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[2016] ZAGPPHC 129
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Standard Bank of South Africa Limited v Teitge (100729/2015) [2016] ZAGPPHC 129 (14 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 100729/2015
DATE:
14 March 2016
Not
reportable
Not
of interest to other judges
Revised
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
Plaintiff
V
HENRY
JOHN
TEITGE
Defendant
JUDGMENT
MABUSE
J
:
[1] This is an
application for summary judgment in which the Plaintiff seeks against
the Defendant, the following orders:
1.1 an order rectifying
Annexure ‘B’ by the substitution of the words describing
the goods as having an Engine number
1GR5583394 and a chassis number
JTEBU25J606124280 with the words Engine number 1GR5583394 and chassis
number JTEBU25J505124290;
1.2 an order cancelling
the Agreement;
1.3 an order directing
the Defendant to restore to the Plaintiff possession of the goods
being a model 2008, Toyota Prado VX4.0
V6 A/T with Engine number
1GR5583394 and chassis number JTEBU25J505124290;
1.4 leave that the
Plaintiff may apply on the same papers, duly amplified where
necessary, for:
1.4.1 damages, if any, in
an amount to be calculated by subtracting the current market value of
the goods, if returned to the Plaintiff,
from the balance outstanding
and allowing for a rebate on unearned finance charges;
1.4.2 interest on the
said damages at the rate of 10% per annum from date of service of the
summons to date of final payment; and,
1.5
further ancillary relief.
[2]
This application for summary judgment is opposed by the Defendant who
has, in terms of the Rules governing applications for
summary
judgments, delivered an opposing affidavit for that purpose.
[3]
The Plaintiff’s cause of action has its origin in a written
Instalment Sale Agreement (“the Agreement”), entered
into
by the parties on certain terms and conditions on or about 24 August
2012 at Brits. The Defendant bought a model 2008,
Toyota Prado
VX4.0 V6 A/T with Engine number 1GR5583394 and chassis number
JTEBU25J505124290 (“the vehicle”).
The Agreement of
Sale incorrectly reflected the details of the motor vehicle as Engine
Number: 1GR5583394 and chassis number
JTEBU25J606124280.
It is for this reason that the Plaintiff seeks an order in terms of
which the aforementioned details of
the motor vehicle are rectified
to reflect the correct details as set forth in paragraph 1.1 supra.
[4]
The Defendant bought the said motor vehicle for the amount of
R325,480.00 of which he had paid a deposit of R36,000.00.
The
said amount of R325,480.00 represented the amount of loan that the
Defendant had secured from the Plaintiff.
[5] The Plaintiff had
advanced the said amount of loan to the Defendant on certain terms
and conditions, which the Defendant had
accepted, chief among them
being that:
5.1 the Defendant would
refund the said loan (“the principal debt”) in equal 59
monthly instalments of R7778.95 each
commencing on 3 October 2012 and
thereafter on the 3
rd
of each and every successive month;
5.2 that the Defendant
would pay the final instalment of R7778.95 on 3 September 2017;
5.3 the Defendant would
pay interest on the principal debt calculated at 14.7% per annum;
5.4 it was a material
term of the said agreement that should the Defendant fail to make any
payment of any amount due to the Plaintiff
or breach any term of the
Agreement;
5.4.1 the Defendant
should remedy his default within the time specified by the Plaintiff
when notifying the Defendant of the said
default by notice as
provided for in the National Credit Act 32 of 2005 (“the Act”);
5.4.2 that, if the
Defendant failed to remedy his breach; or,
5.4.3
failed to avail himself of the options available to him in terms of
the Act,
the Plaintiff may exercise any of
its remedial rights which rights included, subject to the applicable
legislation, the Plaintiff
commencing legal proceedings against the
Defendant to enforce the terms of the parties’ agreement in
order to recover from
the Defendant all amounts owing by the
Defendant to the Plaintiff arising from the Agreement. The
Plaintiff complied with
its obligations arising from the Agreement in
that it delivered or caused to be delivered to the Defendant the
motor vehicle in
question.
