About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 78
|
|
Alphera Financial Services v Kolanisi (11947/2020) [2021] ZAWCHC 78 (29 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 11947/2020
In the matter between:
ALPHERA FINANCIAL
SERVICES
Applicant
(Plaintiff)
(A division of BMW
Financial Services (SA) (Pty) Ltd)
and
SIBONGISENI
KOLANISI
Respondent (Defendant)
Coram:
Justice J Cloete
Heard:
28 April
2021
Delivered
electronically:
29 April 2021
JUDGMENT
CLOETE J
:
[1] The narrow
issue for determination in this opposed application for summary
judgment is whether the defendant has set out facts which, if proved
at trial, will constitute an answer to the plaintiff’s
only
substantive claim at this stage, which is for the return or delivery
of a certain Volkswagen Golf motor vehicle pursuant to
termination of
an instalment sale agreement (“the agreement”) concluded
between the parties at Cape Town on 28 September
2019.
[2] It is
common cause, or not disputed, that: (a) clause 2.1 of the
agreement records that the defendant had selected the goods (i.e. the
vehicle) ‘
from the supplier
(i.e. the dealer)
and the
Seller
(i.e. the plaintiff)
had no knowledge of the purpose
for which the goods are required by you’
; (b) in terms of
clause 3.1 the seller remains the owner of the vehicle until the full
amount owing to it has been paid; (c) in
terms of clause 11
thereof the failure to make punctual payment of any amount due shall
constitute a material breach entitling
the plaintiff at its election
to cancel and obtain possession of the vehicle; and (d) the
defendant has failed or refused
to make punctual payment of the
instalments due since 27 February 2020.
[3] The
defendant disputes the plaintiff’s entitlement to cancel the
agreement. However what is also not in dispute is that the agreement
has been cancelled, given the defendant’s allegations
at
paragraphs 7.6 and 7.8 of his plea as well as paragraph 4.1(ii) of
his opposing affidavit that it was he who cancelled it. Put
differently, although each party disputes the other’s
entitlement to cancel, and each claims that the other has breached
the agreement, it has, on both parties’ versions, come to an
end in circumstances where the plaintiff remains the owner of
the
vehicle. To this it must be added that in his later opposing
affidavit the defendant also alleged in paragraph 4.1(ii) that
‘
I
have cancelled the agreement on the basis it is void anyway’.
[4] The
plaintiff’s particulars of claim, and application for summary
judgment, make clear that all that is sought at this stage are
confirmation of termination of the agreement, return of the vehicle
and costs pertaining to this portion of the claim, with ‘
damages
to be postponed sine die’
as set out in prayer (c).
[5] Given the
defences raised and the dispute about how the agreement came
to be
terminated, the prayer for confirmation of termination is unnecessary
since judicial cancellation is not an issue. In any
event such a
prayer amounts to seeking a declaratory order which is not
permissible in terms of uniform rule 32.
[6] The
defences raised in the plea and opposing affidavit are as follows:
6.1 The defendant seeks a stay of
the action pending the outcome of a complaint he allegedly
referred
to the National Consumer Commission (“NCC”) in terms of
s 71 of the Consumer Protection Act (“CPA”)
[1]
;
6.2 Since he alleges that he
cancelled the agreement as a result of the plaintiff’s breach,
he seeks restitution (including repayment of the amounts he has
already paid to the plaintiff), alternatively for the agreement
‘
to
be set aside’
on the ground of an alleged fraudulent
omission (although his pleadings are not a model of clarity, counsel
were ad idem that the
defendant contends that this allegedly occurred
on the part of the dealer); and
6.3 Although not raised in his
plea but only in his later opposing affidavit, he denies having
received the statutory notice in terms of s 129 of the National
Credit Act (“NCA”).
[2]
[7] In
Tumileng
Trading CC v National Security & Fire (Pty) Ltd
[3]
it was held that the trite legal principles as to the test in summary
judgment proceedings remain, notwithstanding the amendments
to
uniform rule 32 with effect from 1 July 2019. Accordingly, in
essence, the defences must be bona fide in the sense that
they are
valid in law and raised in a manner not inherently and seriously
unconvincing. However if they do not meet this standard,
the Court
nonetheless retains a discretion to refuse summary judgment, provided
that such discretion is exercised judiciously and
on the material
before it.
[8] The
defendant referred to various annexures in his opposing affidavit.
These were not in fact attached to the original nor to the copy
served on the plaintiff’s attorney. However he referred in
the
affidavit to those portions of the missing annexures which he
regarded as pertinent. The first defence raised reveals that
the
subject matter of the complaint to the NCC is for the setting aside
of both the sale and the agreement and for the ‘
seller to
repay the full purchase price’.
The NCC’s decision
cannot, in law, have a bearing on the plaintiff’s current claim
for delivery of the vehicle, since
on both parties’ versions
the agreement has terminated and the vehicle must therefore be
returned to the plaintiff.
