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[2017] ZAGPJHC 132
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De Bruin v Firstrand Vank Limited t/a Wesbank (42493/2015) [2017] ZAGPJHC 132 (5 May 2017)
REPUBLIC OF SOUTH AFRICA
HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 42493/2015
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
5
MAY 2017
In
the matter between:
COLLEEN
DE
BRUIN
Applicant
and
FIRSTRAND
BANK LIMITED
t/a
WESBANK
Respondent
JUDGMENT
Barrie
AJ:
INTRODUCTION
1.
The applicant, Mrs Colleen de Bruin (“Mrs De
Bruin”) applies for the setting aside of
a
judgment
(“the
judgment”)
in
favour
of
the
respondent,
FirstRand
Bank
Limited
(“the
bank”),
trading
as
Wesbank,
granted
against
her
on
8
March
2017.
The
judgment was granted by the registrar of this
court acting in terms of the provisions
of
rule 31(5) of the Uniform Rules of Court (“the rules”).
2.
The judgment arose from Mrs De Bruin’s failure to
keep up payments of instalments
that
she
had
agreed
to
pay
in
terms
of
an
instalment
agreement
(“the
instalment
agreement”
or “the agreement”) that she concluded with the bank on 5
September
2014
for
the
purchase
of
a
Chevrolet
Captiva
2.4
LT
motor
vehicle
(“the
motor
vehicle”).
3.
In terms of the orders forming part of the judgment:
3.1
Mrs
De
Bruin
was
ordered
forthwith to return the motor vehicle to the bank,
failing
which
the
sheriff
of
the
court
was
authorised
to
attach
and
hand
over
the vehicle to the bank (“the attachment order”);
3.2
Judgment
for
damages
in
respect
of
damage
that
the
bank
may
have
suffered,
together
with
interest
thereon,
was
postponed
sine
die
,
pending
the
return
of
the
vehicle
to
the
bank,
the
subsequent
valuation
and
sale
thereof and the calculation of the amount to
which the bank was entitled;
3.3
Mrs
De
Bruin
was
to
pay
costs
of
R650,00,
plus
the
sheriff’s
fees,
to
the
bank;
3.4
The bank was granted
leave to apply for damages on the same documents
duly supplemented by an affidavit in the event of
a shortfall.
4.
The
sheriff of
this
court
attached
the
vehicle
on
8
April
2016
pursuant
to
the
attachment
order. Mrs De Bruin subsequently instituted the present proceedings
in
terms
of
a
notice of motion served on the bank’s attorneys on 13 May 2016.
The
notice of
motion
[1]
specifies
the principal relief that Mrs De Bruin seeks as orders:
“
1. Rescinding
and setting aside the whole of the orders and
judgment
granted
by this Honourable Court on the 8
th
March 2016.
2.
Granting
the Applicant leave to defend the action instituted
under the
aforesaid
case number.
3.
Ordering
that the Applicant is entitled to reinstate the
credit agreement
concluded
between the parties on payment of the arrears due to date and
the legal/administrative costs set out in
section 129(3)(i) of the National
Credit
Act.
4.
Ordering
the Respondent to forthwith deliver to Applicant a
2013 Chevrolet
Captiva
2.4 LT motor vehicle with chassis number KL1FC2U7CB034770
and engine number LE9120450041.
5.
Ordering
the sheriff of the court in whose jurisdiction the
vehicle may be
found
to seize the vehicle and hand same to the Applicant.
6.
Costs
of
suit.
7.
Further
and/or alternative
relief.
”
5.
The
notice
of
motion
[2]
also
gave
notice
of
Mrs
De
Bruin’s
intention
to
seek
urgent
relief
on
17
May 2016
to
interdict
the
bank
from
selling
the
motor
vehicle
pending
the outcome
of the principal proceedings.
6.
After receipt of the notice of motion the bank’s
attorneys gave an undertaking that
the
bank would not sell the vehicle and Mrs De Bruin’s application
for urgent relief
did then
not proceed.
However, who is
to be liable for the parties’ costs in relation
to the urgent application remains in dispute.
Accordingly, apart from Mrs De Bruin’s
application
for
the
principal
relief
contemplated
in
terms
of
her
notice
of
motion,
I
have also to adjudicate on the liability for the
costs of the urgent application.
7.
Mr
Z
Omar
of
Zehir
Omar
Attorneys
(“Omar
Attorneys”)
appeared
before
me
on
behalf of Mrs De Bruin.
Omar
Attorneys acted for Mrs De Bruin throughout. Mr A P Bruwer appeared
on behalf of the bank, instructed by Attorneys C F van
Coller Inc.
(“Van Coller Attorneys”), who,
likewise, acted for the bank throughout.
FACTUAL
BACKGROUND
8.
The
instalment
agreement
in
terms
of
which
Mrs
De
Bruin
purchased
the
motor
vehicle
from
the
bank
is
a
“
credit
agreement
”
and
an
“
instalment
agreement
”
as
referred
to in the National Credit Act, 34 of 2005 (“the NCA”).
9.
The total
consideration payable for the motor vehicle (including accessories
and an
“
Initiation
Fee
”
of
R1 140.00)
was
R310
640.00.
Mrs
De
Bruin
in
terms
of
the
agreement
paid an initial deposit of R36 000.00 towards payment of this sum.
With
interest
of
R118 014.88
added
to
the
balance,
the
total
principal
debt
came
to
R392
654.88,
payable
in
72
equal
instalments.
The
initial
instalments
were
R5,589.03
per
month
[3]
,
which
included
a
monthly
“
Service
Fee
”
of
R57.00
and
a monthly
payment of R78.49 for a “
RETRENCHMENT
BENEFIT
”
[4]
.
10.
Mrs
De
Bruin
fell
in
arrear
during
mid-2015
after,
so
she
states,
being
retrenched
from her
employment.
[5]
11.
Mrs
De
Bruin
then
entered
into
discussions
with
a
Ms
Van
der
Walt
of
the
bank
regarding
bringing
the
arrears
up
to
date.
Arising
from
these
discussions
Mrs
De
Bruin continued to make payments through to March
2016. She never succeeded to
get
up
to
date. On
the
date
of
the
judgment, 8
March
2016,
the
arrears
amounted to R17 387.83.
12.
The bank’s summons was issued out of this court on
1 December 2015.
13.
Mrs
De
Bruin
did
not
enter
an
appearance
to
defend the matter.
According
to Mrs
De Bruin she, after
receiving the summons, spoke to a representative of Van Coller
Attorneys
by
telephone. She
describes
the
person
she
spoke
to
as
“
an
African
gentleman
whose name I cannot now recall
”. She
informed him that she had made
arrangements
with Ms Van der Walt for bringing the arrears up to date and
intended to keep on paying her instalments.
