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[2014] ZAGPJHC 315
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Africa Bank Limited v Greyling (2013/10126) [2014] ZAGPJHC 315 (7 November 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE
NO: 2013/10126
DATE:
07 NOVEMBER 2014
In the matter
between:
AFRICA BANK
LIMITED
.................................................
Applicant
And
CATHARINA JOHANNA
GREYLING
..........................
Respondent
JUDGMENT
WEINER J:
1. In this matter
the applicant (Africa Bank Limited) has applied for summary judgment
to be granted against the respondent (Catharina
Johanna Greyling).
Background
2. This matter
concerns two claims arising out of two separate credit agreements
concluded between the applicant and the respondent.
The first was a
loan agreement concluded on or about the 16th of November 2011. It
was agreed that the total amount payable to
the applicant would
amount to R15, 571.68. The respondent was to pay this amount by way
of 24 equal monthly instalments of R648.82,
the first payment being
due on 21 November 2011 (“the first agreement”).
3. The second
agreement was for a loan (relating to the acquisition of a vehicle)
and was concluded on the 20th of January 2012.
In terms of the
agreement, the applicant paid an amount of R99,999.99 to the dealer,
Hatfield VW Braamfontein. It was agreed that
that the total amount
payable by the respondent to the applicant would be R199,078.74, by
way of 42 equal monthly instalments of
R4,739.97 each (“the
second agreement”).
4. In terms of the
Standard Terms and Conditions in both agreements, in the event of
default, an acceleration clause enables the
applicant to terminate
the agreement, in which event the full amount outstanding would
become due.
5. The respondent
failed to pay the instalments in terms of both agreements. As is
required in terms of Section 129 of the National
Credit Act 34 of
2005 (“NCA”), notice was sent to the respondent by
registered post at the chosen domicilium of the
respondent. The
respondent failed to respond to the notice and thus the applicant
terminated the agreement.
6. As at 22 January
2013, the total amount outstanding in terms of the first agreement
was R8.620.68 plus interest calculated thereon
at the rate of 15,5%
per annum, calculated daily and debited monthly, as from 1 January
2013 to date of final payment.
7. As at 24 January
2013, the total amount outstanding in terms of the second agreement
was R114,459.18 plus interest calculated
thereon at the rate of 15,5%
per annum, calculated daily and debited monthly, as from 1 January
2013 to date of final payment.
8. The applicant
applied for summary judgment on the 3rd of March 2014 and the 3rd of
June 2014. In both instances postponements
were granted at the
request of the respondent. The respondent has now filed opposing
papers, submitting that she has bona fide
defences to the applicant’s
claims.
Defences
9. Firstly, the
respondent indicates that she is not a party to the second agreement.
She states that same is signed by CJ Ehlers
and not her. She claims
that the signature reflected on page 21 of this agreement is not her
signature and she thus denies that
the agreement is binding on her.
She submits that it does not accord with her signature on the first
loan agreement (claim A).
However, the signature is that of one CJ
Ehlers on both agreements and annexures thereto, which is the same
name on the defendant’s
payslips, which she attaches to her
affidavit. The defendant failed to set this out in her affidavit
resisting summary judgment
and sought to rely on the fact that the
agreements referred to the name “Greyling”, as opposed to
“Ehlers”.
Obviously Ehlers or Greyling was her name
previously (as appears from the payslips) and/or same changed
subsequently to Greyling
or Ehlers. This amounts to a dishonest
concealment from the court. This defence of the defendant is not bona
fide and can be rejected.
10. It is noteworthy
that the respondent does not deny that monies were loaned to her and
that she is in arrears. Nor does she deny
that she is in possession
of a vehicle for which finance was provided.
11. Secondly, the
respondent submits that she did not have any dealings with Hatfield
Volkswagen Braamfontein at any stage.
12. The respondent
made payments in terms of the second agreement. She is also in
possession of the vehicle. The respondent would
have had no reason to
make payments in terms of the agreement if she did not sign same and
was not making use of the vehicle. The
respondent does not state
which vehicle dealer she did have dealings with in order to obtain
the vehicle and the court is entitled
to accept that the applicant
made payment to a dealer, and that the respondent received the
vehicle. This defence too is not bona
fide and should be rejected.
