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[2014] ZAFSHC 85
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Standard Bank of South Africa Limited t/a Standard Bank Vehicle & Asset Finance v Legoale (753/2014) [2014] ZAFSHC 85 (5 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 753/2014
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA LIMITED
t/a
......................................................
Applicant
STANDARD
BANK VEHICLE & ASSET FINANCE
and
LEGOALE:
PATIENCE
OAGENG
......................................................................................
Respondent
(Id.
7[…])
HEARD
ON:
15 MAY 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
5 JUNE 2014
INTRODUCTION
[1]
The matter came before me as an application for summary judgment
opposed by the respondent. The respondent raises issues
of
public policy militating against the application for summary
judgment. She avers that when it fell into arrears, applicant
did not act and thereby waivering its right to act. The
respondent admits to be in arrears. She admits the date
of the
last instalment being March 2013. She however argued that she
had tried to negotiate settlement with the applicant
but to no
avail. She was instead sent from pillar to post. She
further claimed to have made two payments of R10 000,00
each in
March 2014. Therefore, she contended that the applicant could
not act when respondent has tried to settle the arrears.
It
argued that the cancellation was not valid. It further raised
from the bar that it did not receive the S129 notice as
per the
National Credit Act.
BACKGROUND
[2]
The applicant (standard Bank) and the respondent (Patience Oageng
Legoale) entered into an agreement regulated by the
National Credit
Act, 34 of 2005
. The respondent purchased a motor vehicle for
which she paid a deposit of R20 000,00 (twenty thousand) and the
balance
purchase price would be settled in 60 (sixty) instalments of
R5 581,57 each per month, the last payment to be paid on the 1
st
of March 2013. Contract commenced on1 March 2008 (effective
date).
[3]
She chose an address as her
domicilium
citandi et executandi
for purposes of
all notices and correspondence sent by Standard Bank in relation to
the instalment sale agreement.
[4]
In breach of the agreement, the respondent failed to make
regular payments of the instalments payable in terms of
the
agreement to the applicant. As a result of her failure she fell
in arrears. On 17 December 2013, respondent was
in arrears of
R261 864,04 and on the said date the outstanding amount payable
in terms of the agreement, amounted to R263 637,68.
The
agreement had already expired on 1 March 2013, which was the last
payment date.
[5]
A notice in terms of
section 129
of the
National Credit Act, 34 of
2005
, dated 27 January 2014 was sent to the chosen address by
registered mail to the respondent’s chosen address. The
said
notice full tracking and tracing and parcel tracking results are
all annexed in the papers as annexures “B1 – B3”.
[6]
The applicant as a result of the respondent’s breach of the
agreement cancelled the agreement. A letter of cancellation
dated 14 February 2014 was sent to her per registered mail,
annexed to the papers as annexure “C”.
[7]
A certificate of balance marked annexure “D” was also
attached to the papers. The agreement stipulates that
mere
production of the certificate would be sufficient proof of any amount
due.
[8]
The agreement stipulated that default will
inter
alia
occur if respondent fails to make
payment in full or breaches any term of the agreement.
[9]
In the event of default, the applicant may approach the court for an
order to enforce the agreement.
[10]
The applicant issued summons. The respondent entered appearance
to defend. The applicant brought this application
for summary
judgment. Upon receipt of same, respondent filed a notice of
opposition of the application.
SUBMISSION
IN COURT
[11]
The applicant submitted that for the court to decide whether a
bona
fide
defence has been displayed, it should be satisfied regarding
(a)
whether the defendant has disclosed the nature and grounds of her
defence;
(b)
whether the facts so disclosed, the defendant appears to have as
either the whole or part of the claim, a defence which is
bona
fide
and good in law.
[12]
The applicant argued that if allegations in respondent’s
affidavit, relative to the facts, are equivocal, incomplete
or open
to conjecture, then the requirements of High Court
Rule 32
have not
been met. The rule stipulates what the plaintiff’s
affidavit, in support of application for summary judgment,
should
entail.
