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[2020] ZAGPJHC 436
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Bridge Taxi Finance GJ (Pty) Ltd v Tswabole (38327/2019) [2020] ZAGPJHC 436 (28 August 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
38327/2019
REPORTABLE:
NO / YES
OF
INTEREST TO OTHER JUDGES: NO / YES
REVISED.
In
the matter between:
BRIDGE
TAXI FINANCE GJ (PTY) LTD
(FORMERLY
KNOWN AS BRIDGE TAXI FINANCE
(PTY)
LTD)
Applicant
and
TSWABOLE,
FUMANE HERMAN
Respondent
JUDGMENT
Lapan
AJ:
INTRODUCTION
[1]
This is the return day of a rule
nisi
issued on 17 December
2019, calling on the respondent to show cause why he should not be
ordered to forthwith restore to the applicant
possession of a 2018
Auto Brilliance Jinbei H2, with engine number [....] and chassis
number [....] (vehicle).
[2]
This issue to be decided is whether the rule
nisi
should be
confirmed.
[3]
Notwithstanding that an interim order was granted in the form of a
rule
nisi
,
this court must be satisfied, on the return day, that a proper case
has been made out for every facet of the relief sought. Put
differently, the applicant must show that the requirements for the
granting of an interim interdict have been met.
[1]
[4]
Before considering the requirements for an interim interdict, the
background is provided
below and, thereafter, consideration is given
to the respondent’s grounds for opposing this application.
BACKGROUND
[5]
On 26 January 2018, at Johannesburg, the applicant and the respondent
concluded a
developmental credit agreement in terms of which the
applicant leased the vehicle to the respondent for use as a taxi
(credit agreement).
[6]
In terms of clause 2 of the credit agreement, the applicant remains
the owner of the
vehicle until the respondent pays all amounts owing
to the applicant. The respondent is responsible for maintaining the
vehicle
and bears the risk of loss or damage to the vehicle.
[7]
The respondent agreed to make 57 monthly payments to the applicant in
an amount of
R13 900.11 each, including interest and costs.
[8]
Clause 11 of the credit agreement provides for various instances in
which a breach
may occur including the failure to pay an amount due
in terms of the credit agreement.
[9]
In the event of a breach occurring, the applicant is entitled to
terminate the credit
agreement and, in doing so, the applicant is
required to follow the provisions of the National Credit Act, 34 of
2005 (NCA) relating
to enforcing and ending credit agreements.
[10]
The respondent breached the lease agreement by failing to make
payment of the monthly amounts
due.
[11]
On 19 June 2019, the respondent took the initiative to apply for debt
review in terms of section
86(1) of the NCA.
[12]
In terms of a letter dated 2 October 2019, the applicant, acting in
terms of section 86(10) of
the NCA, gave notice to the respondent,
the debt counsellor and the National Credit Regulator terminating the
respondent’s
debt review. More than 60 (sixty) business days
had elapsed by the time the applicant gave notice in terms of section
86(10) of
the NCA.
[13]
Based on a statement of account dated 7 October 2019, the
respondent’s account is in arrears,
in an amount of R95 831.98,
and the total amount outstanding is R437 813.73.
[14]
In late October 2019, the applicant instituted action against the
respondent in terms of which
it cancelled the credit agreement and
claimed payment of the total amount outstanding and the return of the
vehicle (action).
[15]
The return of service indicates that the summons commencing the
action, as well as this application
and the rule
nisi
issued
herein, were served on the respondent at his residential address on 6
February 2020.
[16]
The respondent delivered a notice of intention to defend the action.
[17]
Accordingly, the applicant’s election to terminate the credit
agreement, as set out in
the particulars of claim annexed to the
summons, was communicated to the respondent upon service of the
summons.
RESPONDENT’S
OPPOSITION TO THIS APPLICATION
[18]
The respondent alleges that the applicant’s notice to terminate
the debt review, in terms
of section 86(10) of the NCA, did not come
to his attention nor did the applicant attach a track and trace
report to prove delivery
of the notice. Therefore, so the respondent
contends, the debt review process was not terminated and the
applicant is precluded
from terminating the agreement.
[19]
Section 86(10) does not require the applicant to take all steps
necessary to ensure that the
notice terminating the debt review is
brought to the respondent’s attention. The applicant sent the
letter to the respondent
by registered mail as it was required to do
in terms of the credit agreement.
