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[2016] ZANCHC 62
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Man Financial Services (SA) (Pty) Ltd v Van der Westhuizen (1739/2014) [2016] ZANCHC 62 (25 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY
)
Case
number:
1739/2014
Date
heard:
10
/ 12 / 2015
Date
delivered:
25
/ 02 / 2016
In
the application between:
MAN
FINANCIAL SERVICES (SA) (PTY) LTD
Registration
No: 1997/0116864/07
Plaintiff
/ Respondent
and
JURGENS
JOHANNES VAN DER WESTHUIZEN
I.D.
No: [6...]
Defendant
/ Excipient
Coram:
Erasmus,
AJ
JUDGMENT
ERASMUS,
AJ
BACKGROUND
[1]
The respondent herein (plaintiff in this action and applicant in case
number 331/2013), obtained a court order on 6 September
2013
confirming the cancellation of two lease agreements entered into
between the parties in respect of account numbers [7...]
and [8...].
The excipient (the respondent therein) was ordered to return
certain goods which form the subject of the agreements.
[2]
In respect of the lease agreement with account number [8...] the
goods were never recovered. The outstanding balance on
this
account amounts to R712,008.79.
[3]
In respect of the lease agreement with account number [7...] the
goods were recovered and the respondent proceeded to sell it
at
public auction. The proceeds did not cover the indebtedness of the
excipient and the outstanding amount in respect thereof amounts
to
R376,648.90.
[4]
On 22 September 2014 a notice in terms of section 127(5) and (7) of
the National Credit Act, No. 34 of 2005 (hereinafter referred
to as
the NCA) was served on the excipient in respect of the outstanding
amount under account number [7...]. The excipient
failed to
react nor to respond to the said notice.
[5]
The respondent proceeded to issue summons, claiming the respective
outstanding amounts in both agreements.
[6]
The excipient gave notice of exception in terms of Rule 23(1), based
thereon that the plaintiff’s Particulars of Claim
was vague and
embarrassing and, alternatively, lacked the averments necessary to
sustain a cause of action. The respondent
did not respond to
this notice resulting in the excipient excepting to the Particulars
of Claim on 3 September 2015.
[7]
The first cause of complaint was directed at the notice in terms of
sections 127(5) and (7) attached as annexures ‘E1’
and
‘E2’ to the Particulars of Claim, from which it appears
as if it was ABSA Bank Limited that had issued the notice.
[8]
The second cause of complaint was that the Particulars of Claim
lacked averments as required in terms of sections 129 and 130
of the
NCA.
[9]
The exception contains a mere repetition of the allegations as set
out in the initial notice and did not contain any prayer.
An
exception is a pleading and therefore it must contain a prayer.
[1]
At the onset of the hearing of the exception, counsel’s
attention was drawn to the defect in the exception. Adv.
Janse
van Rensburg, on behalf of the excipient, conceded that the exception
did not comply with the Rule and applied for an amendment
to include
a prayer for the relief that the exception be upheld and the
respondent be directed to comply with the provisions of
sections
127(5) and (7) of the NCA, the excipient tendering costs occasioned
thereby. The respondent then did not oppose
the amendment and
it was granted.
[10]
I deal firstly with the second ground of exception based thereon that
the Particulars of Claim lacked averments as required
in terms of
sections 129 and 130 of the NCA.
[11]
Adv. Sieberhagen, on behalf of the respondent, submitted that legal
proceedings had already been instituted and the court order
granted
under case number 331/2013 and that the excipient had already
complied with the provisions of section 129 of the NCA at
that stage.
It also appears from the contents of the court file in case number
331/2013, which had also been placed before me,
that the excipient
admitted compliance with section 129 of the NCA in the initial
proceedings. Mr. Janse van Rensburg rightly
conceded that this
ground for exception had no merit and abandoned this ground.
[12]
The other ground for the exception pertaining to the non-compliance
with section 127 of the NCA was argued on behalf of the
excipient.
Section 127 is relevant to the first claim pertaining to the loan
agreement with account number [7...] in respect of
the machine which
was recovered and sold.
[13]
It is trite that exceptions serve as means to dispose of pleadings
which are so vague and embarrassing that an intelligible
cause of
action cannot be ascertained nor issues determined between the
parties without the leading of evidence. The
onus
of
showing that a pleading is excipiable rests on the excipient.
[2]
[14]
An exception may only be taken if the defect appears
ex
facie
the
pleading and for purposes of deciding the exception, the court has to
take the facts alleged in the pleading as correct.