[13]
In the respondent’s opposing affidavit:
(a)
The applicant
contends that the respondent admits that she bought the vehicle in
terms of the agreement attached to the summons
and that she fell in
arrears:
(b)
Does not disclose a
bona fide
defence as regards to the merits of the application;
(c)
Alleges that she had paid an amount of R10 000,00 as an offer
for the first three (3) months towards settlement.
She claims
this offer was unreasonably refused. She proceeded to pay in
spite of the refusal to accept the offer by the applicant.
[14]
The respondent admitted that she bought the vehicle in question.
She fell in arrears. She took initiative when
her finances
improved in December 2013 to settle the obligation. She was
sent from pillar to post.
She
contended that she was surprised when she received summons, because
she had initiated a process which was thwarted or frustrated
by the
applicant. She carried on paying as per her offer. She
maintained that she has a
bona fide
defence to the main action.
[15]
The respondent further contended that the applicant did not take
action when respondent fell in arrears. It claimed that
it had
dealt with and disclosed the nature and grounds of defence.
[16]
From the bar, the respondent’s counsel raised the issue of
non-receipt of
S129
notice in terms of the
National Credit Act.
This
is so in spite of the respondent not dealing with this in her
papers. The applicant has raised compliance with the
S129
notice in the papers (see pages 21 – 24). The respondent
has not responded in its opposition regarding this.
I will deal
with this at a later stage.
[17]
The respondent further argued that public policy dictates that the
application be dismissed in the circumstances. It
argued that
the applicant cannot be allowed to get judgment after the respondent
has tried to negotiate settlement.
THE
LAW
Credit
Agreement (between applicant and respondent)
·
It stipulates
the notice address, which the respondent gave as 18 P[....], J[...]
F[...] Street, P[...], Bloemfontein.
·
Paragraph
16.4.1 deals with the manner of service of notices.
·
Paragraph 18.9
deals with concessions which do no amount to waiver.
·
Paragraph
18.6, 18.7 and 18.15 (deal with the English version signed by both
applicant and respondent. It clearly state that
the agreement
constitutes the entire agreement. (The contention by the
respondent that the proper interpretation of the word
“deemed”
in clause 16.4.1 means “or the absence of contrary”
evidence is incorrect.)
RULE
32(3)(b)
Contents
of the respondent’s affidavit
[18]
“…
..
that she has a
bona
fide
defence to the action, such affidavit or evidence shall disclose
fully the nature and grounds of the defence and the material facts
relied upon”.
The
respondent has not raised the nature and grounds of her defence on
merits.
CASE
LAW
Rule
32
– Contents of affidavit
[19]
Jacobsen van den Berg SA (Pty)
Ltd v Tritton Yachting Supplies
1974
(2) SA 584
(O) at p. 585.
The
rule 32(3)(b)
requires the opposing affidavit to disclose fully the
nature and grounds of the defence and the material facts relied upon,
so
that the court is satisfied that the defendant has a
bona
fide
defence, not merely that he
“appears” to have a
bona
fide
defence. Every cause of
action has a peculiar characteristic as to its background, time,
value, make-up, knowledge, conduct
and attitude of the parties and so
forth and every defence thereto must have corresponding features of
its own. The defendant
failed to allege a proper defence in
terms of
Rule 32(3)(b).
The court declined to exercise its
discretion and granted summary judgment.
[20]
Tesven CC and Another v South African Bank of Athens
2000 (1) SA 268
(SCA). Where defence based on facts (i.e. where
defendant disputing facts alleged by plaintiff in summons or raising
new
facts in defence) the court is not to determine the balance of
probabilities, the court will only determine
(a)
whether defendant fully disclosed nature
and grounds of defence and material facts upon which founded; and
(b)
whether, on facts disclosed, defendant
having
bona fide
defence good in law. The word “fully” requiring the
defendant to disclose defence and material facts upon which
it is
based with sufficient particularity and completeness to enable the
court to decide whether affidavit discloses
bona
fide
defence.
[21]
The court further held that if there was doubt as to whether the
plaintiff’s claim might be unanswerable, the court will
exercise its discretion in favour of the defendant. In the case
at hand there is no doubt that the plaintiff’s claim
is
unanswerable. The respondent concedes that she was in arrears
of the contract as alleged by the applicant. In my
view
therefore, the respondent has no defence. Her financial
difficulties constituted no defence. Its opposing affidavit
fell short of what is required by
Rule 32(3)
to enable the court to
assess the defendant’s
bona fides
.
