S A Taxi Securitisation (Pty) Ltd v Phillip

• Jurisdiction: South Africa
• Judge: Mashile J
• Judgment Date: 06 May 2014
• Docket Number: 2013/12927
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 15 November 2013
• Citation: 2014 JDR 1010 (GSJ)

Mashile, J:

[1]

Following a breach of a lease agreement concerning motor vehicle bearing Engine No: 61298170087322 and Chassis No: WDF9046632E005660 by the Respondent, the Applicant instituted an action.

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Mashile J

The action was premised on the aforesaid lease which the parties concluded on 27 November 2009

[2]

Upon the Respondent's failure to service the contractual monthly rental payments, the Applicant cancelled the agreement and instituted legal proceedings. Initially, the particulars of claim contained several prayers but in these summary judgment proceedings it has confined itself to the return of the vehicle and costs as on the scale between attorney and client. The Respondent answered by serving and filing his Notice of Intention to defend the action.

[3]

Such a response elicited the launching of this application for summary judgment to which the Respondent has raised a point in limine and several defences on the merits being:

3.1

The deponent to the affidavit in support of summary judgment has neither the authority nor the requisite personal knowledge to depose to the affidavit;

3.2

The Respondent denies receipt of the 129 Notice. Accordingly, no notice was properly delivered to the Respondent as envisaged in Section 129 of the National Credit Act No. ?? of 2005;

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Mashile J

3.3

Failure by the Applicant to assess whether the Respondent would afford to pay for the rentals;

3.4

The amount claimed by the Applicant is incorrect as the Respondent has been making payment; and

3.5

Cancellation of the lease agreement was not preceded by a letter of demand as required by Clause 8.2 thereof.

[4]

I turn now to each of the defences, not necessarily in the order listed above, to test their validity as contemplated in Uniform Rule 32.

THE DEPONENT'S LACK OF AUTHORITY AND PERSONAL KNOWLEDGE TO DEPOSE TO THE AFFIDAVIT IN SUPPORT OF THE SUMMARY JUDGMENT

[5]

In Paragraph 1 of the affidavit Valerie Ann Veliades states as follows in the affidavit:

"I am a legal manager of the above named plaintiff in this matter and I am duly authorised to depose to this affidavit on behalf of the plaintiff."

The Respondent has contended that Ms Veliades lacked the authority to depose to the affidavit in support of the summary judgment because she adduced neither a certificate nor a resolution as proof of such authority. Ms Veliades has under oath sworn as having such authority. If the Defendant

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denies that she does, he needs to furnish reasons why he does not believe that she was authorised. A mere denial that she was not authorised to depose to the affidavit constitutes a bare denial and must be rejected. Nigel Colin Tattersall & Andrews v Nedcor Bank Ltd 1995 (3) SA 222 (A) at pp 228f-229c.

[6]

In any event Rule 7 of the Uniform Rules of this court provides:

"Subject to the provisions of subrules (2) and (3) a power of attorney to act need to be filed, but the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment be disputed, whereafter such person may no longer act unless he satisfied a court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application."

The First respondent has failed to challenge the authority of the deponent within the 10 days stipulated in the rule by issuing the necessary notice. Under the circumstances, the Respondent's challenge of Ms Veliades' authority must fail.

[7]

The second part of the Respondent's defence pertains to Ms Veliades' lack of the requisite personal knowledge. In this regards she respectively states In Paragraphs 2 and 3:

"The facts herein set out fall within my personal knowledge and are true and correct.

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Mashile J

In consequence of such position held by me with the plaintiff, I have in my possession and under my control the files and records of the plaintiff pertaining to this matter, the contents of which I have familiarised myself with during the course of the plaintiff's dealings with the Defendant and for purposes of this matter. By virtue of the aforegoing, I have personal knowledge of the facts deposed to by me...