[3]
[15]
A pleading should be sufficiently detailed, lucid and complete.
Where an exception is based on the ground that a pleading
is vague
and embarrassing, the Court’s approach should be two-fold.
I should firstly consider whether the pleading
lacks particularity to
the extent that it is vague and then consider whether such vagueness
causes embarrassment of such a nature
that the excipient is
prejudiced.
[4]
[16]
It will be considered to be vague and embarrassing if it affects the
ability of the other party to plead thereto.
[5]
The pleading must be read as a whole. The exception must
strike at the root of the cause of action and the formulation
thereof, not its legal validity. A mere averment of lack of
particularity is not enough to uphold an exception.
[6]
[17]
When the exception is based on the premise that the pleading lacks
averments necessary to sustain a cause of action, the pleadings
will
only be excipiable when, on every reasonable interpretation, it does
not disclose a cause of action
[7]
and no possible evidence can be led that can disclose a cause of
action.
[8]
It is for the
excipient to persuade the Court that upon every interpretation which
the pleading can reasonably bear, no cause
of action is disclosed.
[9]
[18]
The exception is directed at the notice in terms of sections 127(5)
and (7) dated 18 September 2014, annexures ‘E1’
and ‘E2’
to the Particulars of Claim. It refers to ABSA Bank Limited and
JJ van der Westhuizen, account number
[7...] in the heading thereof
and reads as follows:
“
We
have received instructions from our client, ABSA Bank, to give you
written notice in terms of
section 127(5)
of the
National Credit Act
of the
following:-
1.1
ACCOUNT
NUMBER [7...] ITEM 2008 MAN PGA 2.7440 BBS-L with chassis number
AAMHW9-0273 and engine number 5159120191912
.”
[19]
The notice then contains the particulars and details, as envisaged in
section 127(5)
of the NCA, setting out the settlement value of the
agreement immediately before the sale, the gross amount realised at
the sale,
the nett proceeds of the sale, the amount credited to the
excipient on 4 April 2014 and the remaining settlement value
amounting
to R376,648.90 with interest thereon.
[20]
Paragraph 3 of the said notice reads as follows:
“
3.
In terms of
section 127(7)
of the
National Credit Act 34 of 2005
,
MAN
Financial Services SA (PTY) LTD
(my
emphasis)
hereby
demands payment of the abovementioned amount (as per paragraph 2)
with the interest therein within a period of 10 (TEN) business
days
from date of this letter.
”
[21]
In paragraph 4 thereof the excipient is informed that should he fail
to accede to the demand, legal steps will be instituted
against him.
[22]
Ms. Sieberhagen submitted that, when the pleading (Particulars of
Claim) is read as a whole, it cannot be said that because
ABSA Bank
Limited was mistakenly identified as the client in the heading of the
Notice, the respondent’s cause of action
should automatically
fall away. It was submitted that paragraphs 14(12) and 14(13) of the
respondent’s Particulars of Claim
clearly deals with how the
respondent could have mistaken ABSA Bank Limited as a party to the
proceedings. It was further submitted
that it is clear who the credit
provider is, as it is stated in paragraph 3 of the notice that MAN
Financial Services (SA) (Pty)
Ltd demands payment from the defendant
in respect of the specific lease agreement under account number
[7...].
[23]
Ms. Sieberhagen further submitted that the exception was not taken
for the purpose of raising a substantive question of law
which may
have settled the dispute between the parties nor has the excipient
made out a clear case to succeed with the exception.
[24]
Mr. Janse van Rensburg, on behalf of the excipient, submitted that
the respondent failed to send the necessary notice as required
in
terms of
section 127
of the NCA. ABSA Bank Limited issued the
notice and it is not a party to the action instituted against the
excipient. He
submitted that proper notice had to be given to the
excipient before the action could have been instituted. He
further submitted
that, in terms of
section 130(3)
of the NCA, the
Court may only determine the action if it is satisfied that the above
sections have been complied with and must
make an appropriate order
setting out the steps the respondent must follow for the action to be
instituted.
[25]
The relevant section of the NCA can be summarized as follows:
25.1
Sections 127(2)
to (9) apply in respect of any goods attached in
terms of that order.
[10]
25.2
A
credit
provider may approach the Court for an order enforcing the remaining
obligations of a consumer under a credit agreement at
any time if all
relevant property has been sold pursuant to an attachment order and
the nett proceeds of that sale were insufficient
to discharge all the
consumer’s financial obligations under the agreement.
[11]
25.3
In any proceedings to which
sections
127
or
131
apply, a Court may determine the matter only if the court is
satisfied that the procedures required by those sections have been
complied with.
