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[2021] ZAGPPHC 689
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Pieterse v BMW Financial Services (South Africa) (Pty) Ltd and Others (32048/2020) [2021] ZAGPPHC 689 (5 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
5/5/2021.
Case number:
32048/2020
In
the matter between:
WIKUS
PIETERSE
Applicant
v
BMW
FINANCIAL SERVICES
(SOUTH
AFRICA)(PTY) LTD
First Respondent
AUCTION
OPERATION (PTY)
LTD
Second Respondent
In
re:
BMW
FINANCIAL SERVICES
(SOUTH
AFRICA)(PTY)
LTD
Plaintiff
And
WIKUS
PIETERSE
Defendant
JUDGMENT
MOSOPA,
J
1.
This application is
brought in terms of Rule 6(12)(a) of the Uniform Rules of Court, to
stop the sale/auction (which was supposed
to take place on 6 April
2021) of a 2012 BMW M5 (F10) with engine number 21680142 and
chassis/VIN WBSFV920X0DX14779, pending the
final adjudication of the
rescission of judgment application instituted by the applicant, in
respect of the judgment obtained by
the respondent. This matter is
only opposed by the first respondent.
2.
On 6 April 2021, when
this matter was before me, only the Notice of Motion, Founding
Affidavit and annexures were before me and
I was informed that the
first respondent had recently served the applicant with its answering
affidavit. I then ordered the first
respondent to instruct the
auctioneers (second respondent) not to proceed with the auction which
was scheduled to take place on
the same day at 10h30, until the
matter is finalized. I then stood the matter down to 9 April 2021 for
argument and to afford the
applicant time to reply to the first
respondent’s answering affidavit. On 9 April 2021, I heard
argument and reserved judgment
in this matter.
URGENCY
3.
When the matter was
stood down to 9 April 2021, I did not make any determination as to
the urgency of the matter, as I only had
the Notice of Motion,
Founding Affidavit and annexures before me. I then on that date heard
arguments in respect of urgency and
I then held that the matter was
urgent.
4.
The first respondent
did not inform the applicant of the date of the auction of the 2012
BMW M5 (F10) (“the vehicle”),
despite this request being
made by the applicant’s attorneys to the first respondent’s
attorneys. It was only on 1
April 2021, when the applicant went
through the website of the second respondent, that he realized that
the vehicle was scheduled
to be sold on auction on 6 April 2021, with
no further details. More details of the sale of the vehicle became
apparent from the
second respondent’s website on 4 April 2021,
indicating that the auction was scheduled to take place on 6 April
2021 at 10h30.
5.
I was then of the view
that if the matter is not heard then, the applicant will not be
afforded substantial relief at a hearing
in due course (
see
Rule 6(12)(b);
Luna
Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin Furnitures
Manufacturers
1977 (4) SA 135
(W) at 137F
)
.
BACKGROUND
6.
On or about 2 October
2018, the applicant and the first respondent entered into a written
sale agreement in terms of which the first
respondent sold the
vehicle to the applicant.
7.
On 22 July 2020, the
first respondent issued combined summons against the applicant,
mainly for breach of the sale agreement by
the applicant, and the
cancellation of the agreement, after the notice in terms of section
129 of the National Credit Act 34 of
2005 (“NCA”) had
been served on the applicant on 19 June 2020.
8.
The respondent brought
an application for default judgment against the applicant. This
application was heard on 8 December 2020,
before Lukhaimane AJ and an
order for default judgment was granted in favour of the respondent,
confirming the cancellation of
the agreement and the return of the
vehicle by the applicant to the respondent within seven (7) days of
the default judgment order.
9.
I must at this stage
pause to mention that the applicant’s erstwhile attorney
withdrew from the matter before the default
judgment was obtained by
the respondent. On 10 February 2021, pursuant to the warrant in terms
of the default judgment obtained,
the respondent repossessed the
vehicle from the applicant.
10.
On 3 March 2021, the
notice in terms of section 127(2) of the NCA regarding the valuation
of the vehicle by the respondent, was
sent to the applicant.
DISCUSSION
11.
When the matter first
served before me, only the first respondent was cited. The second
respondent was not cited as a party initially,
but was only cited as
a party in the applicant’s replying affidavit. The second
respondent was cited as a party without an
application for joinder
having been made. However, no legal objection was raised by the first
respondent in respect of this procedural
aspect and the issue never
arose in argument. I am of the view that there was no issue in
respect of the citing of the second respondent
as a party despite
there being no joinder application.
12.
It is noteworthy to
mention that the applicant continued paying his debt to the first
respondent even after the application for
default judgment was
granted. An amount of R18 000,00 was paid on 1 February 2021 and
the amount of R25 000,00 on 2 March
2021 into the first
respondent’s account. No further payments were made after that,
I must also pause to mention that after
the vehicle was repossessed
from the applicant, a further payment of R25 000,00 was made by
the applicant.
13.
The applicant contends
that he paid all the arrear amounts, totaling R99 333,00, as at
2 March 2021 and as such, he is not
in default of the terms and
conditions of the agreement and that he never gave the first
respondent a notice to terminate the agreement.
However, this is a
clear admission on the part of the applicant, that at the time of the
application for default judgment, he was
in arrears and as such, the
first respondent was entitled to the default judgment.
14.
It must be understood
that this current application is not about the re-instatement of the
agreement, but rather stopping the sale/auction
of the vehicle. The
applicant does not indicate where the vehicle must be kept in the
event that the application is successful,
as he has not sought relief
for the vehicle to be returned to him.
15.
What is common cause
between the parties is the following:
15.1.
