South Africa: North Gauteng High Court, Pretoria

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Mercedes Benz Financial Services v Roussouw et al (71519/2015) [2015] ZAGPPHC 960 (13 November 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 13/11/2015

CASE NO.: 71519/2015

In the matter between:

MERCEDES BENZ FINANCIAL SERVICES Plaintiff

and

ALWYN BURGER ROSSOUW et al First Defendant

JUDGMENT

VAN DER WESTHUIZEN, A J

1. There are a number of matters before me in respect of which the parties are the same. The matters all relate to finance agreements that were entered into by Blue Anvil (Pty) Ltd (the debtor) with the plaintiff in respect of a number of vehicles forming the subject of the relevant finance agreement.

2. These matters are:

Case no: 71516/2015 Case no: 71529/2015

Case no: 71519/2015 Case no: 71531/2015

Case no: 71521/2015 Case no: 71504/2015

Case no: 71523/2015 Case no: 71505/2015

Case no: 7!524/2015 Case no: 71506/20! 5

Case no: 7 1 525/2015 Case no- 71507/2015

Case no: 71526/2015 Case no: 71527/2015

Case no: 71528/2015 Case no: 71509/2015

Case no: 71510/2015 Case no: 71511/2015

Case no: 71515/2015

3. The plaintiff applies for summary judgment in each of the above cases and which applications the first defendant resists.

4. The parties have agreed to argue only one of the applications, that of case no. 71519/2015 and have further agreed that the result would follow in each of the other matters on the roll before me.

5. It is common cause that business rescue proceedings are pending in respect of the debtor.

6. In each of these matters the first defendant has been sued in his capacity as surety for the due compliance of the obligations of the debtor towards the plaintiff.

7. It is further common cause that the second defendant is in liquidation. The second defendant has also bound itself as surety for the debtor' s obligations towards the plaintiff.

8. The first defendant has filed an opposing affidavit and has raised a number of points in fimine, inter alia:

(a) the alleged non-joinder of the liquidators of the second defendant;

(b) the plaintiff's claim is premature in that it had in terms of the finance agreement elected to cancel the finance agreement and to recover the vehicle first, then to sell the vehicle and only then to recover the balance from the debtor, alternatively the sureties:

(c) a dilatory plea is raised that since the debtor has been placed into business rescue proceedings the outcome thereof has first to be established;

(d) the alleged novation of the finance agreements by subsequent agreements between the plaintiff and the debtor.

9. in view of the manner in which I propose to deal with this application for summary judgment, I shall not deal with each of the points raised by the first defendant.

10. The plaintiff in its particulars of claim, paragraph 7 read together with paragraph 10 thereof, states that the plaintiff has elected to cancel the relevant finance agreement and to claim return of the relevant vehicle.

11. In paragraph 11 of the plaintiff's particulars of claim, it alleges that subsequently it has entered into a settlement agreement with the debtor and which was made an order of court. A copy of the settlement agreement is attached to the particulars of claim and the plaintiff pleads that the terms thereof be read into the particulars of claim as if specifically pleaded therein.

12. The plaintiff further alleges in paragraph 12 of the particulars of claim that the debtor has failed to comply with its obligations contained in the court order and is consequently in breach thereof.

It is common cause that the first defendant is not a party to the settlement agreement and never was a party to the proceedings where the settlement agreement was made an order of court.

14. The first defendant aileges that the court order relating to the settlement agreement constituted a novation of the debtor's obligations to the piaintiff, the original finance agreement having been cancelled.

15. In proceedings brought before this court by way of an urgent application, the plaintiff conceded that the finance agreement had been cancelled and that it had elected to proceed to recover the vehicle for the purposes envisaged by the terms of the cancelled finance agreement.

16. It is also alleged by the first defendant that subsequent to the alleged breach of the court order by the debtor, the debtor and the plaintiff entered into a new agreement, which the first defendant contends constitutes a further novation of the debtor's obligations.

17. It is trite that in proceedings for summary judgment the court does not attempt to decide the issues or to determine whether or not there is a balance of probabilities in favour of one party or the other. See in this regard Maharaj v Barclays National Bank Ltd 1976(1) SA 418 (A).

18. I am accordingly not called on to determine the issue of novation. That is for a trial court hearing evidence thereon.

19. It follows that the application for summary judgment cannot succeed.

20. I grant the following order in each of the following matters:

Case no: 71516/2015 Case no: 71519/2015

Case no: 71521/2015 Case no: 71523/2015

Case no: 71524/2015 Case no: 71525/2015

Case no. 71529/2015 Case no: 71531/2015

Case no: 71504/2015 Case no: 71505/2015

Case no: 71506/2015 Case no: 71507/2015

Case no: 71526/2015 Case no: 71509/201 5

Case no: 71527/2015 Case no: 71528/2015

Case no· 71510/201 5 Case no: 71511/2015

Case no: 71515/2015

(a) Summary judgment is refused;

(b) The first defendant is granted leave to defend:

____________________________

C J VAN DER WESTHUIZEN

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION

On behalf of Plaintiff: C Richard

Instructed by: Strauss Daly Inc.

On behalf of Defendant: J Hershensohn

Instructed by:Van Huyssteens Commercial Attorneys