Mercedes Benz Financial Services South Africa (Pty) Ltd v Reddy (19311/2009) [2009] ZAGPPHC 146 (19 November 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

Date: 2009-11-19

UNREPORTABLE

Case Number: 19311/2009

In the matter between:

MERCEDES BENZ FINANCIAL SERVICES

SOUTH AFRICA (PTY) LTD Applicant/Plaintiff

and

GEEVARATHNAM REDDY Respondent/Defendant

JUDGMENT

SOUTHWOOD J

[1] The plaintiff applies for summary judgment against the defendant for the return of Jeep Cherokee 2.8 CRD LIMITED motor vehicle with engine number 4W280800 and chassis number 1J8GM585X4W280800 (‘the vehicle’) and costs on the scale as between attorney and client. The defendant failed to file an answering affidavit timeously and applies for condonation for the late filing of his

answering affidavit and has filed a separate answering affidavit. The issue of whether the defendant has a bona fide defence will determine whether or not condonation is granted. Counsel addressed argument based on the contents of both affidavits.

[2] In its particulars of claim the plaintiff alleges that:

(1) on 22 January 2008 it entered into a written instalment sale agreement (‘the agreement’) with the defendant in terms of which it sold the vehicle to the defendant;

(2) in terms of the agreement –

(i) notwithstanding delivery of the vehicle ownership remained vested with the plaintiff;

(ii) the defendant was obliged to pay a total amount of R156 416,72 to the plaintiff in accordance with the agreement’s payment schedule: i.e. a first instalment of R5 912,04 on 1 February 2008; 17 monthly instalments of R5 912,04, commencing on 1 March 2008 and a final (residual) instalment of R50 000 on 1 July 2009;

(iii) if the defendant failed to pay any amounts payable in terms thereof and remained in default after the plaintiff had given notice of such default, the plaintiff would be entitled to cancel the agreement, obtain return of the vehicle, retain all payments already made and recover such damages as it is entitled to;

(3) the plaintiff delivered the vehicle to the defendant on 22 January 2008;

(4) the plaintiff has performed all its obligations in terms of the agreement;

(5) the defendant failed to pay the instalments payable in terms of the agreement and on 26 November 2008 was in arrears in respect of such instalments in the amount of R35 777,32;

(6) on 26 November 2008 the plaintiff gave notice in writing to the defendant of the extent of the arrears and demanded payment of the outstanding balance;

(7) the defendant failed and/or refused to make payment and the plaintiff cancelled the agreement alternatively gave notice in the summons that it cancelled the agreement;

(8) on 5 March 2009 the defendant owed the plaintiff the sum of R127 872,78.

[3] The plaintiff served the summons on the defendant in April 2009.

[4] To avoid summary judgment the defendant is required by Rule 32(3)(b) to set out in his affidavit facts which if proved at the trial will constitute an answer to the plaintiff’s claim. The Rule also requires that the defendant satisfy the court that the defence is bona fide. This means that the defendant must swear to a defence, valid in law, in a manner which is not inherently and seriously unconvincing.

Finally, it is required of the defendant that he set out the facts on which he relies ‘fully’. This means that the statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff’s claim. If the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the court to consider in relation to the requirement of bona fides – see Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227G-228F.

[5] The defendant does not deny any of the plaintiff’s abovementioned allegations. He admits most and does not pertinently dispute the rest. On the strength of these undisputed facts the plaintiff is entitled to the return of the vehicle.

[6] The defendant relies on certain occurrences which all took place after the summons was served in April 2009. In order to have a defence to the plaintiff’s claim for return of the motor vehicle the defendant had to allege that a new agreement had been entered into in terms of which he was entitled to possession of the vehicle until he had paid off the amount owing to the plaintiff. Nowhere in the defendant’s two affidavits does he allege such an agreement. At best for the defendant it appears that the parties were negotiating about the refinancing of the amount still outstanding in terms of the agreement. This is not a defence to the plaintiff’s claim for return of the vehicle. The defendant has therefore not set up a bona fide defence to the plaintiff’s claim for return of the vehicle and the plaintiff is entitled to summary judgment.

Order

[7] 1. The defendant’s application for condonation is refused;

2. Summary judgment is granted against the defendant and the defendant is ordered to deliver to the plaintiff forthwith, Jeep Cherokee 2.8 CRV LIMITED motor vehicle with engine number 4W280800 and chassis number 1J8GM585X4W280800;

3. The defendant is ordered to pay the costs of the application on the scale as between attorney and client.

___________________________

B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 19311/2009

HEARD ON: 17 November 2009

FOR THE APPLICANT/PLAINTIFF: ADV. S.G. MARITZ

INSTRUCTED BY: Strauss Daly Incorporated

FOR THE RESPONDENT/DEFENDANT: ADV. H. ENGELBRECHT

INSTRUCTED BY: KG Reddy & Associates

DATE OF JUDGMENT: 19 November 2009