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[2021] ZAGPPHC 163
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Alphera Financial Services, a division of BMW Financial Services (South Africa) (Pty) Ltd v Lemmetjies (6380/2020) [2021] ZAGPPHC 163 (8 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: Yes
(2)
OF INTEREST TO OTHER JUDGES: Yes
(3)
REVISED
8
March 2021
CASE
NUMBER: 6380/2020
In
the matter between
ALPHERA
FINANCIAL SERVICES,
APPLICANT
a
division of
BMW
FINANCIAL SERVICES
(SOUTH
AFRICA) (PTY) LTD
and
EDWARD
RICCARDO LEMMETJIES
RESPONDENT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
This is an application in terms whereof the
plaintiff (“the
applicant”) seeks summary
judgement
against the defendant (“the respondent”), based on the
breach of a written
instalment
sale agreement (“the agreement”) entered into between the
parties.
[2]
The application is opposed.
[3]
Two special pleas have been raised by the
respondent in the
affidavit resisting
summary
judgment, namely:
1.
That the monetary amount claimed
(namely, the value of the motor vehicle R390 494-89 and the
arrear amount R79 508-89)
falls within the monetary jurisdiction
of the Magistrates’ Court 32 of 1944 (“the Magistrates’
Court Act”).
As a result, the applicant has failed to provide
any motivation for the need to institute the action in the High Court
as opposed
to the Magistrate Court, and has failed to obtain the High
Court’s consent to institute the action in the High Court.
2.
Alternatively, if the Court finds
that the applicant could institute the action in a High Court, the
applicant should have instituted
the action in the respondent’s
closest division of the High Court, being the Gauteng Local Division,
Johannesburg.
BACKGROUND
[4]
The applicant instituted action against the respondent by way of
summons for
the following relief:
“
a)
Confirmation of termination of the agreement;
b)
Return of a
2012 AUDI A4
1.8T SE MULTITRONIC (“the vehicle”)
with engine
number:
[….] and chassis number: WAUZZZ8K1DA111581 to the Plaintiff
forthwith;
c)
An order authorizing the
Plaintiff
to apply to the Court on the same papers, supplemented
insofar as may be necessary, for judgment in respect of any damages
and
further expenses incurred by the 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;
d)
Costs on an attorney and client
scale, to be taxed or agreed
.”
[5]
It is common cause that on or about 11 July 2014, the respondent
and
the applicant, concluded a sale agreement wherein the applicant sold
the vehicle to the respondent for an amount of R390 494-89.
In terms
of the agreement the respondent would pay the purchase price together
with interest, fees and costs by way of 58 consecutive
instalments of
R5 249-79 each, commencing on 16 August 2014, with a final
instalment of R80 757-28 payable on 16 July
2019. It is
further common cause that this matter falls within the ambit of the
National Credit Act 34 of 2005 (“the
National Credit Act&rdquo
;)
and that the respondent resides at 19 Hoy Street, Discovery,
Roodepoort.
[6]
On the 14
th
of November 2019 the respondent had breached
the agreement and at the date of the issue of the summons the arrear
instalments owed
to the applicant amounted to R79 508-02.
[7]
In due compliance with the
National Credit Act, on
21 October 2019,
the applicant addressed a notice in terms of
Section 86(10)
of the
National Credit Act to
the respondent
via
registered post,
notifying the respondent of his default under the re-arrangement
proposal. Despite the aforementioned notice,
the respondent remained
in arrears. Consequently, the applicant cancelled the
section 86(10)
procedure and instituted legal action against the respondent, wherein
it claimed the relief as more fully set out in paragraph
[4]
supra
.
[8]
The summons in the main action was properly served upon the
respondent
on 31 January 2020, by affixing at the respondent’s
main outer door of the chosen
domicilium citandi et executandi.
The respondent entered an appearance to defend on 26 February
2020, and subsequently filed his plea on 10 December 2020 after
having
been served with a notice of bar on 3 December 2020. The
applicant filed the application for summary judgment on 5 January
2021.
