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[2021] ZAGPPHC 142
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Mgaga v Stadlander N.O and Others (17104/2019) [2021] ZAGPPHC 142 (28 January 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
17104/2019 Heard on: 25 January 2021
Date
of judgment: 28 January 2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHJER JUDGES:YES/NO
REVISED
In
the matter between:
CELEMPILO
MONICA MGAGA
Applicant
and
WESSEL
GIETZMANN STADLANDER N.O.
First Respondent
BRENDAN
HARMSE N.O
Second Respondent
AUDI
FINANCIAL SERVICES a division of
VOKSWAGEN
FINANCIAL SERVICES
SOUTH
AFRICA (PTY) LTD
Third Respondent
AUCTION
OPERATION ROODEPOORT (PTY) LTD
Fourth Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
This is an application for the rescission of a judgment granted in
first and second respondents’
favour by this court on 13 June
2019, with the following material terms:
[1.1]
The credit agreement between the parties was cancelled;
[1.2]
Applicant was ordered to return a 2016 Audi Q 5 2.0 TDI S Quattro S
Tronic (“the vehicle”)
to respondents.
[2] Only
the first and second respondents have opposed the application. I
shall refer to them collectively
as “the respondents”.
[3]
The facts alleged by respondents are briefly as follows:
[3.1]
Respondents allege that they are joint trustees of the Velocity
Finance Issuer Trust.
[3.2]
On 11 May 2016 applicant purchased the vehicle from third respondent
(“Volkswagen”) in
terms of an instalment sale agreement.
[3.3]
On 24 August 2016 Volkswagen ceded its right title and interest
in and to the agreement and
the vehicle to applicants.
[3.4]
Applicant fell into arrears and ultimately went under debt review.
Due to the fact that 60 days expired
after the applicant went under
debt review. and no application for debt review had been filed,
respondents terminated the debt
review process.
[3.5]
Notices of termination of the debt review process were sent by
registered mail to the domicile address
on the credit agreement,
being 27 Selina Road, Cresta.
[4]
Subsequently respondents issued summons, which was served by affixing
to the front door at 27 Cecilia Road, Cresta. Evidently there is no
Selina Road in Cresta. Applicant says that she never received
the
summons, and there is no suggestion that applicant was in willful
default of entering an appearance to defend. She only became
aware of
the fact that judgment had been granted against her on 1 August 2019.
This application was launched within the 20 days’
period
provided for in rule 31 (2) (b).
[5]
Applicant has raised two defences in support of her application:
[5.1]
Applicant denies that there had been a cession of Volkswagen’s
rights to applicants. Consequently, she says, respondents
do not have
locus standi
to bring the action against her;
[5.2]
Applicant says that she has never lived at 27 Selina Road, that there
is no such address in Cresta, and that she has
no idea where the
address which was inserted on the instalment sale agreement came
from. Consequently, applicant says, notice of
termination of the debt
review process in terms of section 86
(10) of the
National Credit Act, 2005
was improper, and respondents were not
entitled to enforce the agreement.
CESSION
OF RIGHTS
[6]
In the particulars of claim respondents made the bald allegation
that:
“
On or
about 24 August 2016 Volkswagen Financial Services (SA) Proprietary
Limited ceded all its rights tile and interest in and
to the
instalment sale agreement, concluded with the defendant on or about
11 May 2016 (“credit agreement”) to the
plaintiffs.”
[7]
There was no indication whether the cession was oral or in writing,
and
no written cession was attached.
[8]
In the application for rescission, the applicant says that she did
not
purchase the vehicle from applicants. She does not know who they
are, and she denies that they have
locus standi
. She denies
the existence of a cession agreement.
[9]
In respondents’ answering affidavit respondents say again that
on
24 August 2016 Volkswagen ceded its right title and interest in
and to the vehicle to respondents. They then say:
“
Attached
hereto marked as annexure “AA3” a copy of the relevant
pages has been attached. However, and if the court required
the whole
cession agreement which is in excess of 200 pages to be made
available the first and second respondents will make same
available
to the above Honourable Court.”
[10]
I am then given four pages of what appears to be a 16 page agreement.
The agreement is
dated 17 December 2014, some 17 months before the
vehicle was sold to the applicant, and nearly 20 months before the
cession was
supposed to have occurred.
[11]
In these circumstances one would expect the respondents to say that
the agreement envisaged
the cession of rights after the agreement was
signed, and that such cessions would occur on the same terms and
conditions as are
contained in the December 2014 agreement. It does
not say that.
[12]
In the recital clause the agreement reads:
“
A.
The seller has entered into various agreements for the provision of
credit in relation to
the purchase, by way of a credit agreement, of
motor vehicles by its customers in the ordinary course of its
business pursuant
to which such customers
are obliged
to make periodic payments in respect of instalment sale agreements.
B.
The seller has agreed to sell and the issuer has agreed to purchase
the seller’s
right, title and interest in and to the
participating assets in relation to each series which includes
certain instalment sale
agreements together with the related security
in respect of such instalment sale agreements, in accordance with the
terms of this
agreement.”
[13]
The rest of the document is not of any value in determining which
rights arising from which
agreements were ceded, and when. I
therefore have a cession document which was signed long before the
alleged cession took place.
I am not told that there was a further
oral (or written) agreement that applicant’s credit agreement
would be the subject
of a cession. In fact, the cession document
(which is titled a “sale agreement”) seems to refer to
historical credit
agreements that had already been entered into at
the date of signing of the document.
[14]
I trust that respondents have an explanation for these concerns, and
they can address them
at the trial. However, on the papers as they
stand, respondents have not provided a defence to applicant’s
claim that they
do not have
locus standi.
[15]
As far as the question raised in par. 5.2 above is concerned, I do
not have to make a determination
on this issue, given my views on the
first question.
[16]
Consequently I make the following order:
[16.1]
The default order granted against applicant on 13 June 2019 is
rescinded;
[16.2]
The warrant of delivery dated 25 June 2019 is set aside;
[16.3]
The vehicle, a 2016 Audi Q 5 2.0 TDI S Quattro S Tronic with engine
number CMG 030740 and chassis number
WAUZZZ8R4GA051572 shall be
returned to the applicant within 5 days of this order being served on
respondent’s attorney by
email.
[16.3]
Respondents shall pay the costs of the application.
JJC Swanepoel
ACTING JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 28 January 2021.