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[2018] ZAGPPHC 762
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Firstrand Bank LTD t/a Wesbank v Molamuagae (24558/2016) [2018] ZAGPPHC 762 (26 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24558/2016
NOT
REPORATBLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
FIRSTRAND
BANK LTD t/a WESBANK
Plaintiff
and
MOLAMUAGAE,
MODISAOTSILE ANDREW
Defendant
JUDGEMENT
SENYATSI
AJ
INTRODUCTION
1.
The Plaintiff issued summons against the defendant
for the following
relief:
a)
Cancellation of the instalment sale agreement between the parties;
b)
Repossession of the 2014 Jinbei Haise H2 2.41 16 seater combi;
c)
Damages; and
d)
Costs.
2.
The defendant filed a plea and counter-claims, the
first counter
claim being based on the action
quanti minoris,
and the second
counter-claim being a claim for damages.
3.
It was agreed between the parties that the Court
at trial was not
called upon to adjudicate the Plaintiffs damages claim and the
defendant's two counter claims. Same were postponed
sine die
for
later adjudication.
4.
Shortly before the trial date the defendant filed
three notices of
intention to amend as well as Rule 35(3) notice and Rule 35(3)
application requesting the Plaintiff to make better
discovery. The
application and the notice of intention to amend were abandoned by
the defendant and this was confirmed by counsel
for the defendant Mr
Sasson.
EVIDENCE
5.
The Plaintiff called one witness who testified on
17 November 2017
and closed its case. The case was postponed to 24 November 2017 to
enable the defendant to present his case by
way of evidence. On the
24 November 2017, Mr Sasson informed this Court that the defendant
closes his case without testifying in
any other way.
6.
As stated before, the cause of action is based
on credit agreement in
terms of which the Plaintiff sold to the defendant a 2014 Jinbei
Haise H2 2.41 16 Seater, Engine No: 4RB247145A
and Chassis No.
LSYHKAAF7EK083640 vehicle ("motor vehicle") on credit.
7.
It is the Plaintiff's case that the defendant was in breach of the
agreement
by failing to fulfil his monthly payment obligations. It
consequently, sought cancellation of the agreement and repossession
of
the motor vehicle.
8.
The onus rests with the Plaintiff to prove the credit agreement
relied upon and
the right to cancellation of the credit agreement due
to breach of monthly repayment obligations in compliance with
section
129
of the
National Credit Act No 34 of 2005
notice.
9.
The parties have not agreed that any documents will, without further
proof, serve as
evidence of what they purport to be. Accordingly all
documents relied on had to be produced and evidence had to be led
thereon.
1O.
The Plaintiff pleads that the agreement was completed and signed
electronically by the defendant and that same constitutes a
valid
agreement in terms of the Electronic Communications and Transactions
Act, Act 25 of 2002 ("the EC TA").
11.
The plaintiff called one witness Mr Mboniseni Mathivha ("Mathivha").
He testified that he is the Action Controller of the Plaintiff and he
has the knowledge of the transaction between the parties
in the
instant case.
12.
The plaintiff and the defendant concluded an agreement referred to in
annexure "A"
of the particulars of claim. The defendant
signed the agreement online and electronically this type of an
agreement is known as
an i-contract.
13.
For the agreement to be created and opened online for signature, the
customer must
insert the personal information number (PIN) received
to his cellular phone number and his ID number. The Plaintiff also
phones
the customer to confirm his details (the KYC process).
14.
The motor vehicle contracted for by the parties is as described by
the delivery receipt that was signed
by the defendant. The signature
on the delivery receipt compared to the signature contained on the
resisting summary judgement
appeared to be the same.
15.
The defendant received the licence disc in respect of the above
described motor vehicle.
The defendant acted in breach of the
agreement by failing to adhere to his monthly payment obligations and
this is reflected in
the detailed statement.
16.
Mathivha testified that the first breach occurred in June 2015 and
last credit in
respect of the account was on 7 May 2016. He further
testified that in terms of clause 2.4 of the agreement, the delivery
receipt
is also signed if the customer (the defendant), is satisfied
with the motor vehicle. In terms of clause 13 of the agreement, the
Plaintiff has the right to terminate the agreement in the event of
failure to pay the monthly instalments in terms of the agreement.
17.
The signature reflected on the terms and conditions in confirmation
that the defendant read
and accepted the terms and conditions of the
agreement. The watermark on the agreement was generated by the
computer only after
the defendant accepted the contents of all pages
of the agreement, thus, the defendant could only, move from one page
to the next
if he accepted the contents, i.e. detail or terms and
conditions on that page.
