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[2022] ZAKZPHC 41
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Potpale Investments (Pty) Limited v Zondi (8843/21P) [2022] ZAKZPHC 41 (30 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 8843/21P
In
the matter between:
POTPALE
INVESTMENTS (PTY) LIMITED
APPLICANT/PLAINTIFF
and
BEAUTY
FLORENCE ZONDI
RESPONDENT/DEFENDANT
Coram:
Koen J
Heard:
18 August 2022
Delivered:
30 August 2022
ORDER
Summary
judgment is granted against the defendant in the following terms:
1.
The termination of the credit agreement between the parties is
confirmed.
2.
The defendant is directed to return the 2017 Toyota Quantum 2.5 D.4D
Sesfikile
16S with engine number [....] and chassis number [....] to
the plaintiff forthwith.
3.
The defendant is directed to pay the plaintiff’s costs on an
attorney and
client scale, as taxed or agreed.
4.
The plaintiff is directed to allege and prove, in the action for any
outstanding
damages, that it has complied with the requirements set
out in paragraph 20.3 of the order in
FirstRand Bank Limited t/a
Wesbank v Davel
(1229/2018)
[2019] ZASCA 168
(29 November 2019).
JUDGMENT
Koen
J
[1]
The plaintiff applies for summary judgement against the defendant
for:
(a)
Confirmation of termination of the credit agreement between the
parties.
(b)
Return of a 2017 Toyota Quantum 2.5 D.4D Sesfikile 16S with engine
number [....] and chassis number
[....] to the plaintiff forthwith.
(c)
Attorney and client costs to be taxed.
(d)
The plaintiff shall allege and prove, in the action for any
outstanding damages, that it has complied
with the requirements set
out in paragraph 20.3 of the order in
FirstRand
Bank Limited t/a Wesbank v Davel
.
[1]
[2]
It is not in dispute that the defendant concluded a credit agreement
with
the plaintiff in respect of the Toyota Quantum vehicle. In her
plea she further admits not having paid all the instalments when
due.
In terms of the agreement, the failure by the defendant to make any
payment under the agreement on due date thereof, will
amount to an
event of default which would entitle the plaintiff to terminate the
agreement, provided it does so in compliance with
the provisions of
the National Credit Act 34 of 2005 (the Act). The exact amount which
the defendant owes is not an issue for determination
in regard to the
relief claimed for the return of the vehicle. The fact that she has
defaulted in payments is sufficient to cancel
the agreement. The
plaintiff has cancelled the agreement as alleged in the summons.
[3]
In opposition to the application for summary judgement, the defendant
has raised a number of grounds. For convenience, and based on what
came to be argued, these possible defences can conveniently be
categorised as follows:
(a)
That the application for summary judgment was brought out of time;
(b)
Whether the deponent to the affidavit in support of the application
for summary judgement
is a person who can swear positively to the
facts, as required by rule 32(2)(
a
);
(c)
Whether the plaintiff has charged interest in excess of what is
recoverable in terms of
the agreement;
(d)
Whether the plaintiff was entitled to charge certain insurance
charges;
(e)
Whether the plaintiff has complied with the provisions of the Act,
notably sections 86 (10),
129 and 130.
These
categories will be discussed seriatim.
The
application for summary judgment being brought out of time
[4]
The application for summary judgment was brought out of time. In an
application
for condonation the plaintiff explains that the
application for summary judgement had to be served on or before 28
December 2021,
but that due to a high volume of affidavits received
from the plaintiff’s representative, and during the absence of
the attorney
who dealt with the matter from her office during the
festive season, the affidavit which had been received was misfiled
and placed
in a different file. The affidavit was in fact deposed to
on 13 December 2021, well before the date on which the application
for
summary judgment had to be served. Steps were immediately taken
on the attorney’s return from leave on 10 January 2022 and
the
application for summary judgment was served on the defendant’s
attorneys on 11 January 2022.
