Stevens entered into a written credit agreement in terms whereof the plaintiff sold to the defendant a certain boiler and piping equipment for a total agreed amount of R187 280.64 payable in 48 equal monthly instalments of R3 901.68 commencing on 23 July 2019 and subsequent payments to be made on or before the 23rd day of each succeeding month until the full purchase price has been settled.

[5] The goods were duly delivered to and received on behalf of the defendant by Raquel Stevens, inter alia. In line with the terms of the agreement, the defendant paid the monthly instalments as agreed until much later when defaults in payments set in.

CLAIM B

[6] On 3 December 2019 and at Centurion the plaintiff represented by a duly authorised representative and the defendant represented by Raquel Stevens entered into a further written credit agreement in terms of which the plaintiff sold to the defendant certain laundry equipment for an agreed amount of R668 050.56, including VAT and interest, less a deposit amount that was paid. The balance of the purchase price was payable in 48 equal monthly instalments of R13 917.72 – the first payment being due and payable on 23 December 2019 and subsequent payments payable on or before the 23rd day of each succeeding month until the full purchase price has been paid.

[7] It was recorded in each agreement that neither was subject to the provisions of the National Credit Act 34 of 2005 at the time of its conclusion for the reason that the defendant was a juristic entity with an asset value and/or turn over in excess of R1 000 000 and the principal debt in excess of R250 000.

[8] It is not in dispute that in respect of each agreement the goods concerned were duly delivered by the plaintiff and received on behalf of the defendant by Raquel Stevens, inter alia, and that the defendant had acted on the agreements by effecting the agreed monthly payments.

DEFAULTS

[9] The plaintiff alleges that the defendant is in breach of the agreements by its failure to continue with its monthly payments resulting in growing arrear amounts. As a result of the breach, the plaintiff seeks, in Claim A, payment of the total amount outstanding which, in terms of the relevant certificate of balance as at 28 February 2022, stands at R85 679.04 including fixed rate of interest at 13.8% per annum, calculated from the 24 June 2022.

[10] The amount due and owing by the defendant in respect of Claim B, according to the certificate of balance as at 28 February 2022, stood at R353 980.51 together with interest thereon at the fixed rate of 14.2% calculated from the 24 February 2022. The Applicant seeks cancellation of the agreement and the return of the goods concerned which are to be sold and the balance, if any, to be recovered from the Respondent.

[11] The defendant has not been able, despite lawful demand and subsequent service of the summons on it, to pay the balance owing in respect of claim A nor has it returned the goods concerned in respect of Claim B.

[12] The defendant has however entered appearance to defend both claims and also filed its pleas to the claims in May 2023. The plaintiff filed its application for summary judgment in September 2023. In terms of the new Rule 32(2), the plaintiff, if so inclined, was required to have filed the application for summary judgment within 15 days from the date of receipt of the defendant’s plea. It is noted that despite filing its application out of time, the plaintiff has not sought condonation. This aspect is dealt with in the conclusion of this judgment.

[13] The defendant filed its answering affidavit resisting summary judgment on 26 October 2023 and has raised therein, inter alia, points in limine whose veracity this court is enjoined to consider and make a determination on prior to considering the defences raised in the plea. The relevant principle was stated as follows:

“It is well established that, because summary judgment is a remedy which prevents a defendant from running a defence, although it is one which is not bona fide and is only intended to delay, the plaintiff fulfil all formal requirements. This is before the merits are considered.”[1]

PURPOSE OF RULE 32 (2)

[14] The purpose of summary judgment in terms of Rule 32(2) is to enable a plaintiff with a clear case to seek an expedited adjudication of his claim against a defendant who has no real defence to the claim against him and has filed appearance to defend and a plea merely to delay the enforcement of the plaintiff’s claim.[2]

[15] Prior to 1 July 2019, the plaintiff was required in terms of the old Rule 32(2) to bring an application for summary judgment within 10 days from the date of service on it of an appearance to defend. In terms of the new Rule 32(2), which became operational from 1 July 2019, it is mandatory for a plaintiff who seeks summary judgment to bring the relevant application within 15 days after the defendant has filed his plea. The filing of the plea before summary judgment is sought is to enable the plaintiff to deal with the issues raised in defence of the claim and to demonstrate that the defence raised is unsustainable nor does it raise triable issues.

CONDONATION

[16] The defendant was to file its answering affidavit not later than five days before the hearing of this application. The defendant has brought an application for the condonation of the late filing of its answering affidavit stating the reason for ‘the delay’ as being a dispute it has had with its erstwhile attorneys, whose mandate it has since withdrawn, regarding fees.