SUBMISSIONS BY THE RESPONDENT
IN RESPECT TO THE SPECIAL PLEAS RAISED
First special plea - Monetary
jurisdiction of the Magistrate’s court
[9]
It was contended on behalf of the respondent
that in terms
of s29 of the Magistrates’
Courts Act,
the relevant Magistrate’s Court will have jurisdiction in all
actions arising
out of any
credit agreement as defined in
section 1
of the
National Credit Act.
>
Reference was
made to the majority judgment in the matter of
Nedbank
Ltd v Gqirana
NO and
Another and Similar Matters
2019 (6) SA
139 ECG. In addition, it was
contended that
the amounts pertaining to the vehicle and the amounts referred to in
the
applicant’s
particulars of claim, fall within the jurisdiction of the
Magistrate’s Court and
that in line
with the decision of
Nedbank Ltd v
Thobejane and Similar Matters
2019 (1)
SA 594 (GP),
the action ought to have been instituted in the relevant Magistrates’
Court
having
jurisdiction and not in the High Court. It was further contended that
the
applicant
should have sought leave from the High Court before instituting the
action in
the High and
that such failure constituted an abuse of the Court process.
Second
special plea – Geographical jurisdiction of the Gauteng Local
Division, Johannesburg
[10]
It was contended that because both the
respondent’s address and
the fact that the
contract was
concluded in Oakdene, the applicant ought to have instituted its
process
in the nearest
division of the High Court to the debtor, which would be the Gauteng
Local
Division, Johannesburg. By instituting its action in the Gauteng
Division, Pretoria,
the applicant
deliberately chose a division of the High Court that is inconvenient
to the
respondent
which amounts to an abuse of the Court process. As a result, it was
contended that
the respondent has a
bona fide
defense against the action and that the
summary judgment application must
fail.
SUBMISSIONS BY THE APPLICANT
IN RESPECT TO THE SPECIAL PLEAS RAISED
First special plea - Monetary
jurisdiction of the Magistrate’s court
[11]
The applicant’s counsel contended that irrespective of the fact
that
the applicant’s monetary claim falls within the
jurisdiction of the Magistrate’s Court, the applicant
in
casu
seeks an order for specific performance without an
alternative payment of damages, which the Magistrates’ Court is
incompetent
to make in terms of
section 46(2)(c)
of the Magistrate’s
Court Act. Counsel argued that the applicant cannot, at this stage,
and prior to receiving such performance,
quantify its damages.
Furthermore, it was contended that notwithstanding that Magistrates’
Courts enjoy jurisdiction over
matters arising out of credit
agreements, the relief sought in the matter
in casu
cannot be
adjudicated by the Magistrate’s Court by virtue of its
jurisdictional limitations under section 46(2)(c).
[12]
Counsel argued that the High Court was correctly approached to
adjudicate this
matter by virtue of its jurisdiction to do so, and
leave of this Court, was not required due to the nature of the relief
sought.
[13]
In addition, Counsel argued that the respondent was aware that the
applicant
was entitled to institute proceedings in any High Court, as
this had been contractually agreed upon between the parties in the
instalment sale agreement at paragraph [14.1].
Second special plea –
Geographical jurisdiction of the Gauteng Local Division, Johannesburg
[14]
Counsel contended that where more than one High Court has the
necessary jurisdiction
to adjudicate on a matter, the applicant who
is
dominus litis
will have the right to choose the court in
which it wants to institute action. In this instance, an election was
made by the applicant
by virtue of the concurrent jurisdiction
enjoyed by the Gauteng Local Division, Johannesburg and the Gauteng
Division, Pretoria,
to institute the action in the latter Court..
EVALUATION
[15]
In the matter of
Nedbank Ltd v Thobejane supra
, the learned
Tolmay J, writing on behalf of the full bench, ordered that in order
to promote justice, as from 2 February 2019 all
civil actions or
applications, where the monetary value claimed is within the
jurisdiction of the Magistrates’ Court, should
be instituted in
the Magistrates’ court having jurisdiction unless the High
Court has granted leave to hear the matter in
the High Court.
