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[2023] ZAFSHC 430
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Nedbank Ltd v Lamprecht (4155/2023) [2023] ZAFSHC 430 (27 October 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
number: 4155/2023
In
the matter between:
NEDBANK
LTD
Plaintiff
And
LEON
LAMPRECHT
Respondent
CORAM:
M.T JORDAAN, AJ
HEARD
ON:
26 OCTOBER 2023
ORDER
GRANTED ON:
26 OCTOBER 2023
JUDGMENT
DELIVERED ON: 27 OCTOBER 2023
This
judgment was handed down in open court and on even date circulated to
the parties’ representatives by electronic mail
communication.
INTRODUCTION
[1]
This is an opposed application for summary judgment brought in terms
of Rule 32 of the Uniform
Rules of Court, as amended. The Applicant
in this summary judgment application, is the Plaintiff in the action
instituted against
the Defendant, who in turn, is the Respondent in
this application. For ease of reference I shall refer to the parties
as in the
main action.
[2]
The Defendant was legally represented at the time when papers were
filed. From the file it appears
that the Defendant attorney withdrew
and notified the Defendant of the date of set down of the
application. In order to establish
whether the Defendant was at
court, the matter stood down while the register book at the entrance
was checked and the Defendant
name was called outside court F, but he
was in default. The court proceeded in terms of Rule 39(1) having had
the benefit of the
Respondent’s papers and determined the
matter considering same.
BACKGROUND
PLAINTIFF’S
CASE
[3]
On the 01
st
of July 2020 the Plaintiff and Defendant entered into a written
instalment sale agreement in terms of which the plaintiff sold
to the
Defendant a 2020 Mahindra Thar 2.5 motor vehicle with engine number
BUL[…] and chassis number MA1[…] (hereinafter
referred
to as “the goods”).
[1]
The total cash price for the goods amount to R381 906.48 with
the finance charges etc., the total purchase price amounted
to
R553 603.93, payable as following:
3.1
1 instalment of R6 269.49 payable on 28/08/2020;
3.2
70 instalments of R6 200.49 payable on 28/09/2020 with
subsequent instalments payable on the 28
th
day of each
succeeding month;
3.3
1 instalment of R6 200.49 payable on 28/07/2026
3.4
1 final balloon payment of R107 168.65 payable on 28/07/2026
[2]
[4]
The
Defendant failed to comply with the provisions of the aforesaid
agreement in that he failed to make punctual payments of the
instalments in terms thereof and as a consequence was on the 27
th
of February 2023 in arrears in the amount of R62 620.86.
[3]
[5]
As a consequence the Plaintiff issued summons
claiming inter alia:
5.1
Confirmation of cancellation of the instalment sale agreement
5.2
Return of the 2020 Mahindra Thar 2.5 motor vehicle with
engine-/series number BUL[…] and chassis
number MA1[…]
5.3
Damages to be proved in terms of the provisions of the instalment
sale agreement.
5.4
Payment of interest in terms of the provisions of the instalment sale
agreement on such damages as may
be granted.
5.5
Payment of cost of suit together with VAT thereon
DEFENDANT’S
CASE
[6]
The Defendant in his plea admitted to having entered into the
agreement with the Plaintiff and
that he was in default.
[4]
[7]
The Defendant raised inter alia the following defences in his plea:
7.1
A special plea of reckless credit in contravention of section 80 of
the National Credit Act 34 of 2005
(NCA), in that at the time the
agreement was entered into, the Plaintiff failed to conduct an
assessment as required by section81(2),
alternatively, if it is found
that the plaintiff had conducted an assessment, Plaintiff entered
into the credit agreement with
Defendant despite the fact that the
preponderance of information available to Plaintiff indicated that
the Defendant did not generally
understand or appreciate his risks,
costs or obligations under the proposed credit agreement.
[5]
7.2
The Defendant admits the allegations in the Plaintiff particulars of
claim, but pleads that he is not
obliged to the Plaintiff because the
credit agreement was reckless.
[6]
7.3
That the Defendant was convicted of Fraud in 2011 was sentenced to
12years imprisonment, paroled in
May 2017 and employed at Momentum
Realty as an estate agent being paid on a commission basis, he had a
stroke in 2018 and was unable
to work until 2021.
[7]
7.4
His son was the salesman that sold the vehicle to him at Kia Motors
and he also completed the forms
on behalf of the Defendant.