According to Mrs De Bruin the person
she
spoke
to
told
her
that
he
would
take
the
matter
up
with
the
bank
and
would
contact
Mrs
De
Bruin
in
due
course. This
is,
however,
in
dispute. In
terms
of
affidavits
before
me
from,
respectively,
Mr
Ten
Napel,
the
director
of
Van
Coller
Attorneys
dealing
with
the
matter,
and
Mr
Nkandla,
an
administration
clerk
employed
by Van Coller Attorneys, no “
African
gentleman
” that
could or would have
conveyed
what
Mrs
De
Bruin
avers
was
employed
or
associated
with
the
firm
of
attorneys.
14.
In these circumstances, Van Coller Attorneys applied for
default judgment which, as
referred
to
already,
the
registrar
granted
on
8
March
2016,
leading
to the
sheriff’s
attachment of the vehicle on or about 8 April
2016.
15.
Mrs
De
Bruin,
on
learning
that
the court had granted an order by default, consulted
her attorney, Mr Omar.
16.
E-mailed
correspondence
subsequently
passed
between
a
Ms
Jasmine
Omar
of
Omar
Attorneys
and
a
Ms
Rosie
Garrancho,
who
is
described
in
her
e-mails
as
a
“
Specialised
Collections Agent, Wesbank Motor Operations
”.
17.
In terms of the first e-mail, dated 3
May 2016 (presumably sent after some earlier
communication between Ms Omar and Ms Garrancho),
Ms Garrancho informed Ms
Omar
that
Mrs
De
Bruin
(referred
to
as
“
our
customer
”)
could
settle
the
account
pertaining
to
the
motor
vehicle
by
payment
on
or before 4 May 2016 of
R260
512.77 made up as follows:
“
R254
457.27 balance
R4
099.50
+ outstanding legal fees
R1
215.00
+ storage fees (08/04/2016 - 04/05/2016)
R741.00
+
towing fees
”
Ms
Garrancho
enquired
whether
Mrs
De
Bruin
would be in a position to make
payment.
18.
Mrs
De
Bruin
received
a letter from the bank,
dated 12 April 2016, on the next day,
4
May 2016.
It also came from
Ms Garrancho and informed Mrs De Bruin, among
other
things,
that
as
at
the
date
of
the
letter
the
outstanding
balance
of
Mrs
De
Bruin’s
debt
was
R318
857.24
and
the
arrears
R16 217.48.
The
letter
further
informed her that:
“
We have
estimated the value of the Goods at R90,000.00, excluding VAT.
If the Goods were
secured by us by means of a court order and you wish to resume
possession of the Goods, then you must, within
10 (ten) business days
of receipt of this letter, pay the entire balance outstanding under
the agreement inclusive of any costs,
including
legal fees, recovery charges
and storage
costs.
…
If you do not respond
within 10 (ten) business days of receipt of this letter, we will
have
no
option
but
to
sell
the
Goods
as
soon
as
practically
possible,
for
the
best
price reasonably obtainable, and proceed
with the necessary steps to recover from
you any shortfall (including any
additional costs) on your account.
”
19.
Ms
Omar responded to Ms Garrancho’s
e-mail of 3 May 2016 on 5 May 2016. Her
e-mail
referred
to
the
bank’s
letter
to
Mrs
De
Bruin
of
12
April
2016
(that
Mrs
De
Bruin must have supplied to Ms Omar in the
interim). Ms Omar recorded that:
“…
our
client will consider reinstating the credit agreement.
We require the figures
including all arrear sums and
administration costs associated to reinstating the
credit agreement.
”
20.
Ms
Garrancho
responded
promptly, on the same day. She recorded:
“
We require
settlement in order to release the vehicle back to the customer.
My
email
dated 03/05/2016 noted that our customer had time
till the 04/05/2016 to
settle
the account. The settlement amount provided at the time which expired
on
the
04/05/2016 being
R260
512.77
.
Please
can
you advise me if our customer is in a position to make payment.
”
21.
On
Monday,
9
May
2016,
Ms
Garrancho
followed-up
her
previous
e-mail. She
wrote
to Ms Omar to the effect that:
“
I have not
received a response to my email dated 05/05/2016.
We
are
proceeding with the sale of the vehicle on public
auction. The vehicle will
be
cleared for sale today.
”
22.
This
prompted
Omar
Attorneys
to
e-mail
a
formal
letter
to
the
bank. I
quote
the
following
excerpts:
“
Firstly,
having
concluded
a credit agreement with your customer, you are bound
to
comply with
the provisions of the
National Credit Act.
In
this regard you are
referred to the provisions of
section
129(3)
of Act 34 of 2005, which expressly
permits a debtor to reinstate a credit
agreement, even after judgment but before a
sale in execution.
Secondly
in
terms of section 129(3) all that a debtor must do to
reinstate the credit
agreement
in the aforegoing instance, is to settle the arrears and the bank’s
reasonable legal costs.
See in this regard the decision of Nkatha
v FirstRand Bank
Ltd
CCT 73.2015 Constitution Court, judgment of Mr Justice Cameron made
against your good selves.
…
According
to the attached letter, the arrears over the vehicle
is the sum of
R16
217.48,
which sum our client tenders for the purposes of reinstatement of the
agreement. Let us know what are the
reasonable legal costs you have incurred in
your recovery steps against our client.
In view of the threat
that the vehicle is being sold, you are called upon to, by close
of business today, provide us with an
undertaking that you will not sell our client’s
vehicle. Failing the latter, we will be
obliged to carry out our client’s instructions to
seek an urgent interdict against the bank with an
appropriate costs order.
In
view
of
FirstRand Bank having been alerted of the law in the Nkata case
supra
, as
recently as 21 April 2016, we will apply for a
punitive costs order against the bank,
should the bank persist in its stance.
In addition to the
above, we await the reasonable costs and confirmation that our
client must pay same into the
aforementioned bank account.
”
23.
Ms
Omar e-mailed the letter, which
was dated 9 May 2016, to Ms Garrancho on 10
May
2016.
A
copy
of
the
letter,
dated
12
April
2016,
that
Mrs
De
Bruin
had
previously
received from the bank, accompanied the letter.
24.
Omar
Attorneys’
letter
received
an
immediate
response
from Van Coller Attorneys,
represented by Mr Ten Napel.
He wrote back to Omar Attorneys on 10 May 2016
recording, among others, that:
“
As
a
result of your client’s election not to defend the matter an
Order was granted
in
our client’s favour. A copy of the Order is attached for your
attention.
The
credit
agreement
was duly cancelled. The vehicle was attached by the Sheriff on the
8
th
April
2016 (and not the 4
th
May 2016 as claimed in your letter).
Our client is
precluded by the provisions of Section 129(4) of the NCA from re-
instating a credit agreement under the current circumstances.
It is
also not our client’s policy to reinstate enforced credit
agreements pursuant to the attachment of goods in terms of
a Court
Order.
