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[2016] ZAGPPHC 692
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Nhlapo v Toyota Financial Services SA Ltd (81122/14) [2016] ZAGPPHC 692 (4 August 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, PRETORIA
CASE
NO: 81122/14
4/8/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
SPHELI
GLORIA
NHLAPO
Applicant
and
TOYOTA
FINANCIAL SERVICES SA
LTD
Respondent
JUDGMENT
MOGAGABE.
AJ
:
INTRODUCTION
[1]
The applicant seeks the rescission of the default judgment granted
against her by the Registrar of this Court on 3 February
2015 in
favour of respondent.
THE
PARTIES
[2]
The applicant ("Ms Nhlapo") is an adult female who at all
times material hereto was residing at Stand No 4805, Kanyamazane,
Extension 5, Nsikazi District, Mpumalanga Province, the respondent
("Toyota") is a company with limited liability duly
registered as a financial services and credit provider as so defined
in terms of
section 40
of the
National Credit Act 34 of 2005
.
BACKGROUND
[3]
On or about 18 November 2010 Ms Nhlapo and Toyota concluded a written
instalment sale agreement ("the Agreement")
regulated by
the National Credit Act 34 of 2005 ("the NCA"), in terms of
which Toyota sold to her a
Toyota Verso 160 SX
motor vehicle
(hereinafter referred to as
"the vehicle").
The
purchase price of the vehicle was in the sum of R 285 472, 08. Ms
Nhlapo paid an initial deposit in the sum of R68 000,00. The
first
instalment of R 3 964.89 was payable on 15 January 2011 and the
balance thereof was payable in 72 equal instalments in the
sum of R3
964,89 payable on each corresponding day of each consecutive month
with the final instalment payable on 15 December 2016.
MS
NHLAPO'S DEFAULT
[4]
Ms Nhlapo duly paid the requisite monthly instalments as so
stipulated in terms of the Agreement. In default of her monthly
financial obligations in terms of the Agreement, she failed to pay
the requisite instalments for the months of July, August and
September 2014, with the consequences that as at 16 September 2014
she was in arrears with her monthly instalment payments in the
sum of
R 8 139.09.
NOTICE
IN TERMS OF SECTION 129 OF THE NCA
[5]
In view of such breach of the Agreement by Ms Nhlapo, Toyota as so
enjoined by section 129 of the NCA sent a letter notifying
her of
such default i.e. non-payment of the requisite monthly instalments in
the sum of R 8 139.09 as at 16 September 2014 and
advising Ms Nhlapo
of her rights or options available to her in terms of the NCA. This
section 129 Notice, dated 16 September 2014
was served on her at the
address referred to in para 2 above which was her chosen
domicilium
citandi et executandi
in terms of the Agreement, by the sheriff
on 9 October 2014. The relevant parts thereof for present purposes
read thus:
"In terms of
section 129 read together with
section 130
of the
National Credit Act
No 34 of 2005
, we advise that you have not met your obligations to
our client in respect of the above Agreement. This account
is
in default
as
indicated above. We are instructed to request
and to demand,
as
we
hereby do, that payment to the
sum
of
RB 139,09
is
made to
Toyota Financial Services
SA
Ltd,
immediately and that you provide satisfactory confirmation that you
are in
possession
and
control of the abovementioned goods.
We request that you
pay the amount directly into Toyota Financial Services
SA
Ltd's account.
The amount payable may
include permitted default charges and reasonable
costs
incurred by our client to enforce the
agreement up to the date of your payment.
On receipt of this
notice, the matter may be referred to: Toyota Financial Services,
a
debt counsellor, an alternative dispute
resolution agent, the consumer court and the ombud, to resolve any
dispute or to develop
a
plan
that is acceptable to both parties, to bring outstanding payments up
to date.
Unfortunately, should
there be no response to this notice within 1O (ten) business days
from date of it being sent to you by registered
mail, and the amount
due being unpaid for 20 (twenty) business days from date of postage
of this notice, our client may approach
a
court to enforce its agreement.
