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[2021] ZAGPJHC 488
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Slabbert v South African Securitisation Programme (RF) Ltd and Another (2020/41972) [2021] ZAGPJHC 488 (22 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number: 2020/41972
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
22
SEPTEMBER 2021
In
the matter between:
SLABBERT,
GIDEON
STEPHANUS
Excipient / Defendant
and
SOUTH
AFRICAN SECURITISATION
PROGRAMME
First Respondent / First Plaintiff
(RF)
LTD
SASFIN
BANK
LIMITED
Second Respondent/ Second Plaintiff
JUDGMENT
[1]
This is an opposed exception under rule 23(1). The Excipient is
referred
to as Mr Slabbert, the First Respondent is referred to as
SASP and the Second Respondent is referred to as Sasfin.
The
particulars of claim in the action
[2]
The litigation between the parties that is relevant to the exception
started
with an action
("the action")
instituted by
SASP and Sasfin against Mr Slabbert under the above case number. SASP
and Sasfin are respectively the First Plaintiff
and the Second
Plaintiff in the action.
[3]
SASP and Sasfin allege
inter alia
as follows in their
particulars of claim
("the particulars
of
claim")
in the action:
"THE RENTAL
AGREEMENT
Deal number
R000142992
4.
On or about 31 October 2018, and at Waverley, Johannesburg,
Sasfin and [Mr Slabbert], Sasfin being represented by a duly
authorised
person and [Mr Slabbert] representing himself, concluded a
written rental agreement
('the rental agreement'),
a
copy whereof is annexed hereto marked
'A',
the terms thereof
to be incorporated herein by reference.
5.
[Mr Slabbert] would pay rentals to Sasfin of R10 700.00 plus VAT per
month, commencing
on the commencement date as defined in the rental
agreement and thereafter on the same day of each succeeding month.
6.
The equipment was duly delivered to [Mr Slabbert] on or about 31
October 2018.
7.
The addendum to the rental agreement does not record the correct
agreement between
the parties, in that the hirer is described as
Sunlyn (Pty) Ltd.
8.
The hirer should have been recorded as Sasfin Bank Limited and not
Sunlyn (Pty)
Ltd.
…
TERMS AND
CONDITIONS
11.
The material terms of the rental agreement are the following:
11.1
Sasfin would rent to [Mr Slabbert], and [Mr Slabbert] would hire, the
goods as described in the schedule to the rental agreement ('the
equipment') for a minimum period of 60 months.
11.2
The rental agreements would commence on the date of last signature of
the rental agreements.
11.3
The rentals payable in terms of the rental agreement would escalate
by
15% per annum.
11.4
In the event of [Mr Slabbert] failing to make any payment due in
terms
of the rental agreement on due date thereof, [he] shall be
deemed to have breached the provisions thereof, whereupon Sasfin
would
be entitled
inter alia
forthwith to claim immediate
payment of all amounts which would have been payable in terms of the
rental agreement until expiry
of the rental period stated in the in
the schedule, whether such amounts are then due for payment or not.
11.5
[Mr Slabbert] selected as [his]
domicilium
citandi
et
executandi
for all purposes under the
rental agreement the address referred to above.
11.6
A certificate signed by any manager of Sunlyn/Outsource or other
authorised
person, certifying the amount due by [Mr Slabbert] will on
the face of it, be proof of the amount of [Mr Slabbert's]
indebtedness,
it shall not be necessary to prove the appointment of
the person signing the certificate.
11.7
[Mr Slabbert] would pay to Sasfin interest at the prime rate (as
defined)
plus 6% on all amounts overdue in terms of the rental
agreement.
11.8
[Mr Slabbert] would bear the Sasfin's legal expenses including
attorney
and own client costs incurred in recovering any amounts in
terms of the rental agreement.
11.9
Sasfin would without notice to [Mr Slabbert] be entitled to cede all
or any of its rights under the rental agreement, and/or its rights of
ownership in the equipment, and if such cession took place,
[Mr
Slabbert] would thereupon if so required by any cessionary, make all
payments directly to such cessionary, and, unless the
context
otherwise indicated, any reference to Sasfin in the rental agreement
would be deemed to include a reference to its cessionary.
THE CESSIONS
Sasfin to SASP: The
sale agreement
12.
On or about 18 June 2019 and at Sandton the SASP and Sasfin, both
parties represented by duly authorised
persons, concluded a written
'Sale and Transfer Agreement', annexed hereto as annexures
'B'
('the sale agreement').
13.
The material terms of the sale agreement are the following:
13.1
Sasfin agreed to cede or sell to SASP the rights title and interest
in
and to each of the specified equipment leases as defined, which
definition includes agreements such as this rental agreement;
13.2
To give effect to the cession SASP agreed to pay a consideration for
the rental agreement on the effective date.
