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[2018] ZAGPPHC 704
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Predynamic (Pty) Ltd v Saayman (35263/2017) [2018] ZAGPPHC 704 (13 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE
NO: 35263/2017
13/2/2018
In
the matter between:
PREDYNAMIC
(PTY)
LTD
Applicant
and
FREDERICK
JOSEPHUS
SAAYMAN
Respondent
Date
of Hearing
:
08 December 2017
Date
of Heads of Argument
:
13 December 2017
Date
of Judgment
:
13 February 2018
JUDGMENT
MANAMELA,
AJ
Introduction
[1]
This is a summary judgment application premised on Rule 32 of the
Uniform Rules of
this Court.
[1]
The applicant's claim is located in an acknowledgement of debt signed
by the defendant on 2 October 2015 (the AOD). The AOD is
said to be
for "a claim arising from various business ventures between the
debtor [i.e. the respondent] and the creditor [i.e.
the applicant]
".
[2]
The respondent
undertook to pay the applicant a capital amount of R1 million in two
or three instalments over a period of two years,
together with an
amount of R1 250.00, as legal costs. The respondent opposes the
application on the basis of alleged non-compliance
with the
provisions of section 129 of the National Credit Act 34 of 2005 (the
NCA).
[3]
It is contended by the
respondent that the deferral of payment and charge for legal costs
qualify the AOD as a credit transaction
as envisaged in section
8(1)(b), read with section 8(4)(f), both of the NCA .
[4]
[2]
The applicant's claim or AOD originates
from a lease agreement concluded between the parties or their
associates. The lease agreement
is said to be independent or separate
from the AOD and appears to serve as security for or guarantee of
performance by the respondent
in
terms
of the lease. Two motor vehicles and two trailers were leased to the
respondent by then applicant. The respondent was to become
owner of
the vehicles or to receive transfer of ownership of the vehicles upon
full payment of the capital amount and legal costs,
mentioned above,
with the concomitant cancellation of the lease agreement. But, the
respondent, on the other hand, alleges existence
of other
relationships between the parties. These other relationships are not
necessarily relevant for current purposes, as the
terms and
conditions of the AOD are not in dispute.
[3]
This matter came before me as an opposed
summary judgment in the unopposed motion court on 08 December 2017.
After hearing argument
by Mr A Loubser, on behalf of the applicant,
and Mr JF Winnertz, for the respondent, l reserved this judgment. Mr
Winnertz had
raised from the bar the .fact that the applicant failed
to comply with the provisions of section 129 of the NCA to which Mr
Loubser
reacted by handing up to the Court a letter purportedly sent
to the respondent, together with proof of postage . Other peripheral
issues arose as a result and I consequently directed that heads of
argument be filed on or before 13 December 2017 dealing with
the
following issues or questions:
[3.1] do
provisions of the NCA find application?
[3.2] can
the point in
limine
be properly raised from the bar and can,
in response, the applicant hand up to the Court documents not forming
part of the filed
papers?
[3.3] must
compliance with the provision of the NCA be pleaded in the
particulars of claim?
[4]
Counsel for the respondent had mentioned that the respondent was
abandoning a point
in
limine
raised in the affidavit resisting
summary judgment. The respondent had argued that the applicant's
summons and particulars of claim
did not comply with Rule 17(3)(c) of
the Uniform Rules of this Court as the summons was not signed by the
registrar of this Court.
I consider this abandonment to have been
well advised, as the origin al summons in the Court file is clearly
signed by both the
registrar and an attorney with right of appearance
in the High Court in terms of section 4(2) of Act 62 of 1995.
Therefore, thenceforth,
the respondent steadfastly relied, for
existence of
bona fide
defence, on the submission made from
the bar regarding the alleged non-compliance with section 129 of the
NCA. I deal next with
the questions stated under paragraph-[ 3] above
and do so under self-titled subheadings.
Can
a point in limine be raised properly from the bar?
[5]
As stated above, the
defence or contention that the applicant did not comply with the
prescripts of section 129 of the NCA before
launching the action,
which precipitated the summary judgment application, was not raised
in the opposing affidavit, but by counsel
for the respondent from the
bar. It was argued by counsel for the applicant that this was not
permissible in terms of the Rules
and the law, and that the
respondent ought to have included the particular point or averment in
his written opposing papers. Due
to its potentially decisive nature,
I directed that this be dealt with, in full, in written heads of
argument which were to be
filed after adjournment of the proceedings.