Should no suitable
arrangements be made to bring the account up to date and you do not
respond to this notice, our client may file
the details of your
default and its enforcement actions with the credit bureaus within 20
(twenty) business days from the date
of this notice.
'Should you fail to
comply with the aforesaid the agreement is hereby cancelled.
"
MS
NHLAPO'S RESPONSE TO THE
SECTION 129
NOTICE
[6]
In response to this
section 129
Notice, Ms Nhlapo on 15 October 2014
made payment to Toyota in the sum of R 8 140.00 thereby extinguishing
the arrears in the sum
of R 8 139.09 as so claimed or specified in
the
section 129
Notice. Such payment was made within the stipulated
period of 10 business days from the date of receipt of the
section
129
Notice.
[7]
The nett effect thereof is that as from the date of payment thereof
ie 15 October 2014, Ms Nhlapo had purged her default and
brought her
payments under the Agreement up to date.
OCTOBER
DEFAULT
[8]
However Ms Nhlapo did not pay her October 2014 instalments with the
concomitant effect that as at 30 October 2014, she again
fell into
arrears with her payments in the sum of R 4 131.60. It is such
default in respect of the month of October, which Toyota
relied on
for breach of the Agreement to commence litigation (ie issue summons)
against her enforcing the Agreement.
COMMENCEMENT
OF LEGAL PROCEEDINGS
[9]
Without giving her any further
section 129
Notice, Toyota issued
summons against Ms Nhlapo on 6 November 2014 alleging that as at 30
October 2014 she was in arrears with
her October monthly instalments
in the said sum of R 4 131.60 and as a result of such breach of the
Agreement it (Toyota) terminated
the Agreement and sought
confirmation of termination of the Agreement, return of the vehicle
and damages.
[10]
The summons were likewise served on her personally by the
Sheriff on 14 November 2014 at the aforesaid address which
also
served as her chosen
domicilium citandi et executandi
according
to the sheriff's return of service.
[11]
Ms Nhlapo does not dispute that the summons was so served at this
address, but however maintains that she never received same.
In view
of the conclusion reached herein, I will accept that the summons were
properly served.
DEFAULT
JUDGMENT
[12]
There being no notice of intention to defend filed by Ms Nhlapo so
defending or resisting this action, Toyota then applied
for default
judgment against her which default judgment was so granted by the
Registrar on 3 February 2015.
[1]
SUBSEQUENT
DEFAULTS AND PAYMENTS BY MS NHLAPO
[13]
Subsequent to the issuing of summons Ms Nhlapo once more fell into
arrears for the months of December 2014, January and February
2015
due to financial difficulties experienced as a results of having lost
her job which was her only source of income. In purging
such default
she made payments to Toyota totalling R 19 100.00 paid as follows:
3 March 2015
-
R 4 100.00;
9
March
2015
-
R 10 000.00 and
7 April 2015 R 5000.00.
[14]
I interpose to point out that such payments where accepted by Toyota
despite the fact that the default judgment had already
been granted
on 3 February 2015 as outlined above in terms of which the
Agreement was cancelled. Mr Welgemoed on behalf of
Toyota submitted
that such payments were allocated or credited to her account with
Toyota for purposes of reducing any resultant
damages, incurred by it
in enforcing the Agreement. I note that Toyota had not as at the time
of acceptance thereof repossessed
the vehicle nor obtained judgment
quantifying such damages as per the terms of the default judgment as
so outlined above.
[2]
Needless
to say such conduct on Toyota's part in accepting such payments
appears to be inconsistent with the cancellation of the
Agreement
particularly as the Agreement does not confer this right in clear and
unambiguous terms.
[15]
Ms Nhlapo further avers that the reason she ceased making further
payments (her last payment being made on 7 April 2015) was
due to the
fact that she was informed by the sheriff (apparently on 13 April
2015 when the sheriff repossessed the vehicle) that
"her account
had been closed and that even if she made any payments same would not
go through or credited on her account."
