Standard Bank of South Africa Limited v Setheme (80992/2016) [2017] ZAGPPHC 156 (10 May 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER:80992/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

10/5/2017

In the matter between:

STANDARD BANK OF SOUTH AFRICA LIMITED PLAINTIFF

and

SMANGA SETHEME DEFENDANT

HEARD ON: 05/05/2017

JUDGMENT HANDED DOWN ON: 10/05/2017

STRIJDOM AJ

INTRODUCTION:

1. This is an application for summary judgment in terms whereof the Plaintiff claims the shortfall amount due and owing by the Defendant to the Plaintiff.

2. On or about 22 March at or near Bloemfontein the Plaintiff and the Defendant entered into a written Installment Agreement whereby

the Plaintiff sold to the Defendant an Audi A4 vehicle.

3. The Defendant breached the agreement in that she failed to make monthly payments to the Plaintiff in terms of the Agreement.

4. The goods were subsequently repossessed by the Plaintiff and sold in terms of Section 127 of the NCA, however, the nett proceeds of the sale were not sufficient to settle the Defendant's full obligations towards the Plaintiff in terms of the Agreement.

5. The Plaintiff complied with the requirements of Section 129 of the NCA by dispatching a notice to the Defendant which afforded the

Defendant an opportunity to settle the full outstanding balance within 10 (ten) days thereof, failing which the Plaintiff would

institute legal action against the Defendant for payment of the full outstanding balance due. The Defendant failed to comply with the notice in terms of Section 129.

6. The Defendant has been in default under the credit agreement for a period prior to the notice in terms of Section 129 of the NCA,

34 of 2005.

7. At least 10 (ten) business days have elapsed since the Section 129 notice was delivered to the Defendant and the Defendant has not

responded to the notice in that the Defendant has failed to refer the agreement to a debt counselor.

8. In terms of the Certificate of Balance, attached to the Particulars of Claim as Annexure "C", the full amount due and payable is R427,122.56. Despite proper demand the Defendant has failed or refuses to settle the amount.

9. The Application was previously enrolled to be heard on 7 March 2017, but was postponed sine die and costs reserved, due to the fact that the Defendant's opposing affidavit resisting summary judgment, was only served by way of electronic mail on 6 March 2017 (the afternoon before the hearing of the application).

DEFENDANT'S OPPOSING AFFIDAVIT:

10. The Defendant raises as a point in limine that the deponent to the affidavit in support of the summary judgment application (Ms Zenobia Harmen) cannot swear positively to the facts verifying the Plaintiff's cause of action and the amount of R427,122.56 and cannot confirm that the Defendant has no bona fide defence.

11. Counsel for the Plaintiff submitted that a manager who confirms that she is duly authorised to depose to a verifying affidavit and also confirms that the facts fall within her direct knowledge, is a competent deponent as she has, by virtue of her office, access to the bank's records and a quo Legal Manager, Specialist prima facie has knowledge pertaining to the conclusion of the contract, its terms and effects.[1]

12. It was decided in Maharay v Barclays National Bank Ltd[2] that:

"Undue formalities in procedural matters is always to be eschewed and must give way to commercial pragmatism. At the end of the day whether or not to grant summary judgment is a fact based enquiry. Many summary judgment applications are brought by financial institutions and large corporations. Firsthand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of such financial institutions and large corporations. To insist on first-hand knowledge is not consistent with the principals espoused in Maharaj. It would be impossible and commercially inconvenient to require every single person involved in a transaction in question to depose to an affidavit."

13. I agree with the submission made by counsel for the Applicant that the Defendant's point in /imine has no merit and should be rejected.

THE DEFENDANT'S BONA FIDE DEFENCE:

14. The Defendant raise a defence that she has received some electronic mail correspondence from one Ms Sharmitha Smith, an employee of the Plaintiff, in terms whereof last mentioned allegedly offered the Defendant a 30% discount of the outstanding amount, which

was R283,744.29, which offer was accepted by the Defendant.

15. The Defendant furthermore alleges that having regard to the 30% discount offer the new outstanding amount was R182,521.01 and therefore disputes the balance due and owing in terms of the certificate of balance (R427,122.50).

16. It is submitted by counsel for the Plaintiff that the Defendant carries the onus even in summary judgment proceedings, to prove the so-called "new agreement".

17. One of the things clearly required of a defendant by Rule 32(3)(b) is that he set out in his affidavit facts which, if proved at the trial, will constitute an answer to the Plaintiffs claim. The sub-rule, however, requires that the Court be satisfied that there is a bona fide defence.

18. Another provision of the sub-rule is the requirement that in the Defendant's affidavit the nature and ground of his defence and the material facts relied upon therefore are to be disclosed fully.

19. The Defendant should have done more to discharge the burden by attaching the e-mail correspondence referred to but failed to do so.

20. The defence of the Defendant is averred in a manner which appears to be needlessly bold, vague or sketchy and in my view not a bona fide defence.

21. The certificate of balance constituted prima facie evidence and amount of the indebtedness of the Defendant to the Plaintiff.

22. In clause 18.1 to the installment sale agreement it is recorded that:

''A balance certificate signed by one of our managers will on the mere production be sufficient proof of the amounts and other information mentioned in such certificate, unless you prove the contrary."

23. In my view the Defendant has failed to demonstrate any bona fide defence and that the Plaintiff makes a proper case for summary judgment to be granted.

24. Subsequently it is ordered that:

24.1. Summary judgment is granted against the Defendant for the following:

24.1.1. Payment in the sum of R427,122.56.

24.1.2. Costs to be taxed on a scale as between attorney and client in accordance with the Magistrate's Court tariff including the costs for the postponement on 7 march 2017

__________________

JJ STRYDOM

ACTING JUDGE OF THE HIGH COURT

PRETORIA

DATE: 09/05/2017

APPEARANCES:

For the Plaintiff:

Adv LA Pretorius

Instructed by:

Vezi & De Beer Attorneys

319 Alphine Road

Lynnwood, Pretoria

Tel: 012 - 361 5640

For the Defendant:

Adv E de Lange

Instructed by:

Mfenyana Attorneys

Unit 214, First Floor

Jean Park Chambers

Jean Avenue

Centurion

Tel: 012 - 757 1802

[1] Barclays Western Bank Ltd v Bell Jonker Factory Services (Pty) Ltd 1980 (1) SA 929 (SE) 936 G

[2] Maharav v Barclays National Bank Ltd 1976 (1) SA 418 (A) 423 A- 424