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[2014] ZAFSHC 86
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Firstrand Bank Limited t/a Wesbank v Moji (1012/2012) [2014] ZAFSHC 86 (29 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number : 1012/2012
In
the matter between:-
FIRSTRAND
BANK LIMITED t/a WESBANK
…..................................................................
Plaintiff
and
MTHO
ANDREW MOJI
….....................................................................................................
Defendant
CORAM:
VAN ZYL, J
DELIVERED
ON:
29 MAY 2014
BACKGROUND
AND PLEADINGS:
[1]
On 10 October 2008 and at Klerksdorp the defendant and Speedy Car
Sales CC t/a Speedy Car Sales (“Speedy”) entered
into an
instalment sale agreement (“the agreement”) in terms
whereof the Defendant purchased a certain 2007 Toyota
Hilux 2.7 VVT-I
Double Cab Raider (“the vehicle”) with engine number
2TR8045491 and chassis number AHTEX39G007008913.
[2]
In terms of the agreement the principal debt is made up as follows:
2.1
Cash price
R219 000-00
2.2
Add: total extras
R 3 000-00
Agreed
selling price
R222 000-00
2.3
Add: initiation fee
R 1 140-00
2.4
Less: initial payment
R 20 000-00
R203 140-00
[3]
The parties agreed upon a fixed interest rate of 20% per annum,
wherefore the total interest payable over the term of the agreement
was R151 048-16.
[4]
The total amount payable was therefore R354 188-16, including
VAT, which was payable in 72 monthly instalments of R5 173-28,
with
the first instalment which became due on 28 November 2008. The
said monthly instalments of R5 173-28 was made up as
follows:
4.1
Instalments including interest, fees and
Insurance
R4 919-28
4.2
Service fees
R
57-00
4.3
Coverplus monthly
R 197-00
[5]
The aforesaid details appear on a document titled “Quotation/Cost
of Credit for Intermediate Instalment Sale Agreement
”
,
attached to the particulars of claim as Annexure “A” and
also contained in the plaintiff’s bundle of documents,
Exhibit
“A”, p. 26 – p. 27, which document was signed by
the defendant and by a representative of Speedy on 10
October 2008.
According to the plaintiff, this document, together with the terms
and conditions thereto, attached to the
particulars of claim as
Annexure “E”, and also reflected in Exhibit “A”,
p. 29 – p. 32, and which
terms and conditions were also signed
by the defendant, constituted the agreement between the parties.
For the sake of completeness
I may mention that there are also some
other peripheral documents which also form part of the documents
relevant to the conclusion
of the agreement and which are also
contained in Exhibit “A”, that which are either not
relevant for purposes of this
judgment or if relevant, I will refer
to them if and when necessary.
[6]
Speedy ceded its rights and interest in terms of the agreement to the
plaintiff in terms of the so-called Master Agreement attached
to
the particulars of claim as Annexure “B”.
[7]
In terms of the terms and conditions of the agreement:
7.1
Ownership in the “vehicle” remains vested in the
plaintiff until the defendant has paid all amounts due in terms
of
the agreement;
7.2
The defendant shall be liable for all legal costs arising from his
failure to comply with any of the terms and conditions of
the
agreement;
7.3
Should the defendant commit any breach of the agreement, the
plaintiff will be entitled to cancel the agreement with immediate
effect, take repossession of the vehicle and claim damages suffered
as a result of the aforementioned breach by the defendant.
[8]
It is the plaintiff’s case that the defendant breached the
agreement by failing to make punctual payments as set out in
the
agreement and at the time when summons was issued, the defendant was
in arrears in the amount of R18 803-43 and at that time
the
outstanding balance, including the arrears, was R145 867-23.
[9]
Plaintiff is a registered credit provider in terms of
Section 40
of
the
National Credit Act, 34 of 2005
, the agreement falls within the
scope of the
National Credit Act and
the plaintiff complied with all
the requirements of the said Act.
[10]
According to the plaintiff it is entitled to cancel the agreement;
alternatively notice of such termination was given by means
of the
combined summons.
[11]
In terms of the particulars of claim the plaintiff is seeking the
following relief, although at this stage of the action the
plaintiff
is only seeking an order in terms of prayers 1, 2 and 5, the
adjudication of the other prayers to be postponed
sine
die
:
“
1.
Cancellation of the agreement;
2.
An order in terms of which the 2007 Toyota Hilux 2.7 VVT-I D/C Raider
with engine number 2TR8045491 and chassis number AHTEX39G007008913
must be delivered by defendant to plaintiff, alternatively that the
Sheriff should take into possession the said vehicle from whoever’s
possession it may be found, and place the plaintiff in possession
thereof.
