Mercedes-Benz Financial Services (Pty) Ltd v Mahowa (18716/2017) [2017] ZAGPPHC 619 (29 September 2017)

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

(GAUTENG DIVISION, PRETORIA)

Reportable

Of interest to other judges

29 September 2017

Revised.

CASE NO: 18716/2017

In the matter between:

MERCEDES-BENZ FINANCIAL SERVICES (PTY) LTD Plaintiff

and

MAKOMA MMAPHETOLA MAHOWA Defendant

JUDGMENT

MAAKANE AJ:

INTRODUCTION:

1. This is an application for summary judgment. It appears from the pleadings that Plaintiff s cause of action is based on a written contract, which is referred to and attached as Annexure "A" to its summons and particulars of claim.

2. The Defendant opposes the application and has filed an affidavit in support of her opposition thereto.

BACKGROUND:

3. According to Plaintiffs particulars of claim, on or about 18 November 20_15, the parties entered into and concluded in writing, an instalment sale agreement, Annexure "A".

4. In terms of the said contract, Plaintiff sold to the Defendant a motor vehicle which for convenience, I will describe as a Mercedes-Benz GLA 200 CDI (" the motor vehicle").

5. The purchase price or total amount that the Defendant had to pay to the Plaintiff pursuant to this sale agreement was R618,613.80. This total purchase price include finance charges in the amount of approximately R173,000.00.

6. A further allegation made is that the Plaintiff delivered the said motor vehicle to the Defendant on or about the 18th November 2015. This is apparently on the same day that the contract was concluded.

7. In paragraph 11 of its particulars of claim, Plaintiff alleges that the Defendant has breached the agreement for the reason that she failed to make the payments in terms of the contract. As at 2 March 2017, so it alleges, the Defendant was in arrears totalling R27,095.72. It is not clear from the particulars of claim the number of months of default this figure represents.

8. It is also common cause that Plaintiff issued and delivered to the Defendant a letter in compliance with the provisions of Section 129 of the National Credit Act 34 of 2005. In the letter, Plaintiff brought it to the attention of the Defendant that she was in the arrears and also, demanded payment of the outstanding balance.

9. It is also common cause that this letter was not sent by registered post. It was served on the Defendant personally, by the Sheriff of the district or area in which the Defendant is domiciled. This appears to be Ga-Kgapane, in the Province of Limpopo. The return of service states that this was done by the Sheriff Bolobedu, - Limpopo.

10. Although this is not clear from the particulars of claim it appears that Plaintiff thereafter instituted these proceedings. In its prayers before me, Plaintiff among others seeks an order:

10.1 Directing that the agreement is cancelled;

10.2 Directing the Defendant or any person who may be in possession of the Mercedes-Benz vehicle which forms the subject matter of this action, to forthwith deliver same to the Plaintiff.

AFFIDAVIT RESISTING SUMMARY JUDGMENT:

11. It is so that the Defendant did depose to an affidavit in order to resist and oppose this application. In her affidavit, she raises a number of issues. For obvious reasons, I will not deal with all of the issues raised. I do not find it necessary to do so. I will only deal with two (2) of these issues.

12. Firstly, she alleges that the Plaintiff's particulars of claim do not comply with the provisions of Rule 18(6) of the Uniform Rules of this Court. Secondly, she alleges that this Court does not have jurisdiction to hear this matter. She makes the allegation, that she is domiciled in Limpopo Province. I will now deal with each of these issues in some detail.

JURISDICTION:

13. In its particulars of claim, Plaintiff describes the Defendant as an adult female with chosen domicilium citandi et executandi "..... at […], Ga-Kgapane, 0383".

14. In paragraph 3 of its particulars of claim, Plaintiff alleges that this Court has jurisdiction to hear the matter by virtue of one or more or all of the following respects:

14.1 Partial performance of the contract had to take place within the area of jurisdiction of this Court, in that payment is made into Plaintiffs bank account which is within its jurisdiction;

14.2 The agreement was concluded within the area of jurisdiction of this Court;

14.3 The Defendant is domiciled within the area of jurisdiction of this Court.

15. Defendant disputes all of these grounds. With regard to the first, her counsel argued that payment was deducted from her bank account which is kept in her home, Province of Limpopo, by way of a debit or stop order. In other words, she did not have to drive from Limpopo to Gauteng in order to make the deposit payments into Plaintiff's account. All payments were made from her bank which is kept in Limpopo. For these reasons, so goes the argument, payment and therefore performance of the contract was done in Limpopo and not within the area of jurisdiction of this Court.