13.3
Sasfin duly deliver to SASP all documents relating to, and all
agreements
recording the specified equipment leases on or before the
effective date.
PERFORMANCE
IN TERMS OF CESSIONS
Sasfin to SASP
14.
In accordance with and pursuant to the terms of the sale agreement,
Sasfin offered for cession to SASP
the rental agreement referred to
above.
15.
SASP duly accepted the offer presented by Sasfin referred to by
having made payment to Sasfin of the
agreed purchase price and all
conditions (to the extent applicable) were duly met on or about 18
June 2019.
16.
Sasfin furthermore delivered to SASP all of the required documents in
respect of the rental agreement
referred above.
17.
Accordingly, SASP duly acquired, through cession all the rights title
and interest in the rental agreement
referred above including the
ownership of the goods forming the subject matter of the relevant
agreement.
THE AMOUNTS DUE BY
[MR SLABBERTl
18.
[Mr Slabbert] breached the terms and conditions of the rental
agreement in that he failed to maintain
regular monthly payments.
19.
The failure to continue to have maintained the monthly agreed upon
instalments constituted a breach
of the rental agreement which breach
entitled SASP to claim immediate payment of all amounts which would
have been payable in terms
of the rental agreement until expiry of
the rental period stated in the in the schedule, whether such amounts
are then due for
payment or not.
20.
As at 15 October 2020 the outstanding balance in respect of the
rental agreement calculated to an amount
of R785 939.32 and in
confirmation of such amount, a certificate of balance is issued by
SASP and annexed hereto as
'C'.
21.
The prime rate as defined in the rental agreement as at date of due
payment, being 15 October 2020,
was 7.00% per annum.
22.
In the premises [Mr Slabbert] is indebted to SASP in the amount of
R785 939.32 together with interest
thereon at the rate of 13.00%
(prime plus 6%) per annum from 16 October 2020 to date of final
payment.
NATIONAL CREDIT ACT
23.
The provisions of the National Credit Act, Act 34 of 2005 ('the Act')
are not applicable to the rental
agreement and
I
or [Mr
Slabbert] as:
23.1
Ownership in and to the underlying equipment did not pass to [Mr
Slabbert]
neither did ownership pass upon the satisfaction of a
specific condition or upon expiry of the rental agreement. As such
the rental
agreement is not a credit agreement as envisaged in terms
of section 8(1) and more particularly section 8(4) of the Act.
[SASP's AND
SASFIN'sl ALTERNATIVE CLAIMS
24.
SASP claims judgment against [Mr Slabbert] for payment of the amount
of R785 939.32, on the basis of
the aforesaid allegations.
25.
Sasfin claims judgment against [Mr Slabbert] for payment of the
amount of R785 939.32, in the alternative
to the claim by SASP, in
the event that the allegations regarding the cession between Sasfin
and SASP above are not proved."
The
rental agreement
[4]
As alleged at paragraph 4 of the particulars of claim, a copy of a
written
rental agreement
("the rental agreement")
is
attached thereto as annexure "A". The terms of the rental
agreement are incorporated into the particulars of claim
by reference
at paragraph 4 of the particulars of claim. Counsel for Mr Slabbert
argued his client's case at the hearing of the
exception with
reference to the rental agreement.
[5]
The rental agreement refers to Sasfin as
"us", "we",
"hirer''
or
"our"
and
to Mr Slabbert as
"you", "your''
or
"user''.
It provides
inter alia
as follows:
"1.
We agree to grant you the use of the goods described in the
Schedule(s) hereto for the initial
rental period stated therein on
the terms and conditions set out in this Agreement and in the
Schedule(s) thereto, subject to 2
below.
2.
The initial rental period of the Agreement is the period stated in
the Schedule
thereto commencing from the date of last signature
hereto ('the Commencement Date'). After the initial rental period the
Agreement
shall run indefinitely until either of us gives the other
thirty days written notice of termination.
3.
You and we both agree that the rights in the Agreement and in the
ownership of
the goods is held, and remains with us, or anyone we
have transferred our rights to and that nothing in the Agreement
shall be
taken to mean that ownership may pass to you …
…
5. You and we both agree
that the amount of the rentals will increase from time to time in
accordance with increases in the prime
overdraft rate as charged by
The Standard Bank of South Africa Limited to its most favored
customers ('prime'). In addition, you
agree that the prevailing
rental will increase once per year on the anniversary of the contract
start date by the annual escalation
percentage stated in the
Schedule, cumulatively.
…
7.
