Wesbank, A Division of Firstrand Bank Limited v Hart (4015/2015) [2015] ZAECGHC 131 (10 November 2015)

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

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 4015/2015

DATE HEARD: 29/09/2015

DATE DELIVERED: 10/11/2015

In the matter between

WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED

PLAINTIFF

and

ADRIAN MEINTJIES HART

DEFENDANT

JUDGMENT

ROBERSON J:-

[1] This is an application for summary judgment. The plaintiff instituted action against the defendant for payment of the alleged balance outstanding in terms of a written instalment sale agreement allegedly entered into between the parties during or about September 2006, and in terms of which the defendant purchased a 2006 Mahindra Bolero motor vehicle. According to the particulars of claim the plaintiff cannot locate the original agreement or a signed copy thereof, and a “true blank copy” is annexed to the particulars of claim.

[2] One of the terms contained in the copy of the agreement provides that in the event of the defendant failing to pay any amounts due in terms of the agreement the plaintiff would be entitled to claim immediate payment of the outstanding balance owing together with interest thereon. The plaintiff pleaded that the defendant failed to make punctual monthly payments and that he was in arrears in the sum of R74 144.62. This sum was alleged to be the full balance outstanding. The plaintiff claims this sum together with interest at 9% per annum from 1 June 2015 to date of payment.

[3] It is necessary to set out paragraphs 5 and 6 of the particulars of claim:

“5. With regard to the personal information in respect of the Defendant and the vehicle purchased, which would appear originally on Page 1 the following information is placed before the above Honourable Court:

5.1 Full name of purchaser: ANDRIAN (sic) MEINTJIES HART

5.2 Address of purchaser: [.....]

5.3 Description of goods:

5.3.1 Make and Model: 2006 MAHINDRA BOLERO NEF

5.3.2 Principal debt of R188 191.80 comprising:

5.3.3 cash price of goods;

5.3.3.1 costs of any extended warranty;

5.3.3.2 any delivery, installation and initial fuelling charges;

5.3.3.3 any connection fees, levies or charges;

5.3.3.4 any taxes, license or registration fees;

5.3.3.5 cost of credit insurance.

6. The information which is set out above has been obtained from the computerized data base system of the Plaintiff on which the information was loaded from the original agreement prior to it being lost/misplaced and reflects the information which would have been contained in the original agreement.

[4] The affidavit in support of summary judgment was deposed to by Fahim Ebrahim who stated as follows:

“1. I am an adult male Legal Manager of the Plaintiff in this matter. I have access to the books and accounts relating to the Defendant’s facilities with the Plaintiff. These books and accounts are stored in electronic format and I am able to access these documents from my computer. I have in fact accessed these documents and have perused them.

2. As a result of the aforegoing the facts herein contained are within my own personal knowledge and belief and are true and correct and I am duly authorised to depose to this affidavit.

3. I swear positively to the facts verifying the case of action that the Defendant are (sic) indebted to the Plaintiff in the amount claimed in the summons and on the grounds set out therein.

4. I am of the opinion that the Defendant do (sic) not have a bona fide defence to the claim and that appearance has been entered solely for the purpose of delay.

[5] In his opposing affidavit the defendant says the following with regard to Ebrahim’s affidavit:

“5.1 The Plaintiff’s Affidavit in Support of Applicantion for Summary Judgment is deposed to by one Fahim Ebrahim (“Ebrahim”),

who states that he is a Legal Manager of the Plaintiff herein.

5.2 I do not believe that Ebrahim is in a position to swear positively to the allegations made in his affidavit and that he has therefore merely “rubber stamped” the affidavit because:

5.2.1 having regard to the fact that this matter arose and dates back to 2006 and the time periods involved in this matter, which are in excess of nine years, Ebrahim should at least have:

5.2.1.1 stated the time period during which he has been so employed by the Plaintiff;

5.2.1.2 described the documents which he has allegedly inspected.

5.2.2 This information is of vital relevance to Ebrahim’s knowledge of this matter.

5.3 The fact that the Plaintiff makes the averment in its Particulars of Claim that it cannot locate the original agreement/application, or even a copy thereof, casts further aspersions over Ebrahim’s affidavit and his knowledge of and ability to swear positively to the facts to which he deposes, as well as accuracy the electronic records to which he has access.

