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2021
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[2021] ZAGPPHC 105
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Mashele v BMW Financial Services (Pty) Ltd and Another (29899/2018) [2021] ZAGPPHC 105 (25 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
25
February 2021
Case
No: 29899/2018
In
the matter between:
SONTO
ELIZABETH
MASHELE
Applicant
and
BMW
FINANCIAL SERVICES (PTY)
LTD
First Respondent
THE
SHERIFF OF THE HIGH COURT,
JOHANNESBURG
EAST
Second
Respondent
JUDGMENT: APPLICATION FOR
LEAVE TO APPEAL
WILSON
AJ
:
1
The applicant (“Ms. Mashele”) seeks leave to
appeal against my judgment in
Mashele v BMW Financial Services
(Pty) Ltd and Another
(29899/2018) [2020] ZAGPPHC 665 (18
November 2020).
2
The application for leave to appeal (“the application”)
was lodged on 24 November 2020. It was set down for hearing on
1
February 2021. Counsel for the parties filed concise written
submissions shortly before the hearing, to which I had regard and
for
which I am grateful.
3
Because of the ongoing risk of transmitting the COVID-19 virus
through close physical contact, the application was set down for
hearing online by video conference. However, shortly before the
matter was due to be called at 09h30 on 1 February 2021, it became
apparent that the Court’s internet connection had temporarily
malfunctioned, meaning that my registrar was unable to host
and
record the hearing from her High Court office. Despite her
commendable efforts to do so, she was unable to secure an alternative
connection through which to host and record the hearing.
4
It was accordingly not possible to hear the matter remotely at
the allocated time. The application had to be removed from the roll.
5
While this was being arranged, counsel indicated to me that a
settlement agreement had been reached between the parties, and that
the agreement was embodied in a draft consent order (“the
draft”). I gave leave for the draft order to be uploaded
to
Caselines, together with the various letters of consent required by
the Practice Manual. I indicated that, if the draft was
appropriate
on its face, I would make it an order of court without further
submissions from the parties.
6
The draft was uploaded shortly thereafter, but the letters of
consent required in terms of the Practice Manual were not.
7
The draft requires Ms. Mashele to pay R235 000 to the
first respondent (“BMW”) by 25 February 2021, and makes
provision
for the execution of the default judgment I refused to
rescind, together with the payment of interest and costs in the event
of
non-performance of that obligation. The draft also requires Ms.
Mashele to pay the costs of the application for leave to appeal.
It
asks that I declare that BMW has complied with various statutory
provisions that go well beyond the provisions that were in
issue in
the main rescission application. The draft does not set out the order
I should make on the application for leave to appeal.
8
Having reviewed the draft, I required that the parties file
written submissions, addressing the following issues –
8.1
Whether it is competent to make the draft an order
of court in the
context of leave to appeal proceedings.
8.2
What order, if any, should be made on the application
for leave to
appeal.
8.3
On what basis I am invited to order Ms. Mashele
to pay the costs of
the application for leave to appeal, in circumstances where I made no
order as to costs in the main rescission
application.
8.4
On what basis I am invited to direct Ms. Mashele
to pay costs
incurred by BMW in recovering money due in terms of the agreement on
the scale as between attorney and own client,
in circumstances where
(1) I made no order as to costs in the main application and (2) the
agreement is to pay the costs of future
action which may never be
taken.
8.5
Whether an order to pay costs of any future enforcement
action on the
scale of attorney and own client will interfere with the discretion
of any court that may in future be seized with
that action, and
whether, if it would, that interference would be appropriate.
8.6
Whether it is competent or necessary for me to
grant BMW leave to
execute on the warrant for the delivery of the vehicle without
further notification to the defendant.
8.7
Whether the order in paragraph 6 of the draft is
necessary, given
that it appears simply to re-state the law, and whether, if it does
not simply restate the law, it is competent.