3.
Damages to be determined after repossession of the vehicle,
evaluation thereof and recalculation of finance costs.
4.
Interest on the said amount of damages to be determined at the
applicable interest rate in terms of the agreement.
5.
Costs.”
[12]
The plaintiff initially applied for summary judgment, but after the
defendant filed his answering affidavit in opposition thereto,
the
plaintiff granted leave to the defendant to defend the action, costs
to be cost in the cause.
[13]
In his plea the defendant admitted the conclusion of the agreement,
but then in addition thereto he pleaded the following defence
in
paragraphs 2.2 to 2.4 of his plea:
“
2.2
However, defendant specifically avers that he was required to take a
life, disability and retrenchment insurance cover, which
he did.
2.3
In or about February 2010, defendant sustained an injury on duty, as
a result of which injury he was disabled and declared medically
unfit
by his erstwhile employer, Anglo Ashante in May 2011, which
retrenchment or disability was or should have been covered by
his
insurance.
2.4
He informed the Plaintiff, accordingly, and the latter, unreasonably
and without justification refused to acknowledge the claim.”
In
response to the allegation that the payment of the instalments was in
arrears, the defendant likewise pleaded as follows in paragraph
7.2
of his plea:
“
Defendant
specifically states that he took out a retrenchment and disability
cover with the plaintiff and that the purported obligation
has
or should have been paid in full.”
The
defendant therefore alleged in paragraph 8 of his plea that there is
no basis for the alleged termination of the agreement and
demand for
payment.
[14]
The plaintiff called Mr Arthur Frank van Staden, a defended actions
controller who has been in the employment of the plaintiff
since
2008, as its only witness. The defendant thereafter testified
in support of his own case. The defendant made
use of the very
capable interpretation services of Mr Vuyo Mnweba during his
evidence. The said Mr Mnweba, who is not an
employee of the
Department of Justice and Constitutional Development, was beforehand
duly sworn in as an interpreter by the Registrar
and a sworn document
reflecting this, dated 19 November 2013, was handed to me as
confirmation thereof.
[15]
Mr Benade, on behalf of the plaintiff, and Mr Rathidili, on behalf of
the defendant, thereafter by agreement between them requested
that
they be allowed to hand in written heads of argument instead of
incurring the costs of a further day in court for purposes
of the
presentation of oral arguments, to which I request adhered.
Therefore when I refer to submissions made by the respective
counsel,
I refer to such submissions having being made in their respective
heads of argument.
[16]
As correctly pointed out by Mr Benade, the following aspects, apart
from the issue of the disability insurance, were also put
in
contention in the plea:
16.1
The cession;
16.2
The breach of the agreement; and
16.3
The arrears.
In
addition thereto and although the cancellation of the agreement by
means of the issuing of the summons as such was not challenged,
the
defendant did challenge the validity of the cancellation, as
previously indicated, by pleading in paragraph 8 of his plea
“
That
there is no basis for the alleged termination and demand for
payment.”
[17]
The other averments in the particulars of claim were “noted”
by the defendant with the result that in terms of
Rule 22(3)
these
aspects are deemed to be admitted.
[18]
Regarding the cession, Mr Van Staden presented evidence with
reference to the Master Agreement concluded between Speedy and
the
plaintiff regulating such cession, which agreement is attached to the
particulars of claim as Annexure “B”.
He also
referred to page 25 of Exhibit “A” and explained that
said document is a remittance advice which is indicative
of the fact
that the plaintiff paid Speedy the agreed purchase price in terms of
clause 2.3.2 of the Master Agreement, whereupon
the cession in terms
of clause 24 of the Master Agreement took place. This resulted,
inter alia
,
in the plaintiff’s entitlement to the payment of the monthly
instalments from the defendant. The said evidence was
not
disputed in cross-examination nor was there any evidence to the
contrary presented by the defendant. The cession can
therefore
be regarded as having been proved by the plaintiff.
[19]
Regarding the arrears and the breach of the agreement, Mr Van Staden
referred to the detailed statement pertaining to the account
of the
defendant which had been obtained from the system of the plaintiff
and which is reflected in Exhibit “A”, p.
58 – p.
64. He testified that the payment of the instalment started
falling into arrears during October 2010, as reflected
on p. 61 of
Exhibit “A”, up to the point when the arrears amounted to
R92 888-47 during October 2012, as reflected
on p. 64 of Exhibit
“A”. The last payment by the defendant was made on 7
November 2011, in the amount of R12 000-00,
as reflected on p.
