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[2016] ZAGPPHC 875
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Mercedes-Benz Financial Servicws (Pty) Ltd v Visagie, Mercedes-Benz Financial Services (Pty) Ltd v Visagie, Mercedes-Benz Financial Services (Pty) Ltd v Visagie, Mercedes-Benz Financial Services (Pty) Ltd v Visagie (63311/2014, 63312/2014, 63347/2014, 63348/2014) [2016] ZAGPPHC 875 (23 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA.
In
the matter between:
MERCEDES-BENZ
FINANCIAL’ SERVICES (PTY) LTD
vs.
Case
No: 63311/2014
JOHANNES
PIETER V1SAGIE
MERCEDE-BENZ
FINANCIAL’ SERVICES (PTY) LTD
Case
No:
63312/2014
v
JOHANNES
PIETER VISAGIE
MERCEDES-BENZ
FINANCIAL
SERVICES
(PTY) LTD
Case
No: 63347/2014
JOHANNES
PIETER VISAGIE
MERCEDES-BENZ
FINANCIAL
SERVICES
(PTY) LTD
Case
No: 63348/2014.
JOHANNES
PIETER VISAGIE
D.P.J. ROSSOUW
A.J.
[1]
The Applications before me are for leave to appeal in all four
matters to the Full Bench of the High Court of S.A, Gauteng Division,
Pretoria. Alternatively, to the Supreme Court of Appeal,
Bloemfontein, against the judgment and order in each of the four
matters,
delivered by me on the 10
th
November 2014.
[2] The Notice of
Application for leave to appeal was served and filed, in each of the
four matters, on the 1
st
December 2014, timeously.
[3] For the sake
of clarity and to avoid any confusion, the parties are referred to
herein as Plaintiff and Defendant.
[4] Defendant had
filed affidavits in all four matters opposing the applications for
summary judgment. In paragraph 2.2 of each
of his affidavits he
states the following:
“
2.2. These
are four actions that have been instituted by Applicant against
Respondent, which 1 am advised are identical to each
other, save for
the case numbers. It will therefore be respectfully requested that
all four actions be heard together at the same
time, as a matter of
convenience. The case numbers of the four actions, inclusive of this
specific action are:
2.2.1.
63347/2014
2.2.2.
63348/2014
2.2.3.
63311/2014
2.2.4.
63312/2014”.
[5] Adv.
Welgemoed, appearing for the applicant in all four matters filed four
identically worded Practice Notes in which he recorded
the following:
In paragraph 8
thereof - “Cause of action:
Written
instalment sale agreement read with deed of surety”.
In
paragraph 10 thereof-
“
National
Credit Act:
The
agreement is not subject to the NCA”.
[6] Adv. Stevens,
appearing for the respondent in all four matters also filed a
Practice Note stating therein the following:
6.1.
‘"that
the application is for summary judgment against the respondent, as
surety, the cause of action stemming from a
written loan agreement”;
and
6.2.
“The
defenses raised by respondent are as such also identical. It is
therefore requested that all four actions be heard together
at the
same time as a matter of convenience”.
[7] In all four
cases the allegations are in fact made that the agreement in each
case “is exempt from the provisions of the
National Credit Act
34 of 2005
” and “the deed of suretyship in each case is
also not subject to the provisions of the
National Credit Act 34 of
2005
”.
[8] These
allegations in the particulars of claim have been confirmed in the
affidavits filed in support of the applications for
summary judgment.
[9] From
the-above, as well as the statements by the advocates appearing for
the parties on 10
th
November 2014, it is clear that the
issue, whether the
National Credit Act applied
to anyone of the four
agreements, was not in issue before me at the time.
[10] The defenses
raised by defendant in his affidavits filed resisting the
applications for summary judgment were first, that the
debts have
become prescribed; secondly, that the trucks had been sold by the
liquidator and that the actual amounts owing to plaintiff
have not
been determined and the claims are therefore not “a liquid
amount”; thirdly, that in regard to the claim under
case number
63311/2015 the suretyship is dated ante the date of the instalment
sale agreement and that he would not have signed
surety for a
non-existent debt.
[11] Adv. Stevens
appearing for respondent put it as follows in his heads of argument
filed opposing summary judgment:
“
The
respondent has opposed the applications for summary judgment on the
basis essentially that applicant’s respective claims
have
prescribed and that the amount claimed by the applicant is not a
liquid amount as payments by the liquidator of 8 Cattle Ranch
would
have been made as vehicles which were the subject of the four loans
were in fact sold by the Liquidator”.
