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[2021] ZAGPPHC 104
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BMW Financial Services (SA) Pty Ltd v Mthethwa (29569/2020) [2021] ZAGPPHC 104 (12 February 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2) OF
INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE
12 FEBRUARY 2021
CASE
NO: 29569/2020
In
the matter between:
BMW
FINANCIAL SERVICES (SA) PTY LTD
Applicant
and
CHRISTINAH
MARY MTHETHWA
Defendant
J
U D G M E N T
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020.
The judgment and order are accordingly published and distributed
electronically.
DAVIS, J
[1]
This is the judgment in
a summary judgment application heard virtually on this court’s
unopposed motion court roll of 10 February
2020. Despite
invitations to the virtual hearing and numerous unsuccessful calls to
the defendant’s attorney’s
offices, there was a default
of appearance by or on behalf of the defendant.
[2]
The cause of action
2.1
There is no dispute of
fact that the plaintiff and the defendant had entered into a written
agreement with each other (annexed to
the plaintiff’s
particulars of claim) on 28 November 2014 whereby the plaintiff has
sold a certain 2014 BMW 420D Gran Coupe
M Sport A/T (F36) to the
defendant.
2.2
Ownership of the
vehicle remained vested in the plaintiff until the vehicle was fully
paid off.
2.3
The monthly installment
was R 9 057,90 with a final installment of R 185 608.06
payable on 25 November 2020.
2.4
The plaintiff alleged
breach of the agreement by failure to pay and claimed confirmation of
the subsequent termination thereof,
return of the vehicle and the
customary ancillary relief.
2.5
After delivery of the
defendant’s plea, the plaintiff applied for summary judgment
and it is that application which is now
to be considered.
[3]
“
Defences
”
Upon a reading of the defendant’s pleas and the
affidavit filed in opposition to the summary judgment application,
the following
appears to be the situation:
4.1
The defendant claims
that the plaintiff had not been correct in alleging that the
defendant had not made the required payments in
April 2020, entitling
the plaintiff to terminate the agreement. At that stage
however, the defendant was already in arrears
in the amount of
R75 828,28 and the short payment which the defendant had paid in
April 2020 had not erased the arrears.
4.2
The defendant further
relies on a declaration of over-indebtedness made in the Magistrates
Court for the District of Polokwane held
at Polokwane in case No
5565/2019 together with an order rearranging her payment obligations
in terms of
section 86
and
87
of the
National Credit Act, 2005
.
4.3
However, as appears
from the abovementioned court order, the plaintiff’s agreement
(including another one for a separation
vehicle) has expressly been
excluded therefrom. The plaintiff was therefore entitled to
proceed against the defendant and
there is no “statutory
remedy” disclosed as a defence, as claimed by the defendant.
4.4
Furthermore, the
defendant concedes in her affidavit that she continues to pay
“almost” 90% or 92% of the monthly instalments.
This she does through a business called Debtsafe. These short
payments are made unilaterally by the defendant and not by
agreement
with the plaintiff and actually confirms the plaintiff’s
allegations of breach of the payment terms of the written
agreement.
4.5
The defendant, in her
opposing affidavit dated 2 October 20202 alleged that, if the matter
is referred to trial “or even postponed
for a week”, the
full outstanding balance due, including the “balloon”
payment, would be settled. In a
separate paragraph she claimed
that “
by
November 2020 I would settle this car”
.
Nothing of the sort has happened.
4.6
In the meantime, the
agreement had in any event come to an end through the effluxion of
time. The due date for the final payment
had also come and
gone.
4.7
Misconstruing the
resolution whereby the plaintiff’s deponent to the affidavit
supporting summary judgment had been authorized,
the defendant
claimed that the application should have been postponed to 12 October
2020 for this to be remedied. The
defendant is incorrect
in her interpretation and the deponent had been properly authorized
as appears from paragraph 3 of the resolution
(the defendant
erroneously only relied on paragraph 1 of the said resolution).
The deponent has been duly authorized.
4.8
Apart from the above
aspects, no triable defence has otherwise been disclosed by the
defendant and the plaintiff is entitled to
the relief claimed.
[4]
Order:
Summary judgment is granted in favour of the plaintiff
against the defendant for:
5.1
Confirmation of
termination of the agreement.
5.2
Return of a 2015 BMW
420D Gran Coupe M Sport A/T (F36) with engine no 87819014 and chassis
number WBA4B52070D573294 to the plaintiff
forthwith.
5.3
The plaintiff is
authorized to apply to the court on the same papers, supplemented
insofar as maybe necessary, for judgment in respect
of any damages
and further expenses incurred by plaintiff in the repossession of the
said vehicle, which amount can only be determined
once the vehicle
has been repossessed by the plaintiff and has been sold.
5.4
Cost of suit.
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 10 February 2021
Judgment
delivered: 12 February 2021
APPEARANCES:
For
the Applicants:
Adv.
N Latif
Attorney
for Applicants:
Strauss
Daly Attorneys,
Pretoria
For
the Defendant:
No appearance.
Attorney
for Defendant
:
Mabini
Incorporated
,
Pretoria