WRIT
OF EXECUTION
[16]
Subsequent to the grant of the default judgment as aforesaid, the
Registrar issued a writ of execution in enforcement of such
default
judgment authorising the sheriff to attach and take the vehicle into
execution. Such writ of execution was executed by
the sheriff on 13
April 2015 in terms of which the sheriff attached and removed the
vehicle from Ms Nhlapo's possession. It is
not clear from the papers
as to when such writ of e.xecution was issued ie whether same was
issued prior to the payments so made
in para 13 above or thereafter.
[17]
Applicant claims that she was not aware nor had knowledge of the
action so instituted against her or the default judgment so
taken
against her by Toyota until 13 April 2015 when the sheriff informed
her likewise during the process of repossessing the vehicle,
whereupon she then contacted Toyota about the matter and was advised
of the default judgment so granted as well as the warrant
of delivery
issued for the repossession of the vehicle. In terms of
Rule 35
(1)
(b) a defendant is allowed to apply to court to set aside a default
judgment within 20 days after she/he has knowledge thereof
ie within
20 days after same was brought to her/his attention or obtained
knowledge thereof. In the present matter, Ms Nhlapo avers
that she
first became aware or had knowledge of the default judgment on 13
April 2015 when the sheriff repossessed the vehicle.
The application
for rescission of judgment was dated 22 April 2015 and was served on
22 April 2015, entailing that same was launched
within the prescribed
time period. As such condonation in this regard was not necessary.
COMMON
CAUSE ISSUES
[18]
For purposes of this judgment it is important to highlight that it is
common cause if not undisputed that Ms Nhlapo defaulted
in paying the
October 2014 instalment as so stipulated in terms of the Agreement
with the attendant consequences that as at 30
October 2014 she was in
arrears with her payments in the sum of R 4 131.60 as so alleged in
the particulars of claim.
[19]
It is further common cause that prior to so commencing such legal
proceedings, Toyota did not give Ms Nhlapo a new or further
notice in
terms of
section 129(1)
of the NCA pertaining to her default in
respect of the month of October.
[20]
In the particulars of claim Toyota relied on the default by Ms Nhlapo
to pay the October 2014 instalment in the sum of R 4
131.60 as a
ground for breach on her part of the Agreement. However, it placed
reliance on the said notice dated 16 September 2014
for purposes of
compliance with
section 129
(1) of the NCA.
[3]
[21]
The defence so raised or relied upon by Ms Nhlapo in this regard is
based on Toyota's non-compliance with the provisions of
section 129
(1) of the NCA by failing to give her the requisite statutory written
notice as so contemplated therein, prior to the commencement
of the
legal proceedings as so outlined above.
[22]
It was contended on behalf of Toyota that the case relating to the
section 129
Notice by Ms Nhlapo only surfaced in the replying
affidavit and was not raised in the founding affidavit and as such
the Court
is not entitled to have regard to or consider same. In my
view this contention cannot hold sway in that the applicant raised or
dealt with the issue of the
section 129
Notice in response to
averments in this regard made by Toyota in the answering
affidavit. It is not an absolute rule that
all essential averments
must appear in the founding affidavit or that the Court will not
allow an applicant to make or supplement
his/her case in the replying
affidavit. In any event no application to "strike out" such
averments in the replying affidavit
was made nor leave sought to file
a fourth set of affidavits.
THE
DEFENCE
[23]
The defence so relied upon by Ms Nhlapo for rescission of the default
judgment is predicated upon the provisions of
section 129
(1) of the
NCA. In essence the defence is to the effect that after having paid
the arrear instalments in the sum of R 8 140.00
on 15 October 2014 as
so outlined in para 6 above, Toyota was not entitled to commence
litigation against her (ie issue summons)
let alone apply for default
judgment against her on the basis of her failure or default in paying
the October instalment, without
first issuing or giving her new or a
further
section 129
Notice relating to such October arrears as so
contemplated in terms of
section 129
(1) of the NCA. In other words
Ms Nhlapo contends that upon payment of the arrears in the sum of R 8
139.00 as so specified in
the
section 129
Notice dated 16 September
2014, she had purged her default or had brought her indebtedness in
terms of the Agreement to Toyota
(credit provider) up to date, and as
such Toyota was enjoined in terms of the provisions of
section 129
(1) of the NCA to give her a new or further notice in respect of her
default for the month of October, prior to commencing litigation
to
enforce the Agreement with the attendant consequences that failure to
do so precluded Toyota from commencing litigation against
her or for
that matter for the Court to have granted the default judgment.
