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[2021] ZAGPJHC 844
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MFC v Minah and Another (33749/2020) [2021] ZAGPJHC 844 (24 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 33749/2020
Reportable:
No
Of
interest to other judges: No
Revised:
Yes
In
the matter between:
MFC (A DIVISION OF
NEDBANK LIMITED)
Applicant
and
MOLEKWA,
MINAH
First Respondent
THE
MASTER OF THE HIGH COURT
GAUTENG,
JOHANNESBURG
Second Respondent
JUDGMENT
DE
VILLIERS, AJ:
[1]
This matter came before me in the unopposed motion roll and the
applicant
(“
Nedbank”
) sought final relief in the
following terms:
“
1.
The cancellation of the instalment sale agreement to be confirmed;
2.
The 1st Respondent be ordered to return to the Applicant a 2017
VOLKSWAGEN POLO VIVO GP 1.4 TRENDLINE
5DR with Engine Number …
and Chassis Number …. ("the vehicle")
3.
In the event of the 1st Respondent failing and/or refusing to return
the vehicles (sic) to the Applicant
forthwith, then and in that event
the Sheriff of the above Honourable Court be and is hereby authorised
and directed to enter upon
the 1st Respondent's premises, or wherever
the vehicle is being kept, to attach the vehicle and return same to
the Applicant.
4.
The 1st Respondent pay the costs of this application
.”
[2]
The breach of contract upon which Nedbank relied, was that its client
died. The deponent, formulated the bank’s cause of action as:
“
17.
The salient terms of the instalment sale agreement, relevant for this
application, included the following:
17.1.
The vehicle purchased with the loan belonged to the Applicant
until
the deceased fulfilled all her financial obligations. The deceased
would be entitled to possession and use of the vehicle,
provided she
was not in default. Upon compliance with all her financial
obligations, the applicant would transfer ownership of
the vehicle to
the deceased [vide clauses 3];
17.2 The
deceased would be in default under the terms of the instalment sale
agreements if she passed away [vide clauses 7].
18
…
29
Due to the death of the deceased, the Applicant, by virtue of the
provisions of the instalment sale agreement,
is entitled to cancel
the instalment agreement, which it has now elected to hereby do
.”
[3]
The cause of action appeared to me to be problematic and I raised the
matter at the hearing. Nedbank persisted with the application and I
reserved judgment.
[4]
Excluding the headings and usual ending, the founding affidavit was
seven
pages long. There is one other matter that regularly appears in
founding affidavits, and in this one too, that I may as well address
formally. The deponent, “
the Manager of Litigation in the
Specialised Support department of the Applicant
” averred
that she made submissions of a legal nature, she did so based on the
advice that she had received from the applicant's
legal
representatives. She stated that she has no reason to doubt the
advice and believe it to be correct. Such advice would have
been
completely irrelevant.
[5]
I do not understand why similar averments about legal advice are made
with such regularity in affidavits. It seems to be based on a
confusion of what evidence and what pleadings are. A deponent is duty
bound to allege the material facts for the relief sought, and where
such facts do not fall in his or her personal knowledge, to
address
the admissibility of the hearsay evidence. But legal submissions (the
pleadings) are not presented as expert evidence.
A lawyer is fully
entitled to argue a case he or she has advised on current law will
fail, or probably will fail, or might succeed,
or probably will
succeed. No judge ought to know what the advice by the different
lawyers were or where in the spectrum the advice
fell. No lawyer
assisting in the preparation of the application, or appearing before
a judge, should be ethically bound to disclose
that he or she in fact
did not advise the applicant that the case will succeed. It would
undermine legal privilege if legal advice
were to become part of
every case.
[6]
The applicant joined two respondents in the application, Ms Minah
Molekwa
and the Master. Ms Minah Molekwa is not the deceased. I refer
to Ms Minah Molekwa as “
the first respondent
”, as
she is. The deceased is Ms Daisy Molekwa. I refer to her as “
the
deceased
”.
