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[2010] ZAWCHC 216
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Standard Bank of SA Ltd v Christiaan Johan Coetzee (A 76/2010) [2010] ZAWCHC 216 (24 November 2010)
Republic
of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 76/2010
In the
matter between:
STANDARD
BANK OF SOUTH AFRICA LTD
Respondent / Plaintiff
and
CHRISTIAAN JOHAN COETZEE
Applicant / Defendant
_______________________________________________________________________
JUDGMENT DELIVERED : 24 NOVEMBER
2010
_____________________________________________________________________
Before
:
MOOSA,
J et JAMIE, AJ
Heard on :
15 October 2010
On behalf of Respondent / Plaintiff:
Adv Johan Louw
Attorney(s)
: Balsillies Strauss Daly
On behalf of Appellant (Applicant) /
Defendant: Attorney D
R Kulenkampff
Attorney(s)
: Kulenkampff & Associates
(c/o C & A Friedlander)
Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 76/2010
In the matter between:
STANDARD BANK OF SOUTH AFRICA LTD
….................................
Respondent
/ Plaintiff
and
CHRISTIAAN JOHAN COETZEE
….....................................................
Applicant
/ Defendant
JUDGMENT DELIVERED : 24 NOVEMBER 2010
_____________________________________________________________________
MOOSA, J:
The appellant (applicant), who was
the defendant in the court below, appeals against the Summary
Judgment granted in favour of
the respondent, who was the plaintiff
in the court below. For the sake of convenience the parties will be
referred to as in the
court below. The Summary Judgment granted was
in the following terms:
(a) Confirmation of termination of the agreement;
(b) return of the vehicle as referred to herein;
(c) forfeiture of all amounts paid by the defendant in terms of the
agreement;
(d) the difference between:
(d.1) the amount of R34 404.60 (current outstanding balance) which is
calculated as follows:
(i) amount outstanding as at 01.04.2009, being date of termination of
the agreement: R34 404.60;
(ii) less, a rebate on finance charges for the period not yet lapsed
at the termination of the contract (to be calculated);
AND
(d.2) the amount the vehicle is valued at or the re-sale value,
whichever is the greater;
(e) Interest on the amount referred to in paragraph (d), being the
total recalculated balance, calculated at 16,292% per annum
alternatively
at the current interest rate linked to the
fluctuation of the interest rate calculated from date of termination
of the agreement
to date of payment;
(f) Expenses incurred for removal, valuation storage and sale of the
vehicle;
(g) Attorney and own client costs to be taxed;
(h) Further and/or alternative relief.
The defendant essentially raised two grounds of appeal, namely, that
the court
a quo
erred in finding firstly, that the plaintiff
had complied with the provisions of r 14 of the Magistrates’
Court Rules and
secondly, that the plaintiff had complied with the
provisions of s 129 of the National Credit Act, 34 of 2005 (“the
Act”).
The defendant in his Opposing Affidavit to the Summary
Judgment Application raised various technical points
in
limine
but it appears that on appeal some of these issues
were abandoned
.
The defendant did not raise any defences on
the merits of the matter in the court
a quo
. I will deal with
each of the two grounds which is raised on appeal.
In terms of r 14 of the Magistrate’s Court Rules, summary
judgment can be granted on one or more of the following grounds:
(a)
on a liquid document; (b) for a liquidated amount in money; (c) for
the delivery of specified movable property; or (d) for
ejectment.
Clause 9 of the plaintiff’s Particulars of Claim provides that
should the defendant default with the payment
in terms of the
instalment sales agreement, the plaintiff would be entitled to
obtain judgment for (i) the cancellation of the
agreement; (ii) the
return of the vehicle; (iii) forfeiture of all amounts paid by the
Defendant; (iv) damages; (v)
interest and (vi) expenses and
costs.
The plaintiff further avers that the total damages outstanding on
the date of termination of the agreement is the difference
between
R34 404 (less the rebate on finance charges) and the amount the
vehicle is valued at or the resale value, whichever is
the greater.
The latter amount can only be calculated when the vehicle has been
repossessed and the vehicle has been valued and
sold at the best
reasonable price. The question of whether the amount claimed is a
liquidated amount as envisaged in r 14, is
not necessary to decide
for reasons that will become apparent later.
In the application for summary judgment, plaintiff’s
Collection’s Manager, one Basil Louis Borain, swears
positively
to the claim which has been set out in the Summons and
the Particulars of Claim and verifies the cause of action. Subject
to
compliance with the notice envisaged in s 129(1)(a) of the Act,
summary judgment, at this stage of the proceedings, in my view
, can
only be granted for termination of the credit agreement and the
return of the vehicle. The order for the return of the
vehicle
triggers the operation of s127 (2) to (9) read with s 128, which
sets out the steps to be taken by the credit provider
to deal with
the repossessed property. The submission of the defendant that it
could well be that after the vehicle has been
returned and the
necessary steps have been taken for its sale, the plaintiff may be
indebted to the defendant, is not misplaced.
I will firstly discuss the question of compliance with s 129 of the
Act, before returning to the discussion with regard to compliance
with r 14. Section 129(1)(a) provides that a credit provider may not
commence any legal proceedings against a defaulting consumer
prior
to drawing to his or her attention in writing such default and
informing him that he is entitled to refer the credit agreement
to a
debt counsellor or alternative debt-resolution authority to resolve
any dispute or make arrangement for the payment of the
debt.
