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[2015] ZAGPPHC 563
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Astfin North (Pty) Ltd t/a Assetfin v JFA Printing and Another (12910/2015) [2015] ZAGPPHC 563 (6 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 12910/2015
DATE:
06 JULY 2015
NOT
REPORTABLE
In
the matter between:
ASTFIN
NORTH (PTY) LTD t/a
ASSETFIN
...........................................................................
Plaintiff
A
nd
JFA
PRINTING
...............................................................................................................
First
Defendant
HENNING
JOHANNES
FOURIE
............................................................................
Second
Defendant
J
UDGMENT
MAKGOKA.
J
[1]
This is an opposed summary judgment
application. The plaintiff instituted action against the defendants
for payment of R932 882.29,
interest and costs on a scale of attorney
and client. The claim arises from a written copy charge agreement
concluded on 28 November
2011 between the plaintiff and the first
defendant, in terms of which the first defendant hired rented a photo
copier from the
plaintiff on certain conditions. The second defendant
has signed a deed of surety in terms of which he bound himself as
surety
and co-principal debtor with the first defendant for the
payment of all the monies due and owing by the first defendant to the
plaintiff. The copy charge agreement is partially governed by the
National Credit Act 34 of 2005 (the NCA).
[2]
The plaintiff alleges that the first
defendant has breached the terms of the copy charge agreement by
failing to make regular monthly
repayments, and seeks summary
judgment against both defendants. The first and second defendants
oppose the application for summary
judgment on two bases: alleged
failure to comply with s 129 of the NCA and an attack on the quantum
of the plaintiff’s claim.
I consider in turn, these
contentions.
[3]
The
reason the defendants contend that the plaintiff has not complied
with s 129 of the NCA is that the so-called track and trace
report
from the post office includes a statement ‘out for service’.
The law in this regard has now been crystallised
by the
Constitutional Court in the judgements of
Sebola
[1]
and
Kubyana
[2]
The
effect of the two judgments is essentially this: a credit provider is
required allege that a notice was delivered to the relevant
post
office and that the post office would have secured delivery of a
notification slip informing the consumer that an item is
awaiting
collection. This would lead to a reasonable inference that the
notification reached the consumer and that a reasonable
consumer
would have ensured retrieval of the item from the post office. As a
consequence there is no onus on a consumer to show
that the notice
did not come to his attention.
[4]
In the present case, the second
defendant had chosen a post box at Paardekraal as the address for
notices. From the track and trace
report, the s 129 notice was
dispatched at Halfway House on 21 August 2014. The notice reached
Paardekraal post office on 1 September
2014. The post office at
Paardekraal sent a 'first notification’ to the second
defendant. The second defendant does not say
that he did not receive
the notification from the post office that an item was awaiting
delivery. Having regard to the effect of
Sebola
and
Kubyana
as summarised above, the onus is on the second defendant to rebut the
inference that the notice has in fact reached him. He has
placed no
circumstances as to why the deeming provisions should not apply. I
therefore find that the second defendant has failed
to discharge the
onus on him. There is therefore no merit in the contention that the
plaintiff has not complied with the provisions
of s 129 of the NCA.
[5]
I turn now to the defendants’
attack on the quantum of the plaintiff’s claim. It is argued
that a service fee for maintenance
fees was included in the monthly
rental amount due by the first defendant, despite that the plaintiff
was not entitled to such
fees as such services were not rendered from
June 2014. The defendants also contend that the plaintiff has failed
to mitigate its
damages. It is common cause that the plaintiff only
took possession of the copier six months after the letter of demand
had been
sent, i.e after the alleged breach of the agreement had
taken place. The upshot of this argument is that plaintiff’s
claim
should be adjusted accordingly.
[6]
The defendants also dispute the
correctness of the certificate of the plaintiff’s balance and
attach their own schedule of
payments. In terms of that schedule, the
defendants conclude that the amount due and owing is R192 125. From
all the above, it
is clear that the ultimate amount still needs to be
properly quantified. This constitutes a
bona
fide
defence to the rest of the
amount. I am therefore inclined to grant summary judgment in the
undisputed amount. The determination
of the balance of the amount
should be deferred to the trial court. With regard to costs, the
agreement makes provision for attorney
and client costs in the event
of enforcement of the agreement.
[7]
In the result I make the following
order:
l.
Summary judgment is granted against the first and second defendants,
jointly and severally, the one paying the other to be absolved,
for:
1.1
Payment of the sum of R192 125;
1.2
Interest on the above amount at the
prime rate plus 2%
per
annum
calculated from 8 November
2012 until date of final payment;
1.3
Costs of the action on the scale as
between attorney and client scale.
2.
With regard to the balance of the plaintiff’s claim, the
defendants are granted leave to defend, The costs with regard
thereto
are to be costs in the main action.
T.M.
Makgoka
Judge
of the High Court
Date
of hearing: 30 June 2015 Judgment Delivered: 6 July 2015 Appearances
For
the plaintiff: Adv. JH Wildenboer
Instructed
by:
Van der Westhuizen Attorneys, Pretoria
For
the defendant: Adv. M Jacobs
Instructed
by:
Lacante Henn Inc., Pretoria
[1]
Sebola
v
Standard Bank of South Africa Ltd
2012
(5) 142 (CC).
:
Kubyana
v
Standard Bank of South
Africa Ltd
2014 (3) 56 (CC).