7.5
The representative of the Plaintiff present at Kia Motors did not
participate in the application and
did not conduct an assessment as
is required by the NCA.
7.6
The Defendant had no guaranteed income.
[8]
Having received the Defendant’s plea, the Plaintiff in
accordance with rule 32, filed an
application for summary judgment on
the basis of the Defendant’s plea.
APPLICABLE
LEGAL PRINCIPLES
[9]
Summary judgement enables a plaintiff to obtain judgment against a
defendant without resorting
to trial when a defendant has no defence
to a claim based on a liquid document, for a liquidated amount of
money, for delivery
of movable property, and for ejectment. The
instant application for summary judgment is for delivery of movable
property.
[10]
With effect from the 01
st
of July 2019
an application for summary judgment can only be
brought after a defendant has filed its plea, and in doing so the
plaintiff must
not only verify the cause of action and the amount
claimed but must, in addition, also identify any point of law which
it relies
upon and the facts upon which its claim is based, and must
also briefly explain why the defence which has been pleaded by the
defendant
does not ‘raise any issue’ for trial.
[11]
The Defendant opposing summary judgment is required to set out a
bona
fide
defence by affidavit disclosing fully the nature and grounds of the
defence and the material facts relied upon. The Defendant need
not
deal exhaustively with all the facts and evidence relied on to
substantiate a defence, but the essential material facts on
which the
defence is based must be disclosed with sufficient completeness and
particularly to enable the court to decide whether
or not the
affidavit discloses a
bona
fide
defence.
[8]
However a
bona
fide
defence
is not scrutinised according to the strict standards of pleadings. In
summary judgment it is the material and factual defence
and not the
Defendant which must be
bona
fide.
[12]
The
rationale and requirements for the grant or refusal of summary
judgment are trite and are summarised in the Supreme Court of
Appeal
judgment of Joob Joob Investments
[9]
as follows:
“
The rationale for
summary judgment proceedings is impeccable. The procedure is not
intended to deprive a defendant with a triable
issue or a sustainable
defence of her/his day in court. After almost a century of successful
application in our courts, summary
judgment proceedings can hardly
continue to be described as extraordinary. Our courts, both of first
instance and at appellate
level, have during that time rightly been
trusted to ensure that a defendant with a triable issue is not shut
out. In the
Maharaj
case at 425G–426E, Corbett
JA was keen to ensure, first, an examination of whether there has
been sufficient disclosure
by a defendant of the nature and grounds
of his defence and the facts upon which it is founded. The second
consideration is that
the defence so disclosed must be both bona fide
and good in law. A court which is satisfied that this threshold has
been crossed
is then bound to refuse summary judgment. Corbett JA
also warned against requiring of a defendant the precision apposite
to pleadings.
However, the learned judge was equally astute to ensure
that recalcitrant debtors pay what is due to a creditor.
Having regard to its
purpose and its proper application, summary judgment proceedings only
hold terrors and are drastic for a defendant
who has no defence.
Perhaps the time has come to discard these labels and to concentrate
rather on the proper application of the
rule, as set out with
customary clarity and elegance by Corbett JA in the
Maharaj
case
at 425G–426E.”
[13]
The test for the granting of a summary judgment is whether the
Defendant has satisfied the Court that he
has a
bona
fide
defence to the action.
[10]
What this entails is whether the facts put up by the Defendant raised
a triable issue and a sustainable defence in law deserving
of their
day in court.
The
defense must not be bald, vague or sketchy.
ISSUE
FOR DETERMINATION
[14]
Having regard to the test for summary judgment,
the issue for determination by this Court, is whether the Defendant
has set out
a bona fide defense
to the Plaintiff’s
claim.
In order to establish if
the Defendant has a triable issue or a sustainable defence, I have
regard to the evidence
as
set out in the respective affidavits and the plea that was filed.
APPLICATION
OF LEGAL PRINCIPLES TO THE EVIDENCE
[15]
The Plaintiff claim is based on the breach of an Instalment Sale
Agreement, referred to as the Agreement,
which was entered into
between the Plaintiff and the Defendant on the 01
st
of
July 2020, in terms of which the Defendant purchased a motor vehicle,
referred to as the goods.