[7]
The deponent knows very little about the first respondent, as one
would
have expected of someone in her position. Accordingly, the
founding affidavit contains no averments as to the relationship
between
the deceased and the first respondent, or even where the
deceased resided. The deponent baldly avers that the first respondent
resides at a residential address without even a street number: “
27
Athol Bank Townhome, Froome Street, Sandton
”. There is no
suggestion that the deponent would have had any reason to know where
the first respondent resides. I could
have struck the matter from the
roll, as the return of service on the first respondent stated that it
was served at 27 Athol Bank
Townshouse, Froome Street, Sandton by
affixing the application to the principal gate, being her alleged
chosen
domicilium citandi et executandi
. It is not her chosen
domicilium citandi et executandi
and I was presented with no
evidence about her residential address. She may well not even know of
the application.
[8]
I could have struck the matter from the roll also, as the application
was not served on the second respondent, however I decided to address
the real issue, the pleaded cause of action. This would have
caused
no prejudice to the respondents, as I intended to dismiss the
application.
[9]
The deceased and Nedbank entered into an instalment sale agreement on
about 13 October 2017. The vehicle was a 2017 Volkswagen Polo Vivo GP
1.4 Trendline 5DR. The cost price (and thus the value) was
R212
154.12, well within the jurisdiction of the magistrates’
courts. The total contract sum was R328 914.26, payable in
monthly
instalments over 72 months. The founding affidavit contains no
averments as to the payment of the monthly instalments,
or that they
are or are not still being paid, or what the outstanding value is.
[10]
The sole pleaded issue is that the deceased is in breach of the
contract as a result of
her death, hence the contract has been
cancelled, hence Nedbank is entitled to attach the motor vehicle.
This approach is necessary,
as Nedbank seems to accept that without a
valid termination of the agreement, Nedbank is not entitled to seek
the return of the
vehicle.
[11]
In pleading its case, Nedbank did not plead the terms of the
agreement with any clarity,
save for the references to clauses 3 and
7 in the extract quoted above. Clause 7 is the breach clause, but not
the clause that
deals with the consequences of breach:
[11.1]
Clause 7.1 states that a failure to make a payment in terms of the
agreement, may
lead to a notice advising the credit receiver
(seemingly not simply to pay) but to refer the matter to a debt
counsellor, an alternative
dispute resolution agent, consumer court,
or the Banking Ombud.
[11.2]
Clause 7.2 states that a failure to respond to such a notice (and not
simply payment)
may lead to a cancellation under clause 17.
[11.3]
The relevant clause in this case is the third sub-clause, clause 7.3.
It lists
what is described as “
events of default
”.
Several such events are listed, but non-payment is not expressly
listed as an event of default. It may be inferred to be
one, despite
the wording of clause 7.1, as non-compliance with any term is listed
in clause 7.3.7 as an event of default. If so,
non-payment would be
addressed twice in the breach clause. Clause 7.3.3 states that an
event of default is “
if you die or are sequestrated or
liquidated
”.
[12]
An event of default seems to be suggested to be a breach of contract.
It is not stated
in clause 7.3 or the rest of clause 7 what may or
will happen when an event of default (or a stipulated breach of
contract) occurs.
Much later in the agreement, in clause 17.1,
Nedbank repeats the approach in clause 7.1, seemingly
mutatis
mutandis
. Without using the term used in clause 7 (“
events
of default
”), the credit receiver is informed that Nedbank
will give a notice of default, and that he or she
inter alia
may refer the matter to a debt counsellor, an alternative dispute
resolution agent, consumer court, or an ombud, and in the event
of a
non-response to the notice, Nedbank may enforce the agreement. The
clause does not mention cancelation of the agreement as
an option.
[13]
Clause 18 deals with “
remedies
”. Clause 18.1.4
includes the right to cancel “
on default
”, again
not an express reference to “
events of default
” in
clause 7, or that this may only happen after compliance with the
notice provision in clause 17 (or any section in the
National Credit
Act).