13. Thirdly, the
respondent states that she did not receive the Section 129 (of the
NCA) letter as she was not residing at the address
to which it was
sent. However:-
a. On both
agreements the respondent states that both her physical and postal
address are 45 Hewitt Avenue, Brakpan 1540.
b. That is where the
Section 129 letters were sent.
c. The summons was
served at that address, on her mother, who confirmed that the
respondent resided there.
d. It is the address
she chose in the agreements as her domicilium citandi et executandi
and accordingly service with proof of posting
and a track and trace
report is sufficient. See Sebola and Another v Standard Bank of South
Africa Ltd and Another
2012 (5) SA 142
(CC), as qualified by
Mhlantla AJ in Kubyana v Standard Bank of South Africa Ltd
2014 (3)
SA 56
(CC) at [39]:-
“In sum, the
Act does not require a credit provider to bring the contents of a
section 129 notice to the subjective attention
of a consumer. Rather,
delivery consists of taking certain steps, prescribed by the Act, to
apprise a reasonable consumer of the
notice. Thus, a credit
provider’s obligation may be to make the section 129 notice
available to the consumer by having it
delivered to a designated
address. When the consumer has elected to receive notices by way of
the postal service, the credit provider’s
obligation to deliver
generally consists of dispatching the notice by registered mail,
ensuring that the notice reaches the correct
branch of the Post
Office for collection and ensuring that the Post Office notifies the
consumer (at her designated address) that
a registered item is
awaiting her collection.”
The applicant has
satisfied all those requirements.
14. The final
defence put forward by the respondent is that the applicant granted
her credit recklessly.
15. Section 80 of
the NCA provides the following:-
“(1) A credit
agreement is reckless, if at the time that the agreement was made, or
at the time when the amount approved in
terms of the agreement is
increased ...–
1. the credit
provider failed to conduct an assessment as required by section
81(2), irrespective of what the outcome of such an
assessment might
have concluded at the time; or
2. the credit
provider, having conducted an assessment as required by section 81(2)
entered into the credit agreement with the consumer
despite the fact
that the preponderance of information available to the credit
provider indicated that –
i. the consumer did
not generally understand or appreciate the consumer’s risks,
costs or obligations under the proposed credit
agreement; or
ii. entering into
that credit agreement would make the consumer over-indebted.”
16. In terms of
Section80(3) of the NCA, if a court declares a credit agreement to be
reckless, it can either set aside the consumer’s
rights and
obligations in whole or in part or suspend the force and effect of
the credit agreement.
17. In SA Taxi
Securitisation (Pty) Ltd v Mbatha; SA Taxi Securitisation (Pty) Ltd v
Molete; SA Taxi Securitisation (Pty) Ltd v
Makhoba
2011 (1) SALR 310
(GSJ), Levenberg AJ held that the defendants had not set out their
defence of reckless credit with sufficient particularity to
comply
with the requirements laid out by Colman J in the case of Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) 228. It was held that the
following should have been presented to the court – details of
the negotiations prior to the
agreement, the credit application
itself, the indebtedness of the defendants at the time in which the
agreement was concluded as
well as current indebtedness. See [55].
18. Levenberg AJ
further held the following at [25] and [26]:-
“[25] In
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) 228 Colman J
held:
“…
Another provision of the sub-rule which causes difficulty, is the
requirement that in the defendant’s affidavit
the nature and
grounds of his defence, and the material facts relied upon therefore,
are to be disclosed “fully”. A
literal meaning of that
requirement would be to impose on a defendant the duty of setting out
in its affidavit the full details
of all the evidence which he
proposed to rely upon in resisting the plaintiff’s claim at the
trial. It is inconceivable,
however, that the draftsman of the Rule
intended to place that burden upon a defendant. I respectfully agree
... that the word
“fully” should not be given its literal
meaning in Rule 32(3), and that no more is called for than this: that
the statement
of material facts be sufficiently full to persuade the
Court that what the defendant has alleged, it is proved at the trial,
will
constitute a defence to the plaintiff’s claim. What I
would add, however, is that if the defence is averred in a manner
which
appears in all the circumstances to b
e needlessly bald,
vague or sketchy, that will constitute material for the Court to
consider in relation to the requirement of bona
fides ...”
