SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
OFFICE OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 10417/2023
In the matter between:
SA TAXI DEVELOPMENT FINANCE (PTY) LTD Plaintiff
and
ZUKISWA HAZEL THETHANI NO Defendant
Coram: Joubert AJ
Date of hearing: 22 January 2024
Date of judgment: 28 February 2024
JUDGMENT DELIVERED ELECTRONICALLY
JOUBERT, AJ:
INTRODUCTION
[1] The plaintiff is a registered credit provider in terms of the National
Credit Act, 34 of 2005 (“the NCA”). In this action, t he plaintiff sues the
defendant as ce ssionary of Potpale Inv estments (RF) (Pty) Ltd (“Potpale”),
which at the relevant time was also a credit provider in terms of the NCA.
[2] The defendant is the executrix of the deceased estate of the late Mr
Lalanga Peter Thethani (“the deceased”), who had purchased a vehicle from a
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motor vehicle dealer, financed by Potpale in terms of an instalment sale
agreement.
[3] In this action, the plaintiff seeks, primarily , an order confirming
termination of the instalment sale agreement and delivery of the vehicle.
[4] The defendant entered appearance to defend and filed a Plea and the
plaintiff now applies for summary judgment.
THE PARTICULARS OF CLAIM
[5] The following facts, pleaded in the Particulars of Claim , are not in
dispute:
[5.1] In terms of an instalment sale agreement dated 24 June 2020
(“the ISA”), Potpale sold to the deceased a Toyota Quantum /
Hi-Ace motor vehicle (“the vehicle”).
[5.2] The relevant terms, in relevant parts, of the ISA for purposes of
this judgment are the following:
“5. OWNERSHIP
5.1 The credit provider shall remain the owner of the
Vehicle unti l all amounts outstanding in terms of
this Agreement have been settled by you. If the
credit provider cedes its rights under this
Agreement to any third party, it shall be entitled to
transfer ownership of the Vehicle to that thir d party
without notice to you, in which event you agree to
hold that Vehicl e on behalf of that third party ( ‘the
cessionary’) as owner.
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25. BREACH
25.1 An event of default will have occurred where:
25.1.1 you fail to make payment of any amount
payable under this Agreement on the due
date thereof;
…
26. CREDIT PROVIDER’ S RIGHT TO TERMINATE THE
AGREEMENT
26.1 If you are in d efault under this Agreement, the
credit provider may terminate this Agreement
before the time, provided he does to in compliance
with the provisions of the NCA relating to
enforcement and termination.
26.2 If an event of default occurs the credit provider:
26.2.1 may draw the default to your notice as
contemplated in section 129( 1) of the NCA
…
26.2.2 subject to the NCA, may commenc e legal
proceedings to enforce this Agr eement
provided:
26.2.2.1 you have been in default under
this Agreement for at least 20
(twenty) business days…
26.2.2.1 you have not responded to the
notice contemplated in section
26.2.1 above…
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26.2.3 Shall be ent itled, but not obliged, to
perform or procure the perf ormance of any
of your obligations…
26.3 If the Vehicle is returned or repossessed by the
credit provider, the credit provider shall be entitled
to dispose of the Vehicle in accordance with the
NCA, and as more fully set out i n 15.4 to 15.6
above and in such further manner and on such
further terms and conditions as it determines.”
[6] As has been mentioned, the plaintiff took cession of Potpale’ s rights
and obligations in terms of the ISA.
[7] It is not in dispute that the account fell in arrears after the deceased
passed away. In law, the terms of the ISA were binding on the defendant in
her capacity as executrix,
1 but she made no payments to the plaintiff.
[8] The plaintiff’s attorney addressed a letter to the defendant in terms of
section 129 of the NCA dated 8 September 2022, and another one dated 5
June 2023.