18.
The i-contract can be signed by the customer only and does not
require a witness to
co-sign, even reflects signature lines for
witnesses. Mathivha stated that he was writing a manual for the whole
bank to use on
this aspect for the Plaintiff.
19.
Furthermore, he testified that pages 11, 12 and 13 of the pleadings
contained in the discovery
bundle reflect the wrong account number
(reflected in text box at the top right hand side of the pages).
20.
The tick box named "signed contract", reflected on the tax
invoice towards the
foot of the page was not marked with a "Y"
(for Yes) or "N" (for No.). This does not
imply
that the agreement .was not concluded and/or signed because the
tax invoice is dated 9 January 2015 and the defendant signed the
agreement (as per watermark) on 10 January 2015.
21.
The delivery of the motor vehicle, in terms of the delivery receipt,
is only given
to a customer after finance for the sale of the vehicle
was approved by the Plaintiff and it was the same in this case.
22.
He testified that the fact that the contract was electronically
signed a day after
delivery of the motor vehicle to the defendant
does not suggest that no contract was concluded between the parties.
Once the customer
completed the online process and signed the
i-contract, the contract is regarded as finalized although the bank
does not sign it.
23.
The defendant last paid the instalment for the vehicle on 19 April
2015. Mr Mathivha testified furthermore
that if the defendant fails
to pay any amount due under this agreement, then the plaintiff is
entitled to proceed with the termination
of the agreement.
24.
The defendant did.not testify at the hearing of the instant case. In
his plea he denied, , that
he concluded an agreement on 10 January
2015 with the Plaintiff. He conceded therein that he received a
second had vehicle from
M & H Motors in Rustenburg but cannot
admit or deny the particulars of the vehicle. It is not clear whether
he intended to
purchase a second hand or new car and no evidence was
led on this point.
25.
He conceded having failed to make his monthly instalment payments
which he blamed on the
plaintiff for failing to ensure the motor
vehicle resulting in the loss suffered. No evidence was adduced by
the defendant on this
point.
26.
Another point raised by the defendant is that the plaintiff failed to
comply with the provisions
of the NCA. It is for this reason that he
contends that the plaintiff is not entitled to the return of the
vehicle.
ISSUES
FOR DETERMINATION
27.
The issues that require determination can be summarised as follows:
27.1.
whether or not the parties concluded an instalment sale agreement in
terms of the NCA
and whether the electronic signature thereof is in
compliance with the ECTA and renders the agreement enforceable and
whether in
fact the plaintiff complied with the provisions of the
NGA;
27.2.
whether the defendant is allowed to raise a defence not pleaded in
the pleadings at the
hearing of the matter.
LEGAL
PRINCIPLES
28.
As the defendant.elected not to testify at the hearing of this
matter, the only testimony that
will be relied on to determine this
matter will be that of Mathivha on behalf of the Plaintiff. Secondly
the lack of evidence from
the defendant leaves this Court with his
pleadings only and no evidence from him to support his plea. I will
therefore start dealing
with the second issue on pleadings.
29.
During the cross-examination of Mathivha, it became apparent to me
that the defendant
intended to present a defence that had not been
pleaded.
30.
In
terms of the Uniform Rules of this Court the purpose of pleadings is
to inform the other party of his case by setting out the
material
upon which each party relies for his claim or defence.
[1]
Erasmus,
[2]
puts it as follows:-
"the
object of pleadings is to define issues so as to enable the other
party to know what case he has to meet". The parties
are limited
to their pleadings."
31.
The
significance and requirements of rule18(4) of the Uniform Rules of
the High Court (the Rules) on pleadings were commented on
in
Trope
v South African Reserve Bank,
[3]
as
follows:-
"It
is of course, a basic principle that particulars of claim should be
so phrased that a defendant may reasonably and fairly
be required to
plead thereto. This must be seen against the background of the
further requirement that the object of pleadings
is to enable each
side to come to trial prepared to meet the case of the other and not
be taken by surprise. Pleadings must therefore
be lucid and logical
and in an intelligible form; the cause of action or defence must
appear clearly from the factual allegations
made (Harms: Civil
Procedure in the Supreme Court at 263-4). At 264 the learned author
suggests that, as a general proposition,
it may be assumed that,
since the abortion of further particulars, and he fact that
non-compliance with the provisions of Rule
18(12) amounts to
irregular step, a greater degree of particularity of pleadings is
required: No doubt, the absence of the opportunity
to clarify an
ambiguity or cure an apparent inconsistency, by way of further
particulars, may encourage greater particularity in
the initial
pleadings. The ultimate test, however, must in any view still be
whether the pleading complies with the general rule
enunciated in
Rule 18(4) and the principles laid dona in our existing case law."