[6]
The Defendant breached the terms of the parties’ Agreement
inasmuch as he failed to make full and punctual payments of
his
monthly instalments. When he could not make his monthly
instalments, the Defendant applied, in terms of s 86 of the Act,
to
Magistrate Madibeng under case number 1857/2015 for a debt review.
On 22 April 2015, the said Magistrate granted a debt
re-arrangement
order in terms of which the Defendant’s monthly payment was
reduced in order to accommodate his inability
to pay the amount he
had undertaken to pay in terms of the agreement. In terms of
the Magistrate’s Court order, the
Defendant was ordered to pay
a sum of R5057.00 per month at an annual interest rate of 10% over an
estimated period of 68 months.
[7] Once a Court had made
an order in terms of s 87(1)(b)(ii) of the Act, the Plaintiff’s
rights in terms of s 88(3) of the
Act kicked in. S 88(3) of the
Act provides that:
“
Subject
to sections 86(9) and (10), a credit provider who receives notice of
Court proceedings contemplated in section 83 or 85
or notice in terms
of section 86(4)(b)(i), may not exercise or enforce by litigation or
other judicial process any right or security
under that credit
agreement until –
(a)
the consumer is in default under the agreement; and
(b)
one of the following has occurred:
(i)
an event contemplated in subsection (1)(a) through (c); or
(ii)
the consumer defaults on his obligation in terms of a re-arrangement
agreed between the consumer and credit providers, or ordered
by a
Court or the Tribunal.”
[8]
It is contended by the Plaintiff that the Defendant has,
notwithstanding the Instalment Sale Agreement terms and the
Magistrate’s
Court order of 22 April 2015, respectively, failed
to comply with the terms of the said Agreement and the Magistrate
Court Order.
Furthermore it is contended by the Plaintiff that
the Defendant has, notwithstanding, failed to surrender the said
motor vehicle
to the Plaintiff as envisaged by the provisions of s
127 of the Act.
[9]
By reason of the Defendant’s aforementioned defaults, the
Plaintiff is entitled to cancel the parties’ Agreement
which it
did in the summons; and to claim possession of the said motor vehicle
as well as damages.
[10]
According to the Certificate of Balance, as at 18 November 2015, the
amount due owing and payable by the Defendant to the Plaintiff,
together with interest thereon charged at 10% per annum from 18
November 2015, was R346,306.77. In the said Agreement, the
parties had agreed that a certificate signed by any manager of the
Plaintiff would, on its mere production, be sufficient proof
of the
amounts and other information mentioned in it unless, the contrary is
proved.
[11]
The Plaintiff has elected to cancel the said Agreement; to reclaim
possession of the said motor vehicle and to claim damages
against the
Defendant. In addition, the Plaintiff has tendered to make
payment to the Defendant of any excess in the event
of the value of
the motor vehicle returned to the Plaintiff exceeding the amount of
R346,306.77.
[12]
By the combined summons issued by the Registrar of this Court on 22
December 2015 the Plaintiff commenced litigation, as it
was entitled
to, to secure the relief set out in paragraph 1 supra. A copy
of the Plaintiff’s summons in this regard
was served on the
Defendant on 19 January 2016. On 2 February 2016, the
Defendant, through his legal representatives, delivered
his notice of
intention to defend the Plaintiff’s action. On 11
February 2016, the Plaintiff caused to be delivered
a notice of
application for summary judgment. In support of such an
application for summary judgment is an affidavit by one
Erika
Petronella van der Westhuizen, the Plaintiff’s manager at the
Vehicle and Asset Finance, Personal and Business Banking
credit
Department, located at the Plaintiff’s business address in
Johannesburg.
[13]
In the said affidavit, the said van der Westhuizen has testified that
she had access to the Plaintiff’s electronic and
other records;
that she had in her possession and under her control the agreements
entered into between the Plaintiff and the Defendant,
together with
other documentation pertaining to the facts upon which the
Plaintiff’s cause of action was founded. In
addition she
confirmed and swore positively to the facts and thereby verified the
Plaintiff’s cause of action. She
opined that the
Defendant had no
bona fide
defence and that his notice of
intention to defend was delivered solely for the purpose of delay.