[5]
This point was expressly abandoned by the defendant in argument. It
accordingly
need not be dealt with further. The defendant clearly had
not suffered any prejudice.
The
knowledge of the deponent to the affidavit in support of the
application for summary judgement.
[6]
The deponent to the affidavit describes herself as a legal manager
employed
by SA Taxi Development Finance (Pty) Ltd (SA Taxi). She
states that she is duly authorised by the plaintiff, Potpale
Investments
(Pty) Limited, to represent it in the summary judgment
proceedings. She explains that the plaintiff and SA Taxi are part of
the
same group of companies and that SA Taxi renders several
management functions to the group, including the plaintiff, most
significantly
that it undertakes a credit vetting process which
follows on a potential customers application (such as the defendant’s
application
for finance) and administers the credit agreements
concluded between the plaintiff (as credit provider) and various
credit receivers
such as the defendant. Her allegations in this
regard are also consistent with the express terms of clause 31.5 of
the credit agreement.
She further confirms having the plaintiff’s
files and records relevant to the matter and to the defendant’s
relationship
with the plaintiff in her possession and under her
control, and that she is well acquainted with the contents of the
files and
the records of the plaintiff relevant to the defendant, has
perused all the files and records relevant to the matter prior to
deposing
to the affidavit, that she therefore has personal knowledge
of the facts and can confirm that she is a person who can, as she
does,
swear positively to the facts.
[7]
The
defendant with reference to the decisions in
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC
[2]
and
Nedbank
Limited v Peterson
[3]
maintained that this was insufficient.
[8]
I am satisfied that the allegations by the deponent to the affidavit
in
support of the application for summary judgement, based on what
she has alleged her involvement in the matter to be, has the required
personal knowledge to depose to the affidavit in compliance with the
provisions of rule 32(2)
(a)
.
Has
the plaintiff charged interest in excess of what is recoverable in
terms of the agreement
[9]
As the plaintiff’s claim is for the return of the vehicle
following
the failure to pay any instalment timeously, and it is
admitted by the defendant that she has failed to pay all instalments
when
due, the quantum of the balance owing is irrelevant to the claim
for summary judgement for the return of the vehicle.
[10]
In so far
as the interest charge might have relevance, the deponent to the
affidavit in support of the application for summary judgement
dismisses the contention that the interest rate charged was not in
compliance with the provisions of the Act. The deponent explains
that
as a registered developmental credit provider, the plaintiff is
lawfully entitled to charge interest in terms of the formula
(repo
rate +27%) per year as provided in item 4 of table A to regulation 42
of the National Credit Regulations.
[4]
[11]
The defendant’s objection then was that it was not alleged in
the particulars of
claim that the plaintiff is a registered
developmental credit provider. Although not expressly alleged in the
body of the particulars
of claim, the particulars do set out that at
the time of entering into the credit agreement with the defendant,
the plaintiff was
a duly registered credit provider as defined in
section 40 of the Act, and it annexes its registration certificates
as annexures
A and B to the particulars of claim. Both these
documents refer to the plaintiff being registered as a credit
provider ‘in
terms of
section 40
of the
National Credit Act 34
of 2005
, as amended and in terms of section 41 of the Act,
registered
to provide developmental credit.’
(emphasis added).
[12]
In my view that is sufficient to establish that the plaintiff would
be entitled to claim
interest as a developmental credit provider.
Was
the plaintiff entitled to raise the insurance charges
[13]
Similarly, in so far as the insurance charges might have relevance to
the relief claimed
at this stage, Part C: Finance Instalment Payable,
item A of the agreement, clearly makes provision for an additional
monthly payment
in respect of short-term insurance. The defendant
furthermore agreed in clause 22.7 to pay any insurance premiums due
under the
policy to the plaintiff, that these could be included in
the monthly instalments payable under the credit agreement, and she
authorised
the plaintiff to pay any premiums due on her behalf. Her
contention for a lower monthly instalment is furthermore flawed when
regard
is had to the fact that the credit agreement expressly
reflects the monthly repayment and it distinguishes between the
finance
instalment and additional charges, such as insurance.