Our client will
proceed to clear the vehicle for sale, as it is expected to do under
Section 127 of the NCA, if the account and
our fees are not settled
in full.
We
also
note your threat of making an urgent application to
the High Court to have
the
sale stayed.
With
all due respect, there is simply no urgency. Your client
received the summons and knew of the
action since January 2016. She knew that
an Order would be granted if she did not
defend the action.
The
vehicle was also
removed
from her possession on the 8
th
April
2016, she has known for more than a
month
that the Bank would proceed to sell the vehicle on public auction to
recover
its
loss.
Any
attempt
to stay or rescind the proceedings, albeit urgent or not, will be
strenuously opposed and a costs Order on a
punitive scale will be sought against
your
client.
”
25.
Mr
Ten
Napel’s
letter,
in
turn,
prompted
Omar
Attorneys
to
launch
the
application
proceedings,
including
the
urgent
application
that
was
to
have
been
moved
on
17
May
2016.
THE
TERMS AND CONDITIONS
26.
Clause
13
of
the
“
TERMS
AND
CONDITIONS
FOR
AN
INSTALMENT
AGREEMENT
(Variable
Rate)
”
(“the
terms
and
conditions”)
forming
part
of
the
instalment agreement provides, among others,
that:
“
13.
Breach
13.1.
If:
13.1.1.
you
do not comply with
any of the terms and conditions of this
Agreement (all of which you agree are
material); or
13.1.2.
you
fail to pay any
amounts due under this Agreement; or
13.1.3.
….
(etc.)
then
we
may (without affecting any of our other rights) proceed with the
enforcement or termination of the
Agreement, as set out in the Act.
13.2.
Upon
the occurrence of any of the abovementioned events,
we shall be
entitled,
at our election and without prejudice to:
13.2.1
claim
immediate
payment
of the outstanding balance together with the
interest and all amounts owing or
claimable by us, irrespective of whether or not
such amounts are due at that stage; or
13.2.2.
take repossession of the Goods in terms of an attachment order,
retain
all
payments already made in terms hereof by yourself and to claim as
liquidated
damages,
payment of the difference between the balance outstanding and the
market value of the goods determined in
accordance with clause 11.5.2.3, which
amount shall be immediately due and
payable.
13.3.
If
we elect to enforce the Agreement, a notice will be sent to you,
which will
set
out:
13.3.3.
the details of your default;
13.3.3.
the period within which we require you to rectify the default; and
13.3.3.
your rights
to refer this Agreement to a
debt counsellor, alternative
dispute
resolution agent, Consumer Court or an Ombudsman with jurisdiction,
with
the
intention of resolving any disputes or developing and agreeing on a
plan to
bring
your payments under this Agreement up to date.
13.4
…
.
13.5.
Should
we elect to terminate this Agreement in terms of
section 123 of the
Act,
the same procedure set out in 13.3. above, will be followed prior
thereto.
13.6.
Before
termination
of the
agreement you are entitled to reinstate the
agreement in respect of which you are in
default, by paying all overdue amounts, as
well as our permitted default charges and
reasonable costs up to the time of
reinstatement
13.7
…
.
13.8. If we sell the
Goods pursuant to an attachment order or you surrender the
Goods
to us, and the nett proceeds are insufficient to settle all your
obligations
under
the Agreement, we may approach the court for an order enforcing any
of
your
remaining obligations under this Agreement.
11.8
…
“
[6]
27.
Clause
11
of
the
terms
and
conditions
bears
the
heading
“
Voluntary
Surrender
”.
Because clause 13.2.2 refers to clause 11.5.2.3,
that clause is relevant. To
understand
it
in
context,
it
is
necessary
to
refer
to
somewhat
more
than
clause 11.5.2.3. Clause 11, provides that:
“
11.1. You
may terminate this Agreement at any time by giving us
written notice
and
by surrendering the Goods to us.
11.2.
Once
we are in possession of the Goods, we will within ten (10) business
days appoint an appraiser to value the
Goods, and we will advise you of the
valuation.
11.3.
You
may withdraw your written termination of the
Agreement within ten
(10)
business
days after receiving the valuation, and resume possession of the
Goods, unless you are in default with your
obligations under the Agreement, or you
may request us to sell the goods.
11.4.
If
you do not respond to the valuation notice within ten (10) business
days
of having
received it, we will proceed to sell the Goods.
11.5.
After
selling the goods, we shall:
11.5.1.
credit
or
debit
you
with
a payment or charge equivalent to the proceeds
of the sale, less any expenses reasonably
incurred by us in connection with the sale
of the Goods; and
11.5.2.
give
you a written
notice stating the following:
11.5.2.1.
the
settlement value of the agreement immediately before the sale;
11.5.2.2.
the
gross amount realised on the sale;
11.5.2.3.
the
nett proceeds of the sale after deducting our permitted default
charges and reasonable costs allowed under
11.5.1; and
11.5.2.4.
the
amount credited or debited to your account
11.6.
You
will be liable to us for any amount that is
outstanding after the Goods
have
been sold, our reasonable costs incurred in connecttion with the sale
of the
Goods
and for interest calculated on these amounts, from the date of demand
until
the date
of final payment.
11.7.
If
you do not pay us any amount that is outstanding after the sale of
the
Goods, you
will be in breach.
”
28.
Clause
22.6.
of
the terms and conditions, appearing
under the heading
“
General
”,
provides that:
“
22.6.
This
is
the
whole Agreement and no changes or cancellations will be valid
unless
it
is
in
writing
and
signed
by
both
parties
or
is
voice-logged
by
us
and
subsequently reduced to writing.
”
The
clause is relevant only because in argument before me the bank relied
on it on the basis that whatever Mrs De Bruin states she
might have
agreed with its representatives regarding her bringing her
instalments up to date, or whatever, it was not binding.
29.
The
bank’s
particulars
of
claim
attached
to
the summons
served
on
Mrs
De
Bruin
made
no
mention
of
any
cancellation
of
the
instalment
agreement
prior
to
the
summons
being
issued,
nor
did
the
particulars
of
claim
purport
to
effect
a
cancellation
of
the
agreement. The
bank’s
prayers
in
terms
of
the
particulars
of
claim,
however, included a claim for cancellation.
The
prayers were for:
“
A.
cancellation of the credit agreement;
B.
an
order
directing
the Defendant to
forthwith
return
to the
Plaintiff
a
2013
Chevrolet
Captiva
2.4
LT
motor
vehicle
with
chassis
number
KL1FC2U7CB034770
and
engine
number
LE9120450041,
failing
which
the
sheriff
is
authorised
to
attach the
vehicle
wherever
he
may find
same
and to hand the vehicle to the Plaintiff;
C.
that
judgment
for the
amount of damages that
the
Plaintiff
may have
suffered,
together
with
interest
thereon,
be
postponed
sine
die
,
pending
the return of the vehicle to the Plaintiff, the
subsequent valuation and sale
thereof
and the calculation of the amount to which the Plaintiff is entitled;
D.
interest
on
the amount referred to
in prayer B at the rate of 3% per annum
above
the
prime
bank
lending
rate
namely
9.75
per
cent
per
annum
from
date
of cancellation to date of payment;
E.
costs
of suit;
F.
further
and/or
alternative
relief
.”