[22]
In
Muller and Others v Botswana
Development Corporation Ltd
2003
(1) SA 651
(SCA) it was held in a summary judgment application, that
the issue was not whether the defence to be raised was likely to
succeed
or fail, but merely whether it was
bona
fide
. As such the opposing
affidavit had to disclose fully the nature and grounds of defence and
the material facts relied upon
therefor
(Rule 32(3)(b)).
It was
held that the appellants on facts failed to set up a
bona
fide
defence to the respondent’s
claim so as to avoid summary judgment.
[23]
In casu
the respondent simply avers that the applicant did not act
immediately when the respondent started to be in default. She
claimed that she had raised some amounts when her financial situation
changed in March 2014 long after the applicant cancelled
the credit
agreement in February 2014.
[24]
She strangely averred that the applicant cannot cancel when the
respondent was trying to negotiate settlement. It claims
that
this was against public policy.
[25]
When asked by the court whether public policy takes precedence over
the terms of contract, the respondent’s attorney
answered in
the affirmative despite terms of the contract clearly pointing to the
contrary.
[26]
Arend and Another v Astra Furnishers
(Pty) Ltd
1974 (1) SA 298
(C) at p.
304. Courts retain discretion to refuse summary judgment even
if requirements of the rule are not met. Only when
there is no
reasonable doubt about the plaintiff’s claim that the
application should be acceded to. In this case, I
do not have
any doubt whatsoever as regards the strength of the applicant’s
case.
[27]
In the case at hand, there is no doubt about the applicant’s
application. The respondent in effect admitted that she
was in breach
of the terms of the contract. The amount in arrears is substantial.
She has made no acceptable offer to the
applicant. All these
justify the granting of the relief sought.
[28]
The question remains, should the applicant elects to cancel as it is
entitled to do as a result of admitted breach, can a respondent
unilaterally insists to revive the contract by paying amounts to the
applicant’s account. If the agreement avails the
applicant to cancel as a result of breach of whatever type as
stipulated in the agreement, the respondent cannot refuse a proper
and lawful cancellation.
[29]
The contract or credit agreement spells clearly that no concession
must be taken as waiver of applicant’s rights.
[30]
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426. If the defence is based on facts, all that the
court enquires into is:
(a)
whether the defendant has fully disclosed the nature and grounds of
his defence and the material facts upon which it is founded;
and
(b)
whether on the facts so disclosed the defendant appears to have, as
either the whole or part of the claim, a defence which
is both
bona fide
and good in law. If satisfied on these, the court must refuse
summary judgment.
[31]
In the case at hand, the court cannot be satisfied that there was any
semblance of defence disclosed, whether
bona
fide
or otherwise. Defendant’s
affidavit does not show that there is reasonable possibility that the
purported defence may
succeed on trial.
[32]
Nedperm Bank Ltd v Verbri Projects CC
1993 (3) SA 214
(W) at 224. The court’s discretion to
refuse summary judgment should be exercised only where there is some
factual
basis or some belief set out in the affidavit resisting
summary judgment which enables the court to say that there is a
reasonable
possibility of a defence emerging at trial.
In
the circumstances, as a whole, I am persuaded that the respondent has
failed to show a
bona fide
defence to the applicant’s claim. There was no substance
in the respondent’s contention that the applicant’s
failure to take immediate legal steps against her amounted to waiver
of the applicant’s right in terms of the contract.
Moreover, the respondent failed to make out a case that public policy
considerations dictated that the applicant be denied the
relief of a
summary judgment. Consequently, I have come to the conclusion
that this is a proper case where an application
for summary judgment
should succeed.
[33]
Accordingly, I make the following order:
1.
The
applicant’s application for summary judgment is granted.
2.
The respondent
is ordered to pay the costs of the application.
___________
N.P.
JAJI, AJ
On
behalf of applicant:Adv D. de Kock
Instructed
by:
McIntyre
& Van der Post
Bloemfontein
On
behalf of respondent: Mr M. Khang
Instructed
by:
Mphafi
Khang Inc.
Bloemfontein