[12] The four
claims were in fact claims against Mr. Visagie in his capacity as
surety for the debts of the principal debtor, V8
Cattle Ranch, in
terms of a written suretyship dated 3 It July 2007.
The
four principal debts were incurred in terms of the respective written
agreements as follows:
Case
No: 63311/2014 on the 14
th
August 2007.
Case
No: 63312/2014 on the 31
st
July 2007.
Case
No: 63347/2014 on the 31
st
July 2007.
Case
No: 63348/2014 on the 31
st
July 2007.
[13] The relevant
Deed of Suretyship is dated 31
st
July 2007 and a copy is
attached to each of the four summonses as annexure “E”.
It
is in Afrikaans and I consider it expedient to quote only the parts
thereof relevant for purposes of this judgment.
[14] It reads as
follows:
“
AKTF.
VAN BORGSTELLING”
“
Ek
die ondergetekende, Visagie, Pieter Johannes Mnr. ID [61……….]
tussenplaas en bind my hierby gesamentlik
en afsonderlik as borg en
medehoofskuldenaar in solidum met V8 Cattle Ranch {“die
Debiteur”) vir die verskuldigde en
stiptelike betaling deur die
Debiteur aan Daimler Chryslor Financial Services South Africa (Edms)
Bpk (“die Krediteur”)
vir alle bedrae wat die Debiteur
nou of van tyd tot tyd aan die Krediteur, sy opvolgers, en
regsverkrygendes skuld of verskuldig
is, om enige rede hoegenaamd,
ongeag of sodanige skuld deur die Debiteur aangegaan word alleen,
gesametlik of in vennootskap met
enige ander person, firma of
maatskappy en verder vir die stiptelike en getroue nakoming deur die
Debiteur van enige verpligtinge
van enige aard hoegenaamd ... wat hy
nou of in die toekoms aan die krediteur skuld. Hierdie borgstelling
word op die volgende bepalings
gegee:
1
...
2
...
3..
.
4
Ek doen hierby afstand van die voordele van die regseksepsies,
uitwinning,
verdeling sessie van aksie, geenwaarde ontvang, non causa debiti,
hersiening van rekening en de duabus vel pluribus
res debendi, met
die effek en uitwerking waarvan ek ten voile vertroud is. Ek doen
afstand van die voordele aan my verleen by die
Veijaringswet No. 68
van 1969 (sOOs gewysig). Hierdie borgstelling...bly van krag as ‘n
voortgesette sekuriteit ondanks enige
tussen liggende vereffening van
rekening...van die Debiteur se skuld...
5..
.
6..
.
7
Vir enige doel hoegenaamd ingevolge hiervan... hetsy vir enige aksie
teen
my...
is
‘n sertifikaat uitgereik deur ‘n Direkteur, Bestuurder of
die Sekretaris van die Krediteur (waarvan nie een se aanstelling
as
sodanig bewys hoef te word nie) prima facie bewys van
alle
feite daarin vermeld, totdat die teendeel duer my bewys is.
8
...
9..
.
10..
.
11
Jndien dit nodig is dat geregtelike verrigtinge teen my ingestel
word, kom ek ooreen dat
11.
1....
11.2.
ek
verantwoordelik sal wees vir alle regskoste, insluitende
invorderingskommissie,
op ‘n basis van prokureur en klient”.
[15] The validity
and/or enforceability of the Deed of Suretyship has not been
attacked, except in regard to the claim under case
number 63311/2014,
alluded to in paragraph [10] supra. And which attack is clearly
without any merit, regard being had to the wording
of the Deed of
Suretyship quoted in paragraph
14
supra.
[16] Considering
the provisions of the Deed of Suretyship, more specifically those
parts quoted in paragraph [14] supra, I am of
the view that the
Orders granted in all four matters on the 10
th
November
2014 were correctly granted as none of the defences advanced would
have succeeded in a trial, had summary judgment been
refused and
leave granted to defendant to defend the actions.
[16 (A)] The
reasons for the conclusion in the immediate preceding paragraph are
as follows:
(a) It is averred
in paragraph 9.3 of plaintiff’s particulars of claim that:
“
To
date hereof (i.e. 25
th
August 2014) the plaintiff and/or
liquidators have been unable to locate the whereabouts of the
vehicles”.
(b) This averment
is amply supported in the affidavit ofplaintifF legal Team Manager in
paragraphs 1 to 5.2 thereof.