30.
The
registrar,
in
granting
the judgment
on
8
March
2016,
did
not
grant
the
bank’s
prayer
for
cancellation. It
does
not
appear
from
the
papers
before
me
what
the reason
was.
The
bank
could,
potentially,
have
utilised
the
avenue
open
to
it
in
terms of rule 31(5)(d) to set the matter down for
reconsideration by the court and in
that
manner
it
could
have
obtained
cancellation
of
the
instalment
agreement
by
court
order, as it had set out to do in terms of the summons. It did,
however, not do
so.
31.
The order granted in terms of the judgment for the
return of the vehicle to the bank
is
not
of
necessity
predicated
on
a
cancellation
of
the
agreement
– the
bank
is
in
terms
of
clause
13.2.2,
read
with
clause
11,
entitled
to
take
“
repossession
”
of
the
motor vehicle (which is, after all, the bank’s
property) without having to rely on any
cancellation of the credit agreement.
32.
The bank elected
to obtain cancellation by court order
[7]
.
It did not
achieve
cancellation
in
that
manner.
The
credit
agreement,
accordingly,
remained
extant
after
8
March
2016.
It
had
not
been
cancelled
by
the
time
that
Mrs
De
Bruin,
represented
by Omar Attorneys, on 10 May 2016 tendered to pay the arrears owing
in
respect
of
the
credit
agreement.
It
remained
extant
at
the
time
when
Mrs
De
Bruin’s
application papers were served on Van Coller Attorneys, despite the
contents
of
their
letter
of
10
May
2016. That
letter
did
not
purport
to
effect
any
cancellation
of the credit agreement – Van Coller Attorneys referred to a
supposed
prior
cancellation, that had not, in fact, taken place.
MRS
DE
BRUIN’S
RIGHTS
TO
REMEDY
HER
DEFAULT AND
TO
REINSTATE
THE
INSTALMENT AGREEMENT
33.
The Constitutional
Court in
Nkata
v FirstRand Bank Ltd
[8]
addressed the rights of a
consumer to
reinstate a credit agreement in terms of section 129(3) of the NCA.
It
also
addressed interpretation of section 129(4) of the NCA.
34.
These
provisions
were
amended
by
the
National
Credit
Amendment
Act,
19
of
2014, that came into operation on 13 March 2015.
35.
Sections
129(3)
and
(4), prior to amendment on 13 March 2015, provided that:
“
(3) Subject
to subsection (4), a consumer may:
(a)
at
any
time
before the credit
provider has cancelled the agreement re-
instate a credit agreement that is in
default by paying to the credit
provider
all amounts that are overdue, together with the credit
provider’s permitted default charges
and reasonable costs of enforcing
the
agreement up to the time of reinstatement; and
(b)
after
complying
with paragraph (a), may resume possession of any
property that had been repossessed by the
credit provider pursuant to
an
attachment order.
(4)
A
consumer may not re-instate a credit agreement after:
(a)
the sale of any property pursuant to:
(i)
an
attachment
order; or
(ii)
surrender
of
property
in
terms
of section
127;
(b)
the execution of any other court order
enforcing that agreement; or
(c)
the termination thereof in accordance with
section 123.
”
36.
The
Nkata
judgment
has now, and for purposes of the case before me, to be read
and
understood
in
the
light
of
the
current
wording
of
these
provisions.
Sections
129(3) and (4) now
provide that:
“
(3) Subject
to subsection 4, a consumer may at any time before
the credit
provider
has cancelled the agreement, remedy a default in such credit
agreement by paying to the credit provider
all amounts that are overdue,
together
with the credit provider’s prescribed default administration
charges
and reasonable costs of enforcing
the agreement up to the time the default
was remedied.
(4) A credit provider
may not reinstate or revive a credit agreement after:
(a)
the sale of any property pursuant to:
(i)
an
attachment
order; or
(ii)
surrender
of
property
in
terms
of section
127;
(b)
the execution of any other court order
enforcing that agreement; or
(c)
the termination thereof in accordance with
section 123.
”
37.
The conclusions that the Constitutional Court arrived at
by majority
judgment,
applied to sections 129(3) and (4) of the NCA in
their present form, are:
37.1
For
a
consumer
to
exercise
his/her
right
in
terms
of
section
129(3)
to
remedy a
default
of
the
consumer’s obligations in terms of
a credit
agreement
does
not
require
that
the
consumer
has
to
give
notice
to,
or
seek
the
consent
or
co-operation
of,
the
credit
provider.
The
consumer
may
disclose his/her intentions to the credit provider, but it is not a
prerequisite
to exercising the statutory right to remedy the breach.
[9]
37.2
It
is,
however,
(quite
clearly)
required
that
the
right
in
terms
of
section
129(3) be
exercised before the credit provider cancels the agreement.
[10]
37.3
The
words
“
all
amounts
that
are
overdue
”
in
section
129(3)
refer
only
to
arrear
instalments and not to the consumer’s full indebtedness if the
credit
provider
has invoked an acceleration clause to demand payment of the full
outstanding
debt.
[11]
37.4
That
a credit provider
has invoked the provisions of an acceleration clause
in the
relevant credit agreement is not necessarily indicative that the
agreement
has
been
cancelled.
Whether
the
credit
agreement
has,
as
a
matter of
law, been cancelled, depends on the particular facts that pertain
in every
instance.
[12]
37.5
Unless
the credit
provider’s “
reasonable
costs of
enforcing the agreement
“
and
“
prescribed
default
administration
charges
”
have
become
payable
by
being
quantified
[13]
[14]
,
and by due notice of the quantified sums having been
given to
the consumer, the consumer has to pay only the arrears
.
”
[15]
37.6
The
provisions
of
section
129(4)(a)
that
prevent
a
consumer
from
exercising
his/her
section
129(3)
right
after
the
sale
of
property
“
pursuant
to
an
attachment
order
”
or
a
sale
“
pursuant
to
a
surrender
of
property
in
terms
of
section
127
”,
do
not
include
the
preliminary
steps
of
the
credit
provider’s
obtaining
an
order
to
attach
property,
its
having
the
property
attached
and/or taking possession of the property, or its taking steps to sell
such
property in terms of its rights in terms of the credit agreement
and/or arising
from
a
surrender
in
terms
of
section
127. The
limitation
“
applies
only
when proceeds from a sale in execution have been realised
”.
