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[2015] ZAFSHC 1
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FFS Finance South Africa (Pty) Ltd T/A Ford Credit v Van Der Westhuizen (3189/2014) [2015] ZAFSHC 1 (8 January 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 3189/2014
DATE:
08 JANUARY 2014
In
the matter between:-
FFS
FINANCE SOUTH AFRICA (PTY) LTD
T/A
FORD
CREDIT
............................................................................
Applicant
And
WYNAND
ALBERT VAN DER WESTHUIZEN
.............................
Respondent
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
23
OCTOBER 2014
DELIVERED
ON:
8
JANUARY 2014
INTRODUCTION
[1]
This is an opposed summary judgment against the respondent for:
(a)
The return of and delivery to the plaintiff without delay, the 2008
Ford Ranger 3.0 T…. Hi-Trail ……. motor
vehicle
with engine number: W…………., chassis
number: A…………. T………..
(b)
That the sheriff of the court be authorised and ordered to attach the
said motor vehicle notwithstanding where he may find it,
notwithstanding in whose possession he may find it and to forthwith
deliver it to the plaintiff.
(c)
Payment in the amount of R117 368.13.
(d)
Mora
interest on the amount R117 368.13 from date of
summery until date of payment.
(e)
That the plaintiff be directed and authorised, in so far as sections
131 read with 127 and 128 of the
National Credit Act 34 of
2005
, is applicable to the Credit Agreement, to act with the vehicle
in accordance with the aforementioned provisions;
(f)
That leave be granted to the Plaintiff to approach this Court, on
these papers duly amplified for damages if any,
(g)
Costs of this suit
(h)
Further and/or alternative relief.
[2] The respondent
opposed the application on the following grounds:
2.1
The reasons for the amendment were that the debt counsellor who
tended to the affairs of the respondent during the period when
the
debt restructuring order of February 2010 was granted was Ms Cornelia
Susanna Schoeman. Ms Belinda Louiza Driskel took over
from Ms
Schoeman on 1 March 2012. According to the respondent’s
opposing affidavit there was a magistrate order which ordered
that
the respondent pay an amount of R7900.00 monthly to Payment
Distribution Agency (PDA), and that the PDA will cause an amount
of
R4730.37 to be paid to the applicant monthly. On 30 May 2013
the afore mentioned court order was amended. There was an
increase in
the PDA’s fees. The respondent complied in full with the court
order during this period. It was not due
to the default of the
respondent that payments were not allocated to the applicant.
An amount of R14349.89 was paid to the
applicant during April 2014 to
rectify non-payment to the applicant.
2.2
The applicant did not terminate the debt review during this period
and payments resumed from August 2011. The respondent was
informed
that payments during this period were not made due to the applicant,
because of an administration error. This error cannot
be attributed
to the respondent.
FACTS
[3]
During or about 21 October 2008 at Johannesburg alternatively
Bloemfontein, the applicant and respondent entered into and concluded
an instalment sale agreement. In the said agreement the applicant is
the plaintiff and the defendant is the respondent. The relevant
and
express, alternatively and or implied terms and of the credit
agreement were as follows:
“
4.1
The Plaintiff sells to the Defendant who purchases from the Plaintiff
a 2008 Ford Ranger 3.0T…….. Hi-Trail X………
motor vehicle with engine number W………., chassis
number: A…………. (hereinafter, referred
to
as either “the vehicle or the goods”)
4.2
The principal debt amounts to R297459.50.
4.3
The amount is repayable by the Defendant in 72 monthly payments in
the amount of R5455.45 per month, the first payment that
is due on
the 1
st
November 2008 and all subsequent payments will be
due and payable on the same day of each successive month thereafter:
4.4
Defendant will make monthly repayments to Plaintiff by way of
electronic debit order against its bank account held with Nedbank
under account number 1……………..
4.5
The Defendant must make all payments due under the agreement without
deductions of any amount.
4.6
The Plaintiff is and will remain the owner of the goods (vehicle) and
ownership of the goods shall pass to the Defendant only
upon the
Defendant paying all amounts which it owe to the bank in terms of the
agreement.
4.7
should the Defendant fail to pay any amount(s) due by him to the
Plaintiff on due date thereof or breach any terms of the agreement
the Defendant will be in default of the terms of the agreement and
thus in
mora
. In such event the Plaintiff will be entitled to
give the Defendant written notice of such default.
4.8
In the event of the Plaintiff giving the Defendant notice as afore
mentioned the Plaintiff will be entitled to commence legal
proceedings to enforce the agreement including retaking possession of
the goods and recovering collection costs and administration
charges
from the Defendant.”
The
defendant does not dispute the breach of terms of the instalment sale
agreement by failure to pay certain instalments.
[4]
On 11 February 2010 the magistrate court Bloemfontein made an order
in terms of which the defendant’s obligation in terms
of the
agreement was restructured. The restructuring order was amended
on 30 May 2013 and 17 July 2014. In terms of
the restructuring
order, and amount of R4730.37 was to be paid on a monthly basis by
the respondent to the applicant. The
respondent failed to make
payments between 3 June 2010 to 1 August 2011. This included 3
January 2013 to 17 April 2013. An
amount of R3442.60 was paid
on 3 December 2013 to 11 March 2014. After the restructuring
order was amended for the second
time an amount of R1298.29 had to be
paid to the plaintiff on a monthly basis. The respondent failed to
comply with the amended
restructuring order due to the fact that his
employment was terminated between June and July 2014. The
applicant was opposed
to the fact that the respondent paid in excess
of the normal instalment.