32.
The
pleader is required to plead only material facts
(facta
probantia)
and
not pieces of evidence
(facta
probanta
).
[4]
33.
In
Buchner
and Another v Johannesburg Consolidated Investment Co. Ltd,
[5]
De Klerk J commented as follows on Rule 18(4):-
"I
emphasize the words 'shall contain a clear and concise statement of
material fact! The necessity to plead facts does not
have its origin
in this Rule. It is fundamental to the judicial process that the
facts have to be established. The Court, on the
established facts,
then applies the rules of law and draws conclusions as regards the
rights and obligations of the parties and
gives judgement. A summons
which propounds the Plaintiffs own conclusions and opinions instead
of material facts is defective.
Such a summons does not set out a
cause of action. It would be wrong if a Court were to endorse a
Plaintiffs opinion by elevating
it to a judgement without first
scrutinizing the facts upon which the opinion is based."
34.
It
has been held by the Appellate Division many years ago in
Middleton
v Carr
[6]
that:-
"Generally
speaking the issues in civil cases should be raised on the pleadings
and if an issue arises which does not appear
from the pleadings in
their original form an appropriate amendment should be sought.
Parties should not be unduly encouraged to
rely, in the hope,
perhaps, of obtaining some tactical advantage or avoiding a special
order as to costs, on the court's readiness
at the argument stage or
an appeal to treat unpleaded issues as having been fully
investigated."
35.
In
Alphedia
Investments (Pty) Ltd v Greentops (Pty) Ltd
[7]
in
dealing with limiting issues to the pleaded case, the Court confirmed
that:
"the
issues as defined by the pleadings must not be lost sight of and a
party cannot rely on causes of action or defences which
were not put
in issue and were consequently not fully investigated".
36.
A
pleader is not allowed to direct the attention of the other party to
one issue and then, at trial, attempt to canvass another.
[8]
37.
I have considered the pleadings of the defendant with regards to his
defence,
they constitute bare denials. He admits to having received a
motor vehicle which was a second hand from H & M Motors. He
contends
that the Plaintiff failed to insure the said motor vehicle.
Although he denies that he concluded the agreement he fails to state
the basis thereof.
38.
During cross-examination of Mathivha by the defendant's Counsel, it
became apparent that
he was now raising the issue of the agreement
not being in compliance with NCA but failed to plead as such in the
pleadings. This
is not permissible as this amount to ambush of the
Plaintiff at trial.
39.
I now deal with the question whether the agreement concluded was
compliant with
the NCA. The defendant has disputed compliance with
the provisions of the NCA but failed to substantiate the same.
40.
The
proper analysis of the defendant's plea reveals a bare denials. It is
trite law that whenever a denial implies some positive
allegation
upon which the defence will rest, such as a denial that the signature
to an agreement constitute an electronic signature
or that the
defendant signed the agreement electronically or at all, the
defendant ought to have gone on to state the material
facts relied
upon. What is required of the defendant is that he should state the
grounds of his defence with sufficient clarity
and in sufficient
detail to enable the Plaintiff to know what case he has to meet.
[9]
41.
In
FPS
Ltd v Trident Construction (Pty) Ltd,
[10]
the Court held that:
"A
defendant must therefore give a fair and clear answer to every point
of substance rapped by a Plaintiff in his declaration
or particulars
of claim, by frankly admitting or explicitly denying every material
matter alleged against him".
42.
It has been contended on behalf of the defendant that section 2(3) of
the NCA was
not complied with. This section provides as follows:-
"If
a provision of this Act requires a document to be signed or
initialled by a party to a credit agreement, that signing or
initialling may be effected by use of:-
(a)
an advanced electronic signature, as defined in the Electronic
Communications
Act 2002 (Act 25 of 2002); or
(b)
an electronic signature as defined in the Electric Communications
Act, 2002
(Act 25 of 2002), provide that:-
(i)
the electronic signature is applied by each party in the physical
presence of the other party or an agent of the party; and
(ii)
the credit provider must take reasonable measures to prevent the use
of the consumer's electronic signature for any purpose other than the
signing or initially of the particular document that the consumer
intended to sign or initial.
43.
The NCA does not provide for the form that the signature to the
instalment sale
agreement needs to take. As a result, it is quite
possible to sign the agreement electronically and in compliance with
the ECTA.
