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[2023] ZAFSHC 173
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Vleissentraal Bloemfontein (Pty) Ltd v Jansen (5476/2022) [2023] ZAFSHC 173 (16 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 5476/2022
In
the matter between:
VLEISSENTRAAL
BLOEMFONTEIN (PTY) LTD
Applicant/Plaintiff
and
CECILIA
GYSIA JANSEN
Respondent/Defendant
(ID
NO: 7[...])
CORAM:
OPPERMAN, J
HEARD
ON:
11 May 2023
DELIVERED
ON:
16 May 2023. The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 16 May 2023. The
date and time for hand-down is deemed to be 16 May 2023 at 15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Opposed motion – application for summary judgment
based on
acknowledgment of debt contract (AOD) – whether the application
for summary judgment must be based on the preliminary
contract and
not the acknowledgment of debt contract – does the National
Credit Act, 34 of 2005 (NCA) find application on
the facts of the
case
JUDGMENT
[1]
This is an opposed application for summary
judgment. There is also an
unopposed application for condonation of the late filing of the
defendant’s opposing affidavit.
Condonation was granted.
[2]
There is a clear misconception about the
issue(s) in dispute between
the parties.
1.
Counsel for the applicant states in his heads of argument that:
4.1 The crisp issue to be
adjudicated is whether the NCA applies to the AOD. If the NCA does
not apply, there would be no
bona fide
defence in law
prohibiting the granting of the summary judgment.
2.
Counsel for the respondent states in his heads of argument that:
2.3 Defendant has not
alleged or pleaded that the AOD falls within the ambit of the NCA,
but however that the initial agreement,
the credit agreement to the
amount claimed by the parties, falls within the ambit of the NCA as
the client was given credit for
the livestock.
2.4 Defendant is aware
that the AOD is not a credit agreement and has never pleaded
otherwise. The agreement referred to herein
applies to the AOD but
cannot be extended to the underlying agreement preceding the AOD,
being the credit agreement.
[3]
The
respondent did plead as follows in “the plea to the plaintiff’s
declaration”:
[1]
5.1 The contents of this
paragraph are admitted. The legitimacy of the credit agreement herein
is in question. The Defendant would
like to draw the courts attention
to the fact that Plaintiff is not authorized to make a credit
agreement of this nature as he
is not registered in terms of the
National Credit Act. A
simple credit assessment from the Plaintiff
will have shown that defendant has no financial means to pay the
monies back.
5.2 The contents of this
paragraph are admitted. It however became clear to the Defendant that
they could not make payments as their
financial situation does not
allow them. An offer was subsequently made by the Defendant and was
rejected by the Plaintiff.
[4]
The respondent went forth and admitted the
contents of paragraphs 5.3
to 5.9 of the then plaintiff’s declaration; the terms of the
AOD.
[5]
The facts
alleged in the declaration to the simple summons by the applicant and
admitted by the respondent in her plea to the declaration,
are:
[2]
1.
In January 2022 the respondent and the applicant entered into a
written “skulderkenings ooreenkoms”
(AOD). The AOD was
attached to the declaration.
2.
The terms of the AOD admitted to are that:
2.1
The respondent acknowledged that she is indebted to the applicant in
the amount of R480
885,71 together with interest at the rate of 15,5%
per annum from date of purchase until date of final payment as well
as costs
on an attorney and client scale;
2.2
The respondent undertook to pay the amount due by the end of February
2022. In the event
that the respondent fails to make timeous payment,
the full outstanding amount will immediately become due and payable.
2.3
The respondent consented that judgment being granted against her in
favour of the applicant
should she not comply with the terms of the
AOD.
2.4
The respondent breached the terms of the AOD in that she failed to
make the payment on the
due date.
2.5
Notwithstanding demand, alternatively summons served as demanded, the
respondent has failed
and neglected to pay the amount due. (The
summons was delivered in December 2022. The applicant granted the
respondent some grace
to remedy her conduct and for ten months.)
[6]
In paragraph 10.8 of the AOD the respondent
declared that she entered
into the agreement freely and with full knowledge and understanding
of the terms thereof.
[7]
The parties
agreed in paragraph 10.9 that the NCA is excluded due to
sections
4(1)(a)(i)
and
4
(1)(b).
[3]
[8]
The case for the respondent is literally
all over the place and can
be described as nothing but fake. This caused the misconceptions on
the issue(s) the court has to adjudicate.
There is a difference
between the defences in the pleading to the declaration of the then
plaintiff, the opposing affidavit to
the application for summary
judgment and the heads of argument. There are numerous defences or
defences that may be inferred due
to the confusing wording and
presentation of the issues; these are:
1.
That the AOD or initial contract is a credit agreement and that the
agreement is illegal because the
applicant is not a registered credit
provider;
2.
the cause of action is not the AOD. There is an underlying agreement
that falls within the ambit of the
NCA that is the cause of action;
3.
it is alleged, in so many words, that the credit was recklessly
granted: “A simple credit assessment
from the Plaintiff will
have shown that Defendant has no financial means to pay the monies
back.”;
4.
the claim
is not a liquidated amount. The applicant has not produced a liquid
document and cannot rely on the AOD because this agreement
arises
from a preliminary or initial contract that is a credit agreement.
