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[2016] ZAGPPHC 558
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Standard Bank of South Africa v PAMSA Consulting (Pty) Ltd and Another (66611/2016) [2016] ZAGPPHC 558 (22 June 2016)
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REPUBLIC OF SOUTH
AFFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
CASE NO: 66611/2016
THE STANDARD BANK OF SOUTH
AFRICA
..................................................
Plaintiff/
Applicant
And
PAMSAL CONSULTING (PTY)
LTD
....................................................
First
defendant/respondent
NTHUSHENG PHASWANE
MOTSHANA
.......................................
Second
defendant/respondent
REASONS FOR JUDGMENT
AC
BASSON, J
[1]
This was an application for summary
judgment in terms of which the plaintiff/applicant sought an order to
confirm the cancellation
of the agreement between the plaintiff and
the first and second defendants/respondents a
nd for the return
of a [2015 H…… 3….. L…..]
(“
the vehicle”).
[2]
After having heard argument, this court
granted summary judgment against the defendants confirming the
cancellation of the agreement
and ordered the defendants to return
the vehicle. The defendants were also ordered to pay the costs.
Here are brief reasons for my order.
[3]
On 6 February 2015 the plaintiff and the
first defendant entered into an Installment Sale Agreement (“the
agreement”).
In terms of this agreement the defendant purchased
a vehicle in an amount of R 469 347.48 which amount was made up of a
principal
debt of R 360 750.81 plus finance charges of R 108 596.67.
Further in terms of this agreement, the first defendant undertook to
pay the amount of R469 347.48 as follows: (i) Six fixed payments of R
16 281.63 each at one monthly intervals beginning on 15 March
2015;
(ii) 53 payments of R 6 882.55 each at one monthly intervals
beginning on 15 September 2015; and (iii) One final payment
of R 6
882.55 on the 15
th
of February 2020.
[4]
It is a term of the agreement that if a
party fails to make a payment, the plaintiff can claim the full
outstanding balance owing
in terms of the said agreement,
alternatively, the plaintiff may elect to cancel the agreement, take
possession of the goods and
claim damages.
[5]
The first defendant did not make
punctual payments. In fact, as at 31 December 2015 the first
defendant is in arrears in the amount
of R 38 983.54. As will be
pointed out herein below, instead of raising a
bona fide
defence against their indebtedness towards the
plaintiff, the defendants have elected to raise technical defences in
their affidavit
resisting summary judgment. I will revert to the fact
that the defendants have not raised a
bona fide
defence herein below.
Section 129 notice in terms of the National Credit Act
[6]
The first defence raised is the
allegation that the section 129 notice as required by the National
Credit Act
[1]
did not come to the knowledge of the defendants and therefore the
plaintiff was not entitled to issue and serve the summons. In
this
regard the defendants referred to the postage slips to make out an
argument that the said notice was sent to an incorrect
address.
[7]
At the outset I must point out that
there is no merit in this submission. Apart from the fact, as will be
pointed out herein below,
that a section 129 notice was not a
requirement as the National Credit Act does not apply to this
particular agreement, I am not
persuaded that the section 129 notice
(even assuming that it was a requirement) was sent to the incorrect
address.
[8]
In respect of the section 129 notice, it
appears from the papers that the notice in terms of section 129 of
the National Credit
Act was sent twice by registered post to the
first respondent’s chosen
domicilium citandi et
executandi.
The registered posting slips
reflect the correct address. From the Parcel Tracking Results
attached to the papers it further appears
that the Post Office did
indeed send a notification to the first defendant.
[9]
Is there an obligation on the plaintiff
to ensure that notice did actually come to the attention of the first
defendant? According
to the court in
Kubyana v Standard Bank
of South Africa Ltd
[2]
.
No such obligation exists:
“[34]
I now consider the purpose of the s 129 notice and the obligations of
a reasonable consumer. Section 129 aims to establish
a framework
within which the parties to the credit agreement, in circumstances
where the consumer has defaulted on her obligations,
can come
together and resolve their dispute without expensive, acrimonious and
time-consuming recourse to the courts. However,
this form of dispute
resolution is possible only if both parties come to the table: the
credit provider must avoid hasty recourse
to litigation and the
consumer must seek to rectify her default in a reasonable and
responsible manner.
[35]
If the credit provider complies with the
requirements set out in [31] - [33] above and receives no response
from the consumer within
the period designated by the Act, I fail to
see what more can be expected of it. Certainly, the Act imposes no
further hurdles
and the credit provider is entitled to enforce its
rights under the credit agreement. It deserves re-emphasis that the
purpose
of the Act is not only to protect consumers, but also to
create a 'harmonised system of debt restructuring, enforcement and
judgment,
which places priority on the eventual satisfaction
of all responsible consumer obligations under credit agreements'.
Indeed, if the consumer has unreasonably failed to respond to the s
129 notice, she will have eschewed reliance on the consensual
dispute
resolution mechanisms provided for by the Act. She will not
subsequently be entitled to disrupt enforcement proceedings
by
claiming that the credit provider has failed to discharge its
statutory notice obligations.
[36]
As set out earlier, even if the s 129
notice has been dispatched by registered mail and the Post Office has
delivered the notification
to the consumer's designated address,
valid delivery will not take place if the notice would nevertheless
not have come to the
attention of a reasonable consumer.
But
if the credit provider has complied with the requirements set out
above, it will be up to the consumer to show that the notice
did not
come to her attention and the reasons why it did not”*
[10]The deponent to the affidavit
resisting summary judgment merely states that he did not receive the
notices from the Post Office.
