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[2013] ZAGPJHC 238
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SA Taxi Finance Solutions (Pty) Ltd v Mthembu (39291/2012) [2013] ZAGPJHC 238 (4 October 2013)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 39291/2012
In the matter between
SA TAXI FINANCE SOLUTIONS (PTY)
LTD
................................................
PLAINTIFF
and
MTHEMBU,
DAVID
............................................................................................
DEFENDANT
Coram:
WEPENER J
Heard
:
2 October 2013
Delivered
:
4 October 2013
J U D G M E N T
WEPENER J:
[1] The plaintiff seeks summary judgment for the return of a vehicle.
There is no dispute regarding the fact that the plaintiff
is the
owner vehicle and that the defendant was in arrears with payments
pursuant to an agreement of lease between the parties.
There is also
no dispute that as a result of the defendant’s breach that if
the plaintiff cancelled the agreement of lease
it would be entitled
to the return of the vehicle. The matter came before Willis J in
December 2012. The parties appeared and the
respondent undertook to
pay the arrears of some R48, 196.20. Willis J postponed the matter to
20 February 2013 to allow the respondent
to comply with this
undertaking to pay. In February 2013 the amount was not paid and the
matter came before Mphahlele AJ who, because
the respondent alleged
that he did not receive the notice pursuant to s 129 of the National
Credit Act 34 of 2005 (‘NCA’),
adjourned the proceedings
to allow the applicant to serve a notice pursuant to s 129 of the NCA
on the attorneys of the respondent.
This duly occurred.
[2] The matter was set down before me and the plaintiff sought
summary judgment for return of the vehicle. Having now had a change
of heart about paying the arrears as undertaken towards Willis J the
respondent filed an affidavit resisting summary judgment in
which a
plethora of defences were raised.
[3] At the outset of the hearing I invited counsel for the respondent
to identify the defences actually relied upon and which of
the
‘defences’ need not be entertained. Counsel for the
respondent advised that the respondent relied on two defences
only
despite the contents of the affidavit which raised every conceivable
(and inconceivable) defence.
[4] The defences to be adjudicated were identified to be firstly, a
non-compliance with the notice provisions of s 129 of the NCA
and
secondly, there was no proper prior demand in terms of the lease
which resulted in the applicant being non-suited.
[5] Counsel for the respondent argued that for purposes of summary
judgment the matter must be adjudicated on the papers as they
stood
prior to the order of Mphahalele AJ i.e. that the papers could not be
supplemented by an additional affidavit regarding the
service of the
notice in terms of s 129 of the NCA. If that is so, it was argued
that the application for summary judgment was
fatally defective as
the respondent never received the original notice which was posted by
registered post to him.
[6] An application for summary judgment is in terms of Rule 32A of
the Uniform Rules supported by an affidavit which must comply
with
the rule. A plaintiff may not deal with the merits of the case and
may not file replying affidavits or additional documents.
If this has
the effect that once the matter is postponed in terms of s 130 of the
NCA in order to allow compliance with s 129,
the new evidence is not
permissible in a summary judgment application, then the matter is to
be decided on the papers as they were
prior to the service of the
notice as ordered by Mphahalele AJ.
[7] On the assumption that this proposition is correct, I am of the
view that, the defendant’s reliance on his non-receipt
of the s
129 notice does not sustain a defence.
[8] The defence of non-receipt of a s 129 notice is raised as follows
‘I never received the notice in terms of s 129’.
The
affidavit stripped of the plethora of other defences deals with the
defence of non-receipt of the s 129 notice as blandly as
quoted
above.
[10] In
Absa Bank Ltd v Petersen
2013 (1) SA 481
(WCC),
Binns-Ward J approached a rescission application by examining the
materiality of a reliance on a non –compliance with
s 129 of
the NCA at para 22. The learned judge said at para 25:
‘
In
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
2011 (4) SA
113
(CC)
(2011 (3) BCLR 229
;
[2010] ZACC 26)
, in para 85, the
Constitutional Court, consistently with long-established principle,
mentioned the materiality of the consequences
of the illegality as
one of the factors weighing importantly in the balance in any
decision to put certainty before legality when
determining upon a
just and equitable remedy in the face of a demonstrably unlawful
administrative act. The averments made by the
defendant in his
supporting affidavit indicate that he was aware of s 129 of the NCA,
and had thought about relying on the non-receipt
by him of notice in
terms of the provision as a basis for obtaining a rescission of the
judgment. What is strikingly absent from
his affidavit, however, is
any indication as to what effect he could have used his rights in
terms of the provision, had he received
the notice, or as to how he
could use them now if the court were to set aside the judgment and
give directions in terms of s 130(4)(b)
of the NCA, 12 of the sort
given in
Mkhize
.