[14]
As indicated in paragraph 2 supra, the Defendant resists the
Plaintiff’s application for summary judgment. For
that
purpose the Defendant has delivered an affidavit in which he opposes
the said application.
[15]
When this application came before Court on 11 March 2016, Advocate
Schoeman, or should I say Mrs. Schoeman, for there is another
advocate who goes by the same surname, appeared for the Plaintiff
while Advocate Strauss, appeared for the Defendant. As
required
by the Practice Manual of this Division Mrs. Schoeman had filed both
her Practice Note and Short Heads of Argument.
Mrs. Strauss, on
the other hand, had filed no Short Heads of Argument as enjoined by
the Practice Manual. Her inability to
do so seemed to have
emanated from the fact that she received her brief so late that she
had very little time to prepare and have
them delivered for the Court
and the Plaintiff’s counsel. As the Rules provide no
sanction for the Defendant who fails
to comply with the Practice
Manual in that regard we proceeded with the matter.
[16]
In his opposing affidavit, the Defendant had raised three points
in
limine
against the application for summary judgment. In the
first point
in limine
, the Defendant, while he admitted that
the parties had concluded an Instalment Sale Agreement referred to
hereinabove, contended
that the deponent to the affidavit in support
of the summary judgment has no personal knowledge of the facts
deposed to.
In the second point
in limine
raised by the
Defendant it was contended that the affidavit in support of the
application for summary judgment had not properly
attested.
Thirdly and lastly, the Defendant had contended that the summons and
the application for summary judgment were
premature.
[17]
By reason of the subsequent concessions made by Mrs. Strauss in
respect of the first and third points
in limine
, I do not
consider worthwhile to be detained by them any further. Suffice
to state that these two points
in limine
fell by the wayside
once they she conceded them. It was only the second one that
remained the tug of war between the parties.
A brief summary of
the origin of this point
in limine
will suffice. The
certificate of attestation of the affidavit in support of the
application for summary judgment reflected
that the affidavit was
commissioned in Johannesburg. On the other hand the office
stamp of the commissioner of Oath, a certain
attorney Suzan Jacobs,
showed that her office was located in Brooklyn in Pretoria. A
point was taken by Mrs. Strauss that
it is highly unlikely that the
affidavit was sworn in Johannesburg while the Commissioner of Oaths
was located in Pretoria.
On that basis she argued that the
affidavit had not been properly sworn to and that there was no proper
affidavit before the Court.
[18]
The Court dismissed the second point
in limine
as lacking in
substance. All that is required with regard to an affidavit is
that it must identify the deponent; it must
be commissioned before a
Commissioner of Oath; it must be clear that the Commissioner of Oath
is entitled to attest affidavits;
it must also be clear that it was
commissioned in this country for different requirements apply when an
affidavit is attested to
and commissioned out of the country.
When such an affidavit is attested at a place different from the
Commissioner is irrelevant
as long as such a Commissioner of Oath is
officially regarded as such countrywide.
[19]
In his opposing affidavit, the Defendant is requested by Rule 32(3)
of the Uniform Rules of this Court to satisfy this Court
by an
affidavit that he has a
bona fide
defence to the Plaintiff’s
action; that such affidavit or evidence shall disclose fully the
nature and grounds of his defence
and the material facts upon which
his defence is based. The affidavit is designed to satisfy the
Court that its contents
disclose the Defendant’s
bona fide
defence. Whether the affidavit serves its purpose fully is
a matter that is determined by its contents.
[20] I now proceed to
examine the defence that the Defendant has raised in his affidavit.
20.1
Firstly, the Defendant testified that on 22 April 2015, the
Magistrate granted a debt re-arrangement order. This is the
order that I already have referred to somewhere above. What is
of supreme importance, however, in his evidence is the averment
by
the Defendant that the debt review counsellor who moved his
application in terms of s. 86 of the Act in his absence and who
obtained the order referred to above did not, immediately after
obtaining the order, notify him. He is saying that he was
not
aware of the said order and did not know of its existence.