44.
In the modem society of high technology, agreements are in fact
concluded without
the parties physically being in the presence of
each other. Mathivha explained in his testimony that in the instant
matter, the
agreement became only valid once the terms and conditions
of the agreement were accepted by the defendant using a mobile phone
device. He explained that the safety mechanism to ensure that the
correct client was accepting the terms and conditions of the
agreement was to use his or her mobile number. This was explained as
one of the important security features of the i-contract as
he calls
it. It ensures the protection of both the credit granter and the
credit receiver.
45.
In
McWilliams
v First Consolidated Holdings (Pty) Ltd,
[11]
it was held that a party who wishes to rely on a contract must allege
and prove the terms on which he or she seeks to rely. In
that case,
an appeal was dismissed where the appellants (defendant) sought a
finding that no contract had been concluded after
the express
acceptance of the terms of the contract was not affected by the
appellant.
48.
In the instant matter, the defendant failed to make out a defence
upon which his denial
of existence of the instalment sale agreement
is based.
49.
He did not deny that he received a motor vehicle. On the contrary, he
suggested in
the pleading that he received a second hand motor
vehicle and that the Plaintiff failed to take out an insurance cover
for it,
resulting in damage for him. His contention was not supported
by any evidence as he chose not to adduce any evidence.
50.
He admitted that in the pleadings that he paid a deposit of R65
000-00 towards the
motor vehicle. This in my view, is clear evidence
that there was indeed an instalment sale agreement concluded by the
parties.
If there were not so why would the defendant be paying a
deposit of R65 000-00.
51.
Having considered all the evidence adduced on behalf of the plaintiff
and the
admission referred to above, I am persuaded that there was
indeed an agreement between the parties. The technical points raised
in argument on behalf of the defendant cannot in my view, offer any
refuge to the defendant regarding his obligations to fulfil
the terms
of the agreement.
52.
As a consequence I am satisfied that the plaintiff has made out a
case to which the defendant
needs to answer. As the defendant elected
to close its case without leading evidence, this Court should
therefore , after consideration
of all evidence supported by the
documents, rule in favour of the Plaintiff.
ORDER
53.
The following order is made:
a)
The instalment sale agreement concluded by the parties on 10 January
2015 is hereby cancelled;
b)
The defendant is hereby ordered to return the motor vehicle being a
2014 JINBE HAISE H2, 2.4L 16 SEAT with engine number 4rb247145A
and
chassis number LSYHKAAF7EK083640 to the plaintiff forthwith;
c)
In the event the defendant fails to return the motor vehicle as
ordered, the Sheriff of this Court is hereby authorised to attach
and
handover the motor vehicle set out in
(b)
above five days from the date of this order;
d)
The plaintiff is hereby granted leave to apply for
(i)
Damages, if any, in an amount to be calculated in accordance with
Section 127(5) - (9) of the NCA.
(ii)
Interest on the said amount to be determined at a later date;
M
L SENYATSI AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
PRETORIA
GAUTENG
COUNSEL
FOR PLAINTIFF
MR I OSCHMAN
INSTRUCTED
BY
ADAMS
& ADAMS, PRETORIA
BEZUIDENHOUT
VAN ZYL AND ASSOCIATES
c/o
PETZER, DR TOIT & RAMULITH ATIORNEY
PRETORIA
COUNSEL
FOR DEFENDANT: MR A A SASSON
INSTRUCTED
BY
NAUDE
STEYN ATTORNEYS
c/o
EVAN DER WESTHUIZEN ATTORNEY
PRETORIA
[1]
See Rule 18 of the Uniform Rule of Court
[2]
See Erasmus Commentary on Rule 18, 0 1-228
[3]
1992(3) SA 208 (t) AT 210G-J
[4]
See Makgae v Sentraboer (Kooperatief) Bpk 1981 (4) SA 239(T)
[5]
1995 (1) SA 215
(T) at 216 H-J
[6]
1949 (2) SA 374
(A) at 385- 386
[7]
1975(1) SA 161 (T) at
162A
[8]
See Nyandeni v Nata l Motor Industries Ltd
1974 (2) SA 274(0)
at
279; Kali v Incorporated General Insurance 1976(2) SA
179(D)at182(A).
[9]
Makhwelo v Minister of Safety and Security
2017 (1) SA 274
(GJ) at
276 G-H
[10]
1989 (3) SA 537
(A) at 542
[11]
[1982] 1 ALL SA 245(A):