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[2019] ZAECMHC 15
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GMSA Financial Services:A Division of West Bank:A Division of First Rand Bank Limited v PBF Investors (Pty) Ltd and Another (2358/2017) [2019] ZAECMHC 15 (12 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 2358/2017
In
the matter between:
GMSA
FINANCIAL SERVICES:
A
DIVISION OF WEST BANK:
A
DIVISION OF FIRST RAND BANK LIMITED
Plaintiff
and
PBF
INVESTORS (PTY) LTD
First Defendant
YONGAMA
TSHONA
Second Defendant
REASONS FOR JUDGMENT
MBENENGE
JP
[1]
On 22 May 2018, after hearing oral argument, I granted
summary judgment confirming
the cancellation of an instalment
sale agreement for the purchase of a motor vehicle concluded by and
between the plaintiff
[1]
and the
first defendant, and directing the first defendant to return the
motor vehicle to the plaintiff.
[2]
The order I granted on 22 May 2018 reads as follows:
“
1.
Summary judgment is entered in favour of the plaintiff in that:
1.1
The cancellation of the agreement entered into between the plaintiff
and first defendant
is confirmed;
1.2
The first defendant [shall] return the vehicle more fully described
as a
2015 Isuzu KB 205 D-TEQ
motor vehicle bearing
engine
number
4JK1ML 2758
and
chassis number
ADMHRECR2CR2C4718083
to the plaintiff, failing which
the
Sheriff
is authorised, directed and empowered to
attach, seize and hand over the vehicle to the plaintiff.
2.
The plaintiff’s claim for damages is postponed
sine die.
3.
Costs of suit, inclusive of the reserved costs of
7 November 2017
on the
opposed scale
shall be
borne by the first defendant.
4.
Reasons for this order will be delivered upon a written request
therefor
being made, such request to be made within 7
days
from
today.”
[2]
Without first seeking reasons for the order, and approximately some
6- and-a-half
months after the order had been granted,
[3]
the defendants launched an application for leave to appeal
[4]
based on various grounds, all of which, in my view, constituted a
diatribe of some 10 pages criticizing the order,
[5]
and making wild surmises and accusations regarding the reasoning
underpinning the order. Thereafter, the defendants did not apply
for
a date for the hearing of the leave to appeal application.
[3]
The Registrar set the matter down for hearing on 20 February 2019
and, after attempts
by the defendants to unilaterally remove the
matter from the roll had proved futile, I heard the parties on that
day. Due
to the premature launch of the leave to appeal
application in the circumstances outlined above, I struck the matter
off the roll,
but granted the defendants leave to request the reasons
for the order granted last year, despite their having failed to
timeously
do so. That stance on my part was informed by the duty the
court has towards litigants to furnish reasons for the orders it
grants,
[6]
the fact that the
order is final in nature and the determination evinced by the
defendants to appeal the order.
[4]
In
Mphahlele
[7]
Goldstone J held:
“
[12]
There is no express constitutional provision which requires judges to
furnish reasons for their decisions.
Nonetheless, in terms of s1 of
the Constitution, the rule of law is one of the founding values of
our democratic state, and the
judiciary is bound by it. The rule of
law undoubtedly requires judges not to act arbitrarily and to be
accountable. The manner
in which they ordinarily account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to
the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided
as it
is. It is a discipline which curbs arbitrary judicial
decisions. Then, too, it is essential for the appeal process,
enabling the
losing party to take an informed decision as to whether
or not to appeal, or where necessary, seek leave to appeal. It
assists
the appeal court to decide whether or not the order of the
lower court is correct. And finally, it provides guidance to the
public
in respect of similar matters. It may well be, too that where
a decision is subject to appeal, it would be a violation of the
constitutional
right of access to courts if reasons for such a
decision were to be withheld by a judicial officer.”
[5]
It has also been held that the core principles of the rule of law
include the right
of a litigant to be given reasons by a court.
“
Absent
such a right, transparency is cloaked in darkness, accountability is
honoured in the breach
.”
[8]
[6]
Against this background, let me turn to provide the reasons.