It is equally noteworthy that his affidavit does not contain any
indication of his having taken any of the steps of which a s
129
notice would have advised him were available after obtaining
knowledge of the judgment, save perhaps for communicating
ineffectually
with the bank in the manner to be described below. He
did not need to have a notice in terms of s 129 in his hand to be
able to
refer the credit agreement to a debt counsellor or
alternative dispute resolution agent, consumer court or “ombud
with jurisdiction
”.’
[11] These words are apposite in the present matter. In
SA Taxi
Development Finance (PTY) Ltd v Phalafala
2013 JDR 0688 (GSJ) Van
Eeden AJ said para 10 to 12 as follows:
‘
[10] The defendant has
had the notice in terms of s 129(1) since the date of the service of
summons and was thus fully apprised
of his rights. He has been in
default under the credit agreement for at least 20 business days and
at least 10 business days have
elapsed since the credit provider
delivered a notice as contemplated in s 129(1). The defendant has had
the opportunity to do what
the notice invited him to do since receipt
of the summons. He is not asking for any directions in terms of s
130(4)(b)(ii), nor
does he give any indication of prejudice or of
what he would have done had he received the notice prior to the
summons.
[11] The bar in ss 129(1)(b)
and 130(3)(a) is not absolute, but dilatory, and must be read as
being subject to s 130(4)(b). The
latter section allows a court to
adjourn a matter and to make an order setting out the steps the
credit provider must complete
before the matter may be resumed. It
follows that non-compliance with the procedures required by s 129 is
not necessarily fatal
to the proceedings. In this regard I
respectfully agree with the approach of Binns-Ward J in
ABSA
Bank v Petersen
. He
refused an application for rescission under circumstances where the
defendant had not received the s 129(1)(a) notice, since
the
infringement of the defendant's rights to have received it prior to
summons was immaterial in the circumstances of that matter.
[12] Non-receipt of the notice
prior to receiving the summons is not a defence, dilatory or
otherwise, to the plaintiff's claim
in this matter. The subsequent
receipt of notice at the time of service of the summons and the
defendant's reaction thereto, entitle
the plaintiff to approach the
court for an order to enforce the credit agreement. No purpose would
be served to give him the notice
for a second time - it would be
placing form above substance to require a further notice to be sent
to the defendant. It is accordingly
unnecessary to adjourn the matter
or to make any orders in terms of s 130(4)(b), since the defendant
actually received the notice
and since the time periods of s 130(1)
and (1)(a) have actually expired. I consequently find that the fact
that the defendant did
not receive the notice prior to service of
summons "does not render the notice invalid and the issue of
summons premature".’
[12] I am in agreement with the remarks of Van Eeden AJ. The
non-receipt of the notice in this matter is not a defence available
to the defendant and the fact that Mpahalele AJ ordered a further
service of the notice is of no consequence as far as this application
for summary judgment is sought without any reference to the further
service of the notice.
[13] The second defence is that there was no proper demand in terms
of the lease agreement. The point is succinct and it is based
on a
judgment of Fisher AJ in
SA Taxi Securitisation (Pty) Ltd v
Mthethwa and Others
(2012/11001, 2012/17723, 2013/12927) [2013]
ZAGPJHC 191 (27 July 2013).
[14] The plaintiff’s right to cancel the agreement and to
obtain possession of the vehicle is contained in clause 8.2 of
the
agreement. It reads:
‘
8.2 Upon an event of
default or the loss, damage or destruction of the vehicle as
determined in 5.1 the Lessor may, subject to
the provisions of the
Act and any other applicable legislation, at its election and without
prejudice to any remedy which is [sic/
may have in terms of this
agreement or otherwise -
8.2.1 without notice, claim
immediate payment of all instalments, whether then due for payment or
not, provided that if the Lessee
does not make immediate payment, the
lessor may, notwithstanding the election to claim immediate payment
in terms of this sub-clause,
claim the relief set out in clause 8.2.2
below; or
8.2.2 after due demand, cancel
this agreement, obtain possession of the vehicle and recover from the
Lessee, as pre-established
liquidated damages, the total amount of
payments not yet paid by the Lessee, whether same
are due for payment or not or
the proceeds of any insurance policy paid by the Lessor in respect of
the vehicle. In addition, the
Lessor shall be entitled to claim from
the Lessee any amount of any value added tax payable in respect of
such damages. For the
purpose of this sub-clause, "due demand”
shall mean immediately on demand unless the Lessee is entitled to
notice, in
which case ‘‘due demand’’ shall
mean the giving of such notice to which the Lessee is entitled”.