POINTS IN LIMINE

[17] The defendant has raised three points in limine which it stated thus:

17.1 The Applicant’s claims amount to a duplication, whereby should the court grant the claims as prayed for, the Applicant will

thus be unjustly enriched at the expense of the Respondent.

17.2 The Deponent lacks the requisite personal knowledge to bring this application.

17.3 The Applicant’s claim is not based on a liquid document or a liquidated amount in money.’’

ANALYSIS OF THE POINTS RAISED

[18] With regard to the first point in limine, it is impossible to comprehend how the plaintiff’s claims can be perceived to be a duplication. It is common cause that the plaintiff has instituted two claims – each founded on a different written agreement, concerns different goods, concluded on different dates and, finally, the relief sought in each claim is different from that sought in the other. The allegation of a duplication of the claims and the perceived prejudice to the defendant are contrived and stand to be dismissed.

[19] In respect of the second point in limine, the suggestion that the deponent to the founding affidavit has brought this application on behalf of the Applicant is untenable. The name and identity of the applicant is clearly stated on the papers and is different from that of the deponent to the founding affidavit who is not a party in this case. In terms of Rule 32(2), a plaintiff shall, within 15 days from the date of delivery of the plea, deliver a notice of application for summary judgment, together with an affidavit made by the plaintiff or by any other person who can swear positively to the facts. The deponent to the founding affidavit herein is not the plaintiff, but such ‘other person’ who has knowledge of the facts of the case and can swear positively thereto as per the principle in the Dean Gillian Rees matter referred to hereunder.

[20] The purpose of reducing an agreement to writing is to record and store, for future reference, the material terms of the agreement between the parties. A written agreement endures despite the authorised representatives who signed on behalf of the parties no longer being available. The applicable principle was aptly laid down in Dean Gillian Rees v Investec Bank Ltd[3] as follows:

“Many summary judgment applications are brought by financial institutions and large corporations. First-hand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of such financial institution or large corporations. To insist on first-hand knowledge is not consistent with the principles espoused in Maharaj.”

[21] The basis for the involvement of the deponent to the founding affidavit is succinctly set out in paras 3 and 4 of the founding affidavit and can be summarised as follows: she is in the employ of the plaintiff as a manager responsible for the recovery of debts due to the plaintiff – a responsibility that allows her access to the plaintiff’s business systems wherein detailed information relating to the nature and the relationship (nexus) between the plaintiff, as a lender of money, and the defendant, as borrower, it is stored in terms of the Electronic Communications and Transactions Act 36 of 2005. It is from these sources that the deponent gathered knowledge of the facts relevant to this matter between the parties and qualified, consequently, to depose to the founding affidavit. In Barclays National Bank Ltd v Love[4] the court described a person who is not qualified nor suitable to depose positively to the facts in an application for summary judgment as:

“One who does not have personal knowledge of the facts to which he deposes but merely believes them to be the facts because of information which he has obtained from others, is not a person such as is visualised in Rule 32(2). Whether the deponent is a person able to swear positively to the facts will depend largely upon what he says in the affidavit but the ipse dixit of the deponent will not necessarily be sufficient to establish the necessary qualifications.”

[22] Further clarification of the qualification to depose positively to the facts was expressed in President of the RSA and Others v M and G Media Ltd[5] in the following words:

“…. It is about how knowledge, practically speaking, is acquired, and how a deponent lays the foundation for alleging personal knowledge of certain facts.”

In my view, the deponent to the founding affidavit could not have demonstrated any better that she was qualified to depose positively to the facts in this matter.

[23] The issue of first-hand knowledge of the facts was settled in Dean Gillian Rees case referred to above.

[24] In both agreements between the parties, the agreed amounts depicting the extent of the defendant’s indebtedness to the plaintiff, the amounts of monthly repayments and the duration thereof as well as the description of the goods concerned are clearly stated. The contention that the plaintiff’s claims are not liquid, not for liquidated amounts in money or are not founded on liquid documents is plainly absurd and ought to be rejected.

DEFENCES:

ESTABLISHED GUIDING PRINCIPLES

[25] Summary judgment ought to be granted where the plaintiff has demonstrated that it has a claim that is sounding in money; the amount owing is determinable from the document or the claim is for the return of specified movable goods or is for eviction from property.

