Man Financial Services SA (Pty) Ltd t/a Man Financial Services v Segaole Trucking and Transport (Pty) Ltd and Others (39/2023) [2024] ZANWHC 187 (11 July 2024)

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

NORTH WEST DIVISION, MAHIKENG

CASE NO: 39/2023

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

MAN FINANCIAL SERVICES SA (PTY)LTD Applicant

t/a MAN FINANCIAL SERVICES

(REGISTRATION NUMBER: 1997/011686/07)

AND

SEGAOLETRUCKINGANDTRANSPORT(PTY)LTD 1ST Respondent

(REGISTRATION NUMBER: 2018/515666/07)

BAY LEAP TRADING 11(PTY) LTD

2ND Respondent

(REGISTRATION NUMBER: 2018/386004/07)

THATO NOEL SEGAOLE

3RD Respondent

(IDENTITY NUMBER: 8[...])

ANITA SMANGELE SEGAOLE

4TH Respondent

(IDENTITY NUMBER: 9[...])

Heard: 30 MAY 2024

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses.

The date for the hand-down is deemed to be 11 JULY 2024

ORDER

I make the following order:

1. Cancellation of the instalment sale agreement between the parties confirmed:

2. Return of the goods;

2.1 2021 NEW MAN TGS- 27 440 6X4 BBS-L

ENGINE NUMBER: 5[...]

CHASSIS NUMBER: A[...]

2.2 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.3 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.4 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

ENGINE NUMBER: A[...]

2.5 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.6 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.7 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

2.8 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.9 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.10 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

2.11 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.12 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.13 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.14 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3. The 1st and 2nd respondent are ordered to pay costs jointly and severally the one paying the other to be absolved on scale B.

JUDGMENT

DJAJE DJP

[1] This is an application for summary judgment wherein the applicant seeks to confirm the cancellation of the sale agreements and the return of the goods from the first respondent. The second to fourth respondents bound themselves as sureties and co-principal debtors in solidum with the first respondent for its fulfilment of the obligations towards the applicant. The said goods are as follows:

“ACCOUNT NUMBER: 9[...]

2021 NEW MAN TGS- 27 440 6X4 BBS-L

ENGINE NUMBER: 5[...]

CHASSIS NUMBER: A[...]

ACCOUNT NUMBER: 9[...]

ACCOUNT NUMBER: 9[...]

2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

ENGINE NUMBER: A[...]

2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

CHASSIS NUMBER: A[...]”

[2] The first respondent fell in arrears of the sale agreement and the applicant cancelled the agreement by notice on 12 December 2022 and claimed payment of the whole outstanding balance. After the cancellation of the agreement the applicant issued summons against

the respondents. A notice to defend was delivered on behalf of the respondents and after that a plea as well.

[3] As a result of the respondents delivering a plea to the action, the applicant brought a summary judgment application. In opposing the summary judgment, the respondents argued that the applicant is in possession of a guarantee for the amount owed to the applicant and as such is not entitled to summary judgment.

[4] The procedure of summary judgment has for many years been regarded as an extraordinary and stringent one in that it closes the doors of the court to the respondent and permits a judgment to be given without a trial. In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) paras 32-33 Navsa JA, the court held that:

“The rationale 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 successful 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 trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) case at 425G-426E, Corbett JA was keen to ensure, first, an examination of whether there has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts on which it is founded. The second consideration is that the defence so disclosed must be both 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. Having regard to its purpose and its proper application, summary judgment proceedings only hold terrors and are “drastic” for a defendant who has no defence. Perhaps the time has come to discard these labels and to concentrate rather on the proper application of the rule, as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425G-426E”

[5] The respondents must satisfy the court by affidavit that they have a bona fide defence to the claim on which summary judgment is being applied for. The word ‘satisfy’ does not mean ‘prove’. What the rule requires is that the respondents must set out in the affidavit facts which, if proved at the trial, will constitute an answer to the applicant’s claim. See Visser v Kotze (519/2011) [2012] ZASCA 73 (25 May 2012)

[6] In the main the respondents in the answering affidavit resisting summary judgment argued that in terms of Rule 32(3) of the Uniform Rules of Court, the respondents have furnished the applicant with a guarantee in the form of an endowment policy for any amount owed to the applicant. The said policy is in the amount of four million five hundred and eighty-two thousand one hundred and sixty-two rand eighty-six cents (R4 582 162.86).

[7] The applicant argued that the claim against the respondents does not constitute monetary judgment and therefore quantum is not proved at this stage. In relation to the guarantee referred to by the respondents it was argued that at the time the matter was argued before court there was no proof thereof attached to the respondents’ opposing papers. However, it was conceded that the applicant is indeed aware of the endowment policy although it was not attached to the respondents’ papers. The applicant submitted that endowment policy relied on by the respondents does not disentitle the applicant from exercising its rights to recover the assets from the first respondent as contained in the sale agreements.

[8] Rule 32(3) of the Uniform Rules of Court provides that:

“32 Summary Judgment

(3) Upon the hearing of an application for summary judgment the defendant may-

(a) give security to the plaintiff to the satisfaction of the registrar for any judgment including costs which may be given, or

(b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of himself or of any other person who can swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.”

[9] According to the respondents they have furnished security and therefore the applicant is not entitled to a summary judgment. The respondents clearly do not raise a bona fide defence to the applicant’s claim. In the opposing papers they refer to a guarantee which is not attached. Even if it was indeed attached, the applicant is entitled to exercise its rights to cancel the agreements and demand return of the goods as provided for in the agreements between the parties.

[11] It is my view that the respondents did not raise any valid defence to the applicant’s claim and as such the relief as prayed for in the summary judgment application should be granted.

Order:

[12] Consequently, the following order is made:

1. Cancellation of the instalment sale agreement between the parties confirmed:

2. Return of the goods;

ENGINE NUMBER: 5[...]

CHASSIS NUMBER: A[...]

ENGINE NUMBER: A[...]

3. The 1st and 2nd respondent are ordered to pay costs jointly and severally the one paying the other to be absolved on scale B.

J T DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING: 30 MAY 2024 RESERVED DATE: 30 MAY 2024 DATE OF JUDGMENT: 11 MAY 2024 COUNSEL FOR THE APPLICANT ADV MARX DU PLESSIS COUNSEL FOR THE RESPONDENT: MR MOHANGO