[16]
37.7
The
provisions
of
section
129(4)(b)
that
prevent
a
consumer
from
exercising
his/her
section
129(3)
right
after
“
the
execution
of
any
other
court
order
enforcing
that
agreement
”,
do,
likewise,
not
include
the
preliminary
steps of the credit provider’s obtaining an order to attach
property,
its
having
the
property
attached
and/or
its
taking
possession
of
the
property,
and/or
its
taking
steps
to
sell
such
property
in
terms
of
its
rights
in terms of the credit agreement or arising from a surrender in terms
of section 127.
The
bar again “
applies
only when proceeds from a sale in
execution have been realised
”.
37.8
If
the
consumer
makes the
payments
required
in
terms
of
section
129(3),
provided
that payment is made before the credit provider has cancelled the
agreement,
the consumer’s prior default is remedied by operation of
law.
[17]
37.9
Once the consumer
has
remedied his/her
default by
payment
in
accordance
with section 129(3)
any prior
judgment
or
attachment
of
property
arising from the consumer’s prior default ceases, by operation
of
law,
to have any force or effect.
[18]
38.
What
is
relevant
to
this
matter
is
that
Mrs
De
Bruin’s
entitlement
to
remedy
her
default of her obligations in terms of the
instalment agreement does not arise only in
terms
of
section
129(3),
read
with
section
129(4)
of
the
NCA.
She
also
has
a
contractual right arising from clause 13.6 of the
terms and conditions. Because the
wording
of
the
clause
closely
follows
the
wording
of
section
129(3)
before
it
was
amended
on
13
March
2015,
the
Nkata
judgment
is
directly
relevant
to
how
it
should
be interpreted and applied.
MRS
DE
BRUIN
DID
NOT
EFFECT
PAYMENT
OF
THE
ARREARS
:
SHE
TENDERED
PAYMENT
39.
If
Mrs
De
Bruin
had
prior
to
launching
the
present
proceedings
paid
the
bank
the
sums
that
were
overdue
on
the
instalment
agreement
(i.e.
the
arrears),
plus
the
R650.00
costs
granted
in
terms
of
the
judgment,
her
claims
for
relief
would,
in
accordance
with the
Nkata
judgment,
have been incontestable
[19]
.
However, she did
not pay;
she tendered to pay.
40.
Applying
the authority of the
Nkata
judgment to Mrs De Bruin’s situation
that arose
after the sheriff
had attached the motor vehicle (and keeping in mind that the bank
had not cancelled the instalment agreement), it
was not sufficient for her merely to
tender
payment to exercise her statutory right to remedy her default. Mrs De
Bruin
had
to
effect
payment
of
the
arrears
and
the
R650.00
costs.
If
she
had
done
so,
she
would
have
remedied
her
default
in
accordance
with
section
129(3)
and
the
bank would have had to allow her again to take
possession of the vehicle.
41.
The
same
applies
to
Mrs
De
Bruin’s
right
to
reinstate
the
agreement
in
terms
of
clause
13.6 of the terms and conditions.
Failing
her actually making payment, the
instalment
agreement was not reinstated and she was not entitled to be put back
in
possession of the motor
vehicle.
42.
The
conclusion
that
Mrs
De
Bruin
should
have
made
payment,
as
opposed
to
tendering
to
do
so,
disposes
of
a
substantial
part
of
the
relief
that
Mrs
De
Bruin
seeks
through
these
proceedings.
The
conclusion
does,
however,
not
dispose
of
the matter in its entirety.
THE
BANK FAILED TO PROVIDE MRS DE BRUIN WITH THE FIGURES SHE REQUIRED
TO
ENABLE
HER TO
EXERCISE HER RIGHTS : SECTION 110 OF THE NCA
43.
Ms
Omar on 5 May 2016 requested the
bank to provide the figures associated with
reinstating
the
agreement,
including
all arrear
sums
and
administration
costs.
On
the
same
day
Ms
Garrancho,
in
effect,
refused
to
do
so;
Ms
Garrancho
failed
to
provide
the information that Ms Omar had requested, making it clear that the
bank
required payment of the
full outstanding principal debt that was due.
44.
Omar
Attorneys
on
10
May
2016
conveyed
Mrs
De
Bruin’s
tender
to
pay
the
arrears specified in the bank’s letter of
12 April 2016 to the bank, at the same time
requesting to be informed of
what the bank’s reasonable legal costs
regarding the
recovery steps
against Mrs De Bruin were.
The
response from Van Coller
Attorneys
was to insist that not only Mrs De Bruin’s entire accelerated
indebtedness
to the bank be
paid in full, but also their fees.
45.
Section
110
of
the
NCA,
under
the
heading
“
Statement
of
amount
owing
and
related matters
”,
provides that:
“
(1) At
the request of a consumer, a credit provider must
deliver without charge to
the
consumer a statement of all or any of the following-
(a)
the current balance of the consumer's account;
(b)
any
amounts
credited
or debited during
a period specified in the
request;
(c)
any
amounts
currently
overdue
and when each such amount became
due; and
(d)
any
amount currently
payable
and the date it
became due.
(2)
A
statement requested in terms of subsection (1) must be delivered-
(a)
within
10 business
days, if all the requested information relates to a
period of one year or less before the
request was made; or
(b)
within
20 business
days, if any of the requested information relates to
a period of more than one year before the
request was made.
(3)
A
statement under this section may be delivered-
(a)
orally,
in
person or by telephone; or
(b)
in
writing, either to
the consumer in person or by sms, mail, fax, email
or other electronic form of communication,
to the extent that the credit
provider
is equipped to offer such facilities, as directed by the
consumer when making the request.
(4)
A
credit provider is not required to provide-
(a)
a further written statement under this section if
it has, within the three
months
before the request is given, given such a statement to the
person requesting it; or
(b)
information
in a
statement under this section more than three years
after the account was closed.
(5)
On
application by a credit provider, the Tribunal may make an order
limiting
the
credit provider's obligations to a consumer in terms of this section
if the
Tribunal
is satisfied that the consumer's requests are frivolous or
vexatious.
”
46.
Section
129(3)
of
the
NCA
has
to
be
read
in
conjunction
with
section
110,
which
provides
the
consumer
with
the
means
to
ascertain
from
the
credit
provider
the
information
that
he/she
requires
to
ascertain
what
needs
to
be
paid
in
terms
of
section
129(3) by way of “
all
amounts that are overdue
”
and also, in given
circumstances,
“
the
credit
provider’s
prescribed
default
administration
charges
”,
if
the
credit provider has debited these to the account.
The NCA, however, provides
no
immediately available
remedy
to
such
a
consumer
if
the
credit
provider fails
to
provide the required statement that it is obliged
to render in terms of section 110 of
the
NCA.
47.