63 of Exhibit “A”. A certificate of balance, reflecting
the arrears and total outstanding amount
on 18 November 2013, was
handed in as Exhibit “B”.
Mr
van Staden also testified that although a payment of R36 000-00
was made on 4 September 2012, the said payment was reversed
with the
effective date of 4 September 2012, although the process date thereof
is reflected as only being 1 October 2012.
See Exhibit “A”,
p. 64.
[20]
The defendant testified that he has no knowledge of the aforesaid
payment of R36 000-00. Other than that, the evidence
of Mr
van Staden pertaining to the issue of arrears on the account was not
challenged during cross-examination, nor did the defendant
present
any evidence to the contrary.
[21]
Consequently:
21.1
The conclusion of the agreement with Speedy is not in dispute,
subject to the defendant’s plea regarding life, disability
and
retrenchment insurance (“disability insurance”) cover;
21.2
The cession is not in dispute;
21.3
The amount in arrears is not in dispute; and
21.4
The breach and subsequent cancellation of the agreement are in
dispute, but only on the basis of the allegation pertaining
to the
disability insurance.
[22]
Consequently the only outstanding issue to be decided is the plea
relating to the disability insurance.
EVIDENCE
PRESENTED ON BEHALF OF THE PLAINTIFF:
[23]
I will first deal with the evidence presented on behalf of the
plaintiff in this regard.
23.1
Mr Van Staden testified that he has been in the employment of the
plaintiff since 2008, based in Pretoria. As already
mentioned
earlier, he is a defended action controller. This position
entails that he deals with all the files in which the
actions are
defended, either in action actions against the plaintiff or in
actions by the plaintiff against customers of the plaintiff.
In
this regard he liaises with attorneys and gives them the necessary
instructions. The handling of this case falls under
his
control.
23.2
He testified that the document reflected on p. 36 of Exhibit “A”,
titled “Summary of Payment
”
reflects
the extra products the defendant chose to take in relation to the
agreement, being
“
Coverplus monthly”
“underwritten by Hollard”
against
payment of a monthly premium of R197-00.
23.3
Mr Van Staden referred to the document reflected on p. 38 – p.
39 of Exhibit “A”, titled
“
Insurance
Products Product Information, Needs Analysis and Waiver Document”
(
“
Insurance needs analysis
document”), which on face value thereof was signed by the
defendant on 10 October 2008. He explained
that when a person buys a
vehicle, the dealer (in this instance Speedy) will do a needs
analysis on what type of insurance products
the buyer desires and
needs on the contract, whereafter the dealer will indicate it on the
document, the buyer will sign for it
and the chosen products will be
added onto the contract. According to Mr Van Staden the
defendant only chose the option of
“
Insurance
Shortfall Cover” and did not take the option of credit life
insurance. He testified that had the defendant chosen
the option of
credit life insurance, he would have had to sign for it in the block
under the word “taken” in order
for the plaintiff to have
it implemented. The plaintiff is not registered to sell insurance.
Therefore, when the buyer indicates
that he requires one of the
policies reflected on p. 38 of Exhibit “A”, the plaintiff
would send the documentation
to one of the insurance companies with
whom the plaintiff is associated. That insurance company will
then send the documentation
pertaining to the relevant product to the
dealer to be offered to the buyer. The dealer will thereupon
explain the documents
to the buyer, whereafter the buyer will sign
the relevant documents to indicate that he accepts the policy.
The chosen insurance
will then be implemented and added onto the
contract.
23.4
Mr van Staden further testified that the contents of the agreement,
as specifically reflected on p. 26 of Exhibit “A”,
which
document has been signed by both the defendant and the representative
of Speedy, is further indicative of the fact that the
defendant only
elected to take coverplus insurance, which is to cover any insurance
shortfall in circumstances where the vehicle
is to be written off and
the insurance only pays out the trade value of the vehicle.
23.5
In his evidence Mr Van Staden also referred to the Hollard Coverplus
policy document reflected on p. 1 – p. 23 of Exhibit
“A”
and testified that it constitutes the terms and conditions of the
coverplus policy chosen by the defendant and
concluded between the
defendant and Hollard. He further stated that the letter on p.
67 of Exhibit “A” from Hollard
addressed to the
defendant, served as confirmation that the chosen coverplus insurance
had been activated in favour of the defendant
pertaining to the
vehicle.
23.6
According to Mr Van Staden the plaintiff’s records do not
reflect the existence of any disability insurance in favour
of the
defendant. Had such a policy existed, it would have been to the
advantage of the plaintiff and the plaintiff would
even have assisted
the defendant in instituting a claim in terms of such a policy.