(My emphasis)’
This clause is couched in the exact words of the clause dealt with by
Fisher AJ. After analysing the clause Fisher AJ concluded
that:
‘
[4] Thus, the notice
provisions in the NCA, which the Plaintiff is obliged to comply with
before it may approach the Court for
an order to enforce a credit
agreement, have been expressly incorporated into the agreement so
that they operate in this context
as a lex commissoria. Accordingly,
the right to cancel accrues only after the notices to which the
Defendants are entitled in terms
of the NCA (and thus the agreement)
are given. The Plaintiff was not entitled to institute action before
this cause of action had
accrued (See
Chesterfield
Investments (Pty) Ltd v Venter
1972 (2) SA 19
(W);
De
Wet NO v Ace NO
1998
(4) SA 694
(T) at 706;
Kragga
Kamma Estates CC v Flanagan
[1994] ZASCA 137
;
1995 (2) SA 367
(A).)’
[15] Levenberg AJ came to an opposite conclusions regarding the
interpretation of a clause in the same terms. In
SA Taxi
Securitisation (Pty) Ltd v Mbatha and Two Similar cases
2011 (1)
SA 310
(GSJ) Levenberg AJ said:
‘
[20] Based upon the
language of clause 9.2.2, the defendant maintains that there should
have been a demand before the plaintiff
could terminate the
agreement. As far as I can understand the defendant's argument, it
appears to be that two steps are required
for the termination of the
agreement. First, demand must be made and, thereafter, notice of
default must be given. In other words,
there must be an interpellatio
before the plaintiff can claim
.
[21] I see nothing in the
language of the lease agreements that justifies such an
interpretation. On the contrary, the language
of clause 9.2.2 makes
it clear that, as soon as demand is made, the plaintiff is entitled
to return of the vehicle. In this respect,
the allegation is made in
paras 15 and 27 of the particulars of claim in the first action that
the agreement has been terminated,
“alternatively the agreement
is terminated herewith”. As a matter of law, to the extent that
demand is required, summons
constitutes demand.’
It appears that Fisher AJ was not referred to the judgment of
Levenberg AJ as there is no reference in her judgment to the
Mbatha
case.
[16] Clause 8.2.2, adapted to include the definition of ‘due
demand’, should read:
‘
After the giving of a
notice to which the lessee is entitled, cancel this agreement, obtain
possession of the vehicle and recover
from the Lessee…
’
[17] The clause gives the right to obtain possession immediately
after the giving of the notice. The right is not exercisable only
once the consumer receives the notice. Fisher AJ held that:
‘
[5]
On the basis that the notices have been found by Foulks-Jones AJ not
to have been
delivered
in the
Mthethwa
and
Meseko
matters, the causes of action in each matter had not yet accrued as
at the date of the institution of the actions…
’
(My underlining)
[18] I do not agree with the conclusion reached by the learned judge
based on the delivery of the notice but agree with Levenberg
AJ that
the right to the possession of the vehicle was contracted to arise
upon the giving of the notice pursuant to s 129 of the
NCA.
[19] The plaintiff gave the notice required to be given by the NCA
and cancelled the agreement of lease when the summons was issued,
which cancellation it was entitled to convey by service of the
summons.
[20] Pursuant to clause 9.1 of the agreement the defendant agreed
that the plaintiff would be entitled to costs on the High Court
scale
as between an attorney and own client in the event of legal
proceedings being instituted.
[21] Having regard to the aforegoing the defences argued on behalf of
the defendant must fail.
[22] In the circumstances I grant summary judgment in favour of the
plaintiff against the defendant for:
1. Return of the 2010 TOYOTA QUANTUM SESFIKILE 15 SEATER WITH ROOF
HATCH with engine number 2TR8297004 and chassis number
JTFSX22P706093114
to the plaintiff;
2. Costs on the attorney and client scale.
WEPENER
J
JUDGE OF THE SOUTH GAUTENG
HIGH COURT
APPEARANCES
PLAINTIFF’S COUNSEL: Ms R. Stevenson
Instructed by Marie-Lou Bester Inc
Johannesburg
DEFENDANT’S COUNSEL: Mr K. Lavine
Instructed by Larry Marks Attorneys
Alberton
DATE OF HEARING:
2 October
2013
DATE OF JUDGMENT:
4 October 2013