The
Nkata
judgment
established
that
a
consumer
who
wants
to
exercise
his/her
statutory
right
in
terms
of
section
129(4)
of
the
NCA
to
remedy
a
default
is
not
compelled to seek the co-operation of the credit
provider. That does not, of course,
mean
that, if the consumer does seek the credit provider’s
co-operation, the credit
provider
is not obliged to provide it in accordance with section 110.
However, the
consequences
of a
credit provider’s
failing or refusing to provide the
required
figures in such circumstances are not provided
for.
48.
A consumer
who
makes a
request
in
terms
of
section
110
for
purposes of
his/her
remedying a default in accordance with section
129(3), but who is then not supplied
with
the
required
figures,
will
often,
if
not
invariably,
be
faced
with
a
well-nigh
impossible
task. If, as is the case here, the credit agreement does not specify
how
interest
is
calculated,
the
consumer
will
have
to
access
the
credit
regulations.
He/she
will
then
be
confronted
with
the
complexities
of
the
interest
calculations
prescribed
in terms of regulation 40 of the regulations. Moreover, if, as is the
case
here, the credit
agreement provides for a variable interest rate linked to the bank’s
“
Prime
Rate
”,
ascertaining
what
that rate
has
been from
time
to time,
insofar
as
it
might
be
relevant
to
the
calculations
that
the
consumer
will
have
to
do,
may,
depending
on
the
consumer’s
ability
to
access
information
that
a
credit
provider
bank may have published regarding its interest
rates, not be straightforward at all.
49.
From
where
I
sit,
this
is
a
lacuna
in
the
NCA
which
cannot
be
addressed
by
inventive
“purposive” interpretation, e.g. to the effect that if a
consumer requests a
statement
of
account expressing
his/her intention to act in terms of
section 129(3)
to
remedy
a
prior
default,
the
credit
provider’s
rights
will
be
suspended
until
the
required
information
is
provided
in
accordance
with
section
110.
I
have,
accordingly,
to
conclude
that
in
such
circumstances
the
consumer
will
have
him/herself
to calculate what the relevant “
amounts
that are overdue
”
are to enable
payment
to
be
made
in
accordance
with
section
129(3).
This
leads
to
the
further conclusion
that
despite the
bank’s
failure
to provide
Mrs
De
Bruin
with
the
information
that
she
required
to
exercise
her
statutory
right
in
terms
of
section
129(3),
she
was
not
relieved,
in
order
to
remedy
her
default,
of
the
obligation
to
make
payment in accordance with section 129(3).
50.
The
question
that
now
arises
is
whether
the
fact
that
the
instalment
agreement
in
terms of clause 13.6 of the terms and conditions
included a contractual provision of
similar
import than section 129(3), makes a difference.
51.
Insofar
as
any
particular
provision
of
the instalment agreement is to be interpreted
in
the
light
of
the
document
as
a
whole
and
the
circumstances
attendant
upon
its
coming
into
existence,
the
existence
of
the
NCA,
and
that its
provisions,
including
section
110, applied to the agreement, are relevant.
In
interpreting clause 13.6 of
the
terms and conditions the fact that the bank was in terms of section
110 under a
statutory
obligation to provide, on request, a statement of account specifying,
among others, “
any
amounts currently overdue and when each such
amount
became
due
”,
any
amounts
credited
or
debited
during
a
period
specified
in
the
request
”
and
“
any
amount
currently
payable
and
the
date
it
became
due
”,
is
a
circumstance that I have to have regard to in
attributing meaning to clause 13.6 of
the
terms and conditions.
52.
In
the
circumstances,
to
give
business
efficacy
to
clause
13.6
of
the
terms
and
conditions,
it can quite readily be implied that, once Mrs De Bruin, represented
by
her
attorneys, had on 5 May 2016 requested “
the
figures
including all arrear sums
and
administration
costs
associated
to
reinstating
the
credit
agreement
”
with
the
stated
intention of, potentially, reinstating the credit agreement, the bank
was
obliged
to provide the figures and, in so doing, to co-operate towards
enabling Mrs
De Bruin to
achieve reinstatement of the agreement in accordance with clause 13.6
of the
terms and conditions. The bank’s failing and, in effect,
refusing to do so was a breach of its obligations in terms
of the
instalment agreement.
The breach
took
the
form of
mora
creditoris
,
i.e. default on the part of a creditor to provide necessary
co-operation
to enable the debtor to perform.
[20]
53.
The bank’s stance, taken on 5 May 2016 per Ms
Garrancho when Omar Attorneys
requested
the figures required to enable Mrs De Bruin, potentially, to
reinstate the
agreement,
was
quite
unequivocal.
The
bank
required
payment
of
the
full
accelerated amount of R260 512.77, and that was
that. The bank not only failed to
co-operate
to
enable
Mrs
De
Bruin
to
act
in
accordance
with
clause
13.6
of
the
terms and conditions, it made it quite clear that
it would not accept payment of only
the
arrears
(and
administrative
charges)
as
sufficient
for
Mrs
De
Bruin
to
achieve
reinstatement
of
the
instalment
agreement.
This
was
compounded
by
the
bank’s
on
9
May
2016
informing
Mrs
De
Bruin
and
her
attorneys
that
it
was
going
to
proceed
with
the
sale
of
the
vehicle,
and
was
confirmed
in
terms
of
Van
Coller
Attorneys’ letter of 10 May 2016.
54.
Ms
Garrancho’s
e-mails
of
5
and
9
May
2016,
as
well
as
Van
Coller
Attorneys’
letter
of 10 May 2016, were a repudiation and material breach of the bank’s
obligation
to
co-operate
towards
enabling
Mrs
De
Bruin
to
utilise
the
contractual
right accorded to her in terms of clause 13.6 of
the terms and conditions to reinstate
the
agreement,
by
paying
what
the
clause
specifies
has
to
be
paid.
In
these
circumstances,
Mrs De Bruin could, potentially, have accepted the repudiation and
terminated
the
instalment
agreement
arising
from
the
bank’s
breach
of
contract.
She,
however, opted
for seeking
that the bank comply with its obligations by
instituting
the
present
proceedings,
in
so
doing
(again)
tendering
“
to
pay
to
Respondent
all
arrear
amounts
including
the
reasonable
costs
to
have
the
credit
agreement reinstated
”.
55.
The tender to pay the R16 217,48 that the bank had
specified as the arrears in its
letter
of
12
April
2016
would
by
9
May
2016
probably
have
been
insufficient
to
cover the arrears until that time. That is
irrelevant. The bank had made it clear that
even
a
tender
of
whatever
was
payable
to
pay
all
overdue
amounts,
the
default
charges
and
reasonable
costs,
would
not
be
accepted
and
would
not,
from
its
perspective, result in the reinstatement of the
agreement.
56.