In my view the interests of justice dictated that the applicant be
afforded sufficient
opportunity to consider and address the issues
raise d, without notice, from the bar by counsel on behalf of the
respondent.
[6]
The
following submissions were made, in this regard, on behalf of the
applicant in the filed heads of argument. The respondent ought
to
have included the purported defence in the affidavit delivered in
resistance to summary judgment or to have, with leave of the
court,
led oral evidence of an appropriate person on the issue, which
measures would have amounted to the reopening of the respondent's
case.
[5]
Or the respondent ought to have requested a postponement in order to
get an opportunity to file a supplementary affidavit stating
the
defence. However, the applicant argues that to be granted an
opportunity to file further affidavit, the respondent ought to
have
explained to the court as to why the evidence was not timeously
produced in his filed opposing papers.
[6]
[7]
On the other hand, the respondent in his written argument made the
following submissions.
Argument may be advanced, as a point in
limine,
without
having included same in the opposing affidavit. No notice was
required in this regard. It is further contended that, although
a
letter was handed up to the Court at the hearing to prove compliance
with the requirements of section 129 of the NCA, such letter
ought to
have been included in the particulars of claim. Rule 32(4) of the
Uniform Rules of this Court proscribes a plaintiff to
adduce
evidence, other than that what is stated in Rule 32(2),
[7]
the contention continues.
[8]
Be that as it may, due to the ultimate
view I am taking in this matter, I find it unnecessary to make any
finding on this issue.
I will nevertheless proceed to deal with the
other questions or aspects I requested counsel to address in the
heads of argument.
Does
the
National Credit Act 34 of 2005
apply?
[9]
The
respondent argues that the fact that the AOD provided for payment of
the debt or outstanding amount in two or three instalments
and a
charge of legal costs in respect of the AOD
(i.e.
the
agreement) qualifies the AOD as a credit agreement, as contemplated
by the provisions of
section 8
of the NCA. Therefore, as a credit
agreement the provisions of
section· 4
[8]
of the NCA makes the AOD subject to the provisions of the NCA, the
contention or argument continues.
[10]
On the other hand, the applicant submits that the AOD is not a credit
agreement as envisaged
in
section 8(4)(f)(i).
The applicant does not
dispute that the AOD provides for deferral of payment or for payment
in instalments. However, the applicant
disputes that the inclusion of
the amount of R 1250.00 payable as legal costs, which it says it is
for the drafting of the AOD
[a fact which the applicant concedes is
not clear
ex facie
the document], renders the AOD a credit
agreement. It says the legal fees are excluded from the instalments
due and payable by the
respondent to the applicant in terms of the
AOD. There was, even a belated attempt by counsel for the applicant
to abandon recovery
of the charge for legal costs, in order to
obviate the respondent's challenge based on the alleged
non-compliance with the NCA.
[11]
There
fore, this matter potentially· turns on the determination of
whether legal costs payable in terms of the AOD constituted
a fee, as
contemplated by the provisions .o f
section 8
of the NCA. The NCA,
itself, does not define what is meant by a fee or charge and
therefore reliance is to be had on interpretation
given by the courts
to this provision. The respondent relied heavily on the decision of
Carter
Trading (Pty) L d v Blignaut
[9]
•
The
facts in
Carter
Trading
were
briefly as follows: the defendant/respondent signed acknowledgement
of debt in respect of goods sold and delivered to it on
23 December
2008 in terms of which payment an amount of R107 082.30 was to be
paid by 16h00 on 24 December 2008; interest at the
rate of 15 .5% per
annum, cost of negotiating and preparing the acknowledgement of debt
were payable , and the respondent was also
liable for payment of all
legal fees on attorney and client scale, including collection
commission incurred by the creditor in
enforcement of compliance with
obligations in terms of the acknowledgement of debt. The court held
in
Carter
Trading
that
it considered the acknowledgement of debt in that matter to be
clearly falling within the ambit of the provisions of
section 8
of
the NCA and therefore constituting a credit agreement, as envisaged
in the NCA, as "the payment of the. amount owing was
deferred to
24 December 2008 and that the defendant undertook to pay, in addition
to the amount owing, at least the cost of preparing
the
acknowledgement of debt and, in the event of a failure to pay the sum
of, also collection commission and legal fees"
[10]
and that the terms of the AOD acknowledgement of debt appears to be
the very terms exactly envisaged in terms of
section 8(4)(f)
of the
NCA to be a credit agreement.