What constitutes to
“
draw
the default to the notice of the consumer in writing
”
has been the subject of
conflicting decisions by our courts
(
First
Rand Bank Ltd v Dhlamini
2010
(4
)
SA
531 (GNP),
Starita v Absa Bank Ltd and Another
2010
(3) SA 443
(GSJ),
Absa Bank Ltd v Prochaska t/a Bianca
Cara Interiors
2009 (2) SA 512
(D) and
Munien v BMW Financial Services (SA) (Pty) Ltd and
Another
2010 (1) SA 549
(KZD).
This section does not mention how such notice is to be drawn to the
attention of the consumer or how it should be delivered to
him or
her. However, various sections of the Act provide for different
methods of delivery and/or service. Section 65 provides
how a
document required to be delivered to a consumer must be delivered.
It provides that it should be delivered in the prescribed
manner,
but if no method has been prescribed it could be delivered in
person, by ordinary mail, by fax, by e-mail or by web-page
or in the
manner chosen by the consumer from the various options hereinbefore
mentioned.
Section 96 provides for a party to an agreement to give the other
party notice by delivering that notice to that party at the
address
set out in the agreement or the most recent address provided by that
party. Section 168 of the Act provides that a notice
will have been
properly served if it has either been delivered to that person or
sent by registered mail. The regulations mention
that “
delivery”
is the sending of a document by
hand
,
by fax, by e-mail or
registered mail
to an address chosen in the agreement by the
consumer.
With that background, I return to
the conflicting court decisions referred to earlier. The conflicting
decisions have been put
to rest by a recent, as yet unpublished
judgment of the Supreme Court of Appeal in the matter of
Rossouw
v First Rand Bank Ltd
(640/09)
[2010] ZASCA 130
(30 September 2010). The heart of the issue in that
case is similar to the issue in the present case namely, whether a
letter
sent by registered post to the
domicilium
address without proof of receipt
complies with the requirements of s 129.
Maya, JA
writing for the
court in the
Rossouw
matter
(
supra
)
at para 31 says the following:
“
It
appears to me that the legislature’s grant to the consumer of a
right to choose the manner of delivery inexorably points
to an
intention to place the risk of non-receipt on the consumer’s
shoulders. With every choice lies a responsibility and
it is after
all within a consumer’s sole knowledge which means of
communication will reasonably ensure delivery to him. It
is entirely
fair in the circumstances to conclude from the legislature’s
express language in s 65(2) that it considered despatch
of a notice
in the
manner chosen by the appellants in this matter sufficient for the
purposes of s 129 (1)(a) and that actual receipt is the consumer’s
responsibility.”
Even if I differ with that finding, I am bound by that decision by
virtue of the doctrine of
stare decisis.
In his opposing affidavit, the
defendant states that he has not received the s 129 notice and in
the circumstances the plaintiff
has not complied with the particular
section. The letter was sent by registered post to the
domicilium
citandi et executandi
at
12 Baxter Street, Durbanville, Western Cape. The defendant, by
accepting the mode of service at such chosen address, accepted
responsibility for the receipt of such notice as found in the
Rossouw
case
(supra)
irrespective
of whether he had in fact received such notice or not
.
In the circumstances I
conclude that proper service of the s 129 notice was effected on the
defendant in terms of the Act and
there was accordingly proper
compliance with the provisions of s 129 of the Act.
I now return to the first ground of appeal, namely compliance with r
14. Section 131 of the Act provides:
“
If a
court makes an attachment order with respect to property that is the
subject of a credit agreement, section 127 (2) to (9)
and section
128, read with the changes required by the context, apply with
respect to any goods attached in terms of that order.”
Section 127 (2) to (9) sets out the steps to be taken by the credit
provider to deal with the repossessed property: firstly, in
terms of
s 127(2)(b), the credit provider must give the consumer written
notice setting out the estimated value of the repossessed
property
and other prescribed information; secondly, in terms of s 127(4)(b),
the credit provider must sell the repossessed property
as soon as
practicable for the best price reasonably obtainable; thirdly, after
the property has been sold, the credit provider
must account to the
consumer in writing in terms of s 127(5); fourthly, if the consumer
disputes the outcome of the sale, he may
apply to the National
Consumer Tribunal to review the sale and fifthly, the credit provider
can approach the court, in terms of
s 130(2), for an order enforcing
the remaining obligations of a consumer under the credit agreement.
In the circumstances it is
not necessary to decide whether the amount
claimed is a liquidated amount or not, as the issue is resolved
ex
lege
.
For reasons set out above, I conclude that there has been compliance
with s 129 of the Act and there has been partial compliance
with r
14 of the Magistrates’ Court Rules. The partial compliance of
r 14 is based on the fact that the plaintiff is entitled
to an order
for the return of the vehicle, but is not entitled to judgment for
damages until the plaintiff has implemented the
prescribed procedure
as set out in s 127(2) to (9). In the circumstances the appeal
succeeds partially and no order is made in
respect of the costs of
the appeal. As far as the cost of the proceedings in the lower court
is concerned, the plaintiff was
substantially successful and is
awarded party and party costs. The order of the lower court is
substituted as follows:
“
Summary
Judgment is granted for:
(i) Confirmation of termination of the credit agreement;
(ii) Return of the vehicle which forms the subject-matter of the
credit agreement; and
(iii) Costs on a party and party scale.”
JAMIE, AJ: I agree.
………………………………
I JAMIE