[7]
The plaintiff, a duly incorporated commercial bank and credit
provider, issued summons
against the first and second defendants on
29 May 2017. The first defendant is cited as “
PBF
INVESTORS (PTY) LTD a company duly registered in accordance with the
company laws of the Republic of South Africa
” with its
chosen
domicilium citandi et executandi
at 11 Sobukwa Street,
Northcrest, Mthatha, and the second defendant “
YONGAMA
TSHONA… whose domicilium citandi et executandi
address
and employment address are situate at 11 Sobukwa Street, Northcrest,
Mthatha.
”
[8]
It is alleged, in the plaintiff’s particulars of claim, that
the plaintiff duly
represented by its authorised agent and the first
defendant
[9]
duly represented by
the second defendant, concluded a written instalment sale agreement
in terms whereof the first defendant purchased
a 2015 Isuzu KB 205
D-TEQ
[10]
on 27 March
2015 (the sale agreement).
[9]
According to the particulars of claim, the material terms of the
sale agreement
were,
inter alia
, the following:
(a)
the total amount payable by the first defendant to the plaintiff
would
be the sum of R432 330.48 payable by way of 72 monthly
instalments of R6 004.59, with effect from 27 March 2015;
(b)
ownership of the motor vehicle would continue vested in the plaintiff
until payment by the first defendant of all amounts payable under the
sale agreement; and
(c)
in the event of the first defendant defaulting in the punctual
payment
of any instalment or any other amount due in terms of the
sale agreement, the plaintiff acquired the right,
inter alia
,
to
(i)
claim immediate payment of the value of the full balance outstanding
and all other amounts then owing in terms of the sale agreement; or
(ii)
immediately terminate the agreement, obtain immediate possession of
the
motor vehicle, retain all payments already made in terms of the
sale agreement by or on behalf of the first defendant and claim
damages.
[10]
It is further alleged that the first defendant took delivery of the
motor vehicle in terms of
the sale agreement, but defaulted and
breached its obligations in that it failed to pay instalments which
fell due on 25 March
2017, and fell in arrears in the sum of
R40 581.77, resulting in the total balance outstanding as at the
time of the launch
of the action being R262 571.42.
[11]
Paragraph 22 of the particulars of claim reads:
“
22.
On the 27
th
of March 2015 the Second Defendant entered
into an Agreement of Suretyship with Plaintiff in terms whereof the
Second Defendant
in writing bound himself as surety
in
solidum
and co-principal debtor for the punctual payment of all sums due by
the First Defendant to Plaintiff.”
[12]
The usual allegations pertaining to sections 129 and 130
[11]
of the
National Credit Act 34 of 2005
have been made in the
particulars of claim, and the relief sought is:
“
1.
An order cancelling the Agreement;
2.
Repossession of the motor vehicle, if found;
3.
Payment of the difference between the balance outstanding in the
amount of R262 571.42
as at the 25
th
of March 2017
and the appraised value of the motor vehicle, if found;
4.
Interest on (3) above, at the fixed nominal rate of 14.25% per annum
calculated from the
26
th
of March 2017 to date of payment;
5.
Collection charges;
6.
Costs of suit in respect of the First Defendant and costs on the
attorney and own client
scale in respect of the Second Defendant.”
[13]
After the defendants had entered their appearance to defend the
action on 21 June 2017, the plaintiff
issued notice of application
for summary judgment against the first defendant, for:
“
(a)
An order cancelling the agreement;
(b)
repossession of the motor vehicle;
(c)
costs of suit in respect of the First Respondent/Defendant;
(d)
collection charges”,
alleging
that the defendants lacked a
bona fide
defence to the action
and that notice of intention to defend had been delivered solely for
the purpose of delay.
[14]
Besides delivering a notice in terms of rule 30(2) of the
Uniform Rules of Court
lamenting about the
illegibility of the copy of the sale agreement annexed to the
particulars of claim, which was subsequently
cured by the plaintiff
delivering a more legible copy, the defendants opposed the summary
judgment application. The relevant opposing
affidavit is deposed to
by Mr Yongama Tshona
qua
director of the first defendant,
acknowledging his citation as second defendant in the main action.