[14]
Against this background, when I reserved judgment, I had to address
the hard questions
about the applicant’s cause of action. This
subsequently became unnecessary as Nedbank in heads of argument
concedes that
death cannot be breach of contract. It no longer relies
on a breach of contract as the basis for cancelling the agreement and
it
accepts that the agreement has not been validly cancelled. It
seeks relief on an alternate basis, as owner of the vehicle, it seeks
that the first respondent must return the vehicle. This change in
approach does not rescue the matter.
[15]
The deceased passed away on 22 September 2019, according to a death
certificate.
The founding affidavit in the
vaguest terms, with in some instances no attempt to allege and prove
material facts in an acceptable
manner, reads:
“
11
Since the conclusion of the instalment sale agreement, it has come to
the Applicant's attention
[1]
that:
11.1.
The deceased passed away on the 22nd September 2019;
[2]
11
.2. The deceased estate has not been reported to the Second
Respondent
[3]
and as a result thereof, neither an interim curator nor
executor/executrix has been appointed to administer the deceased
estate;
[4]
11.3.
The First Respondent is in possession of the respective motor
vehicle
.
[5]
12
…
22
During the period November 2019 to July 2019, the applicant
[6]
engaged
[7]
the First Respondent requesting repossession of the vehicle for
purpose of safekeeping pending the appointment of an
executor/executrix,
thereby thus envisaging an amicable settlement of the instalment sale
agreement between the applicant and the
executor.
23.
The First Respondent refused
[8]
to relinquish possession yet indicated that there weren't
[9]
any funds to settle the entire outstanding balance.
[10]
24.
Until date hereof and to the best of my knowledge,
[11]
the First Respondent remains in possession of the vehicle and the
Applicant is concerned that it is being utilized without the
knowledge of whether the insurance cover remains in place
.”
[16]
Nedbank has failed to allege and prove
that the first respondent is in possession of the vehicle. It also
has not proven that it
is entitled to the possession of the vehicle
in the absence of the cancellation of the agreement with the deceased
even before
any steps were taken by an executor to finalise the
estate. Lastly, it has failed to join the executor as a respondent.
See
Gross and Others v Pentz
[1996] ZASCA 78
;
1996
(4) SA 617
(A) at 625B. In addition, the application was not served
on the second respondent and no case has been made out that the first
respondent resides at the address where the application was served.
There are too many matters to address to order that the matter
be
removed from the roll and for the papers to be supplemented.
Accordingly,
I make the following order:
1.
The application is dismissed;
____________________
DP
de Villiers AJ
Heard
on:
18 May 2021
Delivered
on:
24 June 2021 by uploading on CaseLines
On
behalf of the Applicant:
Adv JJ Durandt
Instructed
by
JAY MOTHIBI INC
[1]
Clearly
this is a fact that had to be alleged and proven properly by someone
who has personal knowledge?
[2]
This
is later in the affidavit slightly expanded upon: “
On
the about the 22 September 2019, the deceased passed away at
Sandton. A copy of the death certificate is annexed hereto marked
"B".
”
[3]
Clearly
this is a fact that had to be alleged and proven properly by someone
who made the enquiry?
[4]
This is also later in the affidavit slightly expanded upon: “
Until
date hereof and to the best of my knowledge, the next of kin of the
deceased, nor the First Respondent, have reported the
death of
deceased to the Second Respondent and consequently an executor/
executrix has not been appointed to administer the deceased
estate
.”
[5]
Clearly
this is a fact that had to be alleged and proven properly by someone
who has personal knowledge or who could testify about
the facts from
which a conclusion could be drawn?
[6]
Clearly
this is too vague?
[7]
Clearly
this is too vague?
[8]
Clearly
this is too vague?
[9]
This
type of language does not belong in formal court papers.
[10]
Clearly
this is too vague?
[11]
Is
this not a meaningless assurance if the deponent in fact has no
knowledge?