GMG Trust Company (SA) (Pty) Ltd NO and Others v Botes (19/34636) [2019] ZAGPJHC 187 (19 June 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 19/34636

In the matter between: GMG TRUST COMPANY (SA) (PTY) LTD N.O First Plaintiff WILLEM HERMANUS SWANEPOEL N.O Second Plaintiff BRENDAN HARMSE N.O Third Plaintiff WESSEL GIETZMANN STADLANDER Fourth Plaintiff And BOTES: JACOBUS STEPHANUS Defendant

JUDGMENT

INGRID OPPERMAN j

[1] The plaintiffs, in their capacities as cessionaries having acquired the right, title, and interest in and to an instalment sale agreement (‘the agreement’) in respect of the sale of a motor vehicle (‘the vehicle’) instituted action against the defendant for:

1.1. cancellation of the agreement;

1.2. an order directing the defendant to return the vehicle to the plaintiffs; and,

1.3. payment of damages suffered in consequence of the defendant’s breach of the agreement at a later date.

[2] The action is defended. Plaintiffs have applied for summary judgment to be entered against the defendant in respect of the relief claimed in paragraphs 1.1 and 1.2 hereof. The claim in respect of damages is to be postposed sine die.

[3] The plaintiffs approach this Court on the grounds that the defendant, amongst other obligations, was required to make the monthly agreed instalment payments in terms of the agreement; the defendant, notwithstanding demand, failed to do so and as a result the

plaintiffs seek the cancellation of the agreement and the return of the vehicle.

[4] The defendant did not comply with the practice directive relating to the times for the filing of heads of argument. Instead, on the morning of the hearing, this court was presented with 35 pages of heads of argument. Mr Aucamp, representing plaintiff, having also only received the heads of argument on the morning of the hearing but being desirous for the matter to proceed, submitted that he had considered the arguments raised and that the matter could proceed.

[5] There were a number of opposed summary judgments and opposed rule 43 applications on the roll. Ordinarily litigants can’t expect a court to deal with a matter under such circumstances. The applicant, however, cannot be prejudiced by the defendant’s failure to comply with the practice directives issued by this court, so the matter was entertained to accommodate the desire of the applicant to have a speedy adjudication on its claim in summary judgement.

[6] Mr Aucamp, representing the Plaintiffs, quite correctly argued that most of the points raised by the defendant are points of law. He submitted that they could be dealt with at this stage. It is equally correct, as argued by counsel for the defendant, that summary judgment is not an appropriate procedure for dealing with complex questions of law.

[7] I reserved judgment in this matter to consider the heads of argument received and to reflect on the affidavit resisting summary judgment. I have serious misgivings about most of the points raised but dealing with them now has become unnecessary by virtue of my finding herein.

[8] The one feature raised, which causes me to conclude that a triable issue exists which should lead me to grant leave to defend, is the following: The defendant denies that an instalment sale agreement exists between him and Volkswagen. He contends that an instalment

sale agreement was concluded between him and the supplier of the vehicle.

[9] If, at trial, no agreement is shown to have been concluded between the Defendant and Volkswagen, then no cession could have occurred between Volkswagen and the Trust (the plaintiff/applicant). The locus standi of the Trust (the applicant in summary judgement) is accordingly in dispute. This feature, together with the host of other legal points raised should be dealt with at trial and are not to be dealt with at summary judgment stage.

[10] By virtue of the defendant’s failure to have complied with the practice directive relating to the filing of heads of argument in opposed summary judgment applications, I intend ordering the defendant to be liable for the costs of the hearing.

[11] I accordingly grant the following order:

11.1. The application for summary judgment is dismissed.

11.2. The costs of the hearing of the summary judgment application on 4 June 2019, are to be paid by the Defendant. The remainder of the costs in respect of the application for summary judgment, are to be in the cause.

__________________________

I OPPERMAN

Judge of the High Court

Gauteng Local Division, Johannesburg

Heard: 4 June 2019

Judgment delivered: 19 June 2019

Appearances:

For Applicant: Adv Aucamp

Instructed by: Smit, Jones & Pratt

For Respondent: Adv T Ngwenya

Instructed by: AS Attorneys