He contends, in relation
to the claim against the first
defendant that-
(a)
the sale agreement is not binding, in as much he claims not to have
signed
the same and that the initials appearing thereon (“
YV
”)
and those at the bottom of the relevant document are not his;
(b)
the
merx
has not been sufficiently described;
(c)
the amount claimed is grossly inflated, especially if one has regard
to
the value of the motor vehicle; and
(d)
whilst “
the nature of the agreement between the plaintiff
and the first defendant is the credit agreement as correctly
averred in the
relevant paragraphs of the particulars of claim
”,
there has been non-compliance with
section 129
of the
National Credit
Act in
that the letter envisaged by the section was transmitted to
him only 5 days before the issuing of summons.
[15]
The summary judgment application has had a long and winding history,
having been postponed on
5 previous occasions.
[12]
On 25 July 2017 it was,
per
Dawood J, postponed to 15 August 2017 with costs being in the cause;
on 15 August 2017 Griffiths J postponed the application
to 29
August 2017; on 29 August 2017 Jaji AJ (as he then was)
postponed the application to 05 September 2017 with costs
being
in the cause; on 05 September 2017 Dawood J once again postponed the
application
sine
die
with costs being in the cause; the application was reinstated and set
down for hearing on 07 November 2017, on which
date
Notununu AJ (as he then was) further postponed it
sine
die
with costs being reserved.
[16]
When the matter eventually served before me on 22 May 2018, after
having been reinstated by the
plaintiff, Mr
Mbiko
, counsel for
the defendants, quite correctly in my view, conceded that the
affidavit filed in opposition to the summary judgment
application was
bereft of facts pointing to the existence of a
bona fide
defence to the main action.
[17]
It is incumbent on a defendant resisting summary judgment to advance
his contentions with a sufficient
degree of clarity to enable the
court to ascertain whether he has deposed to a defence which, if
proved at trial would constitute
a good defence to the action.
[13]
A defendant who advances a defence simply to delay the obtaining of a
judgment which the defendant knows the plaintiff is justly
entitled
to will hardly succeed in resisting the grant of
summary judgment.
[14]
Purely technical deficiencies are not permitted.
[15]
[18]
The deponent to the opposing affidavit has not come anywhere near
denying that the first defendant
is still in possession of the motor
vehicle. On the defendants’ own showing they made payments to
the plaintiff. This could
only have been pursuant to and in terms of
the sale agreement, the existence of which the defendants pitifully
dispute.
[19]
In my view, the contentions that the
merx
(which happens to be
a motor vehicle of which the first defendant is in possession) and
that the amount claimed is grossly inflated
are a subterfuge and
stratagem the objective of which is to frustrate the application for
summary judgment. This is especially
so if one has recourse to the
fact that all the plaintiff obtained was judgment confirming
cancellation of the sale agreement and
directing the first defendant
to return the motor vehicle to the plaintiff, with the claim for
damages standing over for determination
on a future date.
[20]
The contention based on
section 129
of the
National Credit Act is
similarly unavailing. The relevant notice, a copy of which is annexed
to the particulars of claim, belies this contention. There
is nothing
to gainsay the plaintiff’s allegation that the notice was
received at the correct post office on 18 April
2017, long
before the launch of the action on 29 May 2017.
[21]
Small wonder that Mr
Mbiko
was constrained to concede that
there was nothing militating against the grant of summary judgment as
prayed for by the plaintiff.
[22]
I was, and still am, satisfied that the defendants’ papers
disclosed not a
bona fide
defence, hence I granted the order I
did.