Murray
J in
Major’s
Estate v De Jager
[21]
stated that:
“
If
a
creditor makes it clear that no tender, even in legal form, will be
accepted, he
waives
the formalities of such tender, and the debtor is protected against
costs if he
has
sent the cheque, or had even merely expressed his willingness to pay.
If the
grantor
of an option repudiates
in
toto
the claim of the person endeavouring to
exercise the same, he cannot claim at the
same that such person must fulfil an
obligation which is imposed as a condition
precedent in the option itself: his
repudiation dispenses with such
fulfilment.
”
57.
In his doctoral
thesis
Mora
Creditoris as Vorm van Kontrakbreuk
the
late
Professor
AB
de
Villiers
expressed
criticism
of
the
references
to
waiver,
repudiation
[22]
and
a condition precedent in the above
dictum
from
Major’s
Estate v
De
Jager
.
[23]
Prof
De
Villiers’,
nevertheless,
agreed
with
the
substance
of
what Murray
J
stated.
Prof
De
Villiers
ascribes
the
excusing
of
the
debtor’s
insufficient
tender with
reference to the common law principle that the debtor’s
obligations are
“relaxed”
if the creditor falls into
mora
creditoris
.
[24]
58.
The bank can, accordingly, not argue that Mrs De Bruin’s
tender’s fell short (and it
did
not do so).
59.
The bank’s
providing possession of the vehicle to Mrs De Bruin is reciprocal to
Mrs
De
Bruin’s obligation to make payment of the instalments in terms
of the instalment
agreement.
Arising from Mrs De Bruin’s default the bank was quite entitled
to seek
possession
of the vehicle, as it did through the attachment order. However,
arising
from
the
bank’s
repudiation
of
the
agreement
on
and
since
5
May
2016
and
its
continued
mora
creditoris
by
failing to provide the figures that Mrs De Bruin
requested
on 5 May 2016, coupled with its stance that it would not accept
payment
of
only
the
arrears,
administrative
charges
and
legal costs as
achieving
reinstatement
of
the
agreement,
Mrs
De
Bruin
was
relieved
of
her
obligation
to
make
payment of the instalments.
[25]
60.
The
bank’s
repudiation
of
its
obligations
was
repeated
in
terms
of
its
answering
papers
delivered
in
these
proceedings
and
is
of
a
continuing
nature
[26]
.
In
the
circumstances,
Mrs
De Bruin’s
obligations
to
pay
instalments to
the bank
in terms
of
the
instalment
agreement,
was
suspended
and
will
remain
suspended
until
the
bank
complies with its obligation to provide the figures that Omar
Attorneys
requested
from the bank on 5 May 2016.
61.
If
Mrs
De
Bruin
at
this
time
again
elects
to pursue payment
in terms of clause 13.6
to achieve
reinstatement of the instalment agreement, the arrears that she will
have
to
pay will be the arrears that were payable in May 2016. Mrs De Bruin’s
obligation
to
pay
the
monthly
instalments
will
only
recommence
if
she
acts
in
terms
of
her
tender
and
pays
the
arrears
and
other
charges
[27]
(within
a
reasonable
time
of
the
bank
providing
her
with
the
wherewithal
to
do
so
in
terms
of
the figures
that
were
requested on her
behalf) and the bank has restored possession of the vehicle to her.
THE
UPSHOT
62.
As
referred
to
already, my conclusion that Mrs De Bruin’s tender to make
payment
of
the arrears plus other
charges was not sufficient to entitle her to
obtain
possession
of
the
motor
vehicle
again,
disposes
of
a
substantial
part
of
the
relief
that
Mrs De Bruin seeks through these proceedings. Mrs De Bruin is not
entitled to
orders
rescinding
the
attachment
order,
nor
to
delivery
of
the
vehicle,
nor
to
an
order
that
the
sheriff
should
deliver
the
vehicle
to
her.
If,
however,
she
exercises
her
rights in accordance with section 129(3) of the NCA or clause 16.3 of
the terms
and conditions (in
the latter instance, if the bank provides its necessary co-
operation
towards
enabling
her
to
do
so),
and
makes
payment
of
what
should
be
paid,
she
will
become
entitled
immediately
to
be
restored
to
possession
of
the
vehicle,
with the concomitant that the attachment order will no longer be of
force or
effect.
63.
Mrs
De
Bruin
is
entitled
to
declaratory
relief
to
the
effect
that
she
is
entitled
to
reinstate the credit agreement on payment of the
arrears due and, insofar as these
may,
by the time of her effecting payment, have been appropriately
quantified and
become due for
payment, the bank’s prescribed default administration charges
and
reasonable costs of
enforcing the agreement up to the time of payment.
64.
The
order
forming
part
of
the
judgment
to
the
effect
that
judgment
for
damages
arising from damage that the bank may have
suffered be postponed
sine die
,
was,
in all circumstances,
premature, as was the order granting the bank leave to apply
for
damages
on
the
same
papers,
supplemented
by
affidavit
evidence.
Those orders proceeded from the premise that the
bank was already entitled to damages,
which
it was not.
65.
These
were,
in
effect,
orders
“…
erroneously
granted
in
the
absence
of
any
party
affected
thereby
”
as
contemplated
in
terms
of
rule
42(1)(a)
of
the
rules.
Accordingly,
albeit
that
Mrs
De
Bruin
is not
entitled
to
have
the
whole
of the
judgment
rescinded
and
set
aside,
she
is
entitled
to
rescission
of
the
orders
[28]
.
They have,
accordingly, to be set aside and Mrs De Bruin should be granted leave
to defend
the action
[29]
.
66.
Mrs
De
Bruin
has
achieved
substantial
success
in
her
application
and
is
entitled
to
her
costs.
As
regards
the
issue of liability for the costs
of the urgent application that
was
not proceeded with, taking into account the bank’s intentions
to dispose of the
vehicle
that
had
been
conveyed
to
Mrs
De
Bruin
and
her
attorneys
early
in
May
2016,
she
was
fully
entitled
to
approach
the
court
for
urgent
relief
and
her
costs,
accordingly,
include any costs attendant upon her having sought such urgent
relief.
67.
In all these premises, I order as follows:
67.1.
The application for the relief specified in
paragraphs 4 and 5 of the
applicant’s
notice of motion is dismissed.
67.2.
Paragraphs
2 and 4 of
this court’s judgment of 8
March 2016 under case
number
42493/2015 are set aside.
67.3.
The
applicant
is
given
leave
to
defend
the
action
that
the
respondent,
FirstRand
Bank
Limited
t/a
Wesbank,
instituted
against
her
in
this
court under case number 42493/2015, provided that
the applicant delivers notice
of
intention
to
defend
within
10(TEN)
days
of
the
handing
down
of
this
judgment.
67.4.