[20]
Our courts have held that while the credit provider is required to
take certain steps to ensure
that the consumer is adequately
informed, the credit provider is not non-suited or hamstrung if the
consumer unreasonably fails
to engage with or make use of the
information provided.
[2]
[21]
Accordingly, the applicant’s notice terminating the debt review
was appropriately made
in terms of section 86(10) of the Act.
[22]
The respondent contends further that this application is premature
since the applicant failed
to address a letter of demand to the
respondent in terms of section 129 of the NCA. This contention is not
in accordance with our
law.
[23]
A notice in terms of section 129 of the NCA is redundant where the
consumer has already taken
steps to re-arrange his debts such as
applying for debt review as the respondent did in the present
matter.
[3]
[24]
Section 129(1)(b)(i) of the NCA requires that the credit provider
gives notice to the consumer,
in order to commence legal proceedings,
either in terms of section 129(1)(a) or section 86(10) of the NCA.
The former section applies
where there has been no debt review and
the latter where there has been. Requiring that two notices, serving
the same purpose,
be sent to the consumer is absurd.
[4]
[25]
Since the applicant sent a notice in terms of section 86(10) of the
NCA, there is no requirement
for a notice to be sent in terms of
section 129 of the NCA.
[26]
The respondent contends further that the outstanding amount has been
incorrectly calculated and
fails to take account of certain payments
made to the debit counsellor.
[27]
It appears from the respondent’s Capitec bank statement dated 8
June 2020 that he made
two payments of R5 000.00 each during
January and February 2020. These payments are given a description
incorporating the
name of the debt counsellor but without any
evidence indicating that they were paid to, and received by, the debt
counsellor.
[28]
For purposes of this application, the fact that the applicant is in
arrears with his payments
is sufficient to trigger the breach and
cancellation provisions in the agreement including claiming the
return of the vehicle
pendente lite
.
[29]
The correct amount claimable by the applicant will be determined in
the action.
[30]
The respondent claims that, to date, the summons has not been served
on the respondent. However,
the sheriff’s return of service
states that the summons was served on the respondent at his
residential address and the applicant’s
attorneys confirmed
receipt of the respondent’s notice of intention to defend the
action. Nothing more needs to be said about
this ground of
opposition.
[31]
The respondent contends that the applicant is precluded from
enforcing its rights in terms of
the credit agreement due to its
non-compliance with section 108 of the NCA which provides that credit
providers must offer to deliver
periodic statements of account to
consumers. Since the applicant concluded a development credit
agreement with the respondent,
section 107(4) of the NCA exempts it
from compliance with the provisions of section 108 of the NCA.
Accordingly, there is no merit
in this ground of opposition.
[32]
Finally, the respondent opposes the claim for return of the vehicle
on the basis that he is maintaining
the vehicle in good working
condition. He also contends that the vehicle could easily be
recovered by the applicant, should the
applicant be concerned about
its whereabouts, due to the tracking device installed in the vehicle
which device, he contends, is
in working order.
[33]
It does not behove the respondent to say that he is entitled to
retain the vehicle for as long
as he maintains the vehicle in good
working condition and for as long as the vehicle is capable of being
recovered by the applicant
at any time.
[34]
Our law is clear that the purpose of returning the vehicle to the
applicant
pendent
lite
is
to protect the vehicle against damage and further deterioration by
the continued use of the vehicle. It is also intended to ensure
that
the applicant retains the vehicle in its possession for safekeeping
and to preserve the vehicle in the condition in which
it was in at
the time when the applicant sought to enforce its right to claim
payment and the return of the vehicle.
[5]
[35]
In view thereof, the applicant is entitled to the return of the
vehicle upon satisfying the requirements
for the granting of an
interim interdict.
REQUIREMENTS FOR AN
INTERIM INTERDICT
[36]
It is settled law that the applicant for an interim interdict is
required to establish the following:
(a)
a
prima facie
right though open to some doubt;
(b)
a well-grounded apprehension of irreparable harm occurring should the
interdict not be granted;
(c)
the balance of convenience favours the granting of the interdict; and
(d)
the applicant has no other satisfactory remedy available to it.
[37]
As a prerequisite to the granting of an interim interdict for the
return of vehicle, the applicant
must establish that it cancelled the
agreement pursuant to which it retained ownership and granted
possession of the vehicle to
the respondent and that the cancellation
was communicated to the respondent.