2 Both letters included a demand that the arrears be brought up to
date and further that:
“6. Should you fail to respond to this notice within 10 (ten) business
days from the date of it being delivered to you or sent to you by
registered mail, we have been instructed by our client to take
whatever legal action is necessary to protect our client ’s
1 Cilliers: Meyerowitz on the Administration of Estates and Their Taxation, Juta, 2023
Ed, para 12.28
2 It was held in Absa Bank Ltd v Mag iet NO Saflii (15967 /2007) [2018] ZAWCHC 7 (8
February 2013) that the enforcement procedures of the NCA must be followed in the case of
credit agreements when an executor of a deceased estate is sued.
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interests and reclaim the vehicle forming the subject matter of
the Credit Agreement from you.
7. Should you not comply with the demands contained in this letter ,
our clie nt will, without further notice, cancel the Credit
Agreement.”
[9] The section 129 letters were not responded to nor were the demands
therein complied with.
[10] In its Particulars of Claim , the plaintiff pleaded that it “ herewith
terminates the agreement”.
[11] The relief sought by the plaintiff is:
[11.1] Confirmation of cancellation of the agreement;
[11.2] Return of the motor vehicle;
[11.3] Expenses incurred for removal, valuation, storage and sale of
the vehicle;
[11.4] Costs on the scale as between attorney and client.
THE DEFENDANT’S PLEA
[12] In her Plea, the defendant pleads the following defences, paraphrased:
[12.1] A special plea of non-joinder, alleging that the Master of the High
Court has a direct and substantial interest in the matter and
ought to have been joined, as well as the “other estate heirs”;
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[12.2] That clause 23 of the ISA provides for compulsory life insurance
cover and that this clause served to extinguish the debt owed by
the deceased;
[12.3] That the defendant did not receive a notice in terms of section
129 of the NCA;
[12.4] That the plaintiff ought to have lodged a claim against the estate
of the deceased in terms of section 29 of the Administration of
Estates Act, 66 of 1965 (“the Estates Act”).
THE SUMMARY JUDGMENT APPLICATION
[13] In its affidavit in support of the summary judgment application, the
plaintiff makes the following averments:
[13.1] Due to the reservation of ownership, t he vehicle does not form
part of the deceased estat e and that for that same reason the
Master is not a necessary party.
[13.2] The defendant misinterpreted and/or mispleaded the terms
relating to credit life insurance but, in any event, Guardrisk
Insurance Co Ltd (“Guardrisk”), with whom the deceased
concluded a credit life insurance polic y, repudiated the
insurance claim. A letter from Guardrisk to the deceased’s
surviving spouse is attached from which it appears that the claim
was repudiated d ue to the fact that the deceased passed away
within the 4-month “waiting period” provided for in the policy.
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[13.3] It complied with the provisions of secti on 129 of the NCA , with
reference to a “track-and-trace” report by the P ost Office as well
as a return of service by the Sheriff.
[14] Accordingly, the plaintiff contends that no bona fi de defence has been
put up by the defendant.
THE DEFENDANT’S OPPOSING AFFIDAVIT
[15] In her opposing affidavit, the defendant raises the following issues:
[15.1] She objects to hearsay evidence in the plaintiff’s affidavit
regarding repudiation by Guardrisk of the credit life insurance
claim.
[15.2] She objects to new facts or allegations being made for the first
time in the plaintiff ’s affidavit in support of the summary
judgment.
[15.3] She persists with the plea of non- joinder of the Master of the
High Court and, in response to the point that the vehicle does
not belong to the estate of the deceased, stated that the vehicle
generates an income for the benefit of the estate and argued
that for those reasons the joinder of the Master is vital.
[15.4] As regards the section 129 Notices, she simply maintains her
stance as pleaded.
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[15.5] She persist s in arguing that the plaintiff ought to have
submitted a claim in terms of section 29 of the Estates Act and
that she could not have paid any debt of the est ate outside of
those provisions.