If you breach any of the conditions or terms of the Agreement,
or fail to pay any amounts due to us ... then you agree that we have
the right (without notice to you and without affecting any of our
other rights) to:
7.1
claim immediate payment of all amounts which would have been
payable in terms of the Agreement until expiry of the rental period
stated in the Schedule, whether such amounts are then due for payment
or not. ; or
7.2
immediately terminate the Agreement, recover possession of the
goods, retain all amounts already paid by you and claim all
outstanding
rentals, all legal costs as between attorney and his own
client and the Net Present Value at Prime of the rentals which would
have
been payable had the Agreement continued until expiry of the
initial rental period stated in the Schedule as a pre-estimate of the
damages which we may suffer.
8.
If we grant you an extension of time in order to pay, or any
other indulgence, this does not mean that we have given up any of our
rights in the Agreement. You agree that we are entitled to charge
interest on overdue amounts, including damages, at a rate of
six
percent per annum over prime.
…
11.
You agree to pay all Rentals in terms of this Agreement in
advance, every month, without the necessity of us having to send you
a monthly statement or invoice. Paying on time is an essential
condition of the Agreement and you agree that your signature to the
Agreement gives us authority to draw against your bank account,
wherever it may be, the amounts due to us in terms of the Agreement.
...
12.
… Upon cancellation or termination of the Agreement you
agree, at your expense, to return the goods to us in good condition.
13 …We
may, without notice to you, transfer all or any portion of our rights
in terms of the
Agreement or our
ownership of the goods to any other person or persons. You agree
that, if we transfer, you will hold the goods
and continue to fulfil
your obligations to the new owners of the rights to the Agreement
and/or the goods.
14. The first rental will
become due on the commencement date and thereafter rentals will
become due on the common due date of every
succeeding month …"
[6]
The goods rented by Mr Slabbert in terms of the rental agreement are
described
in a schedule as
"1 X 7100 SAMSUNG PABX", "1
X SAMSUNG MF A4 COLOUR SL-C3060 COPIER"
and
"1 X
SAMSUNG
MF A3 COLOUR SL-4300 COPIER".
The
exception
[7]
Mr Slabbert filed a notice of exception
("the notice of
exception")
to the particulars of claim. Four grounds upon
which the exception is founded are stated in the notice of exception:
"[MR
SLABBERT'S]
FIRST
EXCEPTION
3.
(The) particulars of claim is bad in law, in that:-
3.1
On or about 18 June 2019, Sasfin sold and ceded
all its rights, title
and interest in the rental agreement to SASP.
3.2
Through the cession Sasfin was divested of its
rights against [Mr
Slabbert].
3.3
Through the cession Sasfin's
locus standi
got destroyed.
[MR
SLABBERT'S] SECOND EXCEPTION
4.
[SASP's and Sasfin's] averment that the provisions of the [National
Credit Act
34 of 20051 are not applicable to the rental agreement
and/or [Mr Slabbert] is bad in law, in that:-
4.1
The equipment rented to [Mr Slabbert], is movable.
4.2
In terms of the rental agreement Sasfin undertook
to supply the
equipment, deferred [Mr Slabbert's] obligation to pay in terms of the
agreement, charged interest in respect of the
deferred amounts and
the amounts not paid within the time provided for in the agreement,
and in the event of non-payment Sasfin
would be entitled to legal
costs on a punitive scale.
4.3
The rental agreement is a lease. Wherefore the
rental agreement
constitutes a credit agreement for the purposes of the [National
Credit Act 34 of 20051 as contemplated in section
8(1)(b)(3)(a) and
(b) and 4(e) read with section 4 of the [National Credit Act 34 of
2005].
4.4
[The] particulars of claim lacks an averment that
at the time the
agreement was made, Sasfin was registered under [the
National Credit
Act 34 of 2005
] as a credit provider, wherefore the rental agreement,
on the pleading, falls to be declared void as from the date the
agreement
was entered into as contemplated in
section 89(2)(d)
read
with
section 89(5)(a)
of the [National Credit Act 34 of 2005].
[MR
SLABBERT'S] THIRD EXCEPTION
5.
[The] particulars of claim asserting Sasfin's claim in the
alternative to that
of SASP, renders SASP's claim bad in law, in that
SASP, the cessionary in the out-and-out cession, cannot sue in the
name of Sasfin,
the cedent in an out-and-out cession.
[MR
SLABBERT'S] FOURTH EXCEPTION
6.
On [the] particulars of claim, as pleaded, the agreement is a credit
agreement.
7.
The credit agreement is reckless, in that:-
7.1
[the] particulars of claim lacks averments that
at the time that the
agreement was made, Sasfin conducted an assessment as required by
section 81(2), irrespective of what the
outcome of such an assessment
might have concluded at the time; and
7.2
[the] particulars of claim lacks an averment that
the rental
agreement is not a reckless credit agreement.