TOYOTA'S
SUBMISSIONS
[24]
Mr Welgemoed submitted that having regard to the fact that Toyota had
given Ms Nhlapo the requisite
section 129
Notice as per the Notice
dated 14 September 2014, it was not necessary for Toyota to issue or
give her a new or further notice
notwithstanding the fact that she
(Ms Nhlapo) in response to or acting in compliance with such notice
had made payment of the arrear
amount claimed or specified in such
notice, contending that such notice remained valid and in extant
entitling the credit provider
to rely on same in instituting legal
proceedings to enforce the Agreement. In essence, so the argument
runs, in instances where
a consumer complied with such notice and
paid her/his arrears in full as per such notice and thereafter
defaulted again such notice
does not lose its efficacy but remains
valid and in extant by virtue of such default. As such so submitted
Mr Welgemoed, once Toyota
had so issued or given Ms Nhlapo the said
notice (dated 16 September 2016) as so contemplated in terms of
section 129(1)
of the NCA, it fulfilled its statutory obligations and
it was unnecessary for Toyota to give a new or further notice to her.
In
developing this argument, he submitted that if a consumer in
compliance with a
section 129
Notice pays only her/his arrears and
not her/ his current outstanding balance, the notice remains valid
and in extant with the
attendant consequence that there is no
obligation on the credit provider to give another notice in respect
of a subsequent default
by the consumer ie in instances where a
consumer defaults and pays her arrears in full and immediately
thereafter defaults again.
[25]
It is apposite for present purposes to set out the provisions of
section 129(1)
of the NCA which provide thus:
"129. Required
procedures before debt enforcement.
(1)
If
the consumer is in default under
a
credit
agreement, the credit provider -
(a)
may draw the default to the notice of the
consumer in writing and propose that the consumer refer the credit
agreement to
a
debt
counsellor, alternative dispute resolution agent, consumer court or
ombud with jurisdiction, with the intent that the parties
resolve any
dispute under the agreement or develop and agree on
a
plan to bring the payments under the agreement
up to date; and
(b)
subject to
section 130(2)
, may not commence any
legal proceedings to enforce the agreement before
-
(i)
first
providing notice to the consumer,
as
contemplated in paragraph (a), or in
section
86(10)
,
as
the case
may be; and
(ii) meeting any
further requirements set out in
section 130.
"
[26]
Section 129
(1) must be read in conjunction with
section 130
, the
relevant part thereof which provides as follows:
"130. Debt
procedures in a court
(1)
Subject
to subsection (2),
a
credit
provider may approach the court for an order to enforce
a
credit agreement only if, at that time, the
consumer is in default and has been in default under that credit
agreement for at least
20 business days and
-
(a)
at least 10 business days have elapsed since the
credit provider delivered
a
notice
to the consumer
as
contemplated
in
section 86(9)
, or
section 129(1)
,
as
the
case may be;
(b)
in the case of
a
notice
contemplated in
section 129(1)
, the consumer has
-
(i)
not
responded to that notice; or
(ii)
responded
to the notice by rejecting the credit
provider's proposals; and
(c)
in the case of an instalment agreement, secured
loan or lease, the consumer has not surrendered the relevant property
to the credit
provider
as
contemplated
in
section 127.
(2) …
(3)
Despite
any provision of law or contract to the contrary, in any proceedings
commenced in
a
court
in respect of
a
credit
agreement to which this Act applies, the court may determine the
matter only if the court is satisfied that
-
(a)
in the case of proceedings to which sections 127,
129 or 131 apply, the procedures required by those sections have been
complied
with;
(4)
In
any proceedings contemplated in this section if the court
determines that
-
(a)
(b)
the credit provider has not complied with the
relevant provisions of this Act,
as
contemplated in subsection (3)(a)
...
the court must -
(i)
adjourn
the matter before it; and
(ii) make an
appropriate order setting out the steps the credit provider must
complete before the matter may be resumed'
[27]
The provisions of section 129 (1) of the NCA have been the subject of
judicial scrutiny in the High Court, Supreme Court of
Appeal and the
Constitutional Court.