According to his testimony he only became aware of such an
order
after a copy of the summons had been served on him as mentioned
somewhere supra.
[21]
All that this Court can remark about his evidence is that the
Defendant had adopted a supine attitude towards his case and
it is
because of his supinity that he was not aware of the Court order, if
his evidence is anything to go by. He knew he
was in trouble
with his payments in terms of the Agreement; he desperately needed a
solution to his problems; at his own initiative
he approached a debt
counsellor seeking assistance; he knew that the debt counsellor would
approach the court for an appropriate
order. Surely the debt
counsellor explained the steps that she would take with regards to
the application in terms of s 86
of the Act. The applicant
would have been anxious to know the results of his application. He
should therefore have taken
steps to find out what happened on 22
April 2015 about his application in terms of s 86 of the Act.
He wants this Court to
accept that he took no steps between 22 April
2015 when the said order was made and 19 January 2016 when he was
served with a copy
of the summons, to establish the results of his
application. To compound the matters, the Defendant who now
blames the debt
counsellor, has not even obtained such debt
counsellor’s affidavit to support his contention. He is to
blame for this state
of affairs.
[22]
When ultimately he received a report from the debt counsellor, he was
told that he had to pay a total monthly amount of R10,700.00,
which
amounts would have been distributed among his creditors. He
claims that the Payment Distribution Agent failed to pay
the correct
monthly amount to the Plaintiff as per debt re-arrangement order. It
is as clear as crystal that payment of a monthly
amount of R10,700.00
was not in keeping with the Magistrate’s order of 22 April
2015. If the Defendant had become pro-active
in the solution of
his problems, he would have known that the sum of R10,700.00 would
not have sufficiently covered his monthly
obligations in terms of the
Court order. Again his ignorance can be solely attributed to
his supinity. Again in this respect
he has not deemed it necessary to
obtain his debt counsellor’s affidavit.
[23]
The Defendant unjustifiably blames the Payment Distribution Agent for
failing to make correct monthly amounts to the Plaintiff
as per debt
re-arrangement order. If the Defendant did not himself make payment
in accordance with the Court order, it is highly
unlikely that the
Payment Distribution Agent would have made the distribution according
to the terms of the same Court order. All
that the Defendant does by
his averments is to seek an escape route for his default in what he
calls the failure of the Payment
Distribution Agent. He also wants
this Court to accept that he was misled by his own debt counsellor
into believing that an amount
of R10,700.00 was enough to cover all
his monthly debts. In my view this is highly unlikely. By
paying only R10,700.00 the
Defendant failed to comply with the Court
order.
[24]
While a Court should approach such matters as an application for
summary judgment, fully aware of the implication thereof,
a Court
cannot come to the assistance of a litigant who shows lack of
attention to his own matters. This lack of attention is manifested
by
the failure of the Defendant to verify his state of affairs from 22
April 2015 when an order was made up to 19 January 2016
when he was
served with a copy of the summons.
[25]
In my view the Defendant has not succeeded in satisfying the Court
that he has a
bona fide
defence against the application for
summary judgment. The Defendant has not raised any issue with
the other relief that the
Plaintiff seeks in the application for
summary judgment, for instance an order in terms of which the
Plaintiff seeks to amend the
details regarding the Engine and chassis
number of the motor vehicle.
[26] In the result
prayers 1, 2, 3, 4 and 5 of the application for summary judgment are
granted. It is noticed that according to
page 2 of the application
for summary judgment there are two paragraph 3’s, I will accept
that the second 3 should be a 4
and that relief in 4 should be 5 and
relief in 5 should actually be 6. It is for that reason that I grant
prayers 1, 2, 3, 4 and
5 of the application for summary judgment.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Plaintiff: Adv.
J Schoeman
Instructed
by: Hannes
Gouws & Partners
Counsel
for the Defendant: Adv.
Strauss
Instructed
by: Wentzel
& Partners
Date
Heard: 11
March 2016
Date
of Judgment: 14
March 2016