RELEVANT PRINCIPLES RELATING TO SUMMARY JUDGMENT
[16] In terms of Uniform Rule 32(3)(b) a defendant can resist summary
judgment by satisfying the Court on affidavit that it has a bona fide defence to
the action. The affidavit must disclose fully the nature and grounds of the
defence and the material facts relied upon therefor.
[17] It is not required of a defendant to satisfy the Court that its defences
will ultimately prove to be successful. All that the Court enquires into is (a)
whether the defendant has “fully” disclosed the nature and grounds of its
defence and (b) whether on the facts so disclosed the defendant appears to
have a defence which is both bona fide and good in law. 3 In short, summary
judgment proceedings are “ not intended to deprive a defendant with a triable
issue or a sustainable defence of her/his day in court”.4
[18] Even if the defendant ’s case has not been set out with sufficient
particularity to enable the C ourt to assess the defendant ’s bona fides , the
Court retains a discretion to refuse summary judgment if there is doubt
whether the plaintiff’s claim is unanswerable.
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3 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (AD) at 426B-C
4 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1
(SCA) at para [32]
5 First National Bank of SA Ltd v Myburgh NO and Another 2002 (4) SA 176 ( CPD) at
para [9]
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THE ISSUES
[19] In his first written Note on Argument, the defendant ’s attorney
crystallised the issues to be decided as follows:
[19.1] The issue of compliance with section 129 of the NCA;
[19.2] Whether the vehicle in issue forms part of the deceased
estate;
[19.3] Whether the Court may admit Annexure “YN2”, being the
letter from Guardrisk regarding repudiation, in the light of the
defendant’s objection that it is non- admissible hearsay
evidence;
[19.4] The issue of non-joinder of the Master of the High Court.
[20] I deal with the defendant ’s defences as articulated by the defendant’s
attorney in turn, albeit not in the same order.
FIRST ISSUE – COMPLIANCE WITH SECTION 129 OF THE NCA
[21] As appears from the Particulars of Claim , the first section 129 Notice
was sent per registered mail to the domicilium citandi et executandi of the
deceased, and a track -and-trace report of the Post Office showing the status
of the letter as being “in delivery office” at Elonwabeni Post Office as at 6
January 2023 is attached.
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[22] The defendant takes the point that, having decided that she, as
executrix, is the defendant in this matter, the notice should have been brought
to her attention and not simply s ent to the domicilium address of the
deceased.
[23] However, t he plaintiff’s second section 129 letter was served by the
Sheriff at the residential address of the defendant , on 8 June 2023. According
to the Return of Service, it was served on a certain Thabisa Maskoka, a
tenant at the residential address of the defendant at A 198 Pri mrose Street,
Ikwezi Park, Cape Town, being a person not less than 16 years of age
residing there, after explaining the nat ure and content thereof to the said
person. In her Plea, the defendant simply states that the letter was not served
on her.
[24] It is to be noted that in her Plea the defendant did not deny her address
as the one on which service took place . The section 129 Notice was
accordingly properly served on the defendant and there is no triable issue in
this regard.
SECOND ISSUE – HEARSAY LETTER OF REPUDIATION F ROM
GUARDRISK
[25] From the plaintiff’s affidavit it appears that the deceased concluded a
credit life insurance agreement with Guardrisk before passing away. After his
death, his surviving spouse, Mrs Thembeka Lillian Thethani, submi tted the
claim, together with an affidavit explaining that she only found out about the
policy four months after the death of the deceased. The repudiation letter from
Guardrisk is addressed to her. In a w ritten note in response to defendant’s
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argument, the plaintiff requests that the letter be accepted in the interest of
justice given the fact that the content is not expressly in dispute. I assume that
this request is with reference to section 3 of the Law of Evidence Amendment
Act, 45 of 1988.