I am not persuaded on the papers that
the notice was sent to an incorrect address and therefore do not
accept the bold allegation
that the notice did not came to the
attention of the defendant.
Does the National Credit Act apply?
[11]I have already referred to
the fact that the point has been raised that the National Credit Act
is, in any event, not applicable
to the agreement.
[12]In the present matter the
first defendant is identified as a closed corporation duly registered
in terms of the Company Laws
of the Republic of South Africa.
[13]In general, the National
Credit Act does apply to juristic persons in their capacity as
consumers but only to a very limited
extent. More in particular, the
National Credit Act does not apply if the juristic person concludes a
"large agreement”.
A “large agreement” refers
to a mortgage agreement (regardless of the amount involved) and also
refers to other credit
agreements in terms of which the principal
debt is R250 000 or more. The National Credit Act does not apply to a
juristic person
with an asset value or annual turnover of R1 million
or more. The National Credit Act will also not apply if a juristic
person
- with an asset value or annual turnover below R1 million when
the agreement is made - concludes a
large credit agreement
(see s 4(1
)(b)
of
the NCA). (See also
Nedbank Ltd v Wizard Holdings (Pty) Ltd
and Others.
[3]
)
[14]In the present case this
court is unaware of whether the first defendant has an assent value
or annual turnover of R 1 million
or more. But, on the facts before
the court, the agreement in the present instance qualifies as a large
agreement” in light
of the fact that it is a credit agreement
in terms of which the principle debt is more than R 250 000.00: In
terms of s 4(1
)(b)
of the National
Credit Act, the Act does not apply to a credit agreement where the
agreement qualifies as a large agreement as
envisaged in s 9(4)
(b)
read with s 7(1
)(b)
of the National
Credit Act (namely where the “principal debt” under the
transaction equals or exceeds the amount of
R250 000, as determined
in GN 713 of 1 June 2006).
[15]In light of the fact that the
defendants (assuming that the first defendant/respondent has an
assent value or annual turnover
of less than R 1 million) have
concluded a large credit agreement, the provisions of the National
Credit Act are not applicable
to the transaction. The plaintiff was
therefore not required to dispatch a section 129 notice to the
defendants. Consequently the
defence raised by the defendants in
respect of the section 129 notice is rendered academic.
Bona fide defence
[16]Apart from the aforegoing,
and more importantly, no defence is put forward in the affidavit
resisting summary judgment. Where
a defendant fails to set out a
bona
fide
defence in its papers, an application for
summary judgment will be granted. See in this regard
ABSA Bank
Limited v EFM Investments
CC
[4]
where the Court emphasised this point:
“[2]
I do not propose to go back over the reasons why summary judgment was
granted against the defendants anymore than is
strictly necessary.
Those reasons were fully set out in the principal judgment. The
essential reason why the defendants’
opposition to the
application for summary judgment was unsuccessful was that they
failed, in my judgment, to meet the threshold
requirement of setting
out a bona fide defence. The classical statement of the requirements
in this respect is that given in Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A), at 425G-426E.
The remedy of summary
judgment is not intended to shut out defendants who are able to
demonstrate a bona fide intention to defend
the action. It does
require them, however to show what their intended defences are. It
must appear from what they say in this respect
that the defences are
legally sustainable and that they are maintained in good faith. They
are expected to do this by setting out
in their opposing affidavits
the nature and grounds of the defence and the material facts upon
which it is founded. If the averments
made by a defendant in the
opposing affidavit are vague, or markedly lacking in the
particularity that might be expected in the
circumstances of the
case, then the court is likely to hold that a bona fide defence has
not been disclosed, and summary judgment
will follow ”
[17]Nowhere in the affidavit
resitting summary judgment does the defendants disclose, apart from
technical defences, what their
defence is against the averment made
on behalf of the plaintiff that the first defendant had breached the
agreement by not making
punctual payments. More in particular, there
is no denial in the affidavit resisting summary judgment that the
first defendant
is in arrears in the amount of R 38 983.54. In fact,
there is not even an averment that the first defendant/respondent has
in fact
been making payments towards the vehicle.
[18]I am therefore in agreement
with the submission on behalf of plaintiff that the defendants have
entered an appearance to defend
merely in order to delay the
plaintiffs claim. If the defendants had made any payments to the
plaintiff since 31 December 2015
it would have been expected of them
to have attached, at the very least, proof of payment to the
plaintiff (since December 2015).
In the circumstances it is therefore
concluded that the defendants have not disclosed a
bona fide
defence in their papers. Furthermore, the irresistible conclusion on
the papers is that the defendants do not have a defence, that
the
first defendant is currently utilising a vehicle for which no
payments have been made, and that the defendant have merely entered
an appearance to defend in order to delay the plaintiffs claim.
[19]I am therefore of the view
that it would be appropriate to exercise my discretion in favour of
the plaintiff especially in light
of the facts deposed to in the
affidavit opposing summary judgment that do not suggest a reasonable
possibility that the defendants
may have a defence against the
monetary claim of the plaintiff.
[20]
In the event the application for summary
judgment is granted with costs.
AC BASSON
JUDGE OF THE HIGH COURT
[1]
Act 34 of 2005.
[2]
2014 (3) SA 56 (CC).
[3]
2010 (5) SA 523 (GSJ.
[4]
Case No.s: 11461/2012 and 11463/2012. 26
October 2012. Western Cape High Court.