Sections
86(1), 129 and 130 of the Act.
[14]
The defendant contends that the provisions of s 86 (1), 129 and 130
of the Act required
to be complied with, and that they were not
complied with. The relevant context in which these defences must be
evaluated, and
the applicable legal principles, are as follows:
(a)
The defendant applied for debt review, to have herself declared over
indebted, as contemplated
in section 86(1) of the Act.
(b)
Her debt counsellor delivered a notice, as required by s 86(4)
(b)
(i)
of the Act to the plaintiff, as credit provider, on 13 July 2020.
That notice had the effect that no rights could be enforced
by the
plaintiff under the credit agreement in the circumstances
contemplated in s 88(3), which would extend inter alia, depending
on
the circumstances, until the defendant might default on any
obligation as agreed or ordered by a court.
(c)
In response thereto the plaintiff on 14 July 2020 delivered to the
debt counsellor a certificate
of balance, and on 21 July 2020 the
debt counsellor delivered to the plaintiff a notice in terms of form
17.2, recording that the
debt counsellor found the defendant to be
over indebted.
(d)
On 17 August 2020 the debt counsellor delivered a proposal to the
plaintiff which resulted
in a counter proposal by the plaintiff on 27
August 2020, neither being acceptable and leading to any
re-arrangement between the
plaintiff and the defendant.
(e)
On 22 October 2020 the defendant’s debt counsellor emailed an
application in terms
of s 86(8)
(b)
of the Act to the
plaintiff. That application was filed with the Pinetown Magistrate’s
Court, under case number 7880/2020,
with the debt counsellor as
applicant, the defendant as first respondent, SA Taxi Securitisation
(Pty) Ltd as second respondent,
Truworths Limited as fourth
respondent and DMC Debt Management (Pty) Ltd as fifth respondent. The
heading to the court order annexed
to the particulars of claim as
annexure ‘E’ contains no reference to a third respondent,
but from a manuscript inscription
at the end thereof, it might have
been FNB (First National Bank). The reference to SA Taxi
Securitisation (Pty) Ltd is furthermore
clearly incorrect, and should
be a reference to the plaintiff. That much is accepted by the
defendant as the allegation that the
plaintiff was subsequently
excluded from the application was admitted by the defendant in her
plea, although the inscription on
the court order in the manuscript
(again) erroneously referring to ‘SA Taxi Securitisation (Pty)
Ltd’ when recording
that it was excluded from the court order
by consent between the debt counsellor and the plaintiff;
(f)
On 23 April 2021 and order for debt review in terms of sections
86(7)
(c)
or 86(8)(b) read together with sections 85 and 87 of
the Act was granted by the Pinetown Magistrate’s Court under
case number
7880/2020. A copy of the order was annexed to the
plaintiff’s particulars of claim as annexure ‘E’.
In accordance
with s 87 an order was made that the defendant was
over indebted. The order also dealt with other matters incidental
thereto
and provided that ‘the period for payment in respect of
each credit agreement with each Respondent be extended and the
amounts
payable per month be reduced in accordance with the debt
restructuring proposal prepared by the debt counsellor’.
(g)
Significantly however in regard to the plaintiff (erroneously
referred to as SA Taxi Securitisation
(Pty) Ltd as the second
respondent), the order recorded that it and FNB were ‘excluded
by consent’, that is excluded
from the operation of the order
and hence the referral by the debt counsellor to the court for
adjudication.
(h)
The claims of FNB and the plaintiff accordingly remained part of the
application for debt
review before the debt counsellor, not ruled on
by the court, or at least reverted to that status, for a plan of debt
rearrangement
to be voluntarily considered and agreed between the
defendant and FNB and the plaintiff, as credit providers, but no
longer as
part of an application that was filed in a court.