[26] I am of the view that there is no merit in this defence irrespective of
whether the repudiation letter is accepted into evidence. The reason for this is
that, contra to the averment in paragraph 5.2 of the defe ndant’s Plea, it was,
in terms of clause 23 of the ISA, the dut y of the deceased to take out and
maintain a credit life insur ance policy. in terms of clause 23.7, the plaintiff
merely obtained cession of the right, title and interest to such credit life
insurance policy. The fact that the deceased unfortunately passed away within
the 4-month period, which resulted in the claim being repudiated, can certainly
not render the plaintiff liable in any manner.
[27] In any event, to the extent necessary, given the nature of the
proceedings and the evidence, the purpose for which it is tendered, the
probative value thereof and the lack of real prejud ice to the defendant, I
consider it just and eq uitable to accept the letter of repudiation. It is simply an
uncontestable fact that the deceased passed away within the four months
waiting period under the policy, in which case the policy does not pay out.
[28] This defence accordingly also does not present a triable issue.
THIRD ISSUE – DID THE VEHICLE FORM PART OF THE DECEASED
ESTATE?
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[29] As has been menti oned, t he plaintiff submits that the vehicle fell
outside of the deceased estate.
[30] The plaintiff finds support in judgment in the case of Struwig NO v
Marais 1999 (2) SA 214 (OPA) . In that case, the executor of a deceased
estate sought an order for the delivery of a motor vehicl e that had been
purchased by the deceased in terms of a hire purchase agreement. Before
passing away the deceased concluded an agreement with the respondent in
terms of which the respondent was placed in possession of the vehicle on the
basis that he would pay the instalments. In terms of the hire purchase
agreement, Bankfin, the seller/credit giver, retained ownership of the vehicle
until payment of the last instalment.
[31] Edeling J dismissed the application on the basis that the vehicle was
not an asset i n the deceased estate since it remained the property of Bankfin
and that there was accordingly no duty on the executor to attempt to attach
the vehicle as an asset in the estate. According to the learned judge, the
correct position was that the executor was bound to give effect to the terms of
the agreement between the deceased and the respondent / possessor.
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[32] Although the defendant’s attorney ultimately (in a Supplementary Note,
which is dealt with in more detail below) indicated that the defendant accepts
the correctness of the proposition that the v ehicle fell outside of the deceased
estate, I do consider it necessary to refer to another case in which, on the face
of it, a contrary view was expressed.
6 At 220B-C
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[33] In the case of Harrison NO v McClelland 1955 (3) SA 20 (N), Caney J
granted an interdict in favour of an executor of a deceased estate against a
respondent who had been placed in possession of a vehicle that the
deceased had purchased in terms of a hire -purchase agreement. The
respondent contended that she had paid the instalments under the hire
purchase agreement i n order to preserve it for the estate and also that she
enjoyed a lien in respect of expenses incurred by her to preserve the vehicle
for the estate. She also stated that she knew that the vehicle was an asset in
the estate, but that she had to pay the instalments to prevent the bank from
repossessing it.
[34] In rejecting the argument that the respondent had to pay the
instalments to prevent the bank (the “seller” in the quoted passage below)
from repossessing the vehicle, the Court held that:
“The party with whom he (the selle r) had contracted having died, the sell er’s
only proper course was to present a claim against his estate under the terms
of the Administration of Estates Act.”7
[35] However, It does not appear from the judgment whether the hire-
purchase agreement contained a clause reserving ownership of the vehicle
and the existence of such a clause cannot simply be presumed. The weight of
the quoted passage is further reduced by the absence of any discussion of the
issue.
[36] In considering this issue, regard should also be had to the provisions of
the Estates Act itself, of which the following have relevance:
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[36.1] Section 26(1), in terms of which the executor must take into his
custody or under his control
“all the property, books and documents in th e estate not in the
possession of any person who claims to be entitled to retain it under
any contract, right of retention or attachment”.
[36.2] The definition of “ property” in the Estates Act namely that it
“inludes any contingent interest in property”.