[4]
[28]
It is settled law that in terms of section 129 (1) (a) a credit
provider is obliged to give the defaulting consumer written
notice of
such default prior to commencing legal proceedings to enforce a
credit agreement. In other words the giving of such written
notification as so contemplated in terms of section 129 (1) (a) is
mandatory or necessary pre-litigation requirement. The nett
effect
thereof is that the section precludes the commencement of legal
proceedings unless notice is first given. In peremptory
terms the
section declares that legal proceedings to
enforce a credit agreement may
not
commence prior to a credit provider first providing notice to a
consumer and meeting further requirements set out in
section 130.
[5]
[29]
Any construction of the provisions of the NCA should be geared
towards achieving its purposes as so commanded by section 2
thereof.
The purposes thereof are "to promote and advance the social and
economic welfare" of the citizens of this country,
to "promote
a fair, efficient, effective and accessible credit market and
industry", and to protect consumers, by
inter
alia
"promoting
equity in the credit market by balancing the respective rights and
responsibilities of credit providers and consumers,
addressing and
correcting imbalances in negotiating power between consumers and
credit providers" by amongst other things,
"providing for a
consistent and accessible system of consensual resolution of disputes
arising from credit agreements and
providing for a consistent and
harmonised system of debt restructuring, enforcement and judgment,
which places priority on the
eventual satisfaction of all responsible
consumer obligations under credit agreements"
[6]
In
Kubyana
the Constitutional Court stated that " there can be no doubt
that the Act is directed at consumer protection", however,
adding the caveat that this should not be taken to mean that the Act
is biased in favour of the consumer without having any regard
to the
interests of credit providers and that the correct interpretation of
section 129 is one that strikes an appropriate
balance between
the competing interests of both parties to a credit agreement"
[7]
.
[30]
In
Starita (aka Van Jaarsveld) v Absa Inc Ltd and
Another,_Gautschi
AJ made the following observation:
"There
is no time period specified in the Act for the continued validity of
a
section
129 notice, nor can one be implied. Its ongoing validity then depends
upon the facts of the case. For instance,
if
the arrears specified in the notice were fullv extinguished after the
notice had been given, the notice could not then be utilised
or any
legitimate purpose if further arrears occurred thereafter"
[8]
(my emphasis)
[31]
In
Dwenga
v Firstrand Bank Ltd and others
[9]
Hartle
J, fully aligned himself with the afore-quoted of Gautschi AJ in
Starita,
stating
that such notice "has run its course so to speak and no longer
has any efficacy".
[32]
I agree with such pronouncements. It cannot be gainsaid when regard
is had to the facts of the present case that when Ms Nhlapo
had so
fully extirpated the arrears so specified in the said notice, such
notice lost its efficacy and validity with the attendant
consequences
that same could not be legitimately utilised or relied upon by Toyota
for her subsequent default in respect of the
October instalment
payment, for purposes of complying with section 129 (1) (a).
[33]
The said section 129 Notice called upon Ms Nhlapo to pay the arrear
amount in the sum of R B 139.09 as well to consider utilising
the
non-judicial dispute resolution mechanisms or options proposed
therein in the event of her experiencing financial difficulties
in
paying same. In response thereto (within the 10-business days
so stipulated in the notice) she duly paid the full arrear
amount
which payments Toyota accepted. As such Ms Nhlapo acted in compliance
with such notice and duly purged in full such default.
Upon payment
of these arrears her indebtedness to Toyota was brought up to date
with the attendant consequences that the said notice
so given in
respect of such arrear payments or indebtedness fell by the wayside
or became ineffective for purposes of subsequent
defaults.