(i)
Section
86(10)
(b)
[5]
accordingly presented no obstacle to the termination of the debt
review insofar as it concerned the plaintiff’s claim in
terms
of the credit agreement.
(j)
On 4 May
2021 and again on 2 August 2021, the latter date being clearly more
than 60 days after the debt owing to the plaintiff
had been removed
by the exclusion of the plaintiff’s claim by consent from the
referral to the court, the plaintiff gave
notice to the defendant,
the debt counsellor and the National Credit Regulator, in the
prescribed manner of its election to terminate
the debt review, in
terms of s 86(10) of the Act.
[6]
Copies of these notices were annexed as annexures ‘F’ and
‘K’ to the particulars of claim. These notices
on the
plaintiff’s letterhead, in identical terms, informed the
addressees that the plaintiff terminated the debt review
which
commenced more than 60 business days previously on 13 July 2020, as
she was in default with the payments, the account being
then R175
201,48 in arrears for more than 20 business days, and advised that
should she not make payment of all the outstanding
instalments within
7 days of the posting of the letter, the plaintiff will without
further notice, cancel the credit agreement.
(k)
The defendant did not thereafter make payment of all the instalments.
(l)
Accordingly, the plaintiff terminated the credit agreement by service
of the
summons on or after 8 October 2021.
[15]
As regards the application of sections 129 and 130, the position is
as follows: The relevant
provisions of s 129 of the Act provides:
‘
(1) If the
consumer is in default under a credit agreement, the credit provider—
(a)
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 payments under the agreement
up to date; and
(b)
subject to section 130(2), may not commence any legal proceedings to
enforce the agreement before —
(i)
first providing notice to the consumer, as contemplated in paragraph
(a)
, or in section 86(10), as the case may be; and
(ii)
meeting any further requirements set out in section 130.
(2) Subsection (1) does
not apply to a credit agreement that is subject to a debt
restructuring order, or to proceedings in a court
that could result
in such an order.’
[16]
The relevant portion of s 130 of the Act provides:
‘
(1) Subject to
subsection (2), a credit provider may approach the court for an order
to enforce a credit agreement only if, at that
time, the consumer is
in default and has been in default under that credit agreement for at
least 20 business days and—
(a)
at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated
in section 86
(10), or section 129 (1), as the case may be;
(b)
in the case of a notice contemplated in section 129 (1), the consumer
has—
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit provider’s
proposals; and
(c)
in the case of an instalment agreement, secured loan, or lease, the
consumer has not surrendered the relevant
property to the credit
provider as contemplated in section 127.’
[17]
The defendant has argued that following the exclusion of the
plaintiff’s claim from
the debt review, the provisions of
sections 129 and 130 had to be complied with. Accordingly, that the
plaintiff should (contrast
the word ‘may’) have resorted
to any of the avenues referred to in s 129(1)
(a)
of the Act,
before enforcing the agreement, including enforcing it to the extent
of cancelling the agreement due to non-payment
of instalments, to
claim the return of the vehicle, and that a notice to the defendant
as contemplated in paragraph
(a)
or in s 86(10), as the case
may be, first had to be provided to the defendant.
[18]
At the time that the notice, annexure ‘K’, was sent on 2
August 2021, the plaintiff’s
claim had already been excluded
from the ambit of a debt review before a court, dated 23 April 2021.
It was still part of the debt
review lodged with the debt counsellor
in terms of the Act, but was not part of an application for debt
review filed, even on an
extended meaning of word ‘filed’,
in a court. To free the plaintiff’s claim from the restrictions
in s 88(3)
would require that the debt review in respect of the
plaintiff’s claim be terminated. Section 86(10) would
therefore
find application.
