FIRSTRAND BANK LlMITED T/A WESBANK APPLICANT/PLAINTIFF. cannot set up a bona fide defence enters appearance simply to delay judgment.

Transcription

1 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) Case number: 40087/2015 DATE: 08 OCTOBER 2015 In the matter between; FIRSTRAND BANK LlMITED T/A WESBANK APPLICANT/PLAINTIFF And MRS PORTIA NEMATHITHI JUDGMENT DE KLERK (AJ) Introduction: [1] This is an application for summary judgment. [2] The application is opposed. RESPONDENT/DEFENDANT [3] The purpose of summary judgment is to assist an Applicant where a Respondent who cannot set up a bona fide defence enters appearance simply to delay judgment. [4] Rule 32 (3) of the Uniform Rules of Court provides that: Upon the hearing of an application for summary judgment the Defendant may- (b) Satisfy the Court by affidavit... that he has a bona fide defence to the action; Such affidavit... shall disclose fully the nature and grounds of the defence and the material facts relied upon therefore. [5] Thus the essential question to be determined in this matter is whether the Respondent has established a bona fide defence to the Applicant s claim. Points in limine: [6] The Respondent has raised three points in limine with which I will deal at the end of this judgment.

2 Cause of action: [7] The Applicant claims in the prayers to the Particulars of Claim: 1. That the Defendant be ordered to return the following motor vehicle to the Plaintiff: 2008 Audi A4 1.8T Ambition (B8) Engine Number: [CD.] Cassis number: [W ] 2. Costs of suit; 3. Further and/or alternative relief." [8] It is evident from the Particulars of Claim that the Applicant and a certain Mr Nemathithi entered into a written instalment sale agreement in respect of the aforesaid motor vehicle. [9] Mr Nemathithi was, by virtue of the said agreement, entitled to possession of the said motor vehicle while the Applicant would remain the owner of same until such time as Mr Nemathithi has effected payment in full. [10] The said agreement expressly provided for its discharge on the death of Mr Nemathithi. [11] Mr Nemathithi has passed away. [12] It is averred by the Applicant in the Particulars of Claim that: 1. The Applicant thereupon appointed tracing agents to trace the whereabouts of the said motor vehicle. 2. The Applicant accordingly ascertained that the Respondent was in possession of the said motor vehicle. 3. The Applicant approached the Respondent and after having explained to her that she was not entitled to be in possession of the said motor vehicle demanded the return thereof. 4. The Respondent however refused to hand the motor vehicle over to the Applicant. The Respondent's defence: [13] The Respondent opposes the application on the basis that ownership and possession of the motor vehicle vest in the estate of the late Mr Nemathithi.

3 [14] The Respondent admitted in her opposing affidavit that she had not handed the motor vehicle over to the Applicant. According to the

4 Respondent she had no say over the motor vehicle and was not legally in a position to comply with the Applicant s demand. [15] The Respondent s version accords with the Applicant s version to wit that the Applicant approached the Respondent and after having explained to her that she was not entitled to be in possession of the said motor vehicle demanded the return thereof. The Respondent however refused to hand the motor vehicle over to the Applicant. [16] On the other hand the Respondent denied being in possession of the motor vehicle. Evaluation of the evidence: [17] The Applicant claims the return of the motor vehicle by virtue of its ownership. [18] It is clear that the basis of the Applicant s claim is the mi vindicatio. [19] The owner who claims the return of his property needs to allege and prove- 1. That he is the owner thereof; and 2. That the other party is in possession thereof. [20] The Applicant needs to prove both these elements. [21] The Applicant alleges in the Particulars of Claim that: 1. It is the owner of the said motor vehicle; and 2. The Respondent is in possession thereof. [22] in the light of the specific term of the instalment sale agreement that provided for its discharge upon Mr. Nemathithi s death the rights and duties in terms of the said agreement were therefore not transmitted by death and were not enforceable by or against the executor of his estate. [23] Consequently the Respondent s defence that ownership and possession of the motor vehicle vest in the estate of the late Mr Nemathithi and as such she had no say over it and she was not legally in a position to comply with the Applicant s request to return the motor vehicle to the Applicant, is untenable. [24] The Respondent s bare denial of possession on the other hand does not bear out by the evidence. First point in iimine - non joinder of the deceased s estate:

5 [25] As stated hereinbefore this is not an action arising out of a contract to which the deceased was a party, therefore the executor needs not to be a party to the proceedings.

6 Second point in limine - No cause of action disclosed against the present Defendant: [26] As stated hereinbefore it is clear that the basis of the Plaintiff s claim is the rei vindicatio. Third point in limine - Non compliance with the provisions of the National Credit Act: [27] As stated hereinbefore this is not an action arising out of a contract but based on the rei vindicatio. Conclusion: [28] The object of Rule 32 is to enable a Plaintiff with a clear case to obtain swift enforcement of a claim against a Defendant who has no real defence to that claim (See Herbstein & van Winsen p516). [29] The Respondent s defence is lacking in substance and does not constitute a real defence to the Applicant s claim. [30] In the premises the application is granted with costs. [31] The Defendant is ordered to return the following motor vehicle to the Plaintiff: 2008 Audi A4 1.8T Ambition (B8) Engine Number: [C..] Cassis number: [W..] [32] The Defendant/Respondent is ordered to pay the Plaintiff/Applicant s costs related to this Summary Judgment Application. Dated at a Pretoria on the 8 th day October DE KLERK W.C ACTING JUDGE OF THE GAUTENG DIVISION HIGH COURT, PRETORIA APPLICANT S REPRESENTATIVES ADVOCATE INSTRUCTING ATTORNEY ADV. C SPANGENBERG B.P JONES FROM HACK STUPEL & ROSS

7 Order: RESPONDENTS REPRESENTATIVES ADVOCATE INSTRUCTING ATTORNEY MR. SEABI FROM K.P SEABI & ASSOCIATES