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[2024] ZAECELLC 10
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Isuzu Finance v Silvex 399 CC and Another (EL2209-2022) [2024] ZAECELLC 10 (19 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO.: EL2209/2022
In the matter between:
ISUZU FINANCE: A
PRODUCT OF WESBANK:
PLAINTIFF
A DIVISION OF FIRST
RAND BANK LIMITED
and
SILVEX 399
CC
1
ST
DEFENDANT
MPHUTHUMI
MAQUBELA
2
ND
DEFENDANT
JUDGMENT
CENGANI -MBAKAZA AJ:
Introduction
[1]
This
matter concerns an exception under Uniform Rule 23 of the Uniform
Rules of Court which provides,
(1) Where any pleading is
vague and embarrassing, or lacks averments which are necessary to
sustain an action or defence, as the
case maybe, the opposing party
may within the period allowed for filing any subsequent pleading,
deliver an exception thereto and
may apply to the registrar to set it
down for hearing within 15 days after the delivery of such exception:
Provided that:
(a)
where a party intends to take an
exception that the pleading is vague and embarrassing such party
shall, by notice, within 10 days
of the receipt of the pleading
afford the party delivering the pleading, an opportunity to remove
the cause of complainant within
15 days of such notice; and
(b)
the party excepting shall, within 10
days from the day on which the reply to the notice referred to in
paragraph
(a)
is received, or within 15 days of such reply is due, deliver the
exception’.
[2]
The
defendants allege that the plaintiff’s amended particulars of
claim lack the necessary averments to disclose a cause of
action and/
or are vague and embarrassing.
[3]
The
exception is opposed by the plaintiff.
The summary of the
amended particulars of claim
[4]
On
28 February 2019, the first defendant represented by the second
defendant entered into a written sales agreement (referred to
as the
credit agreement) with the plaintiff. In terms of the credit
agreement, the first defendant would purchase a motor vehicle
with
the license plate number JHY311 EC.
[5]
The
essential terms of the credit agreement stipulated that the total
cost of the vehicle would amount to R606, 400. When including
total
accessories, the extras, the initiation fee and the financial charges
(i.e., processing fees, interest), this would amount
to a total of
R944, 755.20.
[6]
The
parties agreed that the amount of R944,755. 20 would be paid through
seventy-two instalments, with each instalment being R13,121.60
per
month. The payments would commence on 28 February 2019 and continue
on or before the same day of the succeeding months until
the arrear
amount is liquidated. In addition, the ownership of the vehicle would
vest with the plaintiff until the receipt of all
the amounts payable
to the plaintiff.
[7]
In
paragraph 9 of the amended particulars of claim, the plaintiff states
that the defendants failed to meet their obligations in
terms of the
credit agreement in that as of 26 July 2023 they were in arrears in
respect of the monthly instalment in the sum of
R192 029.58 with
an outstanding balance of R450 048. 58. The plaintiff also asserts
that the provisions of the National Credit
Act 34 of 2005 (the NCA)
are not applicable in terms of the credit agreement, however, they
complied with the provisions of the
Act by sending a notice to the
first defendant under sections 129 of the Act (the section 129
notice), requesting the second defendant
to make payment of the said
arrears within a period of 10 (ten) days from the date of receipt of
the said letter. The plaintiff
acknowledges that the first notice was
sent to the wrong e-mail address.
[8]
The
copies of the notices along with the proof of transmission and the
registered communication certificates, which were sent to
the
defendant’s correct email address, are attached as Annexes G1
to G6 in the court’s file.
The applicable law
[9]
The
basic principles governing an exception were enunciated by Makgoka J
in
Living
Hands (Pty) Ltd and Another v Ditz and Others
[1]
,
as follows:
"(a) In considering
an exception that a pleading does not sustain a cause of action, the
court will accept, as true, the allegations
pleaded by the plaintiff
to assess whether they disclose a cause of action.
(b) The object of an
exception is not to embarrass one's opponent or to take advantage of
a technical flaw, but to dispose of the
case or a portion thereof in
an expeditious manner, or to protect oneself against an embarrassment
which is so serious as to merit
the costs even on an exception.
(c) The purpose of an
exception is to raise a substantive question of law which may have
the effect of settling the dispute between
the parties.
(d) An excipient who
alleges that a summons does not disclose a cause of action must
establish that, upon any construction of the
particulars of claim, no
cause of action is disclosed.
(e) An over-technical
approach should be avoided because it destroys the usefulness of the
exception procedure, which is to weed
out cases without legal merit.
(i) Pleadings must be
read as a whole, and an exception cannot be taken to a paragraph or a
part of a pleading that is not self-contained.
(g) Minor blemishes and
unradical embarrassments caused by a pleading can and should be cured
by further particulars."
[10]
The
Appellate Division in
McKenzie v Farmers’ Co-operative Meat
Industries Ltd adopted
the following definition of “cause
of action’:
‘
.
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment
of the
court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.’