[19]
As regards the provisions of s 129(1)
(a)
, the debt owing to
the plaintiff had already been referred to and was being considered
by the debt counsellor. The parties had
furthermore attempted to
resolve their disputes under the agreement or to develop and agree on
a plan to bring the payments under
the agreement up to date, without
success. There would have been no point in providing any further
notice, if indeed required to
the defendant, that she could refer the
credit agreement to a debt counsellor, or to attempt to resolve their
disputes under the
agreement or to develop and agree on a plan to
bring the payments under the agreement up to date.
[20]
As regards
the provisions of s 129(1)
(b)
(i),
the plaintiff complied with the provisions of s 86(10), at the very
least by dispatching the notice of 2 August 2021.The notice
was duly
dispatched to the parties required to be notified in accordance with
the mode of communication chosen by the parties at
the designated
addresses. The notice reached the appropriate post office for
delivery to the defendant, but despite notification
being sent to
her, it was not collected. Non delivery of the notice(s) is not a
defence to the plaintiff’s claim.
[7]
[21]
As regards the provisions of s 129
(b)
(i) and (ii), the
defendant has been in default under the credit agreement for at least
20 business days, at least 10 business days
had elapsed since the
plaintiff delivered the notice to the defendant as contemplated in
s 86(10), and the defendant had not
responded to that notice.
[22]
Accordingly, the defendant has not established a defence to the
plaintiff’s claim
for the return of the vehicle. It follows
that summary judgement must be granted.
Order
[23]
Summary judgement is granted in favour of the plaintiff against the
defendant as follows:
1.
The termination of the credit agreement between the parties is
confirmed.
2.
The defendant is directed to return the 2017 Toyota Quantum 2.5 D.4D
Sesfikile
16S with engine number [....] and chassis number [....] to
the plaintiff forthwith.
3.
The defendant is directed to pay the plaintiff’s costs on an
attorney and
client scale, as taxed or agreed.
4.
The plaintiff is directed to allege and prove, in the action for any
outstanding
damages, that it has complied with the requirements set
out in paragraph 20.3 of the order in
FirstRand Bank Limited t/a
Wesbank v Davel
(1229/2018)
[2019] ZASCA 168
(29 November 2019).
KOEN
J
APPEARANCES
For
the applicant/plaintiff:
Ms
S Franke
Instructed
by:
Hainsworth
Attorneys
Pietermaritzburg
For
the respondent/defendant: Mr
C Havemann
Instructed
by:
Nhlapo
Attorneys
Pietermaritzburg
[1]
FirstRand
Bank Limited t/a Wesbank v Davel
[2019] ZASCA 168; [2020] 1 All SA 303 (SCA).
[2]
Shackleton
Credit Management (Pty) Ltdv Microzone Trading 88 CC and another
2010 (5) SA 112
(KZP) paras 13 to 16.
[3]
Nedbank
Limited v Peterson
[2021] ZAGPPHC 534.
[4]
‘Regulations made in terms of the
National Credit Act, 2005
’
GG
28864, GN R489 of 31 May 2006.
[5]
Section 86(10)
(b)
of the
National Credit Act 34 of 2005
provides:
‘
No
credit provider may terminate an application for debt review lodged
in terms of this Act, if such application for review has
already
been filed in a court or in the Tribunal.’
[6]
Section 86(10)
(a)
of the
National Credit Act 34 of 2005
provides:
‘
If
a consumer is in default under a credit agreement that is being
reviewed in terms of this section, the credit provider in respect
of
that credit agreement may, at any time at least 60 business days
after the date on which the consumer applied for the debt
review,
give notice to terminate the review in the prescribed manner to—
(i)
the consumer;
(ii)
the debt counsellor; and
(iii)
the National Credit Regulator’.
[7]
Kubyana
v Standard Bank of South Africa Limited
[2014]
ZACC 1
;
2014 (3) SA 56
(CC);
2014 (4) BCLR 400
(CC) paras 39 and 40.