[16]
The Defendant contend that the assessment conducted by the Plaintiff
did not amount to an assessment as envisaged
by the NCA. The
Plaintiff submit that it complied with all its obligations in terms
of the NCA, that the Defendant had a monthly
surplus of R6 439.00
after deducting the instalment sale agreement payment. The Plaintiff,
notwithstanding the Defendant’s
debt disclosure, discovered
further debt through verification with the credit bureau and brought
those debts into calculation,
when it conducted the assessment. In
countering the Defendant’s contentions, the Plaintiff attached
a report supporting its
submission of compliance with the NCA.
[11]
[17]
The Plaintiff further refuted the Defendant’s reckless credit
defence, in submitting that the Defendant
applied for debt review in
October 2022 and the Defendant’s debt counsellor was
specifically instructed to investigate reckless
credit. The Plaintiff
provided all the information required by the debt counsellor during
the investigation. The reckless credit
issue was not pursued any
further and the Defendant did not proceed with his debt review
application.
[18]
The Defendant submits that the Plaintiff failed to reasonable steps
to assess the Defendants general understanding
of the risks and costs
involved in the proposed credit and of the rights and obligations of
a consumer under a credit agreement.
The Plaintiff submitted that the
Defendant fails to provide sufficient details why he would not
generally understand and appreciate
the risk of an instalment sale
agreement.
[19]
In my view the Defendant did not sufficiently disclose the nature and
grounds of his defence and the facts
upon which it is founded, in
pleading reckless credit. There is no evidence indicating that the
Defendant was indeed unemployed
and not receiving any income at the
time of entering into the agreement. Having regard to this lack of
substantiation, it calls
into question the bona fides of the defence.
In the case of Breitenbach v Fiat SA (Edms) Bpk
[12]
the court stated as follows:
“
One of the things
clearly required of a defendant by Rule 32 (3)(b) is that he set out
in his affidavit facts, which, if proved
at the trial, will
constitute an answer to the plaintiff’s claim. If he does
not do that, he can hardly satisfy the
Court that he has a defence.
...
There is no magic whereby the veracity of an honest
deponent can be made to shine out of his affidavit. It must be
accepted that
the sub-rule was not intended to demand the impossible.
It cannot, therefore, be given its literal meaning when it requires
the
defendant to satisfy the Court of the
bona fides
of his
defence.
It will suffice,
if
the defendant swears
to a defence, valid in law, in a
manner in which is not inherently and seriously unconvincing
.”
(my emphasis)
It
does not
translate
that
on his own version the Defendant provides sufficient facts to
establish that the Applicant failed to conduct a full and proper
credit risk evaluation as required in terms of the NCA, but rather
that the Defendant is clutching at straws.
[20]
Having had regard to the Defendant’s papers
filed,
the
Defendant
has failed to show that he has a
bona
fide
defense to the Plaintiff’s
claim that is good in law. Accordingly, summary judgment must be
granted in favor of the Plaintiff.
[21]
The plaintiff is accordingly entitled to cancel the Agreement,
claim the return of the motor vehicle, including payment of damages
consequent to the breach of the contract, interest and costs.
Accordingly, I granted the following order:
ORDER
[22]
In the result the following order
is made:
22.1
Confirmation of the cancellation of the Instalment Sale Agreement;
22.2
Return of the 2020 MAHINDRA THAR 2.5 motor vehicle with engine/series
number: BUL[…] and chassis number:
MA1[…];
22.3
Damages shall be proved in terms of the provisions of the Instalment
Sale Agreement.
22.4
Payment of interest in terms of the provisions of the instalment sale
agreement on such damages as may be
granted.
22.5
Payment of costs of suit with VAT thereon.
MT
JORDAAN, AJ
Counsel
for Applicant:
Adv.
I Macakati
Instructed
by:
MCV
GERDENER
MCINTYRE
VAN DER POST
BLOEMFONTEIN
[1]
Paginated Bundle
Particulars
of Claim paragraph 3 page 22
[2]
Paginated Bundle Particulars of Claim paragraph 5 page 22 to 23
[3]
Paginated Bundle
Particulars
of Claim paragraph 7 page 25
[4]
Paginated
Bundle page 46 paragraph 1
[5]
Paginated Bundle page 46 paragraphs 2 and 3
[6]
Paginated Bundle paragraph 1 page 47
[7]
Paginated Bundle paragraphs 2 to 5 page 47
[8]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426C-E
[9]
2009
(5) 1 (SCA)
at
11G–12D
[10]
Rule 32(3) of the
Uniform
Rules of Court
[11]
Paginated
Bundle page 10 to 13
[12]
1976 (2) SA 226(T)
at 227G-228B