“The amount in the Acknowledgment of Debt, does
not specify how
the amount has been calculated, nor does it indicate what the
indebted amount is for, and thus cannot be seen as
a valid liquidated
document.”
[4]
During the
hearing of the case counsel for the respondent argued that
certificate of balance should have been delivered;
5.
there is a
serious dispute of facts that can only be ventilated at trial when
proper evidence is led;
[5]
6.
the
applicant did not state the cause of action clearly;
[6]
and
7.
the
respondent denies a sale agreement to be the initial contract but to
be a “credit agreement to the amount claimed by the
parties.”
[7]
At paragraph
5.4 in the opposing affidavit she in effect declares that: “
The
only reason the Defendant signed the acknowledgement of debt was in
fact to secure further credit for livestock to be purchased
by the
Defendant and her husband
.”
This must be read with the quote
supra
at paragraph [3] that a simple credit assessment from the plaintiff
will have shown that defendant has no financial means to pay
the
monies back.
The
respondent on her own version and explicitly so; knew and realised
when she entered into the preliminary contract as well as
the AOD
that she does not have the means to honour the contracts.
[9]
Not one of the above defences is in any manner
whatsoever supported
with facts or detail; they remain mere allegations. In
Toyota
Financial Services (South Africa) Limited v Waste Partners Investment
(PTY) Limited
(9578/2020) [2022] ZAGPJHC 771 (29 August 2022) the
Supreme Court of Appeal describes similar conduct by a litigant in an
application
for summary judgment aptly in paragraph [25] as:
This is the baldest of
bald denials. The Defendant admits to nothing, and disputes
everything. However, the Defendant offers no
facts in support of its
denials.
One can also add,
in
casu
, that the pleadings differ from the opposing affidavit, that
differs from the heads of argument.
[10]
In the same
Toyota Financial Services (South Africa) Limited v
Waste Partners Investment (PTY) Limited
(9578/2020) [2022]
ZAGPJHC 771 (29 August 2022) the Supreme Court of Appeal concluded
from paragraphs [10] to [14] that summary
judgment proceedings are:
1.
Regulated by Rule 32 of the Uniform Rules of Court.
2.
It was designed to prevent a plaintiff’s claim, based upon
certain circumstances, from being delayed
by what amounts to an abuse
of the process of the court.
3.
The law allows a plaintiff to apply to the court for judgment to be
entered summarily against the defendant,
thus disposing of the matter
without putting the plaintiff to the expense of a trial.
4.
However, a defendant can escape a summary judgment by showing that
there exists a
bona fide
defence to the action.
5.
The defendant must disclose fully the nature and grounds of the
defence, and the material facts on which
it is based.
6.
A defendant may successfully resist summary judgment where the
opposing affidavit shows that there is
a reasonable possibility that
the defence advanced may succeed on trial.
7.
The court must determine whether on the facts disclosed the defendant
appears to have, as to either the
whole or part of the claim, a
defence which is also good in law.
8.
The defendant need not deal exhaustively with the facts and the
evidence relied upon to substantiate
them, but must at least disclose
his defence and the material facts upon which it is based with
sufficient particularity and completeness.
9.
In summary; the law shows that the defendant must meet four
requirements: he must disclose the nature
of grounds of his defence,
he must disclose the facts on which he bases his defence, the defence
must be
bona fide
, and the defence must be good in law. The
facts provided must be such that if proven at trial, it will
constitute an answer to
the plaintiff’s claim.
10. Lastly; considering
the extraordinary and drastic nature of summary judgment, if the
court has any doubt as to whether the plaintiff’s
case is
unanswerable at trial such doubt should be exercised in favour of the
defendant and summary judgment should accordingly
be refused.
11.
In
Ratlou
v Man Financial Services SA (Pty) Ltd
(1309/17)
[2019] ZASCA 49
;
2019 (5) SA 117
(SCA) (1 April 2019)
[8]
the Supreme Court of Appeal ruled that if the underlying causa did
not fall within the parameters of the NCA, then its compromise
in
terms of the settlement agreement, cannot logically result in the
agreement being converted to one that does.
The
compromise therefore remained linked to the underlying causa
,
being the rental agreements in that case. It will be artificial to
ignore this.
12. But, Dambuza JA
(Lewis ADP, Swain JA and Carelse and Matojane AJJA concurring) went
on to state in no uncertain terms that a
purposive interpretation and
not a literal interpretation of section 8(4)(f) of the NCA is
required because it is quite clear that
the NCA was not aimed at
settlement agreements.
Its application to them will have
devastating effect on the efficacy and the willingness of parties to
conclude settlement agreements
and thereby curtail litigation.
13. Further, that the
purposes of the NCA are set out in section 3. Section 2 thereof
provides that the NCA must be interpreted
in a manner that gives
effect to such purposes. Under section 3 the purposes are “
to
promote and advance the social and economic welfare of South
Africans, to promote fair, transparent, competitive, sustainable,
responsible, efficient effective and accessible credit market and
industry and to protect consumers.”
