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[2023] ZAFSHC 253
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Nedbank Limited v Tsoeu (5612/2022) [2023] ZAFSHC 253 (30 June 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 PROVINCIAL
DIVISION
Not
Reportable
Case
no. 5612/2022
In
the matter between:
NEDBANK
LIMITED
Plaintiff/Applicant
[1]
and
THOMAS
EDWARD TSOEU
Defendant/Respondent
[2]
Coram:
Opperman, J
Heard:
15 June 2023
Delivered:
30 June 2023. This judgment was handed down electronically by
circulation to the parties’ legal representatives
via
email and release to SAFLII on 30 June 2023. The date and time of
hand-down is deemed to be 15h00 on 30 June 2023
Summary:
Summary judgment -
National Credit Act 34 of 2005
-
section
92(2)(b)
- Form 20(1)
ORDER
1.
Summary judgment is granted against the
defendant/respondent for the immediate return of a MERCEDES-BENZ ML
320 CDI motor vehicle
with engine/series number: 64[…] and
chassis number: WDC[…].
2.
The defendant/respondent to pay the costs of this application.
JUDGMENT
INTRODUCTION
[1]
Constitutional economic integrity is vital in a
democratic dispensation. Honesty, transparency and honour in
contracts immutable.
[2]
In
Basson v Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H
Eksteen, JA referred to: “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.
[3]
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.
[4]
Moseneke J, (as he then was) pointed out 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.
[5]
At the heart of the jurisprudence above is the
basic premise that commercial transactions, freely and fairly entered
into, and not
vitiated by fraud, misrepresentation, duress or public
policy; should be respected and enforced. The proclamation of the
National Credit Act did
not alter these core values of contracts in
South Africa.
THE
CLAIM
[6]
The plaintiff’s/applicant’s claim is
based on a written instalment sale agreement involving a vehicle and
entered into
between the parties in September 2017. The claim relies
on breach of the agreement by defendant/respondent in that he failed
to
make proper payment of the instalments and are in arrears. The
contractually agreed remedy of the return of the vehicle was elected
by plaintiff/applicant to address the issue. Nedbank was forced by
the conduct of the Mr Tsoeu into an application for summary
judgment.
THE PARTIES
[7]
The plaintiff/applicant is Nedbank Limited, a
public company with limited liability that trades as a registered
deposit taking institution
in terms of the Bank Act, No 94 of 1990.
Nedbank, that does business as a commercial bank and that is so
registered in terms of
the Bank’s Act 94 of 1990, also conducts
business as MFC, a division of Nedbank Limited. Nedbank is also duly
registered
as a credit provider in terms of National Credit Act 34 of
2005 (NCA).
[8]
The defendant/respondent is Mr TE Tsoeu a major
male person with
domicilium citandi et
executandi
at an address stipulated in
the agreement situated in the Free State Province. He is also a legal
practitioner. His practise is
situated in Bloemfontein. He conducted
his own case.
THE
DEFENSE
[9]
The defense of Mr Tsoeu against the application
for summary judgment is mere bare denials that were pleaded and that:
2.
The alleged contract is a
nullity in that
2.1
it (sic) does not comply with the provisions of
section 92(2)
of the
National Credit Act 34 of 2005
read with Form 20.1 as prescribed in
the Regulations promulgated in terms thereof in that the
Pre-Agreement Statement and Quotation
attached thereto is not signed
on behalf (sic) the Credit Provider.
[3]
COMMON CAUSE AND
PROVEN ASPECTS
[10]
It is common cause and proven that:
1.
On 21 September 2017 the parties entered into a
written instalment sale agreement for the purchase of a vehicle in
terms whereof
the first monthly instalment of R 6 953.29 was due on
15 November 2017; followed by a further 58 instalments of R 6 862.09
per
month due and payable from 15 December 2017 with subsequent
instalments on the 15
th
of each succeeding month and one last final
instalment of R 6 862.09 on 15 October 2022.
2.
Mr Tsoeu did not and does not, honour the terms of
the contract that he entered into with Nedbank. Nedbank relies on
breach of the
agreement in that Mr Tsoeu failed to make proper
payments of the instalments.
3.
The contract expired on 15 October 2022.
4.
Mr Tsoeu had full possession and unobstructed use
of the vehicle since September 2017. This continues notwithstanding
that he failed
to comply with the provisions of the aforesaid
agreement and claim the contract to be a nullity.
5.
It is clear that Nedbank complied with the
provisions and procedures of the NCA and delivered the peremptory
notices to alert of
the default to Mr Tsoeu.
6.
Mr Tsoeu has a history of being in default. On
several occasions so-called
section 129
– letters were sent to
him. After receipt Mr Tsoeu made promises to pay the arrears. He will
then proceed to make partial
payments; never settling the arrears in
full.
7.