[34]
Upon applicant so defaulting once again subsequent to purging her
previous default (ie her default as per the said notice),
Toyota was
enjoined or obliged to issue a new or further notice to Ms Nhlapo as
so contemplated in section 129(1)(a) of the NCA
prior to commencing
legal proceedings to enforce the Agreement. In failing to do so,
Toyota acted in non-compliance with the peremptory
provisions of
section 129 (1) (a).
[35]
In other words upon so extinguishing in full her arrears as so
specified in the said notice it was incumbent upon Toyota in
compliance with the provision of section 129 (1) (a), to give Ms
Nhlapo a new or further section 129 Notice predicated on such
subsequent or later default, as a mandatory pre-litigation step for
the enforcement of the agreement
[36]
As such it was in the circumstances impermissible and illegitimate
for Toyota to utilise or place reliance upon the "old
notice"
in so commencing legal proceedings against Ms Nhlapo predicated on
her default in not paying the October instalments
(i.e falling once
again in arrears with her October instalment payment), for purposes
of complying with the peremptory provisions
of section 129 (1) (a)
read with section 130 of the NCA without giving her a new section 129
Notice in this regard.
[37]
I am fortified in this regard by the pronouncements of
Jafta JA in
Kubyana
to the following effect:
"the
credit provider is not entitled immediately to exercise its rights
under the agreement. It is first required to notify
the consumer of
the default and demand that the arrears be paid.
If
the consumer pays up the arrears, then the dispute is settled
.
But it may so
happen that the default is occasioned by the consumer's financial
difficulties. In that event, instead of enforcing
the
agreement,
the credit provider must afford the consumer an opportunity to refer
the agreement to one of the bodies listed in section
129 (1) (a)"
[10]
(my emphasis)
[38]
These pronouncements of Jafta JA clearly demonstrate that once a
consumer extinguishes the arrears specified in the section
129
Notice, the dispute between the parties (ie between the credit
provider and the consumer) becomes settled ie the consumer's
indebtedness to the credit provider as so claimed in the section 129
Notice is purged or erased. In other words the consumer's
obligations
in terms of the agreement are brought up to date. The nett effect
thereof is that once the dispute is so settled by
payment of the
arrears so claimed or specified in the section 129 Notice, the said
notice falls by the wayside or loses its efficacy
and can no longer
remain in extant with the concomitant effect that it will be
impermissible or illegitimate for the credit provider
to utilise same
or place reliance thereon in respect of subsequent defaults by the
consumer for purposes of compliance with the
mandatory provisions of
section 129 (1) (a).
[39]
To hold otherwise would defeat the purposes of the NCA as so
aforementioned and bring about harsh, inequitable, unjust and
unfair
consequences thereby undermining the purpose of the NCA to protect
consumers by providing for a consistent and accessible
system of
consensual resolutions of dispute arising from credit agreements and
providing for a consistent and harmonised system
of debt enforcement.
It is apposite in this regard to refer to the judicial sentiments of
Moseneke DCJ pertaining to the values
which the NCA seeks to infuse
in the credit market place coupled with the responsibilities of
credit givers to the following effect:
"
The Act seeks to infuse value of fairness, good faith, reasonableness
and equality in the manner actors in the credit market
relate. Unlike
in the past, the sheer raw financial power difference between the
credit giver and its much needed but weaker
counterpart, the
credit consumer, will not always rule the roost. Courts are urged to
strike
a
balance
between their respective rights and
responsibilities..
. Credit givers serve
a
beneficial
and indispensable role in
advancing
the economy and sometimes social good. They too have not only rights
but also responsibilities. They must act within the
constraints of
the statutory arrangements. That is particularly
so
when
a
credit
consumer honestly runs into financial distress that precipitates
repayment defaults. The
resolution
of the resultant dispute must bear the hallmarks of equity, good
faith, reasonableness and equality. No doubt, credit
gives ought to
be astute to recognise the imbalance in negotiating power between
themselves and consumers. They ought to realise
that at play in the
dispute
is
not only
the profit motive, but
also
the
civilised values of our Constitution"
[11]
[40]
This in my view, entails that once a consumer has so settled the
dispute between the parties by paying in full her arrears
as so
claimed in the section 129 Notice, a credit provider in the event of
a subsequent default on the part of such consumer, bears
the
responsibility as a matter of achieving fairness, good faith,
reasonableness and equality in the credit market, to act within
the
constraints of sections 129 (1) (a) and 130, to issue or give a new
or further section 129 Notice for such default prior to
commencing
litigation enforcing the agreement.