8.
Wherefore the credit agreement is void
ab initio,
alternatively,
falls to be declared void."
[8]
I now deal with each of the four grounds of exception separately.
First
ground of exception: Sasfin lacks
locus
standi
in
the action
[9]
It is alleged at paragraph 4 of the particulars of claim that Sasfin
concluded
the rental agreement with Mr Slabbert. According to
paragraphs 12 to 17 of the particulars of claim, SASP acquired all
the rights,
title and interest in the rental agreement from Sasfin
through cession
("the cession").
[10]
Mr Slabbert pleads at paragraph 3.2 of the notice of exception that
the cession divested Sasfin
of its rights against him. He further
pleads at paragraph 3.3 of the notice of exception that the cession
destroyed Sasfin's
locus standi
in the action. It was argued
on behalf of Mr Slabbert at the hearing of the exception that the
cession created a factual impossibility.
According to the argument,
the cession made it factually impossible for Sasfin to claim against
Mr Slabbert. Counsel for Mr Slabbert
argued that Sasfin should have
pleaded at paragraph 25 of the particulars of claim that it will rely
on the facts pleaded in the
particulars of claim, except those
relating to the cession.
[11]
In considering Mr Slabbert's contentions on his first ground of
exception, one must have
regard to paragraphs 24 and 25 of the
particulars of claim. It is clear that SASP and Sasfin claim in the
alternative. It is specifically
pleaded at paragraph 25 of the
particulars of claim that the claim by Sasfin against Mr Slabbert is
in the alternative to the claim
by SASP against Mr Slabbert
"in
the event that the allegations regarding the cession between Sasfin
and SASP
...
are not proved."
[12]
More than one plaintiff may institute an action against a defendant
in the alternative
as contemplated in rule 10(1):
"Any
number of persons, each of whom has a claim ... in the alternative,
may join as plaintiffs in one action against the same
defendant ...
against whom any one or more of such persons proposing to join as
plaintiffs would, if he brought a separate action,
be entitled to
bring such action, provided that the right to relief of the persons
proposing to join as plaintiffs depends upon
the determination of
substantially the same question of law or fact which, if separate
actions were instituted, would arise on
such action, and provided
that there may be a joinder conditionally upon the claim of any other
plaintiff failing."
[13]
It is clear that rule 10(1) provides for the type of situation faced
by SASP and Sasfin.
Their alternative claims are both against Mr
Slabbert. If SASP and Sasfin had to institute separate actions
against Mr Slabbert,
their right to relief would depend upon the
determination of substantially the same question of law or fact.
[14]
With reference to what is pleaded at paragraph 25 of the particulars
of claim, the joinder
in the action by SASP and Sasfin is expressly
provided for in rule 10(1) as "a
joinder conditionally upon
the claim of any other plaintiff failing."
It was held in
Sackstein and Others NNO v Du Preez
2004 (2) SA 459
(SECLD) at
462C-D that -
"[r]ule
10(1) of the Uniform Rules of Court permits any number of persons to
sue the same defendant in the alternative provided
that substantially
the same question of fact or law would arise in respect of the claim
of each of the plaintiffs. The Rule contemplates
a joinder of a
plaintiff who has a claim which is conditional on the failure of the
claim of a co-plaintiff. (See
Kinekor Films (Ply) Ltd v Drive-In
Home Movies
1976 (2) SA 87
(0) at 948.)"
[15]
In my view, the claim by Sasfin agc1inst Mr Slabbert is clearly
dependent upon the failure
of the claim by SASP against Mr Slabbert.
It is apparent from the particulars of claim that the requirements of
rule 10(1) have
been met. It remains to be determined at the trial in
the action whether or not the allegations regarding the cession are
proved.
Having heard all the evidence, the trial court's findings on
the cession will determine whether or not Sasfin has been divested
of
its rights against Mr Slabbert and whether or not Sasfin has
locus
standi
in the action. In the result, Mr Slabbert's first ground
of exception is dismissed.
Second
ground of exception: The provisions of the
National Credit Act 34 of
2005
apply to the rental agreement and Mr Slabbert
[16]
It is alleged at paragraph 23 of the particulars of claim that the
provisions of the National
Credit Act 34 of 2005 ("the National
Credit Act") are not applicable to the rental agreement and/or
Mr Slabbert. Mr Slabbert
pleads in the notice of exception that this
allegation is bad in law in that -
"4.1
The equipment rented to [Mr Slabbert], is movable.
4.2
In terms of the rental agreement Sasfin undertook to supply
the equipment, deferred [Mr Slabbert's] obligation to pay in terms of
the agreement, charged interest in respect of the deferred amounts
and the amounts not paid within the time provided for in the
agreement, and in the event of non-payment Sasfin would be entitled
to legal costs on a punitive scale.