[26] It is in the plea that the defendant discloses the nature and factual grounding of its defence. To resist summary judgment, the defence has to be sustainable, that is, one that is good in law, or raises a triable issue and is bona fide. The courts have stated the following circumstances as resulting in successful resistance to the granting of summary judgment or as not good enough to resist summary judgment:

26.1 “the defendant must show that he has a defence which, if proved at trial, would be a good one and that he is honest in his attitude.”[6]

26.2 “he (a defendant) voices his suspicion, but further he cannot take the matter. That is not good enough. Nor is it enough for the defendant to state that he has no knowledge of the allegations.”[7]

26.3 “[32] The rational 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 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 In the Maharaj case at 425G – 426E, Corbett JA, was keen to ensure first, an examination whether there has been sufficient disclosure by a 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 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 a 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.”[8]

NEW RULE 32(2)

[27] A defendant seeking to resist summary judgment is confined to the defences raised in the plea already filed. It is irregular for a defendant to raise, as in this matter, a defence in the answering affidavit resisting summary judgment that was not raised in the plea that was filed. Rule 32(2) does not make provision for the applicant for summary judgment to file a replying affidavit. A deviation in the answering affidavit to a defence pleaded in filed plea is a manifestation of a lack of bona fides. Summary judgment ought to be granted where the plaintiff has met the requirements and the defences in the plea cannot hold and/or different or additional defences have been raised in the answering affidavit without amendment of the plea having been sought and granted.

ANALYSIS

[28] In its plea filed in May 2023, the defendant notably does not deny receipt of the goods referred to in the plaintiff’s claims. Instead, it on the one hand disputes the validity of the agreements and, on the other hand, merely admits the agreement, but disputes the terms thereof, and fails to state the basis for the dispute. These are the agreements by the conclusion of which the defendant had received the goods. Furthermore, the defendant does not deny that it has acted on the terms of the written agreements by effecting the agreed monthly payments for the goods, until it began to default. To seek the invocation of the provisions of section 83 of the National Credit Act in these circumstances is disingenuous.

[29] By seeking the invocation of section 83 of the National Credit Act, the defendant, unfathomably, appears to be intent on retaining possession of the goods without having to pay the outstanding balances or to return the goods referred to in Claim A and Claim B, respectively.

ANALYSIS AND CONCLUSION

[30] Insofar as the defendant’s case is concerned, no real defences have been raised to the plaintiff’s claims, nor are there triable issues raised for this court to refuse summary judgment. In fact, there is a glaring absence of bona fides in the stance and purported defences raised by the defendant.

[31] Save for its failure to seek condonation for the late filing of the summary judgment application, the plaintiff has succeeded, in my view, in proving its claims against the defendant. The defendant has ill-advisedly sought to invoke the provisions of section 83 of the National Credit Act, effectively for its exoneration from its liabilities. It is noteworthy that the defendant has tendered no evidential proof of its financials demonstrating that the agreements ought to have been subject to the National Credit Act 34 of 2005 at the time each agreement was concluded. The failure to tender the return of the goods points to an intent to retain possession thereof without payment of the balances due. It is apparent, therefore, that the plaintiff stands to suffer a potential loss, unless this application succeeds.

[32] In my view, but for the failure to seek condonation for the late application for summary judgment, the plaintiff has met the requirements of Rule 32(2) and, therefore, entitled to summary judgment. The defendant, on the other hand, has failed to raise any sustainable defence and/or to disclose fully, or at all, the nature of its defences and the material facts it relies upon as required in Rule 32(3)(b)[9]. It is, in my view, in the interests of justice in the circumstances to overlook the plaintiff’s indiscretion rather than to expose it to a possible realisation of the potential harm I have referred to. Equally important in this regard is the absence of any prejudice to the defendant that may be occasioned.

ORDER

[33] Following the conclusion in this judgment, I make the following orders:

1. The plaintiff’s application for summary judgment in respect of both Claims A and B is granted.

2. The defendant is ordered to pay the costs on the attorney and client scale B.

MPN MBONGWE

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Adv W.P. Steyn Instructed by: Baloi Swart & Associates Inc For the Respondent: Adv DA Weyers Instructed by: Elliot Attorneys Inc Date of hearing: 13 March 2024 Date of delivery: 29 November 2024

THIS JUDGMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES’ LEGAL REPRESENTATIVES AND UPLOADED ONTO CASELINES ON 29 NOVEMBER

2024.

[1] Gauteng Refinery [PTY] Ltd v Eloff [2022] JOL 55614 [G] at para 10

[2] Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA)

[3] (330/13) [2014] ZASCA 38 (28 March 2012)

[4] 1975(2) SA 514 (D)

[5] 2012 (2) BCLR 181 (CC) at para [29]

[6] Herb Dyers (Pty) Ltd v Mahomed and Another 1965(1) SA 31(T)

[7] Western Province Hardware and Timber Co (Pty) v Frank Fletcher 1971(2) PH 77

[8] see Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture [161/08 [209] ZASCA 23; 2009 (5) SA 1 (SCA); [2009] 3 All SA 407 (SCA) (27 March 2009)

[9] Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)