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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)       REPORTABLE

(2)       OF INTEREST TO OTHER JUDGES

(3)       REVISED

CASE NO: 67232/12

15/6/2018

 

In the matter between:

 

THE MOTOR FINANCE CORPORATION

(PTY) LTD T/A MFC                                                                                            APPLICANT

 

And

 

JOHANNES MODISE                                                                                           RESPONDENT

JUDGMENT

COLLIS J:

INTRODUCTION

[1]        This is an opposed application for Summary Judgment.

 

BACKGROUND

[2]        The Plaintiff's cause of action is based on a written instalment sale agreement entered into between the Plaintiff and the Defendant on 13 November 2009, in terms of which the Plaintiff sold a vehicle to the Defendant. The Defendant is in breach of the agreement in that he failed to make due and punctual monthly payments to the Plaintiff and as at 1 August 2012 he was in arrears in the sum of R 11 959.32.

[3]         On 21 November 2012, the Plaintiff issued summons against the Defendant and on 13 February 2013, the summons was served on the Defendant's chosen domicilium citandi et executandi by affixing the summons on the said address.[1]

[4]        Thereafter, the Defendant did not enter an appearance to defend and the Plaintiff applied for default judgment in terms of Rule 31(5). On 4 April 2013, the Registrar granted default judgment against the Defendant, wherein the Plaintiff's claim for damages and interest was postponed sine die.[2] The default judgment granted by the Registrar provided for inter alia the cancellation of the agreement, the attachment and seizure of the motor vehicle, forfeiture of all moneys paid to the Plaintiff by the Defendant and the postponement of the damages.

[5]         As the vehicle in terms of the agreement could not be found, by either the Plaintiff or its agent, the Plaintiff deposed to a damages affidavit in support of an application for default judgment, which affidavit on its own and without an application for default judgment was served on the Defendant on 5 June 2017.[3]

[6]         Upon receipt of the damages affidavit, the Defendant albeit that he was outside of the time period and without either consent of the Plaintiff or condonation by the Court proceeded to enter an appearance to defend.[4] The Plaintiff thereafter proceeded to launched the summary judgment application.

[7]         In the matter Breitenbach v Fiat SA (Edms) BPK at 227F-G, the Court held:

"To avoid summary judgment the defendant is required in terms of Rule 32(3) (b) of the High Court Rules to set out in an affidavit, facts which if proved at the trial, will constitute an answer to the plaintiff's claim. The rule also requires that the defendant satisfy the court that the defence is bona fide. This means that the defendant must swear to a defence, valid in law, in a manner which is not seriously unconvincing. Finally, it is required of the defendant that he discloses fully the nature and grounds of the defence and the material facts relied upon therefore. This means that the statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at trial, will constitute a defence to the plaintiffs claim."

 

[8]         In First National Bank of Sa Ltd v Myburg and Another 2002 (4) SA 176 (C) at 1770-F the Court held:

"The Court will grant summary judgment only where the plaintiff has an unanswerable case. If it has the slightest doubt, the Court will not grant summary judgment."

 

[9]          The defendant in opposition to the summary judgment had raised three defences which it persisted with at the hearing of the application:

9.1.        The Plaintiff's locus standi in that the Plaintiff as cited in the particulars of claim, is different to the description of the Plaintiff in the pre-agreement statement or on the application for summary judgment itself.

9.2.        The cancellation of the agreement and that the agreement having been cancelled, the Plaintiff would not be entitled to claim an amount allegedly owed in terms of a cancelled agreement.

9.3.        Lastly, the Defendant had raised as a defence that the application is fatally flawed in that the relief claimed in the summons, is different to the relief sought in the summary judgment application.

9.4       The attack on the commissioning of the affidavit filed in support of the application, was not persisted with at the hearing of the application.