[11]
Although, the respondent relied on the aforementioned
dicta
from
the decision of
Carter
Trading,
in
my view, the respondent did not consider what the court in that
matter went on to say: "even more persuasive considerations
on
which the acknowledgement of debt in question must be judged as being
a credit agreement envisaged" in the NCA was the·
fact
that the goods sold and delivered were on credit with the obvious
intention that the amount owing in respect thereof ought
to be paid
the following day.
[12]
Further, there were charges for insurance, fees and interest payable
to the credit provider in respect of any amount so deferred,
which
bolstered the view that the acknowledgement of debt ought to be
regarded as credit facility and, therefore, a credit agreement.
In my
view, the further comments by the court suggest that the court in
Carter
Trading
did
not exclusively decide the matter on the basis of the legal fees
payable in terms of the acknowledgement of debt, but considered
the
other aspects, mentioned above, which existed in that matter. Be that
as it may, whether the Court in
Carter
Trading
decided
the matter solely on the basis of deferral of payment and the
charging of legal fees, does not, with respect, persuade me
to agree
that the AOD in this matter constitutes a credit agreement.
[12]
In
my view, the agreement clearly states that as the amount of R 1250.00
is in respect of legal costs.
[13]
Again, in my view, the reference in the NCA to a fee or charge
payable to the provider in respect of the credit agreement or the
amount that has been deferred, does not include legal costs which has
to do with either the drafting of the instrument containing
the
agreement or the enforcement of rights arising from the agreement. In
this matter, it is indeed correct that the payment of
the outstanding
amount was deferred but, in my view, the other leg of
section 8(4)(f)
was not met, in that the charge of the of R1 250,00 did not relate to
the agreement between the parties, but the conveyance or
recordal of
the agreement. It was clearly a limited amount for the legal costs.
The amount does not relate to the substance, but
the form of the
agreement. It is precisely on the basis of this logic that I
respectfully differ with the decision in
Carter
Trading
on
the view that the legal costs for the drafting of the acknowledgement
of debt qualified the documents or agreement to be a credit
agreement.
Compliance
with the National Credit Act in the pleadings
[13]
Although, I have already held that the AOD does not constitute a
credit agreement as envisaged
in the provisions of the NCA, I deal
with whether or not compliance with the provisions of the NCA ought
to be stated in the pleadings
for it to gain prominence or
entertainment by the Court, at the hearing.
[14]
In my view, this question depends on the nature and extent of the
circumstances of the dispute
between the parties. For example, in
this matter, the applicant did not consider the provisions of the NCA
to be applicable to
the AOD. The applicant, therefore, omitted
allegations regarding the NCA from the particulars of claim to the
summons. However,
when raised by the respondent, at the time that it
was raised, the applicant had proof that the applicable requirements
were met.
This was precipitated by the timing of the respondent's
point in
limine
in
this regard. Therefore, in my view, under the particular
circumstances of this matter, it does not matter whether or not proof
of compliance with the provisions of
section 129
of the NCA was
contained in the pleadings. The alleged existence of
bona
fide
defence on the part of the respondent is
sufficiently and effectively disproved. There is no point in further
deferring the determination
of this matter solely on the basis of
this technical point, as the applicant would be in a position to
bring into its case this
aspect through an amendment at a later
stage.
Conclusion
and Costs
[15]
Therefore, it is for
the above-mentioned reasons that, I find that the summary judgment
application brought by the applicant was
indeed proper and ought to
be granted under the circumstances. The respondent clearly does·
not possess of
bona
fide
defence
under the circumstances and his attempt at technical defences fails
to pass the muster: Deciphering the further contents
of the
respondent's affidavit resisting summary judgment, which clearly did
not get forceful mention by counsel for the respondent
at the
hearing, I am fortified by the fact that the AOD is acknowledged by
the respondent. This is so, despite the presence of
murmurings
regarding the absence of a date and the applicant's signature from
the document. I am satisfied that the respondent
does not possess of
bona fide
defence
to the applicant' s claim as fully elaborated in the particulars of
claim to the summons. The fact that the respondent may
possess of a
counterclaim, which currently has unspecified nature and extent, does
not qualify as a
bona
fide
defence to
resist the summary judgment. Therefore, the summary judgment as
sought by the applicant will be granted'. Interest at
the applicable
rate will be added to the capital amount from the date of service of
summons on the respondent on 29 May 2017.
