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[2017] ZAFSHC 27
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Absa Bank Limited v Pocklingberg (4116/2016) [2017] ZAFSHC 27 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4116/2016
In the
matter between:
ABSA
BANK
LTD
Applicant
and
ERASMUS
DANIEL
POCKLINGBERG
Respondent
HEARD
ON:
10 NOVEMBER
2016
JUDGMENT
BY:
E.K. TSATSI, AJ
DELIVERED
ON:
9 FEBRUARY 2017
I
NTRODUCTION
[1] This
is an opposed application for summary judgment in
which the applicant sought three different actions
against the
respondent, under case numbers 4079/2014, 1417/2016, and 4116/2016.
The applicant sought the following relief:
1.1
confirmation of three separate credit agreements conducted in respect
of certain vehicles;
1.2
return of the vehicles which form the basis of the various credit
agreements;
1.3
authorisation to be granted to the applicant to approach the
Honourable court on the same
papers , supplemented if required , for
damages;
1.4
interest;
1.5
costs of suit.
[2] This
judgment contains three different applications referring to the same
applicant and the same respondent. The applicant is
the plaintiff in
the main action and the defendant is the respondent in the main
action. For the sake of convenience than parties
will be addressed as
applicant and respondent.
FACTS
[3] Under
case number 4079/2016, the facts are as follows:
On
or around 23 November 2012 at Bloemfontein the applicant and the
respondent entered into a partially written and partially oral
agreement (herein referred to as "the agreement"). In terms
of the agreement the applicant sold 2012 Jeep Wrangler 2.8
CRD UNLTD
A/T with engine number DL515120 and chassis number 1C4BJWL52DL515120
(herein referred to as "Jeep Wrangler").
Despite
the delivery of the Jeep Wrangler to the respondent, ownership of the
Jeep Wrangler remained vested within the applicant.
In terms of the
agreement the recoverable amount of the Jeep Wrangler is payable as
follows:
3.1
An initial deposit in the amount of R 10 000.00 was paid by the
respondent.
3.2
A first instalment of R7091.37 was payable on 07 January 2013.
3.3
Thereafter 70 equal instalments of R7 091,37 payable on
each corresponding
day of each and every month .
3.4
A final payment of R125 481.99.
[4] The
agreement further stated that should the respondent fail to pay the
instalments on due date or fail to satisfy any of his
other
obligations in terms of the Agreement, the applicant shall without
prejudicing any of his rights in law be justified in cancelling
the
agreement and in the instance of such cancellation: Claim return and
repossession of the Jeep Wrangler, claim payment of the
difference
between the amount outstanding at date of
cancellation of the agreement less a rebate on finance charges
calculated from date of termination of the agreement and the amount
at which the Jeep Wrangler is valued in terms of the agreement
of the
re-sale value thereof whichever is greater, claim the interest on the
amount referred to in paragraph 6 calculated at an
interest rate of
1.000% below prime lending rate per annum with the current
prime lending rate being
10.50% per
annum, costs on party to party scale, claim all expenses incurred in
tracing the respondent before
or after the institution of action,
attaching the vehicle, removing it valuing it, sorting it and the
sale of the vehicle.
[5]
According to the applicant, the respondent has breached the agreement
in that he has failed to pay the instalments in terms
of the
agreement and has been in default for at least twenty (20) business
days. The full outstanding balance is R288 192.70 as
at 11 August
2016. The applicant also alleged that in due satisfaction of the
requirements of section 129 of Act 34 of 2005
a letter was sent
by the applicant to the respondent on 15 August 2016 by pre-paid
registered post/mail to the
domicillium
citandi
et executandi
address of the respondent. In the
said letter the respondent was informed that he has not satisfied his
obligations and that the
arrear instalments amounted to R26 401.40 as
at 11 August 2016 and that the arrear instalment had be paid within
ten (10) days
of posting of the letter.
[6] Under
case number 4117/2016 the facts are similar to the ones in case
number 4079/2016 above and apply
mutatis
mutandis
except the following:
In
terms of the agreement the applicant sold 2013 Jeep Grand Cherokee
3.0LV6 CR D with engine number EC235135 and chassis number
1C4RJFGM4EC235135 (herein after referred to as "the Jeep Grand
Cherokee"). In terms of the agreement the
recoverable amount of the Jeep Grand Cherokee was payable as follows:
An
initial deposit of R0.00, a first instalment of R 12 451.01 payable
on 7 January 2014, thereafter 71 equal instalments of R12
451.04
payable on each corresponding day of each and every month. The
agreement further stated that should the respondent fail
to pay the
instalments on due date or fail to satisfy any of his other
obligations in terms of the agreement the applicant shall
without
prejudicing any of his other rights in law be justified in claiming
interest on the amount referred to in paragraph six
calculated at an
interest rate of 1.300% prime lending rate per annum with the current
prime lending rate being 10.50% per annum.