(c) Defendant in
his affidavit opposing summary judgment contents himself in paragraph
3.3 thereof to a statement that plaintiff’s
application is
“
an
attempt to enforce payment of a debt bona fide disputed on reasonable
grounds which will be more fully set out herein”.
(d) Defendant
then goes on to deal with prescription of the debt as a bona fide
defence in paragraph 4 of his opposing affidavit,
without as much as
mentioning clause 4 of the Deed of Suretyship wherein he expressly
waives the “voordele aan my verleen
by die Veijaringswet No. 68
van 1969”.
(e) In regard to
his second so called bona fide defence dealt with in paragraph 5 of
his opposing affidavit, he states the following:
(i)
“I
am advised that the vehicles ... have in fact been sold by the
liquidator”.
His
source is not disclosed.
(ii)
“As a creditor that lodged its claim.. .the Applicant would
be aware that the vehicles.. .have been sold. As a result thereof
I
am of the opinion that the applicant is entitled to payment as a
portion of the monies owed to it as a result of the sale...”.
This
does not amount to proof of an actual sale having taken place.
In
light of the above I am firmly of the view that it cannot be said
that defendant has disclosed any defence, let alone a bona
fide one.
[17] In the
Applications for leave to appeal, now under consideration, defendant
raises, inter alia, a point which was not raised
previously in any of
the four affidavits filed by him resisting the applications for
summaiy judgment
[18] The Notice
of Application for leave to appeal, filed in each of the four
matters, raises the issue that the court erred in
granting summary
judgment in that the court did not mero motu raise the point that the
cause of action was based on an “Afbetalings-ooreenkoms”
subject to the provisions of the
National Credit Act, 34 of 2005
.
[19] In matters
under case numbers 63311/2014 and 63347/2014, it appears ex facie the
Agreements (annexure “A” to the
particulars of claim)
that “Hierdie ooreenkoms is onderhewig aan die bepalings van
die Nasionale Krediet Wet, 34 van 2005,”
in the preamble of the
Agreement on page one thereof.
[20] In matters
under case numbers 63312/2014 and 63348/2014, it appears ex facie the
agreements (annexure “A” to the
particulars of claim)
that “Hierdie ooreenkoms is nie onderhewig aan die bepalings
van die Nasionale Krediet Wet, 34 van
2005 nie”.
[21] In regard to
the two matters referred to paragraph [20] supra, I am not persuaded
that an appeal would have a reasonable prospect
of success.
[22] In regard to
the two matters referred to in paragraph [ 19] supra, those under
case numbers 63311/2014 and 63347/2014,1 have
to consider, whether
leave to appeal should be granted, notwithstanding the fact that is
was averred in the summons that the agreements
are exempt from the
provisions of the
National Credit Act, 34 of 2005
; and
notwithstanding the fact that the point is only now raised in the
Application for leave to appeal for the first time.
[23] Adv.
Welgemoed, appearing for plaintiff in this application argues that
defendant now, by raising this point, seeks to introduce
new factual
issues which is not allowed. He relies on the dicta in F & J
Advisors (Edms) Bpk v. Eerste Nasionale Bank van Suidelike
Afrika
1999 (1) 515 SCA where it is stated:
“
A
party is bound by factual concessions and may not present argument in
conflict with facts which were common cause in the court
a quo or in
conflict with the parties’ common understanding as to what
exactly the issues were in the court a quo”.
[24] I agree that
in respect of all the other issues now being raised for the first
time, his submission is in accord with the authority
quoted by him
referred to in paragraph 23 supra.
[25] I am,
however, of the view that in regard to the issue raised in respect of
the applicability of the
National Credit Act 34, of 2005
to the
agreements, different consideration come into play. The authority
quoted by Adv. Welgemoed can be distinguished on the facts
in regard
to this issue for the following reasons: first, in the matters now in
hand there has not been any express concession
or clear abandonment
of this issue. Secondly, the point raised is not so much a factual
one but it seem to me rather a legal point;
thirdly, I do not think
one can say that there was in this matter a common understanding
between the parties as to what exactly
the issues were, considering
that in the relevant two matters the agreements explicitly state that
they are subject to the provisions
of the
National Credit Act, 34 of
2005
and fourthly, the evidence that two of the agreements were not
exempt from the
National Credit Act was
there but was overlooked by
all concerned.
