SA Taxi Development Finance (Pty) Ltd v Lencoe

• Jurisdiction: South Africa
• Judge: Mashile J
• Judgment Date: 06 May 2014
• Docket Number: Infromation not supplied
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 28 November 2013
• Citation: 2014 JDR 1011 (GSJ)

Mashile, J:

[1]

The parties concluded a lease agreement on 23 January 2012 in terms of which the Applicant financed a transaction for the leasing of motor vehicle with Engine No. E27132 and Chasis No. LA61BAS39AB500147 to the

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Mashile J

Respondent. The Respondent defaulted on payment of his rentals and the Applicant terminated the lease and instituted legal proceedings claiming the following:

1.1

Confirmation of termination of the agreement;

1.2

Return of the 2012 CMC AMANDLA with engine number E27132 and chassis number LA61BAS39AB500147 to the Plaintiff forthwith;

1.3

Forfeiture of all amounts paid by the Defendant in terms of the agreement;

1.4

Expenses incurred for removal, valuation storage and sale of the vehicle; and

1.5

Attorney and client costs to be taxed.

[2]

The Respondent answered by filing a notice of his intention to defend the action. His response as aforesaid educed the launching of the current summary judgment application proceedings against him. The summary judgment application is confined to the return of the vehicle and payment of costs. The Respondent has raised one point in limine and others on the merits. Below, in the order listed, follows the point in limine and defences on the merits:

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Mashile J

2.1

Ms Veliades, the deponent to the founding affidavit, lacks authority and personal knowledge to swear positively to the facts, verifying the cause of action and confirming the amount claimed in the summons;

2.2

The outstanding amount is incorrect;

2.3

Non-receipt of a Section 129 letter sent pursuant to the national Credit Act No. 34 of 2005;

2.4

The granting of finance to him was reckless;

2.5

Cancellation was not preceded by a letter of demand as required by Clause 8.2.2 of the lease agreement.

[3]

The defences mentioned above are now considered individually below:

LACK OF AUTHORITY AND PERSONAL KNOWLEDGE

[4]

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."

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Mashile J

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 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. See Nigel Colin Tattersall & Andrews v Nedcor Bank Ltd 1995 (3) SA 222 (A) at pp 228f-229c.

[5]

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.

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Mashile J

[6]

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.

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...