[7] The
respondent has breached the agreement in that he has failed to pay
the instalments in terms of the agreement and has been
in default for
atleast twenty (20) business days. The full outstanding amount is
R589 082.22 as at 16 August 2016. In due satisfaction
of the
requirements of Section 129 of Act 34 of 2005 a letter was sent by
applicant to the respondent on 17 August 2016 by pre
paid
registered post/mail to the
domicilium citandi
et
executandi
address of the respondent. In the said
letter the respondent was informed that he had not satisfied his
obligations and that the
arrear instalments amounted to R70 925. 93
as at 16 August 2016 and that the arrear instalments had to be paid
within ten days
posting of the letter.
[8] Under
case number 4116/2016 the facts are similar to the ones in case
number 4079/2016 and apply
mutatis
mutandis
except the following:
In
terms of the agreement the applicant sold 2014 Honda Brio 1.2 Comfort
5DR A/T with engine number L12B33015685 and
chassis
number MAKDD18FLDN20031 (herein after referred to
as "the Hoonda Brio"). In terms of the agreement
the
recoverable amount of the Jeep Grand Cherokee was payable as follows:
An initial deposit of R0.00, a first instalment of R2
647.02 payable
on 1 June 2014, thereafter 71 equal instalments of R2 647.02 payable
on each corresponding day of each and every
month. The agreement
further stated that should the respondent fail to pay the instalments
on due date or fail to satisfy any of
his other obligations in terms
of the agreement the applicant shall without prejudicing any of his
other rights in law be justified
in claiming interest on the amount
referred to in paragraph six calculated at an interest rate of equal
to prime lending rate per
annum with the current prime lending rate
being 10.50% per annum.
[9] The
respondent has breached the agreement in that he has failed to pay
the instalments in terms of the agreement and has been
in default for
atleast twenty (20) business days. The full outstanding amount is R
130 602.54 as at 11 August 2016. In due satisfaction
of the
requirements of Section 129 of Act 34 of 2005 a letter was sent by
applicant to the respondent on 17 August 2016 by pre
paid
registered post/mail to the
domicilium
citandi
et
executandi
address of the respondent. In
the said letter the respondent was informed that he had
not satisfied his
obligations and that the arrear
instalments amounted to R 10 198.80 as at 11 August 2016 and that the
arrear instalments
had to be paid within ten days of posting
of the letter.
ISSUES
[10] The
main issue in this application was whether or not the applicant
discharged, on a balance of probabilities, the
onus
that
rested upon the applicant that it satisfied the requirements of
summary judgment for this Court to grant the applicant the
relief
sought.
SUBMISSIONS
[11] It
was submitted on behalf of the applicant that section 129
notices of National Credit Act 34 of 2005 ("the
Act") were
sent to the respondent by both the applicant and its attorneys. It
was further submitted on behalf of the applicant
that the respondent
failed to respond to such notices but instead referred the said
notices to the National Credit Regulator for
assistance in appointing
an Alternative Dispute Resolution Agent for the respondent. After
there was no response from the respondent
the applicant then issued
summons against the respondent. The latter filed and served his
notice of intention of defend and
accordingly the applicant lodged a
summary judgment application. The argument of behalf of the applicant
was that the respondent
delayed in his response to the section 129
notices even though responding to such notices in time could never
have been a valid
reason to approach the National Credit Regulator.
The submission on behalf of the applicant was that approaching the
National Credit
Regulator was not an option open to the respondent.
The argument on behalf of the applicant was that the respondent
failed to pay
the instalments in terms of the agreements reached and
that the respondent has been in default for atleast twenty (20)
business
days. The applicant relied on the fact that the contract
between it and the respondent has been cancelled. The applicant's
submission
was that the law is clear that even any valid option in
terms of Section 129 of the Act taken belatedly cannot be entertained
as
the creditor became entitled to continue with the proceedings when
the applicable time lapsed.
[12]
A submission on behalf of the respondent was that the applicant was
not entitled to move for summary judgment as summary
judgment is an
extraordinary stringent and drastic measure that denies the
respondent an opportunity to
defence. Counsel
for the respondent put up an adequate further argued that
summary judgment permits for a final judgment
to be given against a
party without trial. As a result the applicant's papers should
be beyond reproach and technically correct.