[24]
During cross-examination the following evidence transpired:
24.1
When it was put to Mr Van Staden that the defendant is not in
possession of the insurance needs analysis document reflected
on p.
38 of Exhibit “A”, Mr van Staden responded that the
defendant signed the document titled
“
acknowledgement
of freedom of choice” on p. 28 of Exhibit “A” as
confirmation that he had received the documents.
He further
testified that all the respective choices of insurance reflected on
p. 38 had in any event been explained to the defendant
by the
dealer.
24.2
It was put to Mr van Staden that the defendant did not receive any
policy documents from Hollard and more specifically he did
not
receive the terms and conditions of the coverplus policy contained on
p. 1 – p. 23 of Exhibit “A”.
Mr van Staden
responded that the defendant should have taken it up with Hollard.
24.3
When asked by Mr Rathidili why the diagonal line had been drawn
through the block “taken” as reflected on the said
p. 38
of Exhibit “A”, Mr Van Staden explained that it was part
of the defendant’s signature. When it was
put to Mr Van
Staden that the defendant denies that it is his signature, he replied
by stating that the defendant has been paying
for the very policy
which is reflected next to (to the left of) the relevant signature.
24.4
Mr Rathidili pointed out to Mr Van Staden that the block “taken
”
next to the “Insurance Shortfall Cover
”
option, on face value thereof, contains both a
diagonal line and a signature. Mr Van Staden explained that it is up
to the dealer
to decide how to indicate the buyer’s block of
choice. Some dealers make a cross, some dealers draw a diagonal
line
across the block and some dealers request the buyer to sign in
the chosen block. As long as there is a mark within a specific
block, it is indicative that the buyer took that particular insurance
option.
24.5
Mr Rathidili then pointed out that the blocks “taken
”
and “waived
”
respectively,
next to the “credit life”
option
on p. 38 of Exhibit “A”, both have a diagonal line drawn
across them. Mr van Staden responded that it indicates
that the
defendant did not choose that insurance option, because the line goes
through the “waiver
”
block as
well. Mr Rathidili put it to Mr Van Staden that the line is
also on the side of the “taken
”
block,
in response to which Mr Van Staden testified that
“
it
could have started there, but it means that it is waived”.
When asked by Mr Rathidili whether that is an assumption,
Mr Van
Staden explained that it is obvious that this particular dealer
required a signature from the defendant to indicate the
insurance
option he chooses and therefore, because of the absence of his
signature next to the “credit life
”
option,
it is evident that the defendant did not choose that option. In
the words of the witness
“
he just
signed for what he wants”.
24.6
When asked why the line was not only drawn through the “waived
”
block next to the option of “credit life
”
,
Mr Van Staden again testified that it does not make a difference
because the defendant’s signature does not appear there.
Had the defendant decided to take that insurance option, the line
would have started
“
at the other side
of the block and taken to the word ‘waived’ at the top”.
24.7
Mr Van Staden categorically stated that if the defendant had chosen
such a policy, he would have been paying for it, which
he has not
been doing.
24.8
Mr Van Staden conceded that the respondent paid only one total
instalment per month in favour of the plaintiff, which also
covered
the relevant insurance premium. He however pointed out that on the
respondent’s statement the amount of the insurance
premium and
the name/type of insurance were reflected individually, as for
example reflected on the statement on p. 58 of Exhibit
“A”.
He therefore contended that had the defendant taken out disability
insurance, he would have been paying
for it and it would have been
reflected as such on the statement.
24.9
Mr van Staden again testified that according to him the signature on
p.38 of Exhibit “A” was that of the defendant
as it is,
in his view, similar to the other signatures of the defendant.
He however confirmed that the said documents had
been signed at the
dealer, that he was not present and that he therefore cannot state
whether it is indeed the signature of the
defendant or not.
24.10
Mr van Staden also conceded that he did not deal with the defendant
personally, either when the agreement was signed nor thereafter.
He has however read the comments on the plaintiff’s system from
which it was evident that the defendant had in fact notified
the
plaintiff that according to him he took out disability insurance, but
that the plaintiff’s agent advised him that they
have no record
of such insurance cover in favour of the defendant. The
defendant still insisted that he was the holder of
such a policy,
whereafter he was advised to take the matter up with the dealer.
[25]
During re-examination Mr Van Staden was adamant that he could not
find any indication in any of the plaintiff’s documents
that
the defendant was the holder of any disability insurance.