[9] The
defendant’s contention that the vehicle cannot be returned
to
the plaintiff, but only to the dealer from which he bought it, is
legally flawed. As was held in
Slip Knot Investments 777 v Du
Toit
[4]
a party who is induced to conclude an agreement by the fraud or
misrepresentation of a third party will nevertheless be bound if
the
other party to the agreement is innocent of such fraud or
misrepresentation. This does not of course prevent the defendant
from
pursuing a claim against the dealer on the basis of an alleged
fraudulent omission.
[10] The defendant complains that
the plaintiff ought to have joined the dealer as a party
to this
action. This too misconstrues the legal position. Uniform rule 10(3)
provides that joinder is only appropriate where the
determination of
substantially the same question of fact or law is in issue in
relation to
both
defendants.
[11] The plaintiff’s only
lis
at this stage is between itself and the defendant for the
return of the vehicle. It is open to either party, after the vehicle
is returned and damages are the issue, to invoke uniform rule 13 if
so advised, i.e. the third party procedure. This would enable
the
defendant to fully pursue his defence of fraudulent omission against
the dealer if he elects not to institute a separate action
against
it. This disposes of the second defence.
[12] The third defence is that
the defendant did not receive the s 129 notice and that
given
the Covid-19 lockdown he could not have ‘
legally’
collected same from the postal authority.
[13] The s 129 notice is
dated 23 June 2020, but was posted on 20 July 2020. In the notice
the
defendant was called upon to remedy the default within 10 business
days of
delivery
of the notice. The track and trace report
reflects that it was received at the local post office in the area in
which the defendant
resides on 4 August 2020 and, on the same
date, the first notification was despatched by the postal authority
to the defendant.
[14] The fact that the defendant
did not collect the s 129 notice from the postal authority
does
not mean that the plaintiff did not comply with that section of the
NCA. In
Kubyana v Standard Bank of South Africa Ltd
[5]
it was reiterated that there is no general requirement that the
notice be brought to the consumer’s subjective attention
by the
credit provider, or that personal service on the consumer is
necessary for valid delivery under the NCA. While the s 129
obligation on the credit provider is to “draw the default to
the notice of the consumer in writing”, this obligation
is
discharged by making the document available to the consumer.
[15] Where a consumer has chosen
to receive notice by way of post the credit provider’s
obligation to deliver ordinarily consists of sending such notice by
way of registered mail and ensuring that it is sent to the
correct
branch of the post office for the consumer’s collection. The
Court in
Kubyana
applied the test of a “reasonable
consumer” which means that the consumer would be expected to
take reasonable steps
to receive the notice. There is no indication
in the present matter that the defendant took any such steps. He
merely makes the
bald allegation, without adducing any evidence to
support it, that the lockdown level at the time did not permit the
plaintiff’s
attorney to ‘
issue’
the s 129
notice and that he could not ‘
have legally gone to collect
it from the Post Office’
.
[16] In any event, pursuant to
Kubyana
, amendments were effected to s 129 of the NCA.
For present purposes, s 129(5) and (7) which came into effect
from 13 March
2015 provide as follows:
‘
(5) The notice
contemplated in subsection (1)(a) must be delivered to the
consumer---
(a)
by registered
mail; or …
(7) Proof of
delivery contemplated in subsection (5) is satisfied by---
(a)
written confirmation by the postal service or its authorised agent,
of delivery to the relevant
post office or postal agency; or …’
[17] There is thus also no merit
in the third defence raised. I have further come to the conclusion
that, given all of the above, there would be no rational basis to
nonetheless exercise my residual direction to refuse summary
judgment. However I make clear that the granting of summary judgment
is in no way intended to be a pronouncement or finding on
the issue
of lawful cancellation of the agreement, which will be a matter for
the court to determine when the question of damages
is considered.
[18] As far as costs are
concerned, the plaintiff has been substantially successful and they
should therefore follow the result. However both the cause of action
and the quantum of the plaintiff’s claim fall within
the
jurisdiction of the magistrates’ court. The plaintiff seeks
costs on the attorney and client scale but it was accepted
during
argument that the agreement upon which the plaintiff relies makes no
provision for costs on this scale.
[19]
The following order is
made:
1.
Without this Court making any
finding as to which of the parties were lawfully entitled to
terminate the instalment sale agreement
concluded between them at
Cape Town on 28 September 2019, summary judgment is granted against
the defendant as follows:
1.1
An attachment order is issued
authorising the Sheriff of this Court to take possession of and
deliver to the applicant the asset,
namely a 2016 Volkswagen Golf VII
GTi 2.0 TSi DSG with engine number CHH131639 and chassis number
WVWZZZAUZGW164937, wherever it
may be found; and
1.2
Costs of suit to date on the
scale as between party and party in accordance with the applicable
magistrates’ court tariff.
2.
The remaining relief sought by
the plaintiff is postponed sine die.
J I CLOETE
[1]
68 of 2008.
[2]
34 of 2005.
[3]
2020 (6) SA 624
(WCC) at paras [24] to [27].
[4]
2011 (4) SA 72
(SCA) at paras [9] and [12].
[5]
2014 (3) SA 56
(CC) at paras [31] to [35].