Therefore, the NCA is
concerned with the advancement of money or granting of credit in the
main, to individual consumers.
14. From the above and
the nature of the disputes that often presents in our courts, it is
clear that there is a tug-of-war between
commercial certainty and
prompt remedies in law for non-compliance with contracts on the one
hand; and the right to access to courts
on the other hand. In
Basson
v Chilwan and others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H Eksteen JA
referred to contractual freedom as:
“
The paramount
importance of upholding the sanctity of contracts, without which all
trade would be impossible …”
Further,
“
If there is one
thing that is more than public policy requires,
it is that men
of full age and competent understanding shall have the utmost liberty
of contracting, and that their contracts when
entered into freely and
voluntarily shall be held sacred and shall be enforced by courts of
justice
.
Therefore, you have this para-mount public
policy to consider - that you are not lightly to interfere with this
freedom of contract.”
(Accentuation added)
Justice Ackermann in
Ferreira v Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) at paragraph 26 described it as “a central consideration
in a constitutional state”. These statements aim for
reasonable
certainty, so that parties can go about their business knowing the
rules of the game;
constitutional economic integrity is vital
.
Moseneke J (as he then
was) pointed out in his dissent in
Barkhuizen v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) at paragraph 98 that:
“
Public policy
cannot be determined at the behest of the
idiosyncrasies of
individual contracting parties
. If it were so, the determination
of public policy would be held ransom by the infinite variations to
be found in any set of contracting
parties.” (Accentuation
added)
[11]
At the heart of the above is the basic principle that commercial
transactions, freely and honestly entered into, and not vitiated by
fraud, misrepresentation, duress or public policy, should be
respected and enforced. It is the case here. The truth may not be
warped into a confusion of facts and law.
[12]
The truth is that the applicant met the onus stipulated above in
that
it was proven, in no uncertain terms, that the underlying transaction
was a transaction for goods sold and delivered, which
goods the
respondent failed to pay for timeously and at all. The goods were
livestock that were sold for a once - off payment and
delivered to
the respondent. The livestock remained the property of the applicant
until payment was effected and did not become
the property of the
respondent on delivery. This did not make the agreement to fall under
the realms of the NCA. Further to this:
1.
The respondent admits the AOD as well as the salient terms thereof;
2.
the claim is for a liquidated amount of money acknowledged and agreed
to be R480 885.71 with the interest
at a rate of 15% per annum from
date of purchase until date of final payment as well as the costs on
an attorney and client scale;
3.
the respondent did not make the payment timeously and at all;
4.
the full amount became payable;
5.
the NCA is also not applicable to the AOD;
6.
“The
defence epitomises one set out in inherently and seriously
unconvincing manner and displays a patent lack of
bona
fides
on the part of the respondent.”;
[9]
and
7.
the respondent failed to show that she is entitled to leave to defend
the action.
[13]
ORDER
1.
Condonation is granted for the late filing of the respondent’s
opposing affidavit to the application
for summary judgment and the
costs to follow the cause in the application for summary judgment.
2.
The relief sought in the notice of application for summary judgment
is granted and as follow:
2.1
Payment of the amount R480 885.71.
2.2
Interest on the aforesaid amount at a rate of 15% per annum
calculated from 2 December 2021
until date of final payment.
2.3
Costs on an attorney – and – client scale.
____________________
M
OPPERMAN, J
APPEARANCES
On
behalf of the applicant
ADVOCATE
H.J. VAN DER MERWE
Chambers,
Bloemfontein
Symington
De Kok Attorneys
BLOEMFONTEIN
On
behalf of the respondent
ADVOCATE
F. JACOBS
Chambers,
Bloemfontein
Du
Toit Lambrecht Attorneys
BLOEMFONTEIN
[1]
Page
21 of the Index Pleadings (18 April 2023) - Bundle.
[2]
Page
21 of the Index Pleadings (18 April 2023) - Bundle.
[3]
4. Application of Act. — (1) Subject to sections 5
and 6, this Act applies to every credit agreement between
parties
dealing at arm’s length and made within, or having an effect
within, the Republic, except—
(a)
a credit agreement in terms of which the consumer is—
(i)
a juristic person whose asset value or annual turnover, together
with the combined asset value or annual turnover of all related
juristic persons, at the time the agreement is made, equals or
exceeds the threshold value determined by the Minister in terms of
section 7 (1);
(b)
a large agreement, as described in section 9 (4), in terms of which
the consumer is a juristic person whose asset value or annual
turnover is, at the time the agreement is made, below the threshold
value determined by the Minister in terms of section 7 (1);
[4]
Paragraph
5.5 at page 17 of the Index – Application for Summary Judgment
(18 April 2023) - Bundle.
[5]
Heads
of argument for the respondent at paragraph 2.13 page 5.
[6]
Heads
of argument for the respondent at paragraph 2.5 on page 3.
[7]
Paragraph
5.3 at page 17 of the Index – Application for Summary Judgment
(18 April 2023) - Bundle.
[8]
At
paragraphs [19] to [27].
[9]
Heads
of argument of the applicant at paragraph 2.4.