It is declared that the applicant is entitled to
reinstate the instalment
agreement
concluded
between
her
and
the
respondent
on
5
September
2014
by
making
payment
to
the
respondent
within
10
(TEN)
days
of
the
respondent’s delivering a statement of
account to Mrs De Bruin specifying
all
amounts
that
were
overdue
on
the
instalment
agreement
on
5
May
2016,
plus interest until 31 May 2016, and all other sums that were, as at
5
May
2016,
due
and
payable
in
terms
of
section
129(3)
of
the
National
Credit Act, 34 of 2005
;
67.5.
The respondent shall pay the applicant’s
costs of the application, including
costs
incurred
by
the
applicant
in
relation
to
the
urgent
application
specified in Part B of the applicant’s
notice of motion.
________________
F G BARRIE AJ
Acting
Judge of the High Court
APPEARANCES:
LEGAL
REPRESENTATIVE FOR THE APPLICANTS: MR Z OMAR
ATTORNEYS
FOR APPLICANT: ZAHIR OMAR ATTORNEYS
COUNSEL
FOR RESPONDENT: MR A P BRUWER
ATTORNEYS
FOR RESPONDENT: C F VAN COLLER INCORPORATED
DATE
OF HEARING: 24 OCTOBER 2016.
[1]
In the “B” part thereof.
[2]
In the “A” part thereof.
[3]
The monetary extent of the instalment from time to time depends,
however, on a variable interest rate agreed as 3% above the
bank’s
“Prime Rate” (defined with reference to the bank’s
“Prime Rate” published from time
to time).
[4]
What exactly the “RETRENCHMENT BENEFIT” that Mrs De
Bruin agreed to pay a monthly fee for encompasses, is not specified
in the instalment agreement.
[5]
If the “RETRENCHMENT BENEFIT” is a benefit that Mrs De
Bruin would have become entitled to if she were retrenched
from her
employment, and she was, in fact, retrenched, it appears that she,
possibly, did not receive it. However, whether she
did or did not
was not canvassed in the papers, so I cannot comment definitively on
it.
[6]
References in the terms and conditions to the “Act”, are
to the
National Credit Act, 34 of 2005
, “as amended from time
to time”.
[7]
The court’s power to grant an order cancelling a contract on
the basis of a prior material breach thereof is firmly entrenched
–
see Christie’s Law of Contract in South Africa (7th ed. by GH
Bradfield) Ch.14.5 at p 636. Such an order is usually
justified with
reference to the judgment in Sonia (Pty) Ltd v Wheeler
1958 (1) SA
555
(A). That case dealt with a party’s seeking
cancellation/rescission of a contract on the basis of the
counter-party’s
misrepresentation that had induced the
contract, which may stand on a different footing than the ex nunc
cancellation that may
arise from a breach of contract. However, the
considerations that render the option of a judicial (as opposed to
an extra-judicial)
cancellation necessary or desirable, as referred
to in the judgment of Price AJA at 561A – E, apply equally.
[8]
Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC).
[9]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [104] and [105].
[10]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [104] and [110]
[11]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [108] and [109].
[12]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [110].
[13]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) pars [122] and
[123]. In the case of the costs of enforcing the agreement,
quantification can occur by agreement or by taxation.
If the
consumer agrees to costs that are not reasonable, the consumer’s
agreement will not render the agreed amount payable.
[14]
By parity of reasoning “the credit provider’s prescribed
default administration charges” will also not have
to be paid,
unless they have been quantified and due notice in this regard has
been given to the consumer. The prescribed default
administration
charges are the default administration charges prescribed by
regulation 46 of the National Credit Regulations,
2006, promulgated
in terms of Government Notice R489 of 2006. Regulation 26 provides
that:
“
The credit provider may
require payment by the consumer of default administration charges in
respect of each letter necessarily
written in terms of Part C of
Chapter 6 of the Act. Such payment may not exceed the amount payable
in respect of a registered
letter of demand in undefended action in
terms of the Magistrate’s Courts Act, 1944 in addition to any
reasonable and necessary
expenses incurred to deliver such letter.”
[15]
Regulation 47 of the credit regulations is, conceivably, also
relevant to the quantification exercise that the credit provider
has
to undertake. It provides that:
“
For
all categories of credit agreement, collection costs may not exceed
the costs incurred by the credit provider in collecting
the debt:
(a) to the extent limited by Part C of Chapter 6 of the Act, and (b)
in terms of (i) the Supreme Court Act, 1959, (ii)
the Magistrate’s
Court Act, 1944, (iii) the Attorneys Act, 1979; or (iv) the
Debt
Collectors Act, 1998
, whichever is applicable to the enforcement of
the credit agreement.”
[16]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) pars [130] and
[131]. It is, possibly, debatable when “proceeds from a sale
in execution have been realised”.
Presumably, that stage would
have been reached when delivery of the property to the execution
sale purchaser has taken place
and the proceeds of the sale paid
over to the sheriff or payment thereof secured to the satisfaction
of the sheriff.
[17]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [104], [105] and
[110]. The word “reinstate” previously used in
section
129(3)
had, accordingly, to be understood as “remedy a
default”, as the section now provides.
[18]
Nkata v FirstRand Bank Ltd
2016 (4) SA 257
(CC) par [131] and [136].
[19]
The sheriff’s fees that she had to pay in terms of the
judgment had not yet become due and payable.
[20]
See Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG
Construction (City) (Pty) Ltd
1984 (3) SA 861
(W) at 877B –
880C.
[21]
Major’s Estate v De Jager 1944 (TPD) 96 at 103-104.
[22]
In relation to the facts that pertained to Major’s Estate v De
Jager, and not as invariably being inapplicable to circumstances
when mora creditoris arises.
[23]
See A B de Villiers Mora Creditoris as Vorm van Kontrakbreuk
(thesis, Stellenbosch University, 1953) at p 142.
[24]
See De Villiers op. cit. at pp 144-149.
[25]
See De Villiers op. cit. pp 235-252; BK Tooling (Edms) Bpk v Scope
Precision Engineering (Edms) Bpk
1979 (1) SA 391
(A) at 418B-419H;
Erasmus v Pienaar
1984 (4) SA 9
(T) at 24C- 25E.
[26]
Despite its annexing a statement of Mrs De Bruin’s account to
its answering affidavit. The statement included amounts
for
legal fees (and interest on these) that were not, in accordance with
the Nkata judgment, yet due and payable, as well as
entries for
storage and towing fees, that are not, on the face of the figures,
included in what Mrs De Bruin would have had to
pay to reinstate the
agreement in terms of clause 13.6 of the terms and conditions.
[27]
Which does not include storage charges. The bank has since 5 May
2016 been storing the vehicle for its own account.
[28]
Paragraphs 2 and 4 of the judgment.
[29]
Which does not detract from the fact that the attachment order and
the order granting the bank its costs of R650.00, plus the
sheriff’s
fees (until the time of judgment), stand.