As on 26 September 2022, Mr Tsoeu was liable for
arrears in the amount of R 142 657.91. He refused that the court
accept the latest
record of payments and certificate of balance as on
the date of this hearing on 15 June 2023 into evidence.
8.
Nedbank also contacted and informed Mr Tsoeu of
the arrears telephonically and
via
SMS messages.
9.
It is imperative to note that never since he
took delivery of the vehicle in 2017 and had the use thereof, did he
at any stage raise
any complaint or made any averments that the
instalment sale agreement was defect or irregular or a nullity. That
is from 2017
to 2022.
10.
The conduct of Mr Tsoeu forced Nedbank to issue
summons against him. He defended the matter and only after a Notice
of Bar was filed,
did he react by filing an incomplete Plea. On
receipt of the Plea Nedbank’s attorneys suspected that it might
not be the
full or complete document and enquired from Mr Tsoeu if he
inadvertently omitted some pages. The enquiry was made on 10 March
2023,
being the last day of Bar. He, on the same day, responded and
confirmed that the plea is not correct. Nedbank’s attorneys
on
10 and 13 March requested Mr Tsoeu to correct the mistake. No
response was received. Nedbank’s attorneys inquired at the
registrar on 15 March 2023 and confirmed that the Plea in the file
corresponds with the SJ1 - document in the Bundle at page 13.
On 16
March 2023, Mr Tsoeu filed a Notice to Amend the Plea. Nedbank from
hereon for the sake of expediency dealt with the Plea
as if it has
been amended in accordance with a
Rule 28
-notice.
11.
The amended plea and opposing affidavit were filed
on 12 April 2023; the matter was already set down on the unopposed
motion court
roll for 20 April 2023. On 20 April 2023 the matter was
postponed to the 15
th
of
June 2023 as an opposed motion.
EVALUATION OF THE
EVIDENCE & THE LAW
[11]
The calamity of the case for Mr Tsoeu is that
perusal of the documents that he relies upon, shows that it does
comply, substantively
and fundamentally so, with
section 92(2)
of the
NCA and the form required in the regulations thereto.
92.
Pre-agreement disclosure. —
(1)
A credit provider must not enter into a small credit agreement unless
the credit provider has given
the consumer a pre-agreement statement
and quotation in the prescribed form.
(2)
A credit provider must not enter into an intermediate or large credit
agreement unless the credit provider
has given the consumer—
(a)
a pre-agreement statement—
(i)
in the form of the proposed agreement; or
(ii)
in another form addressing all matters required in terms of
section
93
; and
(b)
a quotation in the prescribed form, setting out the principal debt,
the proposed distribution
of that amount, the interest rate and other
credit costs, the total cost of the proposed agreement, and the basis
of any costs
that may be assessed under
section 121
(3) if the
consumer rescinds the contract.
[12]
He, himself signed the quotation and pre-agreement
statement.
Section 92(2)
does not require signing of the quotation
separately from the pre-agreement statement. The agreement, was in
the end, signed by
Mr Douw Ledley on behalf of the credit provider
and Mr Tsoeu as the credit receiver.
[13]
Form 20(1) under the regulations of the NCA is
clearly misread by Mr Tsoeu. It may include the quotation and the
pre-agreement statement
as one document and then wants for signatures
at the end of the whole document on the circumstances of this case.
The quotation
and pre-agreement statement may be contained in one or
two documents. It also does not preclude the quotation and the
pre-agreement
statement to include the whole of the information of
the Terms and Conditions Contract.