4.3
The rental agreement is a lease. Wherefore the rental
agreement constitutes a credit agreement for the purposes of [the
National Credit Act] as
contemplated in
section 8(1)(b)(3)(a)
and (b)
and (4)(e) read with
section 4
of [the
National Credit Act].
4.4
(The
] particulars of claim lacks an averment that at the time
the agreement was made, Sasfin was registered under [the
National
Credit Act] as
a credit provider, wherefore the rental agreement, on
the pleading, falls to be declared void as from the date the
agreement was
entered into as contemplated in
section 89(2)(d)
read
with
section 89(5)(a)
of the [National Credit Act]."
[17]
At the
hearing of the exception, counsel for Mr Slabbert referred me to
clause 5 of the rental agreement. He argued that this clause
is
unlawful as contemplated in
section 90(2)(o)
of the
National Credit
Act. This
complaint is not stated in the grounds upon which the
exception is founded. It was held by the Supreme Court of Appeal in
Feldman
NO v
EMI
Music SA (Pty) Ltd; Feldman NO v EMI Music Publishing SA (Pty) Ltd
2010
(1) SA 1
(SCA) at
paragraph [7] that
"[a]n
excipient is obliged to confine his complaint to the stated
grounds
of his exception."
Since
the alleged unlawfulness of clause 5 of the rental agreement is not
stated in the notice of exception, the exception cannot
be decided on
this ground. It is clear from
rule 23(3)
that, when he took the
exception, the grounds upon which the exception is founded had to be
clearly stated by Mr Slabbert. The
peremptory nature of this
requirement is apparent from the use of the word "shall".
Had Mr Slabbert intended to found
the exception on the ground of the
alleged unlawfulness of clause 5 of
the rental
agreement, he should have clearly
stated such
ground in the notice
of
exception. In his commentary
on
rule
23(3)
, D.E. van Loggerenberg
states
[1]
that an excipient is bound to the grounds of exception set out in his
notice of exception, and will not be permitted at
the hearing
of the exception to rely on different grounds or to raise a different
exception. The rationale for this approach is
clear from what Heher
J, as he then was, held in this Division in
Jowell
v Bramwell-Jones and Others
1998
(1) SA 836
(WLD) at 898E-899B:
"An
exception is a pleading:
Haarhoffv
Wakefield
1955 (2) SA 425
(E). A defendant is free to frame his exception
in any way he chooses, but is bound by the way in which his case is
made out in
the exception. Jacob and Goldrein on
Pleadings:
Principles and Practice
at 8- 9 put it thus:
'As
the parties are adversaries, it is left to each of them to formulate
his case in his own way, subject to the basic rules of
pleadings For
the sake of certainty and finality, each party is bound by his own
pleading and cannot be allowed to raise a different
or fresh case
without due amendment properly made. Each party thus knows the case
he has to meet and cannot be taken by surprise
at the trial. The
Court itself is as much bound by the pleadings of the parties as they
are themselves. It is no part of the duty
or function of the Court to
enter upon any enquiry into the case before ii other than to
adjudicate upon the specific matters in
dispute which the parties
themselves have raised by their pleadings. Indeed, the Court would be
acting contrary to its own character
and nature if ii were to
pronounce upon any claim or defence not made by the parties. To do so
would be to enter the realms of
speculation....Moreover, in such
event, the parties themselves, or at any rate one of them, might well
feel aggrieved; for a decision
given on a claim or defence not made,
or raised by or against a party is equivalent to not hearing him at
all and may thus be a
denial of justice. The Court does not provide
its own terms of reference or conduct its own inquiry into the merits
of the case
but accepts and acts upon the terms of reference which
the parties have chosen and specified in their pleadings. In the
adversary
system of litigation, therefore, it is the parties
themselves who set the agenda for the trial by their pleadings and
neither party
can complain if the agenda is strictly adhered to. In
such an agenda, there is no room for an item called 'any other
business'
in the sense that points other than those specified in the
pleadings may be raised without notice.'
I
agree with counsel for the plaintiff that these general statements
apply to an exception. A party is bound by the terms in which
it is
framed and by the issues which it raises. Erasmus
Superior Court
Practice
B1-163.
lnkin v Borehole Drillers
1949 (2) SA 366
(A) at 373 provides examples of a refusal to entertain a contention
not covered by grounds of exception. See also
Jack Smith v Joe's
(Pty) Ltd
1929 TPD 323
and 327."