16. With regard to the second ground, Defendant again takes an issue. In this regard complainant says that there is no allegation in the particulars of claim as to the exact place where the contract was concluded. In his argument counsel for the Defendant argued and pointed out that the exact place where the contract was concluded has not been pleaded specifically in the particulars of claim as is required by Rule 18(6). Because the Plaintiff has failed to do so, he submits the particulars of claim are excipiable.

17. With regard to the third and last ground, Defendant alleges that indeed she is domiciled At […] Ga­ Kgapane in the Province of Limpopo. This is the address fully set out in the Plaintiff's particulars of claim as well as paragraph 12 hereof. She denies that she is domiciled within the area of jurisdiction of this Court.

18. It is also important to mention that this is the address chosen by the Defendant as her domicilium citandi and also appears on the written contract. It is now common cause that the written Section 129 letter was not sent by post. It was delivered and served personally on the Defendant at the said address, in Ga-Kgapane, Limpopo Province.

19. Counsel for the plaintiff, referred the Court to a copy of an invoice which appears in the paginated papers. On the face of it, it is an invoice apparently issued by Mercedes Benz Sandton and addressed to Plaintiff. He argued that from said document, the Court can infer that the contract was concluded in Sandton.

20. I may also pause to mention that on this very invoice, there are delivery particulars which are given as delivery to Mrs M M Mahowa, […] Ga-Kgapane Limpopo 0838.

NON-COMPLIANCE WITH RULE 18(6):

21. Rule 18(6) of the Uniform Rules of this Court provides as far as is necessary as follows:

"A party who in his pleadings relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded. and if the contract is written, a true copy thereof or of the part relied on in the pleadings shall be annexed to the pleadings. "

22. In paragraph 4 of its particulars of claim, the Plaintiff makes the following allegations:

"4. On or about 18 November 2015 the Plaintiff and the Defendant concluded a written instalment sale agreement ("the agreement'), a copy of which is attached hereto as Annexure "A", and the Honourable Court is requested to read the contents thereof as if specifically pleaded herein."

23. It is that when one has regard to the provisions I have referred to above, Plaintiff's particulars of claim at paragraph 4 do not comply with the provisions of Rule 18(6) in that:

23.1. Plaintiff does·not allege exactly where the contract was concluded;

23.2. Plaintiff does not allege by whom the contract was concluded. This is so when one takes into account the fact that Plaintiff is not a natural but a juristic person.

24. In his argument, counsel for the Plaintiff correctly in my view, conceded that the particulars of claim do not comply with the provisions of Rule 18(6). He, however, went on to argue that the non-compliance is not material in nature and that the Court can in its discretion, condone such non-compliance.

25. In support of this submission he referred me to paragraph 7 of his heads of argument where the quotes from Summary Judgment: A Practical Guide as follows :

"The High Court is vested with inherent jurisdiction to condone any procedural irregularity as non-compliance with its rules. No fixed rules can fetter that discretion. The rules of Court stout general guidelines within which that discretion is to be exercised. As a result, the Court may condone any irregularity or neglect which does not materially prejudice the other party." .

(my underlining)

26. As I have pointed out, Defendant has in her affidavit taken issue with the non-compliance. She points out that for these reasons alone, Plaintiff's particulars of claim are excipiable.

27. In support of the argument, counsel for the Defendant referred me to Rule 18(12) of the Uniform Rules of this Court. Rule 18(12) of the Uniform Rules of this Court provide as far as is necessary as follows:

"(12) If a party fails to comply with any of the provisions of this rule, such pleading shall be deemed to be an irregular step and the opposite party shall be entitled to act in accordance with Rule 30."