[26]
During further re-examination Mr Van Staden again explained that when
an insurance option has been chosen by a buyer, the insurance
company
will be advised accordingly and they will send the relevant documents
to the dealer, whereupon the dealer explains the
terms and conditions
of the said policy. The buyer then has to indicate whether he
accepts or decline the policy. When
Mr Benade then asked Mr Van
Staden whether a new insurance contract comes into being when it is
so accepted by the buyer, Mr Van
Staden responded as follows:
“
It
is not a new insurance contract, it is an add-on to the
instalment sale agreement – as an add-on, as an extra.”
Mr
van Staden also explained that the exercising of a choice of the type
of insurance on the insurance needs analysis document,
does not
constitute an insurance contract – the insurance contract only
comes into being once the buyer accepts the terms
and conditions of
the insurance policy provided by the relevant insurance company
and as explained by the relevant dealer
to the buyer.
EVIDENCE
PRESENTED BY THE DEFENDANT:
[27]
I will now deal with the evidence of the defendant, Mr Moji:
27.1
According to Mr Moji, he used to work as a boiler maker at Anglo
Ashante mine at Vaalreefs, Orkney. During or about February
2010 he
was involved in an accident at work and he sustained an injury to his
left arm. He was declared medically unfit to perform
his duties by
his then employer, as a result of which he had to leave their
employment.
27.2
It is not disputed by Mr Moji that he bought the vehicle from Speedy
by means of the agreement already referred to herein earlier
and as
set out in paragraphs 1 to 23 of this judgment and that the plea
relating to the disability insurance is the issue to be
decided for
purposes of this judgment.
27.3
An Indian salesman, whose name Mr Moji cannot remember, in the
employment of Speedy, assisted him at Speedy with the transaction
and
the conclusion of the agreement. He told Mr Moji about life,
disability and retrenchment insurance and explained to him that
it is
very important to be covered against these risks. In this regard the
salesman explained that should Mr Moji pass away, his
wife will not
be burdened with the payment of the instalments of the vehicle.
Furthermore, the payment of the instalments will
also be covered
should Mr Moji be retrenched at work. Mr Moji testified that because
the mines often retrench employees, he considered
it necessary for
him to obtain such insurance. Regarding the disability cover, the
salesman explained to him that should he be
injured at work resulting
in him being declared medically unfit to work, the insurance will
also cover the payment of the instalments.
Mr Moji testified that
because he was a boiler maker at the time, which is a dangerous work
where he worked with steal and could
easily be injured, he also
deemed it necessary to acquire such insurance cover. Mr Moji
testified that after the aforesaid explanations
by the salesman, he
was “ecstatic” about the idea that he can be insured in
the event of one of the aforesaid risks
happening and therefore he
indicated to the salesman that he would like to take out such
insurance. On a document similar to the
one reflected on p. 38 of
Exhibit “A”, the salesman ticked the “taken
”
block next to the aforesaid options under the
“Credit Life
”
option. After he
ticked the blocks, he said he was going to return the documents to
the bank for approval and that he would arrange
for the insurance.
The salesman never mentioned the name of any insurance company.
On
the Monday the salesman phoned him to fetch the vehicle and after he
provided a tax clearance certificate, he took the vehicle
into
possession. He was not requested to sign any insurance documents, but
he assumed and accepted that he was insured against
the risks of
death, disability and retrenchment, as those were the insurance
options he chose and which blocks were ticked by the
salesman, after
which the salesman undertook to arrange the said insurance.
27.4
In addition to the aforesaid, the salesman also told Mr Moji
that the vehicle has to be insured against the risks
of theft
and damage. Similar to the retrenchment insurance, according to Mr
Moji, this insurance was also arranged by the salesman.
27.5
Mr Moji testified that he was never requested to sign any
documentation pertaining to any insurance policy, not even for
the
theft and damage insurance. Mr Moji reiterated that the salesman
undertook to arrange all the insurance and he never even
mentioned
the name of any insurance company. It was only after Mr Moji received
a letter from Unity Insurance requesting him that
a tracker system
should be fitted to the vehicle, that he became aware that Unity
Insurance was responsible for the theft and damage
insurance.
27.6
Mr Moji was adamant that it is not his signature appearing on the
insurance needs analysis document on p. 38 of Exhibit “A”.
He indicated that the said signature reflects a line which does not
appear from any of his own signatures on the other documents.
The
second page of the document, p. 39 of Exhibit “A”, does
however reflect his signature. He explained that the document
on p.38
is similar to the one the salesman completed by ticking next to the
insurance options he chose, but that it is not the
same one. In
cross-examination Mr Benade put it to Mr Moji that “Van Staden
said you signed to pick certain coverage
”
,
which Mr Moji denied, restating that the salesman only ticked his
chosen options and that he was not requested to sign next to
the said
options. On that document he only signed at the bottom of the page.