[16]
There is a myriad of cases prior to the decision of
Nedbank
Ltd v Thobejane
supra
which dealt with similar issues. In the
matter of
Koch v Realty Corporation of
South Africa
1918 TPD 356
a full court
of the Transvaal Provincial Division, (as it then was), recognised
that the High Court and Magistrate Court had concurrent
jurisdiction
over matters that fell within the territorial jurisdiction of both
courts. In
Goldberg v Goldberg
1938 WLD 83
the court held that as a matter of principle a court is
bound to entertain proceedings that fall within its jurisdiction and
could
decline to do so only where a statute provided otherwise or in
the exercise of the court’s inherent jurisdiction to refuse
to
entertain proceedings which amount to an abuse of its process. In the
matter of
Standard Credit Corporation
Ltd v Bester and Others
1987 (1) SA 812
(W) at 820 paragraph [I] (“
Bester
”),
the full court held that “
courts
should be extremely wary of closing their doors to any litigant
entitled to approach a particular court. The doors of courts
should
at all times be open to litigants falling within their jurisdiction.
If congested rolls tend to hamper the proper functioning
of the
courts then the solution should be found elsewhere, but not by
refusing to hear a litigant or to entertain proceedings in
a matter
within the court’s jurisdiction and properly before the court
”
.
[17]
In the matter of
Sealander
Shipping and Forwarding v Slash Clothing Co (Ltd)
1987 (W), the learned Coetzee DJP stated that a court should only
refuse to entertain a plaintiff’s claim if its action amounted
to an abuse of the process of the Court. In the case of
Bester
supra
,
the learned judge formulated the meaning of an ‘abuse of
process’ by stating that “
an
abuse of the process of court can be said to take place when its
procedure is used by a litigant for a purpose for which it was
not
intended or designed, to the prejudicial or potential prejudice of
the other party to the proceedings
.”
[1]
[18]
In the matter of
Mofokeng v General Accident Versekering Bpk
1990 (2) SA 712
(W) the court stated that the ‘abuse of
process’ is not a discretionary matter, but rather a factual
issue which must
be considered in the light of all relevant facts and
circumstances.
[19]
The Supreme court of Appeal in the matter of
Agri
Wire (Pty) Ltd and Another v Commissioner of the Competition
Commission and Others
2013 (5) SA 484
(SCA) (“
Agri
Wire
”),
confirmed the principle in the case of
Bester
supra
,
stating that “
save
in admiralty matters, our law does not recognise the doctrine of
forum
non
conveniens
,
and our courts are not entitled to decline to hear cases properly
brought before them in the exercise of their jurisdiction
”
.
[2]
First special plea
[20]
It is clear that Magistrates’ Courts are more geographically
accessible
to persons living in a specific magisterial district.
Section 29(1)(e) of the Magistrates’ Court Act grants a
Magistrate
Court jurisdiction in respect to actions arising out of
any credit agreement. Section 46(2)(c) of the Magistrates’
Court
Act however limits a Magistrate Court’s jurisdiction in
certain respects.
[21]
Section 46(2)(c) states:
“
(2)
A court shall have no jurisdiction in matters-
(c)
in which is sought specific performance
without
an alternative of payment of
damages
,
except in –
(ii)
the delivery or transfer of property, moveable or immoveable, not
exceeding
in
value the amount
[3]
determined
by the Minister from time to time by notice in the
gazette
;
and
(iii)
the delivery or transfer of property, moveable or immoveable,
exceeding in value the amount
[4]
determined by the Minister from time to time by notice in the
Gazette, where the consent of the parties has been obtained in terms
of section 45;” [my emphasis]
[22]
In
Carpet Contracts (Pty) Ltd v Grobler
1975 (2) SA 436
(T) at
422 C-D, the learned
Viljoen J held
that the Magistrate’s Court has no jurisdiction to entertain a
claim for
specific
performance in the absence of an alternative claim for specific
damages.