[5]
The respondent denied that he was deliberately in default.
According to the respondent all payments were made to the PDA
in
terms of the debt restructuring order. There had been more
payments advanced to the PDA than ordered. An additional
payment was made to the plaintiff in the amount of R10 740.00 in
January 2010, as well as the payment of February 2010 in
the excess
of R1420.00. The applicant did not terminate the debt review
during the relevant period and accepted all payments
from the PDA.
Even though the respondent may have failed to pay certain
instalments, he had also paid in excess. The
excess payment
around July 2014 amounted to R5740.00.
ISSUES
[6]
The main issue in this matter is whether the respondent on the facts,
disclosed either in whole or in part of the claim, has
a defence that
is bona fide and good in law.
[7]
The other issue is whether the respondent is entitled to keep
possession of the vehicle even though a debt restructuring order
is
granted.
SUBMISSIONS
[8]
It was submitted on behalf of the applicant that the respondent
should return the vehicle. Once the vehicle is received by the
applicant the latter will sell the vehicle at an auction. If
there is an amount owing, the respondent must pay the difference.
It
was submitted that the debt review was not valid. From the outset,
there was no defence that the court can accept that
Section 86(10)
was defective. Once a debtor is in default of an agreement and is
also in default of the relevant debt restraining order, the credit
provider is at liberty to proceed and to exercise and enforce, by
litigation, any right or security
(
First
Rand Bank v Fillis
2010
(6) SA 565
(ECP) P 570 Para 16).
[9]
It was submitted on behalf of the respondent that the respondent was
not in wilful default, It would not be fair to the respondent
to be
expected to hand over the vehicle. Three days after the order was
issued, the respondent complied with the order. Failure
by PDA to pay
the applicant the agreed amount could not be attributed to the
respondent. Counsel for the respondent made a submission
with regards
to
Section 88(3)
of the Act which provides that, credit
provider who receives notice of court proceedings contemplated in
terms of
Section 83
or
85
may not exercise or enforce by
litigation or other judicial process any right or security under that
credit agreement, until the
consumer is in default under the credit
agreement.
THE
LAW
[10]
“……
..summary judgement
procedure was not intended to shut (a defendant) out from defending,
unless it was very clear indeed that he
had no case in the action.
It was intended to prevent sham defences from defeating the rights of
parties by delay, and at
the same time causing great loss to
plaintiff who were endeavouring to enforce their rights…..Summary
judgment proceedings
only hold terrors and are ‘drastic’,
for a defendant who has no defence.” (
Joob
Joob Investments Pty Ltd
(161/08)
(2009) ZA SCA 23
para 31 -33.
[11]
Summary judgment is an extraordinary and stringent remedy. The court
should always keep this in mind when exercising its discretion
–
Arend and Another v Astra furnishers
(Pty) Ltd
1974 (1) SA 298
(C).
[12]
Section 86(10) of the National Credit Act 34 of 2008 provides that:
“
If
a consumer is in default under a credit agreement that is being
reviewed in terms of this section, the credit provider in respect
of
that credit agreement may give notice to terminate the review in the
prescribed manner to:
(a)
The consumer;
(b)
The debt consumer, and
(c)
The National Credit Regulator, at any time
….. 60 business days after the date on which the consumer
applied for the debt
review.”
[13]
Section 86(11) of the Act provides that:
“
If
a credit provider who has given notice to terminate a review as
contemplated in Subsection (10) proceeds to enforce that agreement
in
terms of Chapter 6, the Magistrate’s court hearing the matter
may order the debt review resume in ant conditions the court
considers to be just in the circumstances.”
APPLICATION
OF THE LAW
[14]
The respondent elected to oppose summary judgment by filling an
opposing affidavit as envisaged in Rule 32(3) (b). The respondent
alleged that he complied with the order by making payments to PDA.
Unfortunately PDA failed to make payments to the applicant.
I am of
the view that the respondent was not deliberately in default of the
rearrangement order. I am not inclined to shout out
the respondent
from defending this matter. The respondent may have a case to defend
and ventilate issues at the trial.
[15]
This matter is the subject of debt review, in terms of Section 86 of
the Act. The Section 86(10) notice was not valid. I am
therefore
persuaded to give the respondent the benefit of the doubt by
affording him the opportunity to defend the matter. The
applicant was
aware that the respondent paid PDA for the latter to pay the
applicant. However the applicant was also aware that
PDA failed to
effect payments to the applicant and that it was not the respondent’s
fault. The applicant did not seriously
challenge the respondent’s
allegation that it was PDA’s fault not to pay the applicant.
[16]
It follows in my view, and as a matter of interpretation, in terms of
Section 88(3) regarding the jurisdictional requirement
of
88(3)(b)(ii) the applicant should not have exercised and
enforced, by litigation or other judicial process, any right
or
security under the credit agreement.
[17]
In all the circumstances, the respondent has made out a case and set
out facts upon which I can exercise discretion in his
favour.
[18]
I accordingly make the following order:
18.1
The application for summary judgment is refused;
18.2
The respondent is granted leave to defend the main action and is
ordered to file a plea, if any, within ten (10) days from
the date of
this order;
18.3
Costs shall be in the main action.
E.
K. TSATSI, AJ
On behalf of the applicant: Adv. W.J.
Groennewald
Instructed
by: Phatsoane Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. L. Le Roux
Instructed
by: Jordaans Rij Kheer Attorneys
BLOEMFONTEIN