[11]
Generally,
a pleading must comply with the provisions of Uniform Rule 18
[2]
,
failing which such pleading may be considered vague and embarrassing.
The exception can be taken only if the vagueness relates
to the cause
of action. If the averments are contradictory and not pleaded in the
alternative an embarrassment may occur. Based
on the proper reading
of the case law, the test applicable in deciding exceptions based on
vagueness and embarrassment arising
out of lack of particularity can
be summed up as follows
[3]
:
(a) In each case the
court is obliged to consider whether the pleading does lack
particularity to an extent amounting to vagueness.
If a statement is
vague it can either be meaningless or capable of having more than one
meaning. To simplify: the reader must be
unable to distil from the
statement a clear, single meaning
[4]
.
(b) If there is vagueness
in this sense the court is then obligated to conduct a quantitative
analysis of such embarrassment caused
to the excipient by the
vagueness complained of.
(c) In each case an ad
hoc ruling must be made to determine whether the embarrassment is so
serious as to cause prejudice to the
excipients if they are compelled
to plead to the pleading in the form to which they object. A point of
the utmost importance in
one case, and the omission thereof may give
rise to vagueness and embarrassment, but the same point may in
another case be only
a minor detail.
(d) The ultimate test as
to whether the exception should be upheld is whether the excipient is
prejudiced.
(e) The onus is on the
excipient to demonstrate both vagueness amounting to embarrassment
and embarrassment amounting to prejudice
[5]
.
(f) The excipient must
make out his case for embarrassment by reference to the pleadings
alone
[6]
.
(g) The court would not
decide by way of exception the validity of an agreement relied upon
or whether a purported contract may
be void for vagueness.
The parties ‘legal
submissions
[12]
Based
on the defendants’ heads of argument and the oral submissions
made, the grounds for the exception lie with the plaintiff’s
failure to comply with the provisions of the NCA, in that, there is
no proof of whether the section 129 notice was sent to the
defendants
and how it was sent.
[13]
Section
129 (1) of the NCA provides:
“
(1)
If the consumer is in default under a credit agreement, the credit
provider-
may draw the default to
the notice of the consumer in writing and propose that the consumer
refer the credit agreement to a debt
counsellor, alternative dispute
resolution agent, consumer court or ombud with jurisdiction, with the
intent that the parties resolve
any dispute under the agreement or
develop and agree on a plan to bring the payment under the agreement
up to date……”
[14]
In
terms of section 129(1)(b), a credit provider is barred from
instituting legal proceedings against the defaulting consumer until
there has been compliance with the requirements of section 129(1)(a)
of the NCA.
[15]
To
oppose the exception, the plaintiff referred to section 4(1) of the
NCA which provides:
‘
(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);……..’
[16]
In
addition to the summary of the amended particulars of claim as
alluded to at paragraphs 4-8 of this judgment, the following extracts
are also pertinent:
‘
22.
On the 4
th
of March 2019 and at East London, the
Second
Defendant signed an Agreement of surety ship with Plaintiff in terms
whereof the Second Defendant in writing bound himself
as surety
in
solidum
and co-principal debtor
for the punctual payment of all sums due by the First Defendant to
Plaintiff.(
my underlining)
23. A copy of the Surety
ship Agreement (herein referred to as ‘the Surety ship
Agreement’’) is annexed hereto
marked annexures ‘
E1
to E6’.
24. Express provisions of
the Surety ship agreement were-
24.1 The second Defendant
bound himself unto and in favour of the Plaintiff as surety
in
solidum
for and co-principal debtor jointly and severally with
First Defendant for due payment by first Defendant, of all monies
which
the First Defendant may then or from time to time thereafter
owe to the Plaintiff from whatsoever cause and howsoever arising, and
whether as principal debtor, guarantor, or otherwise.
24.2……………………….
24.3…………………………..
24.5
Notwithstanding
that the provisions of the NCA are not applicable to the Agreement
and the Surety ship Agreement concluded by the
First and Second
Defendants; the Plaintiff complied with the provisions of the
aforesaid Act as follows
:(my underlining)
25.1 The plaintiff sent
their first Notice in terms of Section 129 of the NCA to the Second
Defendant’s wrong email address
namely
silvex399@webmail.com
calling upon the Second Defendant to make payment of the said
arrears within a period of 10 (ten days)from the date of receipt
thereof.
25.2 Copies of the first
Notice in terms of Section 129 of the NCA, proof of transmission
together with the Registered communication
Certificate sent to the
Second Defendant ‘s wrong email address are annexed hereto
marked Annexure ‘F1 to F6.
25.2 The Plaintiff,
however sent their second Notice in terms of Section 129 of the NCA
to the Second Defendant’s correct
address namely
silvex399@webmail.co.za
calling upon the Second Defendant to
make payment of the said arrears within a period of 10 (ten) days
from date of receipt thereof.
25.2.1 Copies of the
second Notice in terms of Section 129 of the NCA, proof of
transmission together with the Registered Communication
Certificate
sent to the Second Defendant ‘s correct email address are
annexed hereto marked annexure ‘
G1 to G6’(
(sic)’…….
