---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no: 2207/2011

Date Heard:15/9/11

Date Delivered:22/9/11

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA LTD …...............APPLICANT

Versus

LORRAINE LYNETTE IHLENFELDT …...............................RESPONDENT

JUDGMENT

SMITH J:

[1] The Plaintiff seeks summary judgment against the Defendant for the return of a vehicle, namely a 2006 Nissan Hardbody, and other ancillary relief.

[2] The Plaintiff’s cause of action is based entirely on the rei vindicatio. The Plaintiff averred in its Particulars of Claim that it is the lawful owner of the aforesaid vehicle and as at 4 January 2011 the outstanding amount due in respect thereof was R118 450. 78. This amount has not been paid.

[3] The Plaintiff entered into an installment sale agreement in respect of the said vehicle with the Defendant’s son, one Weslely Sheldon Ihlenfeldt, on 13 October 2008. It is common cause that Wesley has since passed away on 26 May 2010 and that the Defendant has been in possession of the vehicle ever since.

[4] The legal principles applicable to summary judgment applications are by now trite and can be summarized as follows:

(a) Summary judgment can no longer be described as an extraordinary procedure. The purpose of summary judgment is not to prevent a litigant who has a bona fide and triable defence from pursuing that defence but rather to prevent a plaintiff being frustrated by a defendant who has a bogus defence and who has entered appearance solely for the purposes of delay.

See: Joob Joob Investments Pyt Ltd v Stock Mavundla ZEK Joint Venture 2009 (5) 1 (SCA) at paragraphs 31-33.

(b) A defendant seeking to resist summary judgment must sufficiently set out the material facts upon which his defence is based so as to satisfy the court that it is a bona fide and valid defence.

(c) The defendant is not required to set these facts out with the same precision required of pleadings.

See: Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).

(d) If the court is satisfied that the facts disclosed by the defendant, if proven at the trial in due course, will constitute a comprehensive and valid defense to the plaintiff’s claim, it must refuse summary judgment.

[5] The facts set out by the Defendant in her opposing affidavit, and upon which her defense is based, are as follows:

(a) After her son’s death on 26 May 2010 she took a copy of his death certificate to the Plaintiff and was told that she must wait for the letters of executorships to be issued because the vehicle was an asset in her sons’ estate;

(b) Her son had chosen to take out the optional insurance cover which should have settled the outstanding balance owing upon his death. She was present when the installment sale agreement was signed;

(c) At the time of her sons’ death the monthly installments were still being paid by way of a debit order through her bank account. She had been informed by the bank that the money would be refunded to her once the insurance claim had been paid;

(d) On 18 September 2010 she was informed by one of the the Plaintiff's employees, one Salomie Meyer, that the insurance cover had never been formalized. Upon perusal of the agreement on which the Applicant relied it appeared that the clause relating to the insurance cover had been altered. The signature which appears on the contract (next to the endorsement which purports to cancel the option to take out the insurance policy) was not that of her son and had apparently been forged. It also did not correspond in this regard with the original agreement.

(e) On 20 September 2010 she had written to Meyer to inform the latter that she would continue to pay the monthly installments. The debit order was subsequently cancelled by the Plaintiff.

Ms Beard, who appeared for the Plaintiff, submitted that the latter’s claim is based on the rei vindicatio. All that the Plaintiff had to allege therefore is that it is the owner of the vehicle and that the Defendant is in possession thereof without any legal justification. The onus, so she submitted, is then on the Defendant to establish that she is vested with some right enforceable against the owner. See: Chetty v Naidoo 1974 (3) SA 13 (A) at 20 C.

Ms Beard also submitted that although the Defendant claims that she in possession of the vehicle in her capacity as executor of her son’s estate, this allegation is belied by the fact that she had informed the Plaintiff in writing that she was using the vehicle for her own personal purposes. Me Beard submitted that she is therefore clearly not holding the vehicle in her capacity as executor of her son’s estate but in her personal capacity.

[6] The Defendant appears to aver that she is entitled to possession of the vehicle in her capacity as executor of her deceased son's estate on the following bases:

(a) In her capacity as executor of the estate she had continued to pay the monthly installments until it was cancelled by the Plaintiff. The estate was therefore not in default with its obligations in terms of the credit agreement and the Plaintiff was therefore not entitled to elect to cancel the agreement.

(b) Her son had instructed the Plaintiff (and the Plaintiff had agreed) to take out an insurance policy which would have covered the full outstanding amount upon his death. The Plaintiff has for some reason failed to do so and has subsequently dishonestly altered the contract and forged her son's signature to reflect that this option had been cancelled.

[7] The only question that has to be answered at this stage of the proceedings is whether these facts, if proven by the Defendant at a trial in due course, will constitute a comprehensive and valid defense to the Plaintiff’s claim. The answer in my view must be an emphatic yes.

[8] Ms Beard has submitted that the Defendant was not party to the credit sale agreement and is therefore not entitled to rely on the clause relating to the insurance policy. Moreover, she argued, it is common cause that the insurance premiums have in fact not been paid by her son.

[9] I do not agree with this submission. The Defendant is effectively representing her deceased’s son’s estate and is therefore entitled to rely on the fact (albeit an allegation at this stage) that the Plaintiff had agreed to assume the contractual obligation to take all necessary steps to ensure that the life cover becomes effective. If the allegation that anyone of the Plaintiff's employees fraudulently altered the agreement and forged her son’s signature, the estate may well be indemnified against liability and in this regard may have a counterclaim against the Plaintiff. In the event it is not necessary for me at this stage of the proceedings to enquire into the merits of these averments. The facts which the Defendant has placed before me, if proven at the trial in due course, will in my view clearly establish that:

(a) The deceased’s estate was not in default with its obligations in terms of the credit agreement and;

(b) The Plaintiff had assumed the contractual obligation to ensure that life cover is taken out which would have settled the outstanding balance upon her son’s death. It has been in breach of this contractual obligation.

[10] I am of the view that these allegations, if proven at the trial in due course, will constitute a valid and comprehensive defence to the Plaintiff’s claim.

[11] In the result the following order shall issue:

1. The application for summary judgment is refused;

2. The Defendant is granted leave to defend the main action and is ordered to file a plea, if any, within 10 (ten) days from the date of this order;

3. Costs shall be in the cause.

_____________________

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant : Advocate Beard

Attorneys for the Applicant : Vezi De Beer Inc.

107 Heymeadown Street

CAPE TOWN

Tel: 012 991 8283

Ref: M. Mohamed/TM/S2719

c/o

Wheeldon Rushmere & Cole

119 Hill Street

GRAHANSTOWN

6140

Tel: 046 622 7205

Ref: J Jagga

Counsel for the Respondent : Advocate Watt

Attorneys for the Respondent : Lydia Zanewczyk Attorneys

c/o

J.D Haydock Attorney

110 High Court

GRAHAMSTOWN

Ref: Mr J D Haydock

Date of hearing : 15 September 2011

Date Delivered : 22 September 2011

---