About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 35
|
|
Prop. Vincemus Investments (Pty) Ltd t/a Kempston Finance v Martinson (15257/2022P) [2024] ZAKZPHC 35 (13 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
15257/2022P
In the matter between:
PROP. VINCEMUS
INVESTMENSTS (PTY) LTD t/a
KEMPSTON
FINANCE
APPLICANT
and
THOMAS JOHANNES
MARTINSON
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant and Respondent entered into two instalment sale agreements
in respect of
a 2016 Case Puma 210 Tractor and a 2017 Case 6140
Combine Harvester. The said instalment sale agreements were
cancelled by
order of this court on 21 October 2021 and Respondent or
anyone else being in possession thereof directed to deliver the said
two
implements to Applicant.
[2]
On 19 August 2022 Applicant sent a notice in terms of
section
127(5)(B)
of the
National Credit Act 34 of 2005
to Respondent stating
that the proceeds from the sale of the Case Puma 210 Tractor amounted
to R523 250.00 and that there was still
an amount of R861 434.40
due. In respect of the Case 6140 Combine Harvester it set out
that at sale an amount of R2 615 617.17
was achieved and that this
was deducted and that an amount of R364 651.60 was still due.
This letter was sent by registered
mail but there is no track and
trace report attached to the papers indicating that notification was
sent to Respondent. Respondent
however admits that he received
it.
[3]
Applicant then instituted an application claiming the sum of R1 226
086.00 from Respondent
together with interest and costs. The
amount is the total of the two amounts due as referred to above.
This application
is opposed by Respondent.
[4]
In his answering affidavit Respondent denies that the
National Credit
Act does
not apply and that
section 129
of the
National Credit Act
had
not been complied with. Further that
section 127(2)
to
127
(9) and
1
to
8
read with
section 131
of the
National Credit Act
had
not been complied with. Further that source documentation
was not provided. It is not stated when the goods were sold
or
how they were sold and no valuation was provided. The affidavit
of Gobey was undated.
[5]
In response to Respondents contention that certain information had to
be supplied
Applicant responded that it had no obligation to provide
the information to Respondent. It contends that it is only
required
to provide a certificate of balance as
prima facie
evidence of the amount due after it has sold the vehicles which were
repossessed.
[6]
It was contended by Respondent that it was
lis pen dens
due to
the order obtained on 21 October 2021 which granted Applicant leave
to approach the court on the same papers supplemented
as necessary in
respect of damages. In my view it is not the same cause of
action as the one relates to a return of the vehicles
and the other
to the damages which may have been suffered by Applicant. This
was accepted by Mr Chetty on behalf of Respondent
and this issue was
not pursued.
[7]
It was submitted on behalf of Applicant that
section 127(2)
to
127
(4)
of the
National Credit Act was
no applicable because the agreement
had already been cancelled and in support thereof I was referred to
Edwards v First Rand Bank
Ltd t/a Wesbank
2017 (1) SA 316
(SCA) at
pages 328 and 329. However on my reading of the judgment that
portion appears in the minority judgment and that
the majority
judgment held at paragraph 16 at page 323 that although
sections
127(2)
to
127
(9) of the Act are applicable, but it was considered
that they were not in that case because the agreement had already
been cancelled.
It set out that
section 131
of the Act squarely
answers the question whether
section 127(2)
is applicable at all in
the positive.
Section 131
reads:
“
Repossession
of goods.
If a court makes an
attachment order with respect to property that is the subject of a
credit agreement,
section 127(2)
to (9) and
section 128
read with the
changes required by the context apply with respect to any goods
attached in terms of that order.”
In Firstrand Bank Ltd t/a
Wesbank v Davel
(2020) 1 All SA 303
(SCA) at paragraph 21:
“
That
of course is true. Edwards, however is not authority for the
proposition that the processes prescribed in
section 127(2)
–
(9) are not applicable when goods are repossessed at the instance of
a credit provider.
Section 131
, in stark terms, stares that
they are.”
[8]
It is accordingly clear that
section 127(2)
to (9) applies when the
goods are attached in terms of a court order. They were thus
applicable when the order was granted
cancelling the agreement and
the return of the said goods.
[9]
The issue in the present matter is however one of damages. It
was submitted
that the case of Davel does not apply. It was
submitted on behalf of Respondent that the decision in Davel does
apply and
that Applicant must prove its damages and make out a case
for damages by providing the valuations of the said goods and not
merely
a certificate of balance. It is further submitted on
behalf of Respondent that the notice in terms of
section 127(5)(B)
attached to the founding papers relates to after the goods had been
sold and was not in compliance with
section 127.
It was
submitted that Applicant had to show that the goods were sold for the
highest possible amount and what the valuation
of the goods were at
the time that they were taken and when they were sold.