Part I
stipulates that: “{add
further information on material features or attributes of the credit
products
or proposed credit agreement
,
as required}” (Emphasis added). This is the form directly
copied from the regulation and on 25 June 2023:
Form 20.1
Quotation for
intermediate and large agreements in terms of
section 92
(2)
[THIS
QUOTE IS BINDING FOR 5 DAYS]
QUOTATION
FOR INTERMEDIATE & LARGE CREDIT AGREEMENTS
in
terms of
section 92
(2) of the
National Credit
Act 34 of 2005
—
page
1 —
NCR
number:
FORM
20.1
Name of credit
provider:
Name of consumer:
Physical address:
Physical address:
Contact number of
credit provider:
Contact number of
consumer
Date:
Id No/CIPRO/
registration number:
PART A: Amount
advanced
Credit advanced or
value of goods or services provided on credit
R
Initiation fee,
if
the consumer declined the offer to make payment separately
R
Total of additional
charges (Part E)
R
Deduct deposit
required
minus
R
Total amount deferred
per credit agreement
R
PART B: Instalment
payable
Instalment in respect
of total amount deferred
R
Monthly service fee
R
Monthly premium for
credit life insurance
R
Number of instalments
frequency
Total
instalment
R
PART C:
Total cost
and interest rate
Total amount deferred
per credit agreement
R
Total interest, fees &
credit life insurance
R
Total amount repayable
= total of all instalments (excluding optional insurance)
R
Annual Interest Rate
%
Part
D:
Optional items
OPTIONAL ITEMS, WHICH
WILL BE ADDED TO INSTALMENT
OTHER OPTIONAL ITEMS
Additional monthly
premium for optional insurance Description of optional insurance:
R
PART E: Additional
charges added to credit agreement
The following
additional charges will be added to the amount of credit
(S102
(
b
)
– (
f
))
R
R
R
{list items that
arc applicable, and amount per item}
Total of charges added
to the agreement (per Part A)
R
PART F: Security
provided
{Description of
security required & of conditions under which possession would
occur}
PART G: Repayment
arrangements
{Insert information
regarding the frequency of payments, including method of payment,
date of the first payment and date of
last payment}
[THIS
QUOTE IS BINDING FOR 5 DAYS]
PRE-AGREEMENT
STATEMENT & QOTATION FOR INTERMEDIATE AND LARGE CREDIT
AGREEMENT
in
terms of
section 92
(2) of the
National Credit
Act 34 of 2005
—
page 2 —
PART H: Further
information on rights and obligations
{Add
further information on material aspects of the rights and
obligations of the consumer and credit provider in respect
of the
proposed credit agreement, as required; Where a transaction fee is
charged, indicate ’transaction fee’
in service fee
above, and describe fees and basis for levying such fees in this
section; Include further disclosure required
by legislation in
respect of any item above, -where applicable. Consider in
particular disclosure requirements of
section 106
and
121
(3)}
PART I:
Further
information on features of credit product
{add
further information on material features or attributes of the
credit products or proposed credit agreement, as required}
—
add further
pages if required —
Signature:
Credit
Provider Representative
Consumer
[14]
The
above notwithstanding; Mr Tsoeu placed his signature on pages 1,
2,
[4]
3
[5]
and 13
[6]
of the agreement. On
pages 3 and 13 of the agreement he co-signed with the credit provider
and he pledged his commitment to the
contract. To now and suddenly,
claim the contract to be a nullity on the basis that the credit
provider did not co-sign the first
page of fourteen pages of one
document is a desperate technicality.
[7]
SUMMARY JUDGMENT
[15]
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 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
defense to the action.
5.
The defendant must disclose fully the nature and
grounds of the defense, 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 defense 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 defense 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 defense 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 the grounds of
his defense,
he must disclose the facts on which he bases his
defense, the defense must be
bona fide
and the defense 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
addition to the above: “Unnecessary technicality should be
avoided during litigation as reliance thereon by a litigant
is often
aimed at trying to evade a judgment on the merits and more often than
not, the party relying on a technicality knows full
well that he/she
does not have a proper defense on the merits.”
[8]
CONCLUSION
[16]
The defense of the defendant/respondent is bad in
law, not
bona fide
and
there exist no possibility at all that it will succeed should the
matter be referred for hearing. His conduct throughout the
contract
and the litigation speaks of bad faith and wrongdoing. He will have
to carry the costs for the application.
[17]
ORDER
1.
Summary judgment is granted against the
defendant/respondent for the immediate return of a MERCEDES-BENZ ML
320 CDI motor vehicle
with engine/series number: 64[…] and
chassis number: WDC[…].
2.
The respondent/defendant to pay the costs of this
application.
M
OPPERMAN, J
APPEARANCES:
For
the plaintiff/applicant:
ADV.
D.C. HATTINGH-BOONZAAIER
Instructed
by:
McIntyre
Van Der Post Attorneys,
Bloemfontein
For
defendant/respondent:
MR.
T.E. TSOEU
Bloemfontein
[1]
“Also, Nedbank”.
[2]
“Also, Mr Tsoeu”.
[3]
Pages 65 and 66 of the Bundle: “INDEX SUMMARY JUDGMENT
APPLICATION” (“The Bundle”).
[4]
Pages 40 and 41 of the Bundle.
[5]
Page 19 of the Bundle: the “Acknowledgement of Delivery and
Acceptance of the Terms and Conditions”.
[6]
Page 46 of the Bundle.
[7]
See
Standard
Bank of South Africa v Pheeha
(5430/2019)
[2021] ZALMPPHC 54 (6 July 2021),
Cherangani
Trade and Invest 50 (Pty) Ltd v Razzmatazz (Pty) Ltd and Another
(2795/2018)
[2020]
ZAFSHC 100
(28 May 2020) at paragraph [20] and
Basson
v Remini and another
1992
(2) SA 322
(N).
[8]
Cherangani
Trade and Invest 50 (Pty) Ltd v Razzmatazz (Pty) Ltd and Another
(2795/2018)
[2020]
ZAFSHC 100
(28 May 2020) at paragraph [20].