[37] Although it cannot be disputed that the purchaser of a motor vehicle in
terms of an instalment sale agreement possesses an existing as well as a
contingent interest in the vehicle, namely the right to possession thereof while
the agreement is extant and the right to full ownership once the full purchase
price has been paid, those rights and inter ests are subject to continued
payment of the instalments and are to be distinguished from the physical
object to which they pertain, being the vehicle, and the ownership thereof.
[38] Indeed, as the plaintiff’s counsel submitted, the defendant is bound by
the rights and obligations contained in the ISA and does not possess more
rights than those held by the deceased.
[39] To the extent that the judgment in Harrison NO is at odds with the
judgment in Struwig NO, I am of the view that the latter is correct.
[40] As alluded to above , the defendant’s attorney somewhat changed tack
in a supplementary note filed by him subsequent to the hearing of the matter,
7 At 23 C-D
15
pursuant to an invitation from me to bot h parties to do so. In that note, he
submits that “it is not necessary to engage in any debate about whether the
motor vehicle in question forms part of the deceased or not ”, and supports the
finding in Struwig NO.
[41] Instead, he submi ts that the real question is “ whether the alleged debt
which gave rise to these proceedings forms part of the deceased estate”.
[42] In developing this argument, the defendant’s attorney refers to the fact
that the contractual rights and obligations of the deceased in terms of ISA are
devolved to the defendant as execut or and then submits that “ The key
question is how a debt against the estate should be dealt with”. The argument
then emphasises the duties of an executor in relation to publication of notices
for claims, considering same and the legal processes and procedures set out
in sections 29 and 35 of the Estates Act.
[43] What this line of reasoning overlooks is the distinction between
ownership of the vehicle and the parties ’ contractual rights and obligations
flowing from the ISA. The plaintiff does not in this action claim payment of any
arrears or damages, which claims would undoubtedly have to be lodged
against the deceased estate in terms of the relevant provisions of the Estates
Act.
[44] I accordingly find no merit in the defendant’s new line of attack either.
[45] Accordingly, in my view, the third issue also does not raise a triable
issue.
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FOURTH ISSUE – NON-JOINDER OF THE MASTER OF THE HIGH COURT
[46] Given my finding in respect of the third issue, it follows that no question
of joinder of the Master arises.
[47] As regar ds joinder of the heirs, it is trite that a n executor is not a
procurator or aent for the heirs and is legally vested with the administration of
the deceased estate, and this point is also in my view without any merit.
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CONCLUSION AND RELIEF
[48] As set out in paragraph 11 above, the plaintiff , in addition to the return
of the motor vehicle, also seeks an order confirming cancellation of the ISA,
an order for the expenses incurred for removal, valuat ion, storage and sale of
the vehicle, as well as an order for attorney and client costs. Those claims do
not fall to be treated on the same basis as the claim for delivery of the vehicle,
which succeeds as a rei vindicatio based on the retention of ownership by the
plaintiff. Those claims arise out of the provisions of the ISA, and would have to
be lodged as claims against the deceased estate in terms of the relevant
provisions of the ISA. The defendant must ac cordingly be given leave to
defend those claims, should they be persisted with.
[49] The plaintiff was substantially successful in this summary judgment
application and is entitled to the costs thereof, albeit not the attorney and
client costs provided for in the ISA.
[50] In the premises I grant summary judgment in the following terms:
8 Cilliers (supra) at para 12.14
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[50.1] The defendant shall return to the plaintiff the 2020 Toyota
Quantum / Hi -Ace 2.5 D -4D Sesfikle 16S motor vehicle with
engin number 2KD[…] and chassis number AHT[…] forthwith.
[50.2] The defendant is given leave to defend all other claims
contained in the Particulars of Claim.
[50.3] The defendant shall pay the plaintiff’s costs of suit.
_____________________
JOUBERT, AJ
For the Plaintiff: Adv C Tait
For the Defendant: Mr K Lingani