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REPUBLIC OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

  

CASE NUMBER: 24520/2018

 

(1)      REPORTABLE: YES / NO

(2)      OF INTEREST TO OTHER JUDGES: YES/NO

(3)      REVISED.

In the matter between:

 

FIRSTRAND BANK LTD T/A NISSAN FINANCE         Plaintiff/Applicant

 

and

 

MULTIPOINT LOGISTICS CC                              First Defendant/Respondent

NTLANTLA GEORGE GULE                                  Second Defendant/Respondent

 

JUDGEMENT 

NGALWANA AJ

[1]     The plaintiff seeks summary judgment against the defendants in respect of a debit balance on a car instalment sale agreement and a suretyship agreement.  It seeks repossession of the car together with costs of suit.

[2]     The defendants resist summary judgment on the grounds that (1) the deponent to the summary judgment application lacks locus standi; (2) the summons was not preceded by a notice in terms of section 129 of the National Credit Act, 34 of 2005 (“the NCA”); (3) the suretyship agreement is invalid because, being married in community of property, the second defendant did not have the consent of his spouse to bind himself as surety and co-principal debtor to the first defendant, which consent must be witnessed by two other persons.

[3]     In argument, Counsel for the defendants challenged the integrity of the instalment sale agreement, invoking section 14 of the Electronic Communications and Transactions Act, 25 of 2002 (“ECTA”).

[4]     The plaintiff says the NCA does not apply to this agreement because (1) the first defendant is a juristic person who has an annual turnover in excess of R1 million; (2) the second defendant is a credit guarantee as envisaged in section 4(2)(c) of the NCA and so the NCA does not apply in respect of him either; (3) the agreement is in any event a large agreement within the contemplation of the NCA.

[4]     Neither the technical defences advanced by the defendants in the pleadings, nor the argument advanced by their Counsel in respect of ECTA suffice to forestall summary judgment in my view.  The standard is whether the defendants have a bona fide defence that, if proved, would constitute a good defence to the action.  None of these technical defences meet that standard.  I am satisfied that annexure “B” to the particulars of claim complies with the requirements of section 14 of ECTA.

[5]     In the circumstances, I am persuaded that summary judgment is warranted.

[6]     As regards costs, I am not persuaded that a punitive costs order on an attorney and client scale is warranted.

 

Order

1.        Summary Judgment is granted.

2.       The defendants are directed, jointly and severally, forthwith to deliver the following property to the plaintiff:

 

 

2017 NISSAN NP200 1.5 DCI A/C SAFETY PACK P / U S / C

CHASSIS NUMBER: ADNUSN365U0124764

ENGINE NUMBER: K9KM890D011967

 

 

3.        The defendants are, jointly and severally, to pay the plaintiff’s costs on a party and party scale, the one paying the other to be absolved.

 

 

Ngalwana

 Acting Judge of the High Court

 

 

 

Appearances

 

For the plaintiff:              BM Lukhele

Instructed by:                 Rossouws Lesie Inc

 

For the defendants:         G Segal

Instructed by:                 Gary Segal Attorneys

 

Date of hearing:              26 March 2019

Date of judgment:           28 March 2019

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