This decision
was followed in the cases of
Weepner v
Kriel
[1977] 4 All A 589 (C),
1977 SA 212
(C),
Ierse Trog CC v Sulra Trading CC
1997 (4) SA 131
(C) and
Morettino v
Italian Design Experience CC
[2000] 4
All SA 158
(W).
[23]
The learned authors Jones & Buckle in
The Civil Practice of
the Magistrate’s Courts in
South
Africa
[5]
,
state:
“
Magistrates’
courts have the ordinary common-law jurisdiction to grant orders for
specific
performance,
but this jurisdiction is fettered to the extent laid down in the Act,
in that certain
cases
the court cannot grant an order without an alternative order for
damages.”
[6]
[24]
It is clear that a Magistrates’ Courts have no jurisdiction in
any matter
in which specific
performance is
sought without an alternative claim for the payment of damages and
that the two
exceptions referred to in s46(2)(c)(ii) and (iii) are not applicable
in the
matter
in
casu.
Firstly, the value of the vehicle
is R390 494-89 and therefore s46(2)(c)(ii) does not apply. Secondly,
in respect to the exception
contained in s46(c)(iii), although the
value of the vehicle exceeds R200 000-00, (as deteremined by the
Government notice 217 of
27 March 2014), there is no consent between
the parties and accordingly s46(c)(iii) does not apply.
[25]
Where there is an alternative remedy available to the applicant, it
would not
be in the interests of justice for the High Court to
exercise its inherent jurisdiction. In the matter
in casu
, in
the absence of claiming in the alternative for damages, the applicant
had no choice but to bring this application in the High
Court.
Accordingly, the High Court was correctly approached to adjudicate on
this matter by virtue of the lack of jurisdiction
of the Magistrates’
Court to grant specific performance in the absence of a claim for
damages. Accordingly, leave from this
Court was not required.
[26]
It is important to note that paragraph 14.1
of the instalment sale agreement
states:
“
You
consent to the jurisdiction of the Magistrate’s Court having
jurisdiction over any
proceedings
that may arise from this Agreement, irrespective of the amount in
dispute. The
seller
may choose to institute action in the High Court
.”
From the
above, the respondent must have foreseen that the applicant could
resort to
litigation in
the High Court.
[27]
I do not find that the institution of this action in the High Court
amounted to an
abuse of the Court process. Taking into consideration
the facts placed before me, the correct procedure was followed by the
applicant
which is not prejudicial to the respondent and accordingly
the first special plea must fail.
Second special plea
[28]
The creation of the Constitution was aimed at bringing justice to the
people.
In the event that a High Court has the necessary jurisdiction
to adjudicate upon a matter, it must do so, unless to do so, would
amount to an abuse of the Court’s process or where it is
statutorily prohibited to do so. (see
Goldberg v Goldberg
supra
and
Nedbank Limited Ltd v Thobejane supra
).
[29]
In this instance, the respondent resides within this Court’s
jurisdiction
and there is no statutory provision precluding this
Court from pronouncing upon this matter. In addition, no basis
exists, either
factually or legally, why it would amount to an abuse
of Court process should this division of the High Court hear this
application.
[30]
In so far as the issue of convenience is relevant, it is widely
accepted by
our Courts, that the doctrine of forum
non
conveniens
is not recognised, and on
this basis a Court is not entitled to decline to adjudicate upon a
matter which falls within its jurisdiction
and in the exercise of its
jurisdiction. (see
Nedbank Ltd v
Thobejane supra
and
Agri
Wire supra.)
[31]
Even if I am wrong in this regard, to transfer
this matter to the Gauteng Local Division, Johannesburg would
duplicate matters and
would increase the final costs.
[32]
For these reasons, the respondent’s challenge to this Court’s
jurisdiction
must fail.