 

Locus standi defence

 

[10]      Paragraph 3 of the resisting affidavit formulates the attack on the locus standi of the Plaintiff. Asper the particulars of claim and more specifically paragraph 1.1 thereof, the Plaintiff is cited as "The Motor Finance Corporation (Pty) Ltd t/a MFC a division of Nedbank Limited with Registration No. 19511000009/06, a duly registered private company with limited liability duly incorporated in terms of the Laws of the Republic of South Africa....."[5] If one however has regard to annexure "A" (the copy of the instalment sale agreement) annexed to the particulars of claim, it describes the credit provider as follows: "The Motor Finance Corporation (Pty) LTD t/a MFC Registration No 2001/012691/07."[6] Apparent from these two citations and more specifically with reference to the registration numbers; clearly two different registration numbers were given.

[11]        By locusstandithe question to be answered is, whether a person who approaches the court for relief has indeed the right to do so. It concerns the sufficiency and directness of a person's interest in the litigation in order for that person to be accepted as a litigating party. The general rule is that it is for the party instituting proceedings to allege and prove its locus standi and the onus of establishing that issue rests on that party. It must accordingly appear ex facie the founding pleadings that the parties thereto, have the necessary locus standi in iudicio.[7]

[12]        In South Africa, all banking institutions are required to be registered in terms of the Banks Act and a private company such as the Plaintiff upon registration by an official registrar, is identified by the Companies and Intellectual Property Commission not only by its company name but also in terms of its registration number assigned to it by the registrar of companies. This company then becomes a legal persona, which is entirely distinct from the natural persons who compose it,[8] and this legal persona would then be entitled to institute proceedings in its own name.

[13]        It therefore follows in order for a private company such as the plaintiff, to institute legal proceedings, not only should the name of the company be cited correctly, but also the registration number of the company, as this is the manner by which a private company is identified. In the present matter this was not done.

[14]        The defendant in his affidavit resisting summary judgment, alleges the failure by the Plaintiff to have cited the Plaintiff with specific reference to the name of the Plaintiff and its correct registration number, resulted in the application being fatally flawed the consequence thereof resulting that no judgment could be obtained on the pleadings as it stands.[9]

[15]        During argument, counsel appearing for the Plaintiff had argued that it was patently clear from all the documentation annexed, that the citation of the Plaintiff was a mere typographical error and that this defence raised by the Defendant, at best was considered to be a technical defence which should be viewed by the Court as opportunistic.

[16]        In the matter Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd and Another 1998 (1) SA 679 (0) at 6831-J the Court held:

"In view of the nature of the remedy the Court must be satisfied that a plaintiff who seeks summary judgment has established its claim clearly on the papers and the defendants have failed to set up a bona fide defence as required in terms of the Rules of this Court. There are accordingly two basic requirements that the plaintiff must meet, namely a clear claim and pleadings which are technically correct before the Court. If either of these requirements is not met, the Court is obliged to refuse summary judgment."

 

[17]        The pleadings as it presently stands refers to one registration number of the Plaintiff, whereas the underlying instalment sale agreement, refers to different registration number and as a consequence it cannot be said the locus standi of the Plaintiff has been established as on the face of it, the Court is dealing with two distinct legal personae. In fact, before even considering whether the defendant has established a bona fide defence, it is necessary for the Court to be satisfied that the plaintiff’s claim has been clearly established and its pleadings are technically in order. In the present instance this was not done.

[18]        The first defence raised by the defendant, in my view is dispositive of the requirements set out in terms of Rule 32(3)(b) in that it will if proved at trial constitute an answer to the Plaintiff's claim.

 

ORDER

[19]        Consequently, and for the reasons alluded to above, the following order is made:

19.1      The application for summary judgment is refused.

19.2      Leave to defend is granted to the Defendant, with

19.3       Costs in the cause.

 

 

 

C. J. COLLIS

JUDGE GAUTENG DIVISION

 

 

APPEARANCES:

 

FOR APPLICANT              ADV. R.C. ALCANTARA

INSTRUCTED BY             VELILE TINTO & ASSOCIATES INC.

FOR RESPONDENT:         ADV. R.P. LOIBNER

INSTRUCTED BY              MACHOBANE KRIEL INC.

DATE OF HEARING:         23 MAY 2018

DATE OF JUDGMENT:      15 JUNE 2018

 

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