27.7
He saw the inscription “Coverplus
”
on
the agreement as reflected on p. 26 of Exhibit “A”, when
he signed the agreement, but he accepted and assumed that
it referred
to the disability insurance which he opted for.
27.8
He never received a copy of the agreement, nor of any insurance
policy, including the terms and conditions of the Hollard
coverplus
policy document contained in Exhibit “A”, p. 1 to 23. He
also did not receive any insurance confirmation
letter, including the
letter on p. 67 of Exhibit “A”. The said letter was only
shown to him by his attorney after his
attorney got involved in the
current dispute between the parties.
27.8
Mr Moji testified that he was convinced that he was covered by
disability insurance. He paid the monthly instalment on
the vehicle
by debit order, which amount included the monthly insurance premium.
He received statements from the plaintiff which
reflected a premium
on “Coverplus
”
which he assumed
was the disability insurance.
27.9
As a result of having to leave the employment of his employer as a
result of having been declared medically unfit to work,
he struggled
to maintain the payment of the monthly instalments. He fell in
arrears with the payments and eventually made a last
payment in
November 2011. Even before the last payment, he contacted the
customer care services of the plaintiff and informed them
that he had
been declared medically unfit to work, but that he has disability
insurance. They requested proof of his disability
and provided him
with a fax number to which he should send the documentation. He sent
them a letter from his employer confirming
same. They indicated that
they would report back to him, which they never did. He then assumed
that the matter had been settled
to the effect that his disability
insurance will cover the outstanding balance on the vehicle.
However,
during or about November 2011 a representative of the plaintiff
wanted to repossess the vehicle. He advised the relevant
person that
he has disability insurance and that he has been in contact with the
plaintiff regarding it. It then became apparent
that the plaintiff
was disputing that he has such insurance cover, whereupon he
requested a copy of the agreement which he signed
from them, wanting
to obtain proof of the insurance options he had chosen. The plaintiff
failed to send a copy thereof to him and
he did not hear from the
plaintiff again. He then approached his attorney of record for
assistance, who wrote a letter to the plaintiff
requesting all the
relevant documents pertaining to the matter. The plaintiff then
issued summons against the defendant.
LEGAL
PRINCIPLES AND EVALUATION OF THE EVIDENCE:
[28]
As correctly pointed out by Mr Benade in his heads of argument, the
basic rule pertaining to onus in a contractual dispute,
is as set out
in
CHRISTIE’S THE LAW OF
CONTRACT IN SOUTH AFRICA
,
RH Christie & GB Bradfield, 6
th
Edition, at p. 159:
“
It
is more correct to say that he who asserts must prove,…
Hence if the defendant, …, pleads an
additional term as defence, the onus will remain on the plaintiff to
prove his version
in order to succeed in his claim,…”
In
AMLER’S PRECEDENTS OF
PLEADINGS
, LTC Harms, 7th Edition,
at p. 111, it is stated as follows:
“
The
onus of proving the terms of the agreement may involve the proof of
a negative – for example, proof that the parties
did not agree
on an additional term as alleged by the defendant.”
[29]
Mr Benade however submitted that in this instance the defendant is
not alleging that the parties agreed on a certain term or
on an
additional term to the agreement. The defendant alleges, according to
Mr Benade’s argument, the conclusion of an additional
contract
as such, being the disability insurance contract – a contract
concluded between himself and some insurance company,
not the
plaintiff. Mr Benade therefore submitted that the onus is on the
defendant to prove this further contract he asserts.
[30]
I cannot agree with the last mentioned submission of Mr Benade. As
quoted in paragraph [26] above, Mr Van Staden specifically
testified
that the conclusion of such an insurance contract does not constitute
“a new insurance contract – it is an
add-on to the
instalment sale agreement…as an extra
”
.
[31]
This interpretation by the plaintiff’s witness corresponds with
the terms and conditions of the agreement, reflected
on p. 29 of
Exhibit “A”:
“
5.
Insurance
5.1
We may offer to arrange insurance cover for you.
5.2
You do not have to make use of the insurance that we offer to
arrange for you, and you may decline it and substitute a policy
of
your own choice.
5.3
…..
5.4
…..
5.5
…
5.6
We may require you to maintain credit life insurance, covering your
life, disability, terminal
illness and unemployment, to the value of
all your outstanding obligations under this agreement from time to
time.