Bona
fide
defence
[33]
Notwithstanding the two special pleas raised by the respondent, I
will proceed
to evaluate whether the application for summary judgment
complies with Uniform Rule 32 and whether the respondent has raised a
bona fide
defence. In considering this aspect, the test is
whether the applicant’s case is unanswerable or whether the
respondent has
a triable defence. (see
Joob Joob Investments (Pty)
Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at
11G -12G). A defendant who opposes an application for summary
judgment must disclose the nature and grounds of the defence
and the
material facts relied thereupon. (see
Maharaj v Barclays National
Bank Ltd
1976 (1) SA 418
(A) at 425G-426E). It is settled law
that whilst the defendant is not required to prove his defence, he or
she must at least provide
sufficient detail to enable the Court to
ascertain that the opposing affidavit discloses a
bona fide
defence. It is further required of the defendant to go beyond the
mere formulation of disputes, and must take the Court into his
or her
confidence. (see
Chairperson, Independent Electoral Commission v
Die Krans Ontspanningsoors (Edms) Bpk
1997 (1) SA 244
(T) at
249F-G.)
[34]
In the matter of
Tumileng Trading CC v National Security and Fire
(Pty) Ltd
2020 JDR
0747 (WCC) the
learned Binn-Ward J set out the legal position when dealing with the
amended
summary judgment court rules and their impact on applications for
summary
judgment. At
paragraph [12] the court held:
“
the
test for determining whether summary judgment should be given remains
unaffected by
the
amendments;…A defendant is able to defeat an application for
summary judgment by
showing
that it has a
bona
fide
defence. It does that by doing what the subrule enjoins:
disclosing
‘fully the nature and grounds of the defence and the material
facts relied upon
therefor’.”
[35]
The respondent has not provided sufficient details to enable me to
determine whether
he has a
bona fide
defence. In fact, the respondent has failed to deal with the merits
of
this
application and has not disputed his indebtedness or the amount
claimed by the
applicant. As a result, the applicant has a valid claim for which
summary judgment
should be
granted.
COSTS
[36]
The applicant has brought these proceedings in accordance with
Uniform Rule
32 (1) and I can see no reason why costs should not be
awarded against the respondent on the attorney and client scale. Such
costs
are also provided for in the agreement between the parties at
paragraph 14.2.
ORDER
[37]
In the premises the following order is made:
1.
Summary judgment is hereby granted against
the respondent for:
a)
Confirmation of termination of the agreement;
b)
Return of a
2012 AUDI A4
1.8T SE MULTITRONIC with engine number:
CJE028186 and chassis number: WAUZZZ8K1DA111581 to the applicant
forthwith;
c)
An order authorizing the applicant to apply to the Court on the same
papers, supplemented
insofar as may be necessary, for judgment in
respect of any damages and further expenses incurred by the applicant
in the repossession
of the said vehicle, which amount can only be
determined once the vehicle has been repossessed by the applicant and
has been sold;
d)
Costs on an attorney and client scale, to be taxed or agreed.
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email.
The
date and time for hand-down is deemed to be 10h00 on 8 March 2021.
Matter
heard on: 26
February 2021
Judgment
granted on:
8 March 2021
Appearances
:
On
behalf of the Applicant
Adv.
A.C.C Barreiro
Instructed
by:
STRAUSS DALY INC
On
behalf of the Respondent
Ms T. Rossouw
Instructed
by:
GERRIE
EBERSOHN ATTORNEYS
INC
[1]
Standard
Credit Corporation Ltd v bester and Others
1987
(1) SA 812
(W) page 820
[2]
Agri
Wire (Pty) Ltd and Another v Commissioner of the Competition
Commission and Others
2013 (5) SA 484
(SCA) paragraph 19
[3]
The
amount is currently R200 000 with effect from 1 June 2014 –
GN 217 of 27 March 2014 (GG 37477 of 27 March 2014)
[4]
The
amount is currently R200 000 with effect from 1 June 2014 – GN
217 of 27 March 2014 (GG 37477 of 27 March 2014)
[5]
Jones
& Buckle in
The
Civil Practice of the Magistrate’s Courts in South Africa
,
Volume I, tenth edition, (service 13,2017 at page 305)
[6]
Jones
& Buckle in The Civil Practice of the Magistrate’s Courts
in South Africa, Volume I, tenth edition, (service 13,2017
at page
306)