[emphasis added].
[26] The principles
enunciated in Breitenbach v Fiat are no less applicable when the
defendant deposing to an affidavit resisting
summary judgment is
relying upon defences based upon sections of the NCA. Since the
enactment of the NCA, there seems to be a tendency
in these Courts
for defendants to make bland allegations that they are
“over-indebted” or that there has been “reckless
credit”. These allegations, like any other allegations made in
a defendant’s affidavit opposing summary judgment, should
not
be “inherently and seriously unconvincing”, should
contain a reasonable amount of verificatory detail, and should
not be
“needlessly bald, vague or sketchy”. A bald allegation
that there was “reckless credit” or there
is
“over-indebtedness” will not suffice.”
19. The applicant
alleges that a credit assessment was conducted in terms of Section 81
of the NCA before both agreements were entered
into.
Section 81(2)
of
the
National Credit Act states
that a credit provider must not enter
into a credit agreement with a proposed consumer without first taking
reasonable steps to
assess:-
“(a) the
proposed consumer’s -
(i) general
understanding and appreciation of the risks and costs of the proposed
credit, and of the rights and obligations of a
consumer under a
credit agreement;
(ii) debt re-payment
history as a consumer under credit agreements;
(iii) existing
financial means, prospects and obligations; and
(b) whether there is
a reasonable basis to conclude that any commercial purpose may prove
to be successful, if the consumer has
such a purpose for applying for
that credit agreement.”
20. The respondent
denies that she has ever seen such assessments.
21. It is submitted
by the respondent that the applicant used a fictitious salary to
grant the loan. According to the respondent,
the salary reflected on
the vehicle loan agreement differs materially from the salary that
she was receiving at the time at which
credit was applied for.
22. The vehicle loan
agreement reflects the respondent’s gross income as per payslip
as R41929.73. The respondent claims that
her income, at the time of
entering into the loan agreement, was in fact R22872.79. She has
attached proof of this to her opposing
affidavit.
23. The fact that
the respondent has not seen the credit assessments is of no
consequence as one would not expect her to have been
given copies
thereof. What is relevant is that the respondent signed the
documents, and in particular, signed the document containing
the
income and expense declaration at page 16 of the terms and conditions
which were incorporated in the second agreement. She
does not deny
that that is her signature, but denies that the signature at the end
of the document is hers. The relevant page of
the document being the
income and expense declaration is a separate page which she signed.
24. Having regard to
the authorities set out above, it is my view that the defendant, in
making allegations in her opposing affidavit
is “inherently and
seriously unconvincing”. There is no detail as to what her
expenses were at the time and why she
would not be able to afford the
instalments. It is for the defendant to set out, in the affidavit
resisting summary judgment, that
she has a bona fide defence and this
must be set out with the clarity and detail referred to in
Breitenbach v Fiat (supra).
25. In my view,
there is no bona fide defence set out by the defendant in this
matter.
Accordingly, the
following order is made:-
A. AD Claim A
1. The agreement is
hereby terminated, and
2. The defendant is
to make payment to the plaintiff:-
2.1. In the amount
of R8, 620.68,
2.2. Interest on R8,
620.68 at the rate of 15,15 % per annum, calculated daily and debited
monthly, from 23 January 2013, to date
of final payment.
B. AD Claim B
1. The agreement is
hereby terminated, and
2. The defendant is
to make payment to the plaintiff:-
2.1. In the amount
of R114, 459.18, and
2.2. Interest on
R114, 459.18 at the rate of 15,15 % per annum, calculated daily and
debited monthly, from 25 January 2013, to date
of final payment.
C. Defendant is to
pay the costs of suit on the attorney-client scale.
WEINER J
Counsel for the
Applicant: Adv. E. Van der Merwe
Applicant’s
Attorneys: Lynn Strydom Incorporated
Counsel for the
Respondent:
Respondent’s
Attorneys: Clarinda Kugel Attorneys
Date of Hearing:
7 October 2014
Date of
Judgment:7 November 2014