The application of
the law to the facts
[17]
The
question pertains to whether the defendants have discharged the onus
to demonstrate vagueness and embarrassment as well as whether
the
embarrassment (if any) amounts to prejudice
[7]
.
I am also tasked to ascertain whether the defendants have established
that no cause of action was disclosed. In order to fully
assess these
issues, I will accept as true the allegations pleaded by the
plaintiff in the particulars of claim
[8]
.
Moreover, I must be persuaded by the excipients that the pleading is
excipiable on every interpretation that can be reasonably
attached to
it.
[18]
The
plaintiff’s claim against the defendants relates to a written
credit agreement, with the first defendant being a juristic
person.
According to the amended particulars of claim, the defendants
breached the terms and conditions of the credit agreement,
in that
they failed to make payments on the agreed deadline which are clearly
set out in the amended particulars of claim. The
plaintiff contends
that it complied with the provisions of the NCA despite there being
no obligation to do so. Although it is unnecessary
to decide whether,
in terms of the credit agreement, the provisions of section 129 of
the NCA are applicable or not and whether
the section 129 notice was
brought to the attention of the second defendant, I will accept as
true that it was indeed brought to
his attention. The fact that the
second defendant’s correct email address is
silvex399@webmail.co.za
remains
uncontroverted.
[19]
The
allegations of non-compliance with the NCA are intertwined with the
nature of the credit agreement that exists between the parties,
in
that, the plaintiff avers that the credit agreement falls outside the
NCA. While the written credit agreement referred to at
page 22 of the
index bundle is titled
‘
PRE-AGREEMENT STATEMENT
FOR INSTALMENT SALE OUTSIDE THE NCA’
, it is not the
duty of this court to pronounce on whether the credit agreement falls
within or outside the NCA as envisaged in
terms of section 4(1) of
the NCA. While it is further noted that this fact was not seriously
disputed by the defendants, it is
submitted that it could be
re-argued during the trial proceedings. In my considered view, it
would be unfair to both parties, for
this court to classify and
interpret the credit agreement by way of an exception.
[20]
The
argument positing that the plaintiff’s claim is bad in law is
unsustainable.
The rules do not mandate that pleadings be
drawn in perfect language, but the allegations of the parties should
be identifiable.
The plaintiff has set out the conclusive terms and
conditions of the credit agreement and the defendants’ breach
without
any ambiguity. As a consequence of the breach, the plaintiff
has suffered damages outlined in the amended particulars of claim.
[21]
After
consideration, I find that the amended particulars of claim
contain
a clear and concise statement of the material facts upon which the
plaintiff relies for his claim. The substance of
the
allegations is such that the defendants must know whether they are in
breach of the terms and conditions of the credit agreement
or not. I
endorse the principle distilled in
Living Hands’s case supra
that the minor obscurities, if any, may be cleared up by way of the
request for further particulars. In conclusion, the defendants
have
failed to prove
on a balance of probabilities that
they are embarrassed by the plaintiff’s amended particulars of
claim. Therefore, no prejudice
could be identified.
Order
[22]
The
exception is dismissed with costs.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
APPEARANCES:
For the
plaintiff
:
DON MAREE ATTORNEYS
Plaintiff’s
Attorneys
Tecoma Street, Bearea
EAST LONDON
E-mail@donmaree.co.za
Ref: MD MAREE/rsz/MAT8834
For the
defendants
:
CINGA NOHAJI
Defendants’
Attorneys
8 Chamberlain Road
Bearea
EAST LONDON
E-mail:info@cinganohaji.co.za
Ref: CN/MM/0616/XZ
Date
heard
:
08 February 2024
Delivered
on
:
19 March 2024
[1]
(42728/2012)[2012] ZAGPJHC 218;2013(2)sa 368 (GSJ) (11 September
2012) at paragraph 15.
[2]
Rule 18(4) every pleading shall contain a clear and concise
statement of the material facts upon which the pleader relies for
his claim, defence or answer to any pleading, as the case may be,
with sufficient particularity to enable the opposite party
to reply
thereto.
(6) A party who in
his pleading relies upon a contract shall state whether the contract
is written or oral and when, where and
by whom it was concluded, and
if the contract is written a true copy thereof or of the part relied
on in the pleading shall be
annexed to the pleading.
[3]
Erasmus Uniform Rules of Court October 2023 RSD 21,2023,D1-305
[4]
Venter and Others NNO v Barritt Venter and Others NNO v Wolfsberg
Arch Investments 2 (Pty) LTD
2008 (4) SA 639
(C) paras [14] and [15]
at 644G-645.
[5]
Venter and Others NNO v Barrit above fn. 2(at para 17)
[6]
Deane v Deane
1955 (3) SA 86
(N) at 86F
[7]
Venter fn2 (supra); see also Barnard and Another v De Klerk
(2015)/2019) [2020] ZAECPEHC 38 (22 October 2020)
[8]
Living Hands case
(supra)