[12]
25.4
If in any such proceedings, a Court determines that the credit
provider has not complied with the relevant
provisions of the NCA as
referred to above, the Court must adjourn the matter before it and
make an appropriate order setting out
the steps the credit provider
must complete before the matter may be resumed.
[13]
25.5
After selling any goods that have been attached, a credit provider
must credit or debit the consumer
with a payment or charge equivalent
to the proceeds of the sale less any expenses reasonably incurred by
the credit provider in
connection with the sale of the goods and the
credit provider must give the consumer notice, stating the
following:
[14]
25.5.1
the settlement value of the agreement immediately before the sale;
25.5.2
the gross amount realised on the sale;
25.5.3
the nett proceeds of the sale after deduction of the credit
provider’s permitted default charges and reasonable
costs
allowed; and
25.5.4
the amount credited or debited to the consumer’s account.
25.6
If an amount is credited to the consumer’s account and it is
less than the settlement value immediately
before the sale, or an
amount is debited to the consumer’s account, the credit
provider may demand payment from the consumer
of the remaining
settlement value, when issuing the notice so required by
section
127
(5)(b).
[15]
25.7
If the consumer fails to pay any amount that has been demanded within
10 business days after receiving
such notice of demand, the credit
provider may commence proceedings.
[16]
[26]
The notice in terms of
sections 127(5)
and (7) complies with the
prescripts of
section 127
of the NCA. It appears from the
heading of the notice and introductory paragraph though to have been
sent on instruction
of ABSA Bank Limited. If read in isolation,
this may create the impression that ABSA Bank Limited is the credit
provider.
If the notice is read as a whole and more
specifically paragraphs 1.1 and 3 thereof, it clearly states that it
is MAN Financial
Services SA (Pty) Ltd who demands payment in respect
of the outstanding amount on the lease agreement no. [7...].
The notice
also contains a detailed description of the goods which
formed the subject of the court order under case number 331/2013.
[27]
Having considered the Particulars of Claim as a whole, I am of the
view that the specific part of the notice which refers to
ABSA Bank
Limited does not have the effect that the Particulars of Claim lacks
particularity which would render it vague to such
an extent that it
causes embarrassment. The exception, which is directed at the
contents of the notice, does not strike at
the root of the cause of
action. The incorrect reference to ABSA Bank Limited in the
notice does not have the effect that
the excipient cannot plead to
the Particulars of Claim and I fail to see how the excipient is
prejudiced. I therefore find
that the notice does not render
the Particulars of Claim excipiable on the basis that it is vague and
embarrassing.
[28]
On proper reading of the notice and more specifically paragraph 3
thereof and the Particulars of Claim as a whole, it cannot
be said
that on every interpretation thereof there has been non-compliance
with
section 127
of the NCA and that, as a result thereof, the
pleading lacks averments necessary to sustain a cause of action.
The exception
therefore also cannot succeed on this basis.
I
make the following order:
1.
The
exception is dismissed.
2.
The excipient is ordered to pay the costs of the exception.
_________________
SL
ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
On
behalf of the Excipient
:
Adv Janse van Rensburg oio
Elliott Maris Wilmans & Hay
On
behalf of the Respondents
:
Adv Sieberhagen oio the Duncan & Rothman
[1]
Pietermaitzburg City Council v Local
Transportation Board 1960(1) SA 254 (N) at 256
[2]
Vogel v Kleynhans 2003(2) SA 148 at 151
[3]
Marney v Watson 1978(4)SA 140 at 144
[4]
Trope v South African Reserve Bank 1992(3) SA 208
(T) at 210-211
[5]
Persons listed in Schedule A to the Particulars
of Claim v Discovery Health,
2009 (2) ALL SA 479
T
[6]
ABSA Bank Ltd Boksburg Trasnitional Local Council
1997(2) SA 415 (W) at 418
[7]
McElvy v Cowan, 1980 (4) SA 525
[8]
Astral Operations Limited v Nambitha Distributors
(Pty) Ltd; Astral Operations Limited v O’Farell N.O. &
Others
[2013] 4 ALL SA 598
KZD
[9]
Francis v Shape 2004(3) SA 230 (C) at 893
[10]
Section 131
of the NCA
[11]
Section 130(2)
of the NCA
[12]
Section 130(3)(a)
of the NCA
[13]
Section 130(4)(b)
[14]
Setion 127(5) read with sub-section (7)
[15]
Section 127(7)
[16]
Section 127(8)