[6] Rule 32 (2) provides:

“The plaintiff shall within 15 days after the date of delivery of notice of intention to defend, deliver notice of application for summary judgment, together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit and the notice of application for summary judgment shall state that the application will be set down for hearing on a stated day not being less than 10 days from the date of the delivery thereof.”

[7] In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423B-H, Corbett JA said the following with regard to the plaintiff’s affidavit in summary judgment applications:

“Generally speaking, before a person can swear positively to facts in legal proceedings they must be within his personal knowledge. For this reason the practice has been adopted, both in regard to the present Rule 32 and in regard to some of its provincial predecessors (and the similar rule in the magistrates' courts), of requiring that a deponent to an affidavit in support of summary judgment, other than the plaintiff himself, should state, at least, that the facts are within his personal knowledge (or make some averment to that effect), unless such direct knowledge appears from other facts stated (see e.g. Joel's Bargain Store v Shorkend Bros. (Pty.) Ltd., 1959 (4) SA 263 (E); Misid Investments (Pty.) Ltd. v Leslie, 1960 (4) SA 473 (W); Sand and Co. Ltd. v Kollias, supra at pp. 165 - 7; Fischereigesellschaft v African Frozen Products, supra at pp. 109 - 110; Flamingo Knitting Mills D (Pty.) Ltd. v Clemans, supra at p. 694 - 5; Barclays National Bank Ltd. v Love, 1975 (2) SA 514 (D) at pp. 515 - 6). The mere assertion by a deponent that he “can swear positively to the facts” (an assertion which merely

reproduces the wording of the Rule) is not regarded as being sufficient, unless there are good grounds for believing that the deponent fully appreciated the meaning of these words (see African Frozen Products case, supra at p. 110; Love's case, supra at p. 515). In my view, this is a salutary practice. While undue formalism in procedural matters is always to be eschewed, it is

important in summary judgment applications under Rule 32 that, in substance, the plaintiff should do what is required of him by the Rule. The extraordinary and drastic nature of the remedy of summary judgment in its present form has often been judicially emphasised (see, e.g., Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd., 1959 (3) SA 362 (W) at p. 366; Arend and Another v Astra Furnishers (Pty.) Ltd., 1974 (1) SA 298 (C) at pp. 304 - 5; Shepstone v Shepstone, 1974 (2) SA 462 (N) at p. 467). The grant of the remedy is based upon the supposition that the plaintiff's claim is unimpeachable and that the defendant's

defence is bogus or bad in law. One of the aids to ensuring that this is the position is the affidavit filed in support of the application; and to achieve this end it is important that the affidavit should be deposed to either by the plaintiff himself or by someone who has personal knowledge of the facts.

Where the affidavit fails to measure up to these requirements, the defect may, nevertheless, be cured by reference to other documents relating to the proceedings which are properly before the Court (see Sand and Co. Ltd. v Kollias, supra at p. 165). The principle is that, in deciding whether or not to grant summary judgment, the Court looks at the matter “at the end of the day” on all the documents that are properly before it (ibid. at p. 165).”

[8] In Barclays National Bank Ltd v Love 1975 (2) SA 514 (D) at 516H-517A Miller J (as he then was) said:

“We are concerned here with an affidavit made by the manager of the very branch of the bank at which overdraft facilities were enjoyed by the defendant. The nature of the deponent's office in itself suggests very strongly that he would in the ordinary course of his duties acquire personal knowledge of the defendant's financial standing with the bank. This is not to suggest that he would have personal knowledge of every withdrawal of money made by the defendant or that he personally would have made every entry in the bank's ledgers or statements of account; indeed, if that were the degree of personal knowledge required it is difficult to conceive of circumstances in which a bank could ever obtain summary judgment. It goes without saying that a manager of a bank who claims to have personal knowledge of the extent to which a client has overdrawn his account must needs rely upon the bank records which show the amounts paid into his account and the amounts withdrawn by the client.”

[9] Ebrahim does not claim to have acquired personal knowledge of the facts relating to the plaintiff’s claim in the ordinary course of his duties. His position as legal manager does not in my view suggest that in that capacity he would have personal knowledge. In Shackleton Credit Management v Microzone Trading 88 2010 (5) SA 112 (KZP) Wallis J (as he then was) dealt with the position of a legal advisor as follows at para 15:

“Mr. van Rooyen said that in many cases that come before this court the affidavit in support of an application for summary judgment is deposed to by a legal advisor in the employ of the applicant. His suggestion, as I understand it, is that such a person is in the same position as Mr Lombard, deriving his or her knowledge entirely from a perusal of documents. If he is correct in that then all I can say is that such an application would also be defective. However, there may be reasons connected with such a person’s employment that would result in their acquiring sufficient personal knowledge of the facts to depose to an affidavit in support of an application for summary judgment. Each case will necessarily depend upon its own facts.”