5.7
We may offer you optional insurance cover in relation to your
obligations under this agreement…”
[32]
The defendant testified that the salesman offered the disability
insurance, he accepted the offer, the salesman then offered
to
arrange the disability insurance for the defendant, which offer the
defendant again accepted. His evidence is therefore in line
with the
aforesaid terms and conditions of the agreement. In my view it
therefore constitutes an allegation by the defendant that
it was a
term
of
the agreement that the salesman will arrange for disability insurance
for the defendant.
[33]
Having made this finding, the onus is consequently upon the plaintiff
to prove that the parties did not agree on such a term
and that such
insurance contract does therefore not exist.
[34]
It is very important to be mindful of the fact that the defendant
concluded the agreement with Speedy who was represented by
the
unknown salesman. The defendant’s evidence was that the
salesman offered the disability insurance, that the defendant
expressed his choice of wanting to take such insurance to the
salesman, that the salesman ticked the relevant option on the
insurance
needs analysis document, that the salesman undertook to
arrange the said insurance and that it is not his signature on the
said
document next to the choice of “Insurance Shortfall
Cover
”
. The evidence presented by the
plaintiff to gainsay the aforesaid allegations by the defendant and
on which the plaintiff has to
rely to prove the absence of the term
alleged by the defendant, is that of Mr Van Staden. But Mr Van Staden
was not present when
the agreement was concluded and has no personal
knowledge of the events that occurred during the conclusion and
signing of the
agreement. He testified as to how different salesman
have different ways of indicating which insurance option a
prospective buyer
chose and he even testified that this salesman of
Speedy required a signature in the “taken” block as his
way of indicating
a specific choice exercised by the defendant. All
of the aforesaid however constitute mere speculation by Mr Van
Staden. He cannot
from personal knowledge deny that the defendant
exercised the option of taking disability insurance, nor can he deny
that the salesman
undertook to arrange the insurance. He conceded,
for obvious reasons, that he cannot deny the respondent’s
version that it
is not his signature on the insurance needs analysis
document. In fact, he cannot gainsay any of the defendant’s
allegations
pertaining to the conclusion of the agreement and what
transpired between the defendant and the salesman. Despite this, the
plaintiff
failed to call the salesman as a witness, nor did the
plaintiff present evidence that the said witness is not available or
untraceable.
[35]
The further evidence which Mr Benade attempts to rely on in support
of the case of the plaintiff, do not, in my view, take
the
plaintiff’s case any further either, especially against the
background that it is the plaintiff`s case that the defendant
chose
the option of Coverplus insurance and that such insurance was indeed
activated and implemented in favour of the defendant.
Such evidence
relied on by Mr Benade, as well as the reasons why I cannot agree
with his submissions are the following:
35.1
The fact that the plaintiff is not registered as an insurance
provider .
It
is not the defendant’s case that he concluded the disability
insurance contract with the plaintiff. He testified that the
salesman
undertook to arrange the insurance, but that he did not mention the
name of the relevant insurance company and that it
is therefore
unknown to him – just like he did not know that the theft and
damage insurance, which was also arranged by the
salesman, was with
Unity Insurance, until he received the letter from them.
35.2
The fact that the defendant did not receive any disability insurance
policy or contract.
The
defendant testified that he did not receive an insurance policy
contract regarding the Coverplus insurance either. He denied
having
received the Hollard policy contained in Exhibit “A”, p.
1 to 23, and the policy itself does not reflect that
it relates to
the defendant either. The plaintiff presented no evidence that the
Coverplus policy had in fact been sent to the
defendant.
35.3
The fact that he did not receive any letter of confirmation
regarding the alleged disability insurance.
He
testified that he did not receive such a letter pertaining to the
alleged Coverplus insurance either. The plaintiff cannot rely
on the
letter on p. 67 of Exhibit “A” in this regard, as that
letter is only dated 12 June 2012.
35.5
The fact that the defendant admitted not having signed any contract
pertaining to disability insurance.
The
plaintiff did not prove that he had in fact signed such a contract
regarding the Coverplus insurance either.
[36]
No attempt was made by the plaintiff to present the evidence of an
appropriate representative from Hollard Insurance to confirm
the
plaintiff’s allegations pertaining to the existence, or not,
of firstly the Coverplus contract between the defendant
and Hollard
and secondly the disability insurance contract between the defendant
and Hollard.
[37]
There is a further aspect which was not canvassed by the plaintiff,
but which appears from the plaintiff`s bundle of documents,
Exhibit
“A”, p. 57 - p. 64, and which is, to my mind, very
important. Page 57 reflects a letter from the plaintiff,
dated 21
February 2010, addressed to the defendant, in which letter the
activation of a Hollard “Outstanding Debt
”
policy
is confirmed against payment of a monthly premium of R 582.00. The
detailed statement appearing on p.58 – p. 64 indeed
reflects
the charging by the plaintiff of such premium as from 29 March 2010
and the payment thereof by the defendant. The said
premium is
reflected up to the end of the said statement, the last date being 29
October 2012.