[41]
In light of the aforegoing, the failure by Toyota to give Ms Nhlapo a
new section 129 Notice pertaining to her subsequent default
in not
paying her October instalment, and instead utilising or relying on
the old notice for purposes of complying with the peremptory
provisions of section 129 (1) (a) read with section 130 of the NCA,
precluded it from commencing litigation against her to enforce
the
Agreement.
[42]
This being so, the failure to give Ms Nhlapo a new or further Notice
as so contemplated in section 129 (1) (a) of the NCA constitutes
a
bona fide
defence on her part entitling her to the relief
sought herein i.e. rescission of the default judgment so granted
against her by
the Registrar.
[43]
In the result the following order is made:
43.1.
The default judgment granted by the Registrar of
this Court against applicant under Case No 81122/2014 in favour of
respondent is
hereby rescinded as also the writ of execution issued
in respect of the Toyota Verso SX motor vehicle with engine number
IZRU235789
and chassis number NMTDE26R50R009633.
43.2.
The applicant is granted leave to defend the
action.
43.3.
The respondent to pay the costs of this
application.
S
J R MOGAGABE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
COUNSEL
FOR APPLICANT MR
M J MATIME
INSTRUCTED
BY THOBELA
ATTORNEYS
c/o Thobela Phaleng Inc
Pretoria
COUNSEL
FOR RESPONDENT MR
C J WELGEMOED
INSTRUCTED
BY STRAUSS
DALY ATIORNEYS
Pretoria
DATE
OF HEARING 3
February 2016
DATE
OF JUDGMENT 4/8/2016
[1]
This order was granted in the following terms: (i) an order
directing that the agreement is cancelled, (ii) an order
directing the defendant to forthwith deliver to the plaintiff the
Toyota Verso motor vehicle, (iii) an order authorising the plaintiff
to apply to court on the same papers supplemented insofar as
necessary for judgment in respect of any damages and further
expenses
incurred by plaintiff in repossessing the said vehicle
which amount can only be determined once the vehicle has been
repossessed
by the plaintiff and has been sold; quantum portion
postponed sine die and (iv) costs and sheriff s fees.
[2]
above n1
[3]
Particulars of claim p 8 paras 10;11.1 and 11.2
[4]
Nedbank Ltd v Binneman
2012 (5) SA 569
(WCC), Ba/kind v Absa Bank
2013 (2) SA 486
(ECG), Kgomo v Standard Bank
2016 (2) SA 184
(GP),
Rossouw v Firstrand Bank Ltd
2010 (6) SA 439
(SCA) paras [30]-[32],
Nedbank Ltd v National Credit Regulator
2011 (3) SA 581
(SCA) para
[14], Absa Bank v Mkhize
2013 (5) SA 227
(SCA) para [4], Sebo/a and
Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA
142
(CC), Ferris and Another v Firstrand Bank Ltd
2014 (3) SA 39
(CC), Kubyana v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC). Nkata v FirstRand Bank
2016 (4) SA 257
(CC)
[5]
Nedbank Ltd v National Credit Regulator
2011 (3) SA 581
(SCA)
paras [8] and [14], Absa Bank v Mkhize
2013 (5) SA 227
(SCA) para
[4]; Sebola para 45, Kubyana paras 24 and 68 and Nkata para 168
[6]
Section 3 of the NCA
[7]
Kubyana paras 19, 20 and 21, Nkata paras 53, 93, 94 and 95
[8]
2010 (3) SA 443
(GSJ) para 10
[9]
(EL298/11, ECD298/11) [2011] ZAECELLC13 (29 November 2011)
[10]
Kubyana para 70
[11]
Nkata para 94