[16]
The applicant prayed for costs on the
unusual scale of attorney and client, based on a provision in the AOD
allowing it to recover
costs on that particular scale. I do not see
any reason why costs granted in this matter ought to be on any other
scale than the
one agreed upon by the parties, particularly
considering the findings I arrived at, above. Therefore, the
application for summary
judgment will be granted with costs on
attorney and client scale.
Order
[17]
In
the circumstances, the summary judgment application is granted with
the order being in the following terms:
(a)
the
respondent is liable for payment to the applicant in an amount of R1
001 250.00;
(b)
the
respondent is also liable for payment to the applicant of interest on
the amount of R1 00 1 250.00 at the rate of 10.5% per
annum from 29
May 2017 to date of full payment;
(c)
the
respondent is further liable for payment to the applicant of costs of
suit on attorney and client scale.
K.
La M. Manamela
Acting
Judge of the High Court
13
February 2018
Appearances:
For
the Applicant
: A
Loubser
Instructed
by
: Couzyn,
Hertzog and Horak Inc,
Brooklyn,
Pretoria
For
the Respondent
: JF
Winnertz
Instructed
by
: Jay
Attorneys, Brooklyn, Pretoria
[
1]
See Uniform
Rule 32
which reads as follows in the material part:
"(l) Where the defendant has delivered notice of intention to
defend, the plain
tiff may apply to court for summary judgment on
each of such claims in the summons as is only -
(a)
on
a liquid document ;
(b)
for
a liquidated amount in money;
(c)
for
delivery of specified movable property; or
(d)
for
ejectment; together with any claim for interest and costs. (2) The
plaintiff shall ... deliver notice of application for summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying the
cause of
action and the amount. . .(3) Upon the hearing of an application for
summary judgment the defendant may –
(a)
give
security to the plaintiff to the satisfaction of the registrar for
any judgment including costs which may be given, or
(b)
satisfy
the court by affidavit ... or with the leave of the court by oral
evidence of himself or of any other person who can swear
positively
to the fact that he has a
bona
fide
defence
to the action; such affidavit or evidence shall disclose fully the
nature and grounds of the defence and the material
facts relied upon
therefor. (4) No evidence may be adduced by the plaintiff otherwise
than by the affidavit referred to in subrule
(2), nor may either
party cross -examine any person who gives evidence
viva
voce
or
on affidavit: Provided that the court may put to any person who
gives oral evidence such questions as it considers may elucidate
the
matter."
[2]
See annexure "POC1" on indexed p16.
[3]
Section 129
reads as follows in the material part: "(l) 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 om bud 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)
..."
[4]
See
section 8
of the
National Credit Act 34 of2005
which reads as
follows in the material part: "(1) Subject to subsection (2),
an agreement constitutes a credit agreement
for the purposes of this
Act if it is -
(a)
a
credit facility... (3);
(b)
a
credit transaction ... (4) An agreement, irrespective of its form
but not including an agreement contemplated in subsect ion
(2),
constitutes a credit transaction if it is-
(a)
.
..
(j)
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."
[5]
See
Juntgen
t/a Paul Juntgen Real Estate
v
Nottbusch
1989
(4) SA 490 (W).
[6]
See
Juntgen
v
Nottbusch.
[7]
See footnote 1 for a reading of the material part of Uniform Rule 32
above.
[8]
Section
4(1) of the CA reads in the material part: "Subject to sections
5 and 6, this Act applies to every credit agreement
between parties
dealing at arm's length and made within , or having an effect
within, the Republic..."
[9]
2010 (2) SA 46 (ECP).
[10]
See
Carter
Trading
at
par [16].
[11]
See
Carter
Trading
at
par [17].
[12]
See
Carter
Trading
at
pars [19]-[20].
[13]
See
annexure "POCl'' on indexed p 16.