[6]
[38]
In the present matter, the applicant cancelled the agreement in the
particulars of claim annexed
to the summons and the cancellation was
communicated when the summons was served on the respondent on 6
February 2020.
[39]
The applicant was entitled to commence action against the respondent
after giving notice, on
or about 2 October 2019, in terms of section
86(10) of the NCA, terminating the debt review initiated by the
respondent. The prerequisites
having been fulfilled, consideration is
given to the requirements for an interim interdict.
A prima facie right
[41]
The applicant relies on its rights, in terms of clause 11 of the
credit agreement, to cancel
the credit agreement and claim return of
the vehicle due to the respondent’s breach in failing to pay
the monthly amounts
due. The respondent does not deny being in
default of his obligations to make payment. His only contention is
that he made a few
payments more than those reflected in the
statement of account dated 7 October 2019. This amounts to an
admission that the respondent
is in breach of his obligations in
terms of the credit agreement.
[42]
In addition, the applicant contends for a clear right based on the
fact that the tracking device
installed in the vehicle appears to
have been disabled thus putting the applicant at risk of not being
able to recover the vehicle.
[43]
The tracking company apparently advised the applicant that the last
time a signal was received
from the tracking device was in March
2020. However, there is no admissible evidence to prove this and to
gainsay the respondent’s
averment that the tracking company
would have known, and been alerted, if the tracking device had been
tampered with.
[44]
Notwithstanding the above, the applicant has established at least a
prima facie
right, if not a clear right, to terminate the
credit agreement and to take possession of the vehicle pending the
final determination
of the action. Thus, the first requirement for
the granting of an interdict is established.
Well-grounded
apprehension of irreparable harm
[45]
Since the applicant’s claim is vindicatory in nature, it is
presumed that irreparable harm
will ensue if the vehicle is not
returned
pendente
lite
.
[7]
[46]
Furthermore, the applicant contends that, in its experience, taxis
are generally subjected to
rigorous use, that persons in the position
of the respondent who are facing claims for termination of the
agreement and return
of the vehicle often display an attitude of
disdain for the applicant’s rights which manifests in an abuse
of the vehicle
and a concomitant lack of care and maintenance. Such
conduct may also lead to the user causing the vehicle to be stripped
of its
component parts in order to deprive the applicant of its
property rights.
[47]
It has been held that, whether or not the claim is vindicatory in
nature, the applicant is entitled
to have the vehicle kept in the
condition in which it was in when instituting the action and a
refusal to grant interim relief
to ensure that it remains in that
condition, pending the outcome of the action, would cause the
applicant to suffer irreparable
harm.
[8]
[48]
In view of the aforesaid, there is a well-grounded apprehension of
the applicant suffering irreparable
harm if it fails in its
endeavours to claim the return of the vehicle with a view to
preserving its value and retaining it for
safekeeping.
[49]
Thus, the second requirement for the granting of an interim interdict
is established.
Balance of convenience
[50]
The balance of convenience must favour the granting of an interim
interdict and this requirement
is satisfied if the prejudice that the
applicant will suffer, if the interdict is not granted, outweighs the
prejudice to the respondent
if the interdict is granted. The stronger
the applicant’s prospects of success in the action, the less
the need for the balance
of convenience to favour the applicant and
vice versa
.
[51]
The applicant contends that the vehicle deteriorates in value due to
its continued use as a taxi
particularly due to the rigours that the
vehicle is put to in the course of being operated as a taxi.
[52]
In addition, the applicant states that it has observed a recent spike
in the stripping of vehicles
and the removal of its component parts
which jeopardises the applicant’s security and its ability to
preserve the vehicle
pendente lite
.
[53]
In February 2020, the applicant’s recovery of stripped vehicles
was approximately 16%.
This figure escalated to 50% in March, 75% in
April, 80% in May and 80% in June 2020. The spike in the recovery of
stripped vehicles
is alarming but also believable as it occurred at
the commencement of, and during the course of, the national lockdown
occasioned
by COVID-19. The prejudice to the applicant should the
interdict not be granted is significant.
[54]
The respondent states that he will be prejudiced by the return of the
vehicle as he requires
the vehicle to continue operating his taxi
business. The respondent baldly asserts that the vehicle is
well-maintained and in good
condition.
