Firstrand Bank Ltd t/a Nissan Finance v Multipoint Logistics CC and Another (24520/2018) [2019] ZAGPJHC 107 (28 March 2019)
The court found that the defendants failed to raise a bona fide defence that would constitute a good defence to the summary judgment application. The technical defences regarding locus standi, the section 129 notice, and the validity of the suretyship agreement were insufficient. The court was satisfied that the...
Source-derived case information.
- Citation
- [2019] ZAGPJHC 107
- Parties
- Plaintiff: Firstrand Bank Ltd t/a Nissan Finance; Defendant: Multipoint Logistics CC; Defendant: Ntlantla George Gule
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 24520/2018
- Procedural Posture
- Summary Judgment Application / Hearing and Judgment
- Outcome
- Summary judgment granted in favour of the plaintiff.
- Judges
- Ngalwana
- Legal Topics
- Summary Judgment, Instalment Sale Agreement, Suretyship, National Credit Act, Electronic Communications and Transactions Act
Source-derived case record
Summary, issues, holding and outcome
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Parties
Firstrand Bank Ltd t/a Nissan Finance
Plaintiff
Multipoint Logistics CC
Defendant
Ntlantla George Gule
Defendant
Procedural Posture
Summary Judgment Application / Hearing and Judgment
Legal Issues
- 1 Whether the defendants have a bona fide defence to the summary judgment application.
- 2 Whether the deponent to the summary judgment application has locus standi.
- 3 Whether the summons was preceded by a valid section 129 notice under the National Credit Act.
Ratio Decidendi
The court found that the defendants failed to raise a bona fide defence that would constitute a good defence to the summary judgment application. The technical defences regarding locus standi, the section 129 notice, and the validity of the suretyship agreement were insufficient. The court was satisfied that the instalment sale agreement complied with section 14 of the ECTA and that the NCA did not apply to the agreement due to the status of the parties and the nature of the agreement. Accordingly, summary judgment was warranted.
Court Disposition
Summary judgment granted in favour of the plaintiff.
Orders
- Summary judgment is granted.
- The defendants are directed, jointly and severally, forthwith to deliver the 2017 Nissan NP200 1.5 DCI A/C Safety Pack P/U S/C (Chassis Number: ADNUSN365U0124764, Engine Number: K9KM890D011967) to the plaintiff.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NUMBER: 24520/2018
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
In the matter between:
FIRSTRAND BANK LTD T/A NISSAN FINANCE Plaintiff/Applicant
and
MULTIPOINT LOGISTICS CC First Defendant/Respondent
NTLANTLA GEORGE GULE
Second Defendant/Respondent
JUDGEMENT
NGALWANA AJ
[1] The plaintiff seeks summary judgment against the defendants in respect of a debit balance on a car instalment sale agreement and a suretyship agreement. It seeks repossession of the car together with costs of suit.
[2] The defendants resist summary judgment on the grounds that (1) the deponent to the summary judgment application lacks locus standi; (2) the summons was not preceded by a notice in terms of section 129 of the National Credit Act, 34 of 2005 (“the NCA”); (3) the suretyship agreement is invalid because, being married in community of property, the second defendant did not have the consent of his spouse to bind himself as surety and co-principal debtor to the first defendant, which consent must be witnessed by two other persons.
[3] In argument, Counsel for the defendants challenged the integrity of the instalment sale agreement, invoking section 14 of the Electronic Communications and Transactions Act, 25 of 2002 (“ECTA”).
[4] The plaintiff says the NCA does not apply to this agreement because (1) the first defendant is a juristic person who has an annual turnover in excess of R1 million; (2) the second defendant is a credit guarantee as envisaged in section 4(2)(c) of the NCA and so the NCA does not apply in respect of him either; (3) the agreement is in any event a large agreement within the contemplation of the NCA.
[4] Neither the technical defences advanced by the defendants in the pleadings, nor the argument advanced by their Counsel in respect of ECTA suffice to forestall summary judgment in my view. The standard is whether the defendants have a bona fide defence that, if proved, would constitute a good defence to the action. None of these technical defences meet that standard. I am satisfied that annexure “B” to the particulars of claim complies with the requirements of section 14 of ECTA.
[5] In the circumstances, I am persuaded that summary judgment is warranted.
[6] As regards costs, I am not persuaded that a punitive costs order on an attorney and client scale is warranted.
Order
1. Summary Judgment is granted.
2. The defendants are directed, jointly and severally, forthwith to deliver the following property to the plaintiff:
2017 NISSAN NP200 1.5 DCI A/C SAFETY PACK P / U S / C
CHASSIS NUMBER: ADNUSN365U0124764
ENGINE NUMBER: K9KM890D011967
3. The defendants are, jointly and severally, to pay the plaintiff’s costs on a party and party scale, the one paying the other to be absolved.
Ngalwana
Acting Judge of the High Court
Appearances
For the plaintiff: BM Lukhele
Instructed by: Rossouws Lesie Inc
For the defendants: G Segal
Instructed by: Gary Segal Attorneys
Date of hearing: 26 March 2019
Date of judgment: 28 March 2019