8.8
On what basis I am invited to declare that BMW
has satisfied the
provisions of the
National Credit Act 34 of 2005
and the
Consumer
Protection Act 68 of 2008
“in each and every respect”, in
circumstances where the issue before me in the main recission
application was whether
BMW had complied with the provisions of
sections 129
and
130
of the
National Credit Act, and
no argument of
any nature has been addressed to me on any other issue relating to
compliance with either statute.
8.9
Whether, in the opinion of either party, the content
of the draft,
and any submissions that may be made on it, will require ventilation
at a further hearing.
9
In respect of the aborted hearing of 1 February 2021, I
removed the application from the roll with each party paying their
own costs.
10
BMW’s counsel filed written submissions on 8 February
2021. Ms. Mashele’s counsel filed written submissions on 12
February
2021.
11
Both sets of submissions proceeded on the basis that the
application is no longer being actively pursued.
12
BMW went so far as to suggest that I am
functus officio
,
and need take no further action on the application. It was submitted
on Ms. Mashele’s behalf that Ms. Mashele has “had
an
opportunity to duly consider the contents of the draft order and her
wish is that it will reflect her undertakings” to
BMW
(paragraph 6). If so inclined, I am invited in Ms. Mashele’s
submissions, to direct the parties to conclude a formal
settlement
agreement that complies with the applicable court rules and the
provisions of the Practice Manual. Neither party asks
for a further
hearing either on the merits of the application, or the content of
the draft.
13
The position that the parties have adopted leaves much to be
desired. I am seized with an application for leave to appeal. The
application
has not been withdrawn, but neither party seems to be
willing to say what order I should make on it. Neither party
seriously suggests
that I make the draft an order of court either, at
least not in its current form. It is in any event clear to me that I
cannot
do so. I have no satisfactory evidence that the order is
actually agreed to, and several provisions of the order seem to me to
be contrary to public policy.
14
Be that as it may, the parties are free to arrange their
affairs as they see fit. For at least the reasons I have given, I am
not
inclined to place the Court’s imprimatur on the draft. If
the agreement it embodies has actually been reached, any dispute
arising from it will have to be the subject of further proceedings
before another Judge.
15
The only question before me is what order is to be made on the
application. In this respect, I do not accept that I am
functus
officio
, unless and until the application has been withdrawn or
ruled upon. It is not in the interests of justice that the
application
be left hanging in the air.
16
It is not clear to me what form of agreement, if any, has been
reached between the parties. Nor is it clear to me that the agreement
is enforceable in all its respects. However, it
is
clear that
neither party is interested in the determination of the application
on its merits. Another, extra curial, manner of
resolving the dispute
appears to have been found.
17
For that reason alone, the application falls to be dismissed
as moot.
18
Were I to have entertained the application on the merits, I
would have, in any event, dismissed the application as bearing no
prospects
of success. There is nothing in the parties’ written
submissions on the merits of the application that creates any
reasonable
apprehension in my mind that another court would have
decided the rescission application differently.
19
For the reasons I gave in my judgment on the rescission
application, the small variances in the extent of Ms. Mashele’s
indebtedness
to BMW had no effect on BMW’s right to obtain
judgment for the repossession of the vehicle at issue in the manner
that it
did. There was no question, on the facts of this case, of
enforcement of the credit agreement between the parties being
precluded
by
sections 129
or
130
of the
National Credit Act 34 of
2005
, unless Ms. Mashele could demonstrate that she brought her
payments under the credit agreement up-to-date at some point after 28
January 2016. On the papers before me, that never happened.
20
Accordingly, the application for leave to appeal is dismissed.
As in the main application, each party is to pay their own costs.
S
D J WILSON
Acting
Judge of the High Court
This
ruling is handed down electronically by circulation to the parties or
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 25 February 2021.
DATE
OF JUDGMENT:
25 February 2021
For
the Applicant:
BM Khoele
Instructed by AM Nduna Attorneys
For
the First Respondent
RG Bowles
Instructed by MacRobert
Incorporated