The submission on behalf
of the respondent was that the applicant papers were not beyond
reproach. It was further submitted that
the applicant was not
entitled to move for cancellation of the contract by way of summary
judgment proceedings as the applicant
did in this
matter. The submission on behalf of
the respondent was
that on or around
the 8
th
of August 2016 the respondent referred
various credit agreements on which the applicant's claims were based
to the
National Credit Regulator for the appointment of the
Alternative Dispute Resolution Agent and therefore the applicant was
precluded
from launching a summary judgment application. Counsel for
the respondent argued that the applicant's deponent failed to mention
the preceding fact in the applicant's particulars of claim or
affidavit which seriously calls to question deponent's true personal
knowledge of the Plaintiff s cause of action. Further submission on
behalf of the respondent was that the respondent disputed the
amount
and interest claimed by the applicant under and in terms of the
various credit agreements concluded between the applicant
and the
respondent. It was submitted for the respondent that the attorney of
record of the respondent addressed a letter informing
the applicant
the respondent wished to refer all credit agreements to an
Alternative Dispute Resolution Agent but the applicant
failed to
respond to such a letter instead opted to move for a summary
judgment.
THE
LAW
[13]
Section 127 of the Act provides that (1)
"A
consumer
under
an
installment
agreement,
secured loan
or
lease-(a) may
give
written
notice
to the credit provider
to terminate
the
agreement;
and (b) if
(i)
the
goods
are
in
the
credit
provider's
possession,
require
the
credit provider
to
sell
the
goods;
or
(ii) otherwise,
return
the
goods that
are
the subject of that agreement to the credit
provider's
place
of business
during
ordinary
business
hours within 1O
five
business
days
after
the
date of
the
notice or
within
such
other
period
or
at
such
other
time
or place
as
may
be
agreed
with
the credit
provider''.
[14] In
Fischereigesellschaft
F
Busse & Co
Kommandithesellschaft
v African
Frozen
Products
(Pty) Ltd
1967 (4) SA 105
(C), at 111A
B,
Theron
J held -
As
was pointed out in
Misid
Investments (Pty)
Ltd v
Leslie,
[1960
(4)
SA
473
(W)]
at
p.
474,
the applicant in summary judgment proceedings must comply
strictly with the requirements of the Rules of Court. In his judgment
in this case Munnik, A.J. (as he then was), indicated that to his
mind the approach of the Court when objections were raised on
technical grounds to an application for summary judgment had been
correctly set out by Marais J, in
Mowschenson and
Mowschenson v
Mercantile
Acceptance
Corporation of SA Ltd,
1
959 (3) SA 362
(W) at
p.
366
,
where he stated:
'The
proper approach appears to me to be the one which keeps the important
fact in view that the remedy for summary judgment is
an extraordinary
remedy, and a very stringent one, in that it permits a judgment to be
given without trial.'
[15]
In
Maharaj
v
Barclays
National
Bank
Ltd
1976
(1) SA 418
(A) at
4268-C
Corbett JA, as he then was,
says:
"All
that a
Court enquires into
is:
(a)
whether the defendant
has
"fully"
disclosed
the
nature
and
grounds
of
his
defence
and
the
material
facts upon
which
it is
founded, and
(b)
whether
on
the
facts
so
disclosed
the
defendant
appears to have, as to either the whole or part of the claim, a
defence which is both
bona
fide
and good
in law. If satisfied on these matters the Court must refuse summary
judgment either wholly or in part, as the case may
be."
[16] In
Breitenbach
v
Fiat S A
(Edms)
Bpk
1976 (2) (TPD) 226 at 229E-H, the Court was quoting
from a judgment of Miller
J
in
Shepstone
vs
Shepstone
1974
(2) SA
462
(N)
at p
467E-H,
which reads as follows:
"The
Court will not be disposed to grant summary judgment where, giving
due consideration to the information before it, it
is not persuaded
that the Plaintiff has an unanswerable case."
That is
the first quotation and the second is:
"......
a
defendant may
successfully resist
summary
judgment where
his
affidavit
shows
that
there
is
a
reasonable
possibility
that
the
defence
he advances may succeed
on
trial."
[17]
Summary judgment must be refused if the defendant discloses
facts which, accepting the truth thereof, or only if proved at a
trial
in due course, will constitute a defence (see
Raphael
and
Co
v Standard
Produce
Co
(Pty)
Ltd
1951 (4)
SA
244
(C) 245 E -
G) While the defendant must fully present the facts upon which his
defence is based, he need not deal in detail with
either that defence
or the evidence in support thereof (see:
Absa
Bank
Ltd
v Coventry
1
998
(4) SA
351
(N) 353
C - H). Defects in the opposing affidavits are not necessarily fatal
for the defendant as the court is entitled to adopt
a lenient
approach to the allegations contained therein and it is entitled to
draw reasonable inferences from those allegations
(see
Koornklip Befeggings (Edms)
Bpk
v
Allied
Minerals
Ltd
1970 (1)
SA 674
(C)
678
E).