[18]
I asked counsel for Mr Slabbert at the hearing of the exception to
address me on the impact
of the judgment by the Supreme Court of
Appeal in
ABSA Technology Finance Solutions (Pty) Ltd v Michael's
Bid
a
House
CC
and Another
2013 (3) SA 426
(SCA) on
Mr Slabbert's contention that the rental agreement constitutes a
credit agreement for purposes of the
National Credit Act. Counsel
again referred me to clause 5 of the rental agreement and argued that
the present case is distinguishable from
Michael's Bid
a
House
CC on the basis that the rental agreement is not a credit
transaction as contemplated in
section 8(4)
of the
National Credit
Act but
a credit facility as contemplated in
section 8(3)
of the
National Credit Act. I
accept, for purposes of this judgment, that
the reference at paragraph 4.3 of the notice of exception to
"
section
8(1)(b)(3)(a)
and (b)"
includes a reference to
section 8(3)
of the
National Credit Act.
>
[19]
Clause 5 of the rental agreement provides:
"You
and we both agree that the amount of the rentals will increase from
time to time in accordance with increases in the prime
overdraft rate
as charged by The Standard Bank of South Africa Limited to its most
favored customers ('prime'). In addition, you
agree that the
prevailing rental will increase once per year on the anniversary of
the contract start date by the annual escalation
percentage stated in
the Schedule, cumulatively."
[20)
Section 8(3)
of the
National Credit Act provides
as follows:
"An
agreement, irrespective of its form but not including an agreement
contemplated in subsection (2) or
section 4(6)(b)
, constitutes a
credit facility if, in terms of that agreement -
(a)
a credit provider undertakes -
(i)
to supply goods or services or to pay an amount or amounts, as
determined by the consumer from time
to time, to the consumer or on
behalf of, or at the direction of, the consumer; and
(ii)
either to -
(aa)
defer the consumer's obligation to pay any part of the cost of goods
or services, or to repay to the credit provider any part
of an amount
contemplated in subparagraph (i); or
(bb)
bill the consumer periodically for any part of the cost of goods
or services, or any part of an amount, contemplated in subparagraph
(i); and
(b)
any charge, fee or interest is payable to the credit provider in
respect of -
(i)
any amount deferred as contemplated in paragraph (a)(ii)(aa); or
(ii)
any amount billed as contemplated in paragraph
(a)(ii)(bb)
and
not paid within the time provided in the agreement."
[21]
Counsel appearing for Mr Slabbert argued that the rental agreement
constitutes a credit facility
because Mr Slabbert's obligation to pay
in terms thereof is deferred as contemplated in
section
8(3)(a)(ii)(aa)
of the
National Credit Act. There
is no merit in this
argument. Clause 11 of the rental agreement expressly provides that
Mr Slabbert agreed to pay all rentals monthly
in advance.
[22]
It was also argued on behalf of Mr Slabbert that the references at
clause 5 of the rental agreement
to
"the prime overdraft rate
as charged by The Standard Bank of South Africa
Limited
to its most favored customers ('prime')"
and
"the
annual escalation percentage stated in the Schedule"
prove
that interest is payable by Mr Slabbert as contemplated in
section
8(3)(b)
of the
National Credit Act. This
argument is without merit.
Clause 5 of the rental agreement clearly deals with how increases in
the amounts of rentals are to be
calculated. It does not deal with
interest payable by Mr Slabbert as contemplated in
section 8(3)(b)
of
the
National Credit Act.
[23
]
The rental agreement is not a credit facility. It does not comply
with the requirements of
sections 8(3)(a)(ii)(aa)
and
8
(3)(a)(ii)(bb)
of the
National Credit Act. The
rental agreement does not comply with
the requirements of
section 8(3)(a)(ii)(aa)
of the
National Credit
Act because
, as stated, clause 11 of the rental agreement expressly
provides that Mr Slabbert agreed to pay all rentals monthly in
advance.
The rental agreement also does not comply with the
requirements of
section 8(3)(a)(ii)(bb)
of the
National Credit Act
because
, in terms of clause 11, it is not necessary that a monthly
statement or invoice be sent to Mr Slabbert. Thus, there is no
undertaking
that Mr Slabbert will be billed periodically as
contemplated in
section 8(3)(a)(ii)(bb)
of the
National Credit Act.
[24
]
There are no allegations in the particulars of claim that could bring
the rental agreement
within the scope of the requirements of a credit
facility as contemplated in
sections 8(3)(a)(ii)(aa)
and
8
(3)(a)(ii)(bb) of the
National Credit Act. It
is not alleged in the
particulars of claim that there is an undertaking to defer Mr
Slabbert's obligation to pay as contemplated
in
section
8(3)(a)(ii)(aa)
of the
National Credit Act
. It is not alleged in the
particulars of claim that there is an undertaking to bill Mr Slabbert
periodically as contemplated in
section 8(3)(a)(ii)(bb)
of the
National Credit Act. The
Constitutional Court held in
Baliso v
Firstrand Bank Ltd t/a Wesbank
2017 (1) SA 292
(CC) at paragraph
[33] that
"[w]here an exception is taken a court looks only
to the pleading excepted to as it stands, not to facts outside those
stated
in it."