[26] In casu the
dicta in ALEXKOR LTD v. RICHTERS VELD COMMUNITY
[2003] ZACC 18
;
2004 (5) S.A. 460
(CC) para [43] and [44] appear to be apposite:
[43]
“The applicable rule is that enunciated in Paddock Motors
(Pty) Ltd v. Igesund. In that case, the Appellate Division held that
a litigant who had expressly abandoned a legal contention in a Court
below was entitled to revive the contention on appeal. The
rationale
for this rule is that the duty of an appeal court is to ascertain
whether the lower court reached a correct conclusion
on the case
before it. To prevent the appeal court from considering a legal
contention abandoned in a court below might prevent
it from
performing this duty. This could lead to an intolerable situation, if
the appeal Court were bound by a mistake of law on
the part of a
litigant. The result would be a confirmation of a decision that is
clearly wrong. As the Court put it:
If
the contention the appellant now seeks to revive is good, and the
other two bad, it means that this Court, by refusing to investigate
it would be upholding a wrong order.” ’
[44]
It
is therefore open to Alexkor and the Government to raise in this
Court the legal contention which they abandoned in the SCA.
However,
they may only do so if the contention is covered by the pleadings and
the evidence and if its consideration involves no
unfairness to the
Richtersveld Community. The legal contention must, in other words,
raise no new factual issues. The rule is the
same as that which
governs the raising of a new point of law on appeal. In terms of that
rule “it is open to a party to raise
a new point of law on
appeal for the first time if it involves no unfairness ... and raises
no new factual issues”.
I
am satisfied that the point now being raised for the first time, in
the application for leave to appeal, does not involve any
unfairness
to plaintiff in the matters under case numbers 63311/2014 and
63347/2014.
[27] In casu,
through an error on the part of all concerned, the feet that the
National Credit Act, 34 of2005
, prima facie applies to the two
matters under case number 63311/2014 and 63347/2014, ex facie the two
agreements in question, was
overlooked and not taken into account
This resulted in summary judgments being granted, where it perhaps
should not have been granted.
[28] It is trite
law that it is in the public interest that there should be an end to
litigation. However, given the particular
circumstances, it offends
my sense of justice to refuse the defendant leave to defend the
matters under case numbers 63311/2014
and 63347/2014, where it
appears that the point raised cannot be said to be without merit,
even though raised belatedly.
[29] I have in
this judgment traversed in some detail also the reasons that led me
to grant the summary judgment on the 10* November
2014, on the
evidence then before me and the arguments then advanced by the
respective counsel who appeared for the parties.
[30] I am of the
opinion that leave to appeal should be given to defendant in terms of
Section 17 (1) (a) (ii) of the Superior Court
Act 10 of 2013, on the
basis that there is a compelling reason for the appeal to be heard in
matters under case numbers 63311/2014
and 63347/2014, only on the
aspect of the applicability of the provisions of the
National Credit
Act, 34 of 2005
, to the two agreements as well as the applicability
thereof to the Deed of Suretyship in question.
[31] THE
FOLLOWING ORDERS ARE THEREFORE MADE:
1. In the matter
under case number 63312/2014:
Application
for leave to appeal is dismissed with costs, costs to be taxed on
scale applicable between attorney and client
2.
In the matter under case number 63348/2014:
Application
for leave to appeal is dismissed with costs, costs to be taxed on
scale applicable between attorney and client
3.
In the matter under case number 63311/2014:
Application
for leave to appeal is granted to defendant to appeal to the Full
Bench of the High Court of South Africa, Gauteng Division,
Pretoria.
Costs
to be costs in the appeal. (Limited to the issue stated in paragraph
[30]
of this judgment).
4.
In the matter under case number 63347/2014:
Application
for leave to appeal is granted to defendant to appeal to the Full
Bench of the High Court of South Africa, Gauteng Division,
Pretoria.
Costs
to be costs in the appeal. (Limited to the issue stated in paragraph
30 of this judgment).
D.P.J
ROSSOUW.S.C
Acting
Judge of the High Court 23
rd
SEPTEMBER 2016.
APPEARANCES.
Counsel
on behalf of Plaintiff: Adv. C.J. Welgemoed.
Instructed
by: Strauss Daly Inc.
(Ref:
R.A.Laubsher)
(Sel.
087 351 8282).
Counsel
on behalf of Defendant: Adv. S.G. Maritz.
Instructed
by: Joop Lewies Inc.
(Ref:
Mr Dirk Fourie)
(Sel.
082 924 5979).