[10]
In the case of Davel, referred to above, it was held in paragraph 19:
“
It
is clear from these provisions that the legislature was intent on
insuring that sufficient protections are provided to ensure
that upon
termination of a credit agreement, a consumer is protected. The
Act provides mechanisms for a consumer to challenge
the estimated
values and the price realised upon a sale of goods after either a
surrender of the goods by a consumer or the repossession
of the goods
after action has been taken by the credit provider. As can be
seen from the provisions set out above the Act
also provides
enforcement of the rights of credit providers. Its purpose is
directed to ensuring as far as practically possible
an equality of
arms.”
[11]
It is thus clear from this paragraph that there should be protection
to both parties upon termination
of the credit agreement even if it
is repossessed. It specifically states that the Act provides
mechanisms to challenge the
estimated values and the price realised
upon sale of the goods. The Act intends to protect a consumer
when a credit agreement
is terminated.
[12]
It is clear that Applicant at no stage provided Respondent with a
valuation of the goods after
they had been repossessed.
Therefore Respondent was not granted an opportunity to challenge the
valuation nor could he establish
whether the price which was
allegedly paid at the sale was fair in the circumstances.
Applicant also failed to set out how
the said goods were sold and
when this was done. The certificates of indebtedness are dated
18 July 2022 and provides the
outstanding balance as at 30 June
2022. The section 127(5) letter is dated 19 August 2022.
The date of sale of the
goods is not provided. Was this before
30 June 2022 or thereafter. In my view this information should
have been provided
to Respondent and not merely an answer as given by
Applicant that it was not obliged to do so. It would have cost
Applicant
nothing to provide such information which it should have
had.
[13]
In my view the procedure as set out in paragraph 20.3.1 of the order
in Davel’s case is
applicable which states:
“
Upon
the return of each of the vehicles described in paragraph 20.1.2 (a),
20.1.2 (b) and 20.2.2 to each respective plaintiff 20.3.1
the
plaintiff shall, within Ten (10) business days from the date of
receiving return of the vehicle give the defendant written
notice:
(a)
Setting out the
estimated value of the returned vehicle;
(b)
Informing the defendant
that it intends to sell the returned vehicle as soon as practical for
the best price reasonably obtainable;
and
(c)
Informing the defendant
that the price obtained for the returned vehicle upon its sale may be
higher or lower than the estimated
value.”
[14]
The letter of Applicant dated 19 August 2022 also does not set out
what is required in terms
of paragraph 20.3.4 of the Davel judgment,
relating to a dispute of the amount realised at the sale.
[15]
It is indeed so that in the present case the goods have already been
sold and the amounts deducted
from that is alleged to have been the
outstanding amount. In my view the clause that the certificate
of balance in the agreement
would be
prima facie
proof of the
amount owing in terms of the agreement as appears in clause 18.11 of
the agreement does not exclude the requirement
that the valuation of
the goods and when it was sold be provided to Respondent.
[16]
As the goods have already been sold it would serve no purpose in now
providing the notices in
terms of section 127(2) – (9).
However what is required in terms of paragraph 20.3.4 of the order in
Davel still remains.
[17]
Applicant will be entitled to any shortfall that there may be after
the sale of the said goods.
However due to the conclusion that
I have reached it would not be in the interests of the parties if the
application is dismissed
at this stage, nor would it protect the
consumer. In my view, the order which I make will be just and
equitable in the circumstances
and be in the best interests of the
parties so that the requirements set out in the order of Davel
referred to above can be complied
with. The following order is
therefore made.
Order:
1.
The matter is adjourned
sine die
.
2.
Applicant and
Respondent are granted leave to supplement their papers.
3.
Applicant is to pay the
costs of the opposed hearing on 29 January 2024.
P C BEZUIDENHOUT J.
JUDGMENT
HEARD:
29
JANUARY 2024
JUDGMENT
HANDED DOWN:
13
FEBRUARY2024
COUNSEL
FOR APPLICANT:
T
Q REDDY
Instructed
by:
Noordmans
Incorporated
Bloemfontein
Ref:
A Noordman/JDP/RK0050
Tel:
051 011 9122/3
Email:
anton@noordmans.co.za
c/o
Grant and Swanepoel Attorneys Inc.
Pietermaritzburg
Ref:
M Swanepoel/Rufaida/02N003322
Tel:
033 342 0375
Email:
michael@gsalaw.co.za/rufaida@gsalaw.co.za
COUNSEL
FOR RESPONDENT:
T
CHETTY
Instructed
by:
Messrs
Theyagaraj Chetty Attorneys
Durban
Tel:
031 208 0527
Email:
theyagaraj@telkomsa.net
c/o
Messrs Cajee Setsubi Chetty Inc.
Pietermaritzburg
Ref:
Asif Essa