APPLICA
TION OF THE
LAW TO
FACTS
[18]
There are factual
disputes
in this
matter. The
applicant
was
of the view
that
it
was
entitled
to
terminate
the
agreement
between
it
and
the
respondent. The
respondent is
of
a
different
view. agree
with
the respondent.
Section
127
of
the
Act
entitles
the consumer
in this case the
respondent
to terminate the agreement by first
giving
notice
to
the
credit
provider
to
terminate
the
agreement
and
sell
the
goods which
are the
subject
of
litigation
if such
are
in
the
possession
of
the
credit
provider.
It is
my
considered
view
that
section
127
does
not
apply
in this
case
as the
respondent
has
not
sent
notice
to
the
applicant
to
terminate the agreement.
Even though there was
a clause
in the agreement between
the
parties
that
entitles
the
applicant
to
cancel
the
agreement, the Court still
has
a discretion
to
grant or refuse summary
judgment.
[19]
The
other
dispute between
the
two
parties
was
that
of
amount
and
interest charged.
The
respondent
disputed
the
amount
and
interest
charged under
and in
terms of
the
various credit
agreements.
The
adjudication
of
a summary judgment
application
does
not
include
a
decision
on
factual
disputes. Summary
judgment
proceedings are not and
never have been intended as a
forum
for
the
resolution
of
factual
disputes
(Venetian
Blind Enterprises
(Pvt)
Ltd v
Venture Cruises Batel
(Pvt) Ltd
1
973
(3)
SA
575
(R) 578 A).
[20] It
is trite that in order to successfully oppose a summary judgment
application, the respondent need to satisfy the Court that
they have
a
bona fide
defence
to the applicant's claim by fully disclosing, the nature and grounds
of their defence and the material facts upon which
the defence is
relied on. Where the defence raised, if the matter were to go on
trial, has a good prospects of successfully defeating
the claim, then
the Court in the exercise of its discretion will refuse to grant the
summary judgment. I am satisfied that the
respondent raised bona fide
defences which may defeat the claim. Some of the defences raised by
the respondent cannot be determined
by way of affidavits but at a
trial. A trial is the proper forum for resolving factual disputes,
because affidavits are not suitable
for that purpose.
[21] The
respondent attempted to involve the services of an
alternative dispute resolution agent with no success. Section
130 (3)
(c)
(i)
of the Act makes provision for the services of the alternative
dispute resolution agent. The applicant would not be entitled to
approach the Court if the matter was already before the alternative
dispute resolution agent. My considered view was that this matter
was
not before the alternative dispute resolution agent therefore the
applicant was not prevented from approaching the Court. This
fact
only could not make the summary judgment application
successful as there were other
hurdles like the defences raised by
the respondent that would not make
the granting of summary judgment possible.
[22] It
is trite that summary judgment constitutes an extraordinary stringent
remedy and permits a final judgment against a party
without being
given the opportunity to ventilate issues. Even if summary judgment
is not granted the applicant still has an opportunity
to go to trial
and proof its case. However if summary judgment is granted the
respondent will be denied any opportunity of going
to trial to
demonstrate that it had a bona fide defence.
[23] I
have considered submissions and authorities submitted by counsel for
the applicant and respondent. I am not satisifed that
the applicant
discharged, on a balance of probabilities, the
onus
that rested upon the applicant that it satisfied the
requirements of summary judgment for this Court to grant the
applicant the
relief sought.
[24] In
all the circumstances, the respondent has made out a case and set out
facts upon which I can exercise discretion, which
I hereby do, in his
favour.
[25] I
accordingly make the following order.
25.1
The application for summary judgment in terms
of case
numbers 4116/2016, 4117/2016 and 4079/2016 is
refused;
25.2
The respondent is granted leave to defend the main action and is
ordered to file
a plea, if any, in terms of case numbers
4116/2016,4117/2016 and 4079/2016 before or on 24 February
2017;
25.3
Costs shall be in the main action.
_______________
E.
K. Tsatsi, AJ
On behalf
of the applicant:
Adv. E. G.
Lubbe
Instructed by:
Strauss Daly Inc.
BLOEMFONTEIN
On behalf
of the respondent:
Adv. C. Snyman
Instructed by:
JG Kriek
&
Cloete Attorneys
BLOEMFONTEIN