[38]
What the aforesaid insurance entails is unknown as it was not
canvassed in evidence. Suffice it to say that by the name thereof,
it very much sounds alike to the disability insurance the defendant
relies on. I would have expected for the plaintiff to have
explained
this insurance policy in its evidence, especially to indicate that
there is no
nexus
between
the said insurance and the disability insurance contract alleged by
the defendant, which it failed to do.
[39]
I find both the witnesses to have been credible witnesses. There is
no basis for a finding to the contrary. Mr Van Staden was
compelled
in the circumstances to speculate about many aspects of this case,
but this does not detract from my finding. With regard
to Mr Moji, I
experienced him to be honest, although ignorant in some respects.
Many parts of his evidence are corroborated by
other evidence. It is
also evident from the evidence of Mr Van Staden that it has been Mr
Moji’s version right from the onset
of his contact with the
plaintiff after his injury, and before any dispute between the
parties, that he has disability insurance
that should cover the
outstanding balance on the vehicle.
[40]
In view of the aforesaid findings and upon the evaluation of the
evidence as a whole, I find that the plaintiff has not discharged
its
burden of proof pertaining to its obligation to have proved the
absence of the term of the agreement regarding the disability
insurance as alleged by the defendant.
[41]
For the sake of completeness, I wish to mention that Mr Benade
cross-examined the defendant on the issue of his alleged disability
in view of his evidence that he has in the meantime again obtained
employment. I however do not deem it necessary to deal with
the said
evidence, as the alleged disability of the defendant is not in
dispute on the pleadings and I was not called upon by
counsel at the
outset of the hearing to adjudicate this aspect as part of
the dispute between the parties.
CONSIDERATION
OF THE APPROPRIATE ORDER:
[42]
Mr Rathidili requested that the plaintiff’s claim be dismissed
with costs. However, I deem it necessary to consider
whether this
will be the appropriate order.
[43]
Absolution from the instance is described as follows in
PRINCIPLES
OF EVIDENCE
, Revised 3d Edition, PJ
Schwikkard & SE van der Merwe at ch32-578:
“
The
term "absolution from the instance" is used to describe
the finding that may be made at either of two distinct stages
of the
trial. In both cases it means that evidence is insufficient for a
finding to be made against the defendant.
At
the close of the case, when both parties have had the opportunity
to present whatever evidence they consider to be relevant,
the
defendant will be "absolved from the instance" if, upon an
evaluation of the evidence as a whole, the plaintiff's
burden of
proof has not been discharged. It means that the plaintiff has not
proved her claim against the defendant. It is not
a bar to the
plaintiff reinstituting the action (provided the claim has not by
then prescribed) and in that respect it is to be
distinguished from a
positive finding that no claim exists against the defendant.
Absolution from the instance is the proper order
when after all the
evidence the plaintiff has failed to discharge the normal burden of
proof.”
[44]
The credibility of the Plaintiff’s evidence is usually assumed
for the purpose of an application for absolution. If the
plaintiff’s
case is based on a document, and the interpretation of the document
is in dispute, a decision on the meaning
of a document is preferably
reached only at the end of a case. See
LAW OF EVIDENCE
,
CWH Schmidt & H Rademeyer, (internet version), para 3.1, p. 3-17.
Also see
GAFOOR v UNIE VERSEKERINGSADVISEURS (EDMS) BPK
1961(1)
SA 335 (A) 340C.
[45]
I have indicated a number of respects in which the plaintiff, in my
view, failed to present any and/or appropriate evidence
in support of
its claim and therefore in discharging its burden of proof. In the
circumstances I cannot make a finding that the
plaintiff has no claim
against the defendant – it might have a claim, but in these
proceedings it failed to discharge its
burden of proof.
[46] I consequently
consider an order of absolution from the instance to be the
appropriate order.
COSTS:
[46]
With regards to costs, there is no reason why costs should
not follow the respective success of the
parties, which costs will
obviously include the costs of the summary judgment application.
ORDER:
Absolution
from the instance is ordered in favour of the defendant, the
plaintiff to pay the costs of the action.
_____________
C.
VAN ZYL, J
On
behalf of the Plaintiff: Adv. H.J. Benade
On
Instructions of:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of the Defendant: Adv. N.R. Rathidili
On
Instructions of:
Mphafi
Khang Inc.
BLOEMFONTEIN