________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
For
the plaintiff
:
D C
Botma
Instructed
by
: J A Le
Roux Attorneys
Mthatha
For
the defendants
:
V
Mbiko
Instructed
by
: H S
Toni Attorneys
Mthatha
Defendant’s
current attorneys of record :
Mnqayana
Attorneys
Mthatha
Date
application heard
: 22 May
2018
Date
order issued
(with
directive for reasons to be sought
by
31 May 2018)
: 22 May
2018
Date
reasons sought
: 22
February 2019
Date
reasons furnished
: 12
March 2019
[1]
Despite the fact that this is an application, the parties will bear
the appellations used in the main action and will thus be
referred
to as “
the
plaintiff
”
and “
the
defendants.
”
[2]
The order is dated “
21
May 2018
”,
which obviously came about through inadvertence, as the matter had
been heard in the unopposed motion court on Tuesday,
22 May 2018,
and not Monday, 21 May 2018.
[3]
On 17 February 2019.
[4]
That step was preceded by the filing of record of a “
notice
of application for condonation of filing late the leave to appeal
”
on 12 December 2018, served on the plaintiff’s attorneys on 07
January 2019.
[5]
In the words of Leach J in
Songono
v Minster of Law and Order
1996 (4) SA 384
(E) at 385 C-D.
[6]
Mphahlele
v First National Bank of South Africa Ltd
[1999] ZACC 1
; 1999 (2) (SA) 667; 1993 (3) BCLR 253 (CC).
[7]
Supra
;
also see
Strategic
Liquor Services v Mvumbi N.O. & Others
2010 (2) SA 92
(CC), para [15], where the court said:
“
It
is elementary that litigants are ordinarily entitled to reasons for
a judicial decision following upon a hearing, and, when
a judgment
is appealed, written reasons are indispensable. Failure to supply
them will usually be a grave lapse of duty, a breach
of litigants’
rights, and an impediment to the appeal process.”
[8]
Per
Davis J in
M
v M
(20350/2012)
[2015] ZAWCHC 197
(24 November 2015).
[9]
Annexure “
B1
”
to the particulars of claim mentions the name of the debtor as being
“
PBF
Investors (Pty) Ltd – 2012/089815/07
”,
with company registration number “
2012/089815/07
”
and
domicilium
et
executandi
“
11
Sobukwa Street North Crest Mthatha.
”
[10]
With engine number 4JK1ML2758, chassis number ADMHRECR2C4718083 and
registration letters and number HRS 210 EC (the motor vehicle).
[11]
In the relevant part the sections read:
“
129.
(1) If the consumer is in default under a credit agreement, the
credit provider-
(a)
may draw the default to the notice of the consumer in writing and
propose that the consumer refer the credit agreement to
a debt
counsellor, alternative dispute resolution agent, consumer court or
ombud with jurisdiction, with the intent that the
parties resolve
any dispute under the agreement or develop and agree on a plan to
bring the payments under the agreement up to
date; and
(b)
subject to section 130(2), may not commence any legal proceedings to
enforce the agreement before-
(i)
first providing notice to the consumer, as contemplated in paragraph
(a), or in section 86(10), as the case may
be; and
(ii)
meeting any further requirements set out in section 130.…
130.
(1) Subject to subsection (2), a credit provider may approach the
court for an order to enforce a credit agreement only if,
at that
time, the consumer is in default and 25 has been in default under
that credit agreement for at least 20 business days
and-
(a)
at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated
in section 86(9),
or section 129( l), as the case may be;
(b)
in the case of a notice contemplated in section 129( l), the
consumer has-
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit provider’s
proposals; and
(c)
in the case of an instalment agreement, secured loan, or lease, the
consumer has not surrendered the relevant property to
the credit
provider as contemplated in section 127.”
[12]
There is no indication from a perusal of the file as to why the
matter was not dealt with and disposed of on those previous
occasions.
[13]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A);
Barclays
Western Bank Ltd v Bill Jonker Factory Services (Pty) Ltd and
Another
1980
(1) SA 929 (SECLD).
[14]
Skead v
Swanepoel
1949 (4) SA 763
(T) at 766-7; see also
Van
Eeden v Sasol Pensioenfonds
1975 (2) SA 167
(O).
[15]
Liberty
Group Ltd v Sing and Another
[2012] ZAKZDHC33;
2012 (5) SA 526
(KZD) paras 43-4.