28. His argument is· therefore that summary judgment cannot be granted under circumstances where Plaintiff's particulars of claim are clearly excipiable and constitute an irregular step.

LEGAL PRINCIPLES AND THE COURT'S APPROACH: RULE 32:

29. Application for summary judgment is governed by the provisions of Rule 32 of the Uniform Rules of this Court. It is therefore important that I have regard to that rule before taking a final decision in this regard.

30. Rule 32(1) provides as far as is necessary as follows:

"(1) Where a defendant has delivered a notice of intention to defend. the Plaintiff may apply to Court for summary judgment on each of such claims in the summons as is only

(a) .......

(b) ······

(c) For delivery of a specified immovable property.

(d) ......"

(e)

31. Rule 32(2) provides that an application for summary judgment shall be accompanied by:

" an affidavit made by himself (Plaintiff) or by any other person who can swear positively to the facts verifying the course of action and the amount claimed, if any, claimed and stating that·in his opinion there is no bona fide defence to the action and that the notice of intention to defend has been delivered solely for the purpose of delay."

31.1 It follows from the provisions of both sub-rules (1) and (2) of Rule 32 to which I have referred, that at the core of the whole Rule 32 and the entire summary judgment procedures, is the delivery of a notice of intention to defend by a Defendant in an action. Delivery of a notice of intention to defend immediately triggers to the Plaintiff, an entitlement to apply for summary judgment. Such an application is only competent if in the opinion of a Plaintiff such a defendant has no bona fide defence to his claim or

action and that the notice of intention to defend has been delivered for the purpose of delay.

32. In his affidavit in support of the application for summary judgment, the deponent on behalf of the Plaintiff makes the following statement

"5.

From my own knowledge of the matter and the Appellant 's operation of business as well as having perused and examined the aforesaid documents and records I hereby:

5.1

Swear positively that the Respondent is liable to the Applicant for the relief claimed as set forth in the particulars of claim.

5.2

I verily believe that the Defendant has no bona fide defence to the claim and that appearance has been entered solely for the purpose of delay."

33. The important question here to be considered is whether the affidavit of the Plaintiff as it is, complies with the provisions of Rule 32. I will do so on assumption that the deponent is entitled to and competent to depose to this affidavit for and on behalf of the Plaintiff.

34. In Fischereigesellschaft v African Frozen Products 1967 (SA) 105 (C) Theron J held that:

"On an ordinary straightforward grammatical interpretation of the words used here, the requirements of the affidavit would appear to consist of the following:

(a) that the affidavit should be made by the Plaintiff himself or by any person who can swear positively to the facts;

(b) that it must be an affidavit verifying the cause of action and the amount if any, claimed; and

(c) that it must contain a statement by the deponent that in his opinion [i] there is no bona fide defence to the action and [ii] that the notice of intention to defend has been delivered solely for the purpose of delay."

35. Applying the test set out above, it is common cause that the deponent correctly states that she

".... verify the cause of action ...

This is in conformity of the provisions of the rule. In this regard, the first hurdle has been crossed.

36. Regarding the next requirement, the Plaintiff s deponent alleges that

"I verily believe .... that the Defendant has no bona defence…”

It is so that what the rule prescribes is a statement that .... "In his opinion. there is no bona fide defence to the action."

37. It is clear from the above that the words in his (or her) opinion do not appear anywhere in the affidavit. This is non-compliance with the provisions of the Rule.

38. Again, the words "Notice of Intention to Defend' do not appear anywhere in the Plaintiff's affidavit. Instead Plaintiff refers to an "appearance". The word "appearance" does not appear anywhere in Rule 32. I have already pointed out the importance of the "notice of Intention to Defend' and the fact that it forms the very basis of an application for summary judgment.

39. In its affidavit the deponent to the Plaintiff s affidavit states the following:

"I verily believe that the Defendant does not have a bona fide defence to the claim and that appearance has been entered solely for the purpose of delay."

40. What I understand with Rule 32 is that it requires that the Plaintiff must state. In other words what is required of the Plaintiff in terms of the Rule is a statement. The rule further prescribes exactly what the Plaintiff or deponent must state, namely that:

(i) In his (or her) opinion;

(ii) The Defendant does not have a bona fide defence to the action; and

(iii) The notice of intention to defend has been delivered solely for the purpose of delay.