[55]
The respondent’s assertions ring hollow when regard is had to
his financial difficulties
experienced since May 2019 which led to
his application for debt review in June 2019 and, on the respondent’s
version, this
continued when the national lockdown commenced in March
2020. These financial difficulties are also evident from the erratic
payments
which the applicant has received from the respondent in the
past year. The upkeep of the vehicle would serve only to add to the
respondent’s financial woes and there is no evidence of any
maintenance, repairs, or the servicing of the vehicle carried
out
during the past year.
[56]
In view of the above, there is a real risk that the applicant will
suffer irreparable harm due
to the deterioration in the value of the
vehicle occasioned by its continued use as a taxi and, furthermore,
that the applicant
will not recover the vehicle in good order and
repair. Its prejudice is established.
[57]
The respondent indicates that he will be prejudiced as he will not be
able to earn an income
from the use of the taxi. The argument, in
effect, amounts to the respondent requiring the continued use of the
vehicle without
making payment to the applicant, as he undertook to
do in terms of the credit agreement, and notwithstanding the
termination of
the agreement. This situation is untenable
particularly since there is no means of protecting the applicant’s
property in
the absence of a contractual obligation to do so.
[58]
The applicant has strong prospects of succeeding in the action to
claim all outstanding amounts
and the return of the vehicle. Thus,
there is a lesser need for the balance of convenience to favour the
applicant in the granting
of the interdict. I am nevertheless
satisfied that the balance of convenience favours the granting of the
interdict.
No alternative
satisfactory remedy
[59]
There is no other remedy available to the applicant other than to
permit the applicant to take
possession of the vehicle and to assume
full responsibility for preserving it pending the outcome of the
action.
[60]
An interim interdict will provide effective interim protection for
the applicant and therefore
it ought to be granted.
[61]
In any event, given that the action is vindicatory, there is no need
for the applicant to show
that it has no other satisfactory
remedy.
[9]
[62]
For the above reasons, the application for an interim interdict
succeeds and the rule
nisi
ought to be confirmed.
Other matters arising
[63]
The applicant sought condonation for the lateness of its replying
affidavit which was delivered
6 days late. There was no opposition to
the condonation application, the reasons for the lateness was fully
explained and it is
in the interests of justice to permit the late
filing as the replying affidavit provides pertinent responses to the
respondent’s
opposition to this application. Condonation was
granted at the virtual hearing of this matter.
[64]
The only remaining issue relates to the costs of this application.
There is no reason why the
costs should not follow the event such
costs to be paid on an attorney and client scale as provided for in
the credit agreement.
[65]
The following order is made:
1.
The rule
nisi
issued by this court on 17 December 2019 is
confirmed.
2.
The respondent is directed to pay the costs of this application
including the costs incurred
in obtaining the interim order, on the
attorney and client scale.
AJ
LAPAN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT:
Mr
JG Botha
APPLICANT’S
ATTORNEYS:
ODBB Incorporated Attorneys
COUNSEL
FOR THE RESPONDENT:
Mr T Ntaka
RESPONDENT’S
ATTORNEYS:
Masilo Ramollo Attorneys
DATE
OF THE HEARING:
26
August 2020
DATE
OF JUDGMENT:
28
August 2020
[1]
Polyoaks
(Pty) Ltd v Chemical Workers Industrial Union and Others
(1999) 20 ILJ (LC) at 394.
[2]
Kubyana
v Standard Bank of South Africa Ltd
2014
(3) SA 56
(CC) in para [31].
[3]
Firstrand
Bank Ltd t/a Honda Finance v Owens
2013
(2) SA 325
(SCA) in para [10].
[4]
Ibid
[5]
SA
Taxi Securitisation (Pty) Ltd v Chesane
2010
(6) SA 557
(GSJ) in para [10];
Loader
v De Beer
1947 (1) SA 87
(W) at 89D
et
seq
.
[6]
SA
Taxi Securitisation
(supra)
in para [13].
[7]
Stern
and Ruskin No v Appelson
1951
(3) SA 800
(W) at 813.
[8]
Per
Justice Greenberg in
Morrison
v African Guarantee and Indemnity Co Ltd
(1936) (1) PH Sec. M as quoted by Millin J in
Loader
v De Beer
(supra) at 90.
[9]
Fedsure
Life Assurance Co Ltd v Worldwide African Investment Holdings (Pty)
Ltd and Others
2003
(3) SA 268
(W) in para [28].