[10] I appreciate that a legal advisor and a legal manager are different positions.

Ebrahim, however, does not provide reasons connected with his employment which would result in him acquiring sufficient personal knowledge of the facts. Ebrahim bases his assertion of personal knowledge purely on “books and accounts” stored in electronic format which he has accessed via his computer. In my view, and in the light of the circumstances of this case, this source of personal knowledge is insufficient. In Shackleton Credit Management (supra) Wallis J said the following at para 13:

“It may be that the effect of cases such as these,[1] is as Van Heerden AJ said in Standard Bank of SA Ltd v Secatsa Investment (Pty) Ltd and Others, that first-hand knowledge of every fact which goes to make up the applicant's cause of action is not required, and that where the applicant is a corporate entity, the deponent may well legitimately rely on records in the company's possession for their personal

knowledge of at least certain of the relevant facts and the ability to swear positively to such facts. However, I do not understand any of the cases as going so far as to say that the deponent to an affidavit in support of an application for summary judgment can have no personal knowledge whatsoever of the facts giving rise to the claim, and rely exclusively on the perusal of records and documents in order to verify the cause of action and the facts giving rise to it.”

[11] In the present matter Ebrahim has relied on electronically stored records for all of the relevant facts of which he claims personal knowledge. Those relevant facts are the conclusion and terms of the agreement, the breach by the defendant, and the correct calculation of the full amount outstanding. The first problem is that Ebrahim does not say precisely what documents he perused in order to acquire this personal knowledge. The second problem is that it is at best not clear what was electronically stored in relation to the defendant’s facilities with the plaintiff. The absence of the original agreement must be borne in mind.

[12] The first page of the copy of the agreement annexed to the particulars of claim provides for details of the credit provider and the consumer; details of the goods purchased; the principal debt made up of the cash price and accessories less a deposit if any, plus finance charges and VAT; the instalment payable; the number and frequency of instalments; and the total cost and interest rate.

[13] Paragraph 5 of the particulars of claim sets out what information was loaded onto the computer system from the original agreement.

This information is deficient: it only includes the defendant’s name and address, the make and model of the vehicle, and the cash price of the goods. It does not include for example the finance charges, the interest rate, the instalment payable, the number and frequency of instalments, or any of the costs of the items mentioned in paragraphs 5.3.3.1 to 5.3.3.5. If Ebrahim had access to further electronically stored information which disclosed the deficient information, the record of the defendant’s payments, when he last paid, and how the outstanding balance was calculated, he should have identified the source of such information. Without identifying the source, I am not satisfied that he had sufficient personal knowledge of the facts verifying the cause of action.

[14] This is not a case where when one considers all the documents as a whole one can be satisfied that the deponent to the supporting

affidavit has the requisite personal knowledge. (See Maharaj (supra)). The defendant, while not directly saying in his opposing affidavit that he does not owe any amount or if he does, that it differs from that claimed, raised the possibility of prescription, excessive interest calculated, and the absence of a certificate of balance. (One of the terms of the agreement pleaded is that a certificate from any manager of the plaintiff would be sufficient proof of the amount owing by the defendant. No such certificate was annexed to the particulars of claim.) Without certain documents which he has requested, including an itemised statement of debits and credits, the defendant says he is unable to plead.

[15] In Absa Bank Ltd v Le Roux and Others 2014 (1) SA 475 (WCC) at para 15 Binns-Ward J said:

“In the result it follows on the construction of the subrule given in Maharaj that, unless it appears from a consideration of the papers as a whole that the deponent to the supporting affidavit probably did have sufficient direct knowledge of the salient facts to be able to swear positively to them and verify the cause of action, the application for summary judgment is fatally defective and the court will not even reach the question whether the defendant has made out a bona fide defence.”

[16] The application for summary judgment therefore cannot succeed.

[17] Order

[17.1]

Summary judgment is refused.

[17.2]

The defendant is given leave to defend.

[17.3]

Costs are to be costs in the cause.

______________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: Adv J A Knott, instructed by Cloete & Company, Grahamstown

For the Defendant: In Person

[1] Referring to Maharaj and Love (supra)