41. As I have pointed out, it is now common cause that the word "opinion" does not appear anywhere in the Plaintiff s affidavit. That is not the only difficulty. The other is that the deponent makes no allegation or even reference whatsoever to "the notice of intention to defend” and or the "delivery" thereof. In other words, she fails to state that the Notice of Intention to Defend has been delivered solely for the purpose of delay.

42. Regarding this important aspect, this Court has held that:

"The delivery of the notice of intention to defend is the very basis for an application for summary judgment. There can be no application for summary judgment unless a notice of intention to defend has been delivered. For this reason, failure by the Plaintiff to make even reference to or mention of a the notice of intention to defend and or the delivery thereof cannot be condoned."

See: Jacolien Frieda Jansen van Rensburg N.O. and Another v Abigak 1 General Trading & Investment CC (Unreported: case no. 30005/6-GNP) at paragraph [28].

43. It is important that I repeat and emphasise that summary judgment by its very nature, is a very drastic remedy. It has the effect of completely denying a defendant any opportunity of presenting his or her case by way of a trial. It effectively shuts the Defendant's mouth once and for all. It is for this reason that strict compliance with the rule is required from a party that brings such an application. This being so, the Court will not grant the application unless it is satisfied that Rule 32 has fully been complied with. This approach by our courts finds application in a number of decided cases.

44. In Group Areas Development Board v Hassim and Others 1964 (2) SA 327(7), summary judgment was refused because the deponent failed, in his affidavit to state that "in his opinion" the Defendant does not have a bona fide defence.

45. In First Rand Bank Ltd v Beyer 2011 (1) SA 196 (GNP) Ebersohn AJ held:

"It is clear that strict compliance with the provisions of Rule 32(2) is required for a summary judgment to become a final judgment .... A summary judgment is an extremely extraordinary and drastic remedy, often referred to as a draconian measure. It shuts the mouth of the Defendant finally. A party who seeks to avail himself of this drastic remedy, must in my view, comply strictly with the provisions of the rule."

46. Counsel for the Plaintiff argued that the court has the power to condone non-compliance with the rules as fully set out in the Defendant's affidavit. With regard to condonation of non­ compliance, Ebersohn AJ in Beyers supra held:

"[7] It is so that the court has the power to condone where technical non-compliance with the provisions of rule 32(2), but cannot condone non-compliance with the safeguards built into Uniform rule 32(2) for the benefit of defendants...,

…

[21] If the necessary and required particulars were not provided in the affidavit the court is obliged mero muto to refuse the applicant for summary judgment, whether it is opposed or not."

47. I am satisfied that the Defendant has in her affidavit disclosed fully the nature and grounds of her defence, as well as the material facts she relies on. These are triable issues which can only be ventilated and dealt with fully , by a trial court. It is not my duty to examine this affidavit and comply with the standard of a plea.

48. In Maharaj v Barclays National Bank Ltd 1976 (1) 418 (AD) the Court held that a Defendant opposing summary judgment ".. need only disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to determine if he has a bona fide defence. The Defendant however, is not expected to formulate his opposition with a precision that would be required of a plea; nor does the Court examine it with the standards of a plea."

49. The non-compliance and defects in the Plaintiff's affidavit are material in nature. These cannot be condoned. It is quite clear that the Plaintiff's affidavit does not comply with the provisions of Rule 32. This being the case, summary judgement cannot be granted.

CONCLUSION:

50. I accordingly make the following order:

1. The application for summary judgment is refused;

2. The Defendant is granted leave to defend the action;

3. The costs of this application shall be costs in the cause.

_________________

S S MAAKANE

Acting Judge of the

High Court of South Africa

Gauteng Division, Pretoria

APPEARANCES:

Counsel for the Plaintiff : Adv. C. J. Welgemoed

Instructed by : Strauss Daly Attorneys

Counsel for Defendant : Adv. M. E. Manala

Instructed by: Mahowa Inc.