On 19 June 2020, when
the first respondent issued the notice in terms of section 129 of the
NCA, the applicant was in default of
the agreement and the arrear
amount was R25 275,30;
15.2.
When summons was issued
against the applicant on 23 July 2020, the arrear amount was
R41 767,37;
15.3.
Several payments were
made by the applicant, after summons was issued, in the following
amounts:
15.3.1.
21 August 2020 –
R8 735,00
15.3.2.
5 October 2020 –
R8 795,00
15.3.3.
30 October 2020 –
R9 000,00
15.3.4.
30 November 2020 –
R9 000,00
Totaling R35 533,00
16.
Despite all these
substantial payments made by the applicant, at the time of the
default judgment, the applicant was still in arrears,
in terms of the
amount stated in the summons, but had extinguished the debt in the
amount of R25 275,30 indicated in the section
129 notice dated
19 June 2020.
17.
From the time the
applicant received the section 129 notice and the combined summons,
the applicant paid four (4) separate instalments
during August,
October and November 2020. No payment was made in September 2020 and
I take it that this non-payment was addressed
when the applicant made
two payments in October 2020. However, what is not clear is whether
these payments were made towards only
the arrear amount or towards
the arrear amount and the monthly instalment. The first respondent
contends that the applicant neglected
to make payments towards the
monthly instalments after the section 129 notice was sent.
18.
In the matter of
Kubyana v
Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC)
at
paras 34-35, the Constitutional Court, when dealing with the purpose
of the section 129 notice and the obligations of a reasonable
consumer, observed the following;
“
[34]
… Section 129 aims to establish a framework within which the
parties to the credit agreement, in circumstances where
the consumer
has defaulted on her obligations, can come together and resolve their
disputes without expensive, acrimonious and
time-consuming recourse
to the courts. However, this form of dispute resolution is possible
only if both come to the table; the
credit provider must avoid hasty
recourse to litigation and the consumer must seek to rectify her
default in a reasonable and responsible
manner.
[35]
If the credit provider
complies with the requirements set out in [31] to [33] above and
receives no response from the consumer within
the period designated
by the Act, I fail to see what more can be expected of it. Certainly,
the Act imposes no further hurdles
and the credit provider is
entitled to enforce its rights under the credit agreement. It
deserves re-emphasis that the purpose
of the Act is not only to
protect consumers, but also to create a “harmonised system of
debt restructuring, enforcement and
judgment, which places
priority on the eventual satisfaction of all responsible consumer
obligations under credit agreements.”
Indeed, if the consumer
has unreasonably failed to respond to the section 129 notice, she
will have eschewed reliance on the consensual
dispute resolution
mechanisms provided for by the Act. She will not subsequently be
entitled to disrupt enforcement proceedings
by claiming that the
credit provider has failed to discharge its statutory notice
obligations.”
STEPS
TAKEN BY APPLICANT AFTER RECEIPT OF S129 NOTICE
19.
The applicant, after receiving the section 129
notice, contacted the first respondent by email, dated 3 July 2020,
and informed
the first respondent of his financial situation and
undertook to make payments.
20.
Ms Masoane of Strauss Daly Attorneys,
representing the first respondent, confirmed receipt of this email
and informed the applicant
that his account had already been handed
over for legal proceedings and advised that he voluntarily surrender
the vehicle to avoid
further legal fees.
21.
On 17 July 2020, the applicant enquired whether
it would be possible for him to make arrangements to pay off the
outstanding amount
over a three (3) month period. The response from
the first respondent’s representative, dated 20 July 2020, was
that if the
applicant paid 50% of the arrear amount immediately, he
could then pay the remaining 50% over a period of three (3) months.
22.
Following this agreement regarding the payment of
the arrears, the applicant made two payments in July 2020, in the
amounts of R17 000,00
and R3 000,00, for a total amount of
R20 000,00. At that stage, the arrear amount in terms of the
section 129 notice
was R25 275,30. Thus, the applicant paid more
that the 50% the parties agreed on. Further payments of R8 735,00
(21 August
2020), R8 798,00 and R9 000,00 (5 and 30 October
2020) and R9 000,00 (30 November 2020) were made by the
applicant.
Despite all these payments and the agreement reached by
the parties in respect of the restructuring of the debt, the first
respondent
nonetheless proceeded to enforce the debt by instituting
summons against the applicant on 27 July 2020 – only seven (7)
days
after the debt restructuring agreement was reached.
23.
The applicant reasonably responded to the section
129 notice and over and above that, made payments amounting to more
than what
was agreed upon. The applicant did not eschew reliance on
the consensual dispute resolution mechanism provided by the NCA, for
the reasons I have provided above. It is for this reason that I am of
the considered view that this application should succeed.
24.
I elect not to make a determination as to whether
there are prospects of success in the application for rescission of
the default
judgment obtained in favour of the first respondent, at
this stage.
COSTS
25.
Costs of this application, in my considered view,
must be determined when the rescission application is considered.
ORDER
26.
I therefore make the following order;
1.
The first respondent is interdicted from
selling/auctioning or causing the sale/auction of the 2012 BMW M5
(F10), with engine number
21680142 and chassis/VIN number
WBSFV920X0DX14779 (“the vehicle”), pending the final
adjudication of the applicant’s
rescission application of 18
March 2021;
2.
The first respondent is to confirm to the
applicant’s attorney, in writing, within five (5) days of this
order, that it has
instructed the second respondent not to proceed
with the sale/auction of the vehicle;
3.
Costs to be costs in the rescission application.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv H Krige
Instructed
by:
Buks
Croukamp Attorneys
For
the respondent:
Adv V Olivier
Instructed
by:
Strauss Daly Inc.
Date
of hearing:
9 April 2021
Date
of judgment:
Electronically transmitted