Wesbank , A Division of First Rand Bank Limited v Mathe (2140/2019) [2020] ZANWHC 48 (10 September 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NO: 2140/2019

In the matter between:

WESBANK, A DIVISION OF

Plaintiff/ Applicant

FIRSTRAND

BANK

And

MOTLAMEDI

MATHE

Defendant/ Respondent

REASONS FOR JUDGMENT

DJAJE J

Introduction

[1] The plaintiff in this application seeks summary judgment for the return of the motor vehicle alternatively for payment in the sum of R399, 809.93 cents. On the date of the hearing the following order was made:

“1. Application for summary judgment be and is hereby dismissed,

2. Applicant is hereby ordered to pay costs”.

I now furnish the reasons for the said order.

Background

[2] The plaintiff issued summons against the defendant on the basis that the defendant is in possession of a motor vehicle which was the subject of an instalment agreement concluded between the plaintiff and the late Tebogo Walter Mathe (“the deceased”). The deceased and the plaintiff had entered into an instalment agreement in terms of which the deceased purchased a motor vehicle valued at R796, 300-21. The set amount was payable in monthly instalments of R9 903-91. The set instalments had to be paid from 1 January 2017 with a balloon instalment of R97, 980 on December 2022. In terms of the agreement the ownership of the motor vehicle would remain with the plaintiff until the full amount owed under the instalment agreement had been settled by the deceased. The deceased passed away on 30 September 2018. The defendant is currently in possession of the said vehicle. It is the plaintiff’s case that the last payment was received on 25 September 2018 in the amount of R9 880-00.

Points in limine

[3] The defendant argued that the deponent to the affidavit on behalf of the plaintiff lacks the authority and personal knowledge. It was argued that the plaintiff in the affidavit in support of the summary judgment states as follows “I confirm that the defendant is duly indebted to the plaintiff on the grounds as set out in the summons and the particulars of claim and I accordingly verify the course of action and amount as set out therein.” The defendant submits that the deponent to the affidavit in stating that the defendant is indebted to the plaintiff indicates that she lacks knowledge. According to the defendant there was no agreement entered into between the defendant and the plaintiff. The agreement was between the plaintiff and the deceased. In the particulars of claim it is clear that the relief of the plaintiff is based on rei vindicatio. This means that the plaintiff’s claim is for the delivery of the vehicle and not the repayment of an outstanding debt. It was further submitted that although there is an alternative claim in the particulars of claim for a monetary amount, the said claim is for the outstanding amount in the event that the vehicle cannot be delivered to the plaintiff by the defendant.

[4] It is the defendant’s case that the affidavit in support of the application for summary judgment does not comply with the requirement as laid down in rule 32 of the uniform rules of court. As such the defendant argued that on this point alone the application for summary judgment should be dismissed.

[5] The plaintiff was not able to respond to this point of law raised by the defendant. The submission made on behalf of the plaintiff was that there is doubt if the deponent to the affidavit in support of the summary judgment application is fully away of the facts. In essence the plaintiff could not raise any counter-argument against the point of lack of knowledge.

[6] Rule 32(2) (a) and (b) of the Uniform Rules of Court provides that

“ (2)(a) Within 15 days after the date of delivery of the plea, the plaintiff shall deliver a notice of application for summary judgment, together with an affidavit made by the plaintiff or by any other person who can swear positively to the facts.

(b) The plaintiff shall, in the affidavit referred to in subrule (2)(a), verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the plaintiffs claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial…..”

[7] In this matter the deponent to the affidavit indicated that the facts fall within her personal knowledge and how she is in a position to have knowledge of the Plaintiff’s cause of action. The requirement in terms of Rule 32 is “a person who can swear positively to the facts” can depose to an affidavit in support of the summary judgment. The deponent to the affidavit herein at paragraph five alleges that the defendant is indebted to the plaintiff which is contrary to what appears in the particulars of claim. In the particulars of claim the plaintiff claims for the return of the vehicle which is in the defendant’s possession alternatively that if it is found that the defendant is no longer in possession of the vehicle, then the defendant pay the market value of the vehicle which is R399,809-93. The plaintiff has never alleged in the particulars of claim that the defendant is indebted to it. It is true that the agreement of sale of a motor vehicle was entered into between the plaintiff and the deceased. It can therefore not be correct that the defendant is indebted to the plaintiff.

[8] The deponent in this matter alleged that the facts fall within her personal knowledge, however the affidavit in support of the summary judgment application does not speak to the particulars of claim. There is therefore doubt on her personal knowledge of such facts and as such the affidavit does not comply with the provision of rule 32. I fully agree with the defendant submission that the summary judgment application stands to fail on this point alone. It was on this basis that I dismissed the summary judgment application with costs.

________

DJAJE J T

JUDGE

OF THE HIGH COURT

DATE OF

HEARING

: 14 August 2020

DATE OF ORDER :

14 August 2020

DATE

OF REASONS

: 10 September 2020

COUNSEL FOR PLAINTIFF :

ADV T. MASIKE

COUNSEL FOR DEFENDANT :

MR M. WESSELS