On the particulars of claim as it stands, the
rental agreement does not comply with the requirements of
sections
8(3)(a)(ii)(aa)
and
8
(3)(a)(ii)(bb) of the
National Credit Act. As
a
result, on the particulars of claim as it stands, the rental
agreement is not a credit facility as contemplated in
section 8(3)
of
the
National Credit Act.
[25
]
Mr Slabbert pleaded at paragraph 4.3 of the notice of exception that
the rental agreement
constitutes a credit agreement as contemplated
in
section 8(4)(e)
of the
National Credit Act. However
, counsel for
Mr Slabbert did not pursue this point at the hearing of the
exception. As stated, it was argued instead that the rental
agreement
constitutes a credit facility as contemplated in
section 8(3)
of the
National Credit Act. To
the extent that it might be necessary, I find
that the rental agreement does not constitute a credit transaction as
contemplated
in
section 8(4)(e)
of the
National Credit Act. The
Supreme Court of Appeal held as follows in
Michael's Bid a House
CC at paragraphs [13] and [14]:
"[13]
Section 8
of the [National Credit Act] determines which contracts
constitute credit agreements. Subsection 8(4) provides:
'(4)
An agreement,
irrespective of its form
but not including an
agreement contemplated in subsection (2), constitutes a credit
transaction if it is -
(a)
a pawn transaction or discount transaction;
(b)
an incidental credit agreement, subject to section 5(2);
(c)
an instalment agreement;
(d)
a mortgage agreement or secured loan;
(e)
a lease;
or
(f)
any other agreement, other than a credit facility or credit
guarantee, in terms of which payment of an amount owed by one person
to another is deferred, and any charge, fee or interest is payable to
the credit provider in respect of -
(i)
the agreement; or
(ii)
the amount that has been deferred.' [My emphasis.]
[14]
The principal argument for the respondents in so far as the
agreement in dispute in this matter was concerned was that the
'rental
agreement' between the parties was a lease. Indeed rental
agreements generally are leases. But a lease as defined in the
[National
Credit Act] is the very antithesis of a lease.
The
definition (in s 1) reads:
'"lease"
means an agreement in terms of which -
(a)
temporary possession of any movable property is delivered to or at
the
direction of the consumer, or the right to use any such property
is granted to or at the direction of the consumer;
(b)
payment for the possession or use of that property is -
(i)
made on an agreed or determined periodic basis during the life of the
agreement;
or
(ii)
deferred in whole or in part for any period during the life of the
agreement;
(c)
interest, fees or other charges are payable to the credit provider in
respect of the agreement, or the amount that has been deferred; and
(d)
at the end of the term of the agreement, ownership of that
property either-
(i)
passes to the consumer absolutely; or
(ii)
passes to the consumer upon satisfaction of specific conditions
set out
in the agreement;
... '[My emphasis.]
A
true lease, one that obliges the lessee to return the thing hired at
the end of the contract, is thus not covered by the definition
of a
credit agreement and the relationship between the lessor and the
lessee is not, if one has regard only to this definition,
governed by
the provisions of the [National Credit Act]."
[26]
Having found that the rental agreement does not constitute a credit
facility as contemplated
in
section 8(3)
of the
National Credit Act
or
a credit transaction as contemplated in
section 8(4)(e)
of the
National Credit Act, I
find that it was not necessary for Sasfin to
have alleged in the particulars of claim that it was registered as a
credit provider
under the
National Credit Act.
[27
]
In the result, Mr Slabbert's second ground of exception is dismissed.
Third
ground of exception: SASP cannot sue in the name of Sasfin
[28]
It is pleaded at paragraph 24 of the particulars of claim that SASP
claims judgment against
Mr Slabbert. This is followed by paragraph 25
of the particulars of claim in which it is pleaded that Sasfin claims
judgment against
Mr Slabbert in the alternative to the claim by SASP
"in the event that the allegations regarding the cession
between Sasfin and SASP
...
are not proved."
[29]
Mr Slabbert pleads in the notice of exception that the
"particulars
of claim asserting Sasfin's claim in the alternative to that of SASP,
renders SASP's claim bad in law, in that
SASP, the
cessionary in the out-and-out cession, cannot sue in the name of
Sasfin, the cedent in an out-and-out cession."
[30]
This ground of exception falls to be dismissed. First, SASP does not
"sue in the name of Sasfin".
SASP is cited as the
First Plaintiff in the action in its own name. Second, it is clear
from what is pleaded at paragraphs 24 and
25 of the particulars of
claim that SASP and Sasfin claim in the alternative. With reference
to what is stated above,
rule 10(1)
provides for the type of
situation faced by SASP and Sasfin. The joinder in the action by SASP
and Sasfin is expressly provided
for in
rule 10(1)
as "a
joinder
conditionally upon the claim of
any other plaintiff
failing."
Fourth
ground of exception: The rental agreement is a credit agreement
[31]
Mr Slabbert pleads at paragraph 6 of the notice of exception that
"[o]n [the particulars of
claim], as pleaded,
the [rental] agreement is
a
credit agreement."
This
is followed at paragraphs 7, 7.1 and 7.2 of the notice of exception
by allegations that
"[t]he credit agreement is reckless in
that"
the
"particulars of claim lacks averments that
at the time that the agreement was made, Sasfin conducted an
assessment as required
by
section 81(12)
"
and
"that
the rental agreement is not
a
reckless credit agreement."
[32]
I have already found that the rental agreement does not constitute a
credit facility as
contemplated in
section 8(3)
of the
National
Credit Act or
a credit transaction as contemplated in
section 8(4)(e)
of the
National Credit Act. As
such, I find that it was not necessary
for Sasfin to have conducted an assessment as contemplated in
section
81(2)
of the
National Credit Act or
for SASP and Sasfin to have
alleged in the particulars of claim that the rental agreement is not
a reckless credit agreement. In
the result, Mr Slabbert's fourth
ground of exception is dismissed.
Costs
[33]
Counsel appearing for SASP and Sasfin argued that the exception
should be dismissed and
that Mr Slabbert should be ordered to pay
SASP's and Sasfin's costs on the scale as between attorney and own
client. Counsel appearing
for Mr Slabbert conceded during argument
that the rental agreement provides for this scale of costs to be
awarded against his client
should the exception be dismissed.
[34]
Clause 7 of the rental agreement provides as follows in relevant
part:
"7.
If you breach any of the conditions or terms of the Agreement, or
fail to pay any amounts due to us ... then you agree
that we have the
right (without notice to you and without affecting any of our other
rights) to:
7.1
claim immediate payment of all amounts which would have been payable
in terms of the Agreement
until expiry of the rental period stated in
the Schedule, whether such amounts are then due for payment or not. ;
or
7.2
immediately terminate the Agreement, recover possession of the goods,
retain all amounts already
paid by you and claim all outstanding
rentals, all legal costs as between attorney and his own client and
the Net Present Value
at Prime of the rentals which would have been
payable had the Agreement continued until expiry of the initial
rental period stated
in the Schedule as a pre-estimate of the damages
which we may suffer."
[35]
The following is alleged at paragraphs 18 and 19 of the particulars
of claim:
"18.
[Mr Slabbert] breached the terms and conditions of the rental
agreement in that he failed to maintain regular
monthly payments.
19.
The failure to continue to have maintained the monthly agreed upon
instalments constituted a breach of the rental agreement
which breach
entitled SASP to claim immediate payment of all amounts which would
have been payable in terms of the rental agreement
until expiry of
the rental period stated in the in the schedule, whether such amounts
are then due for payment or not."
[36]
It is clear from what is pleaded at paragraphs 18 and 19 of the
particulars of claim that
the claim against Mr Slabbert is premised
on the provisions of clause 7.1 of the rental agreement as opposed to
clause 7.2 thereof.
Clause 7.1 of the rental agreement does not
contain a provision regarding legal costs similar to that contained
in clause 7.2 of
the rental agreement, namely that all legal costs as
between attorney and his own client may be claimed from Mr Slabbert.
In the
result, I am in respectful disagreement with counsel on the
issue of costs. I find no justification for an order that Mr Slabbert
should pay the costs of SASP and Sasfin on the scale as between
attorney and own client.
Order
[37]
In the result the following order is made:
1.
The exception is dismissed.
2.
The Excipient shall pay the Respondents' costs on the party
and party scale.
This
judgment is handed down electronically by uploading it on CaseLines.
L.J.
du Bruyn
Acting
Judge of the High Court of South Africa
Gauteng
Division, Johannesburg
Date
heard:
1 September 2021
Judgment
delivered:
22 September
2021
For
the Excipient / Defendant:
P. Sieberhagen
briefed
by Vardakos Attorneys
For
the Respondents/ Plaintiffs:
S. Aucamp
briefed
by Smit Jones & Pratt
[1]
2015. Erasmus
Superior
Court Practice.
Claremont:
Juta and Company (Ply) Ltd. Volume 2, D1-310 [Service 11,2019].