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[2012] ZAFSHC 26
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SA Taxi Securitisation (Pty) Ltd v Mokoena (3878/2011) [2012] ZAFSHC 26 (8 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 3878/2011
In the matter between:
S A TAXI
SECURITISATION (PTY) LTD
….....................................
Plaintiff
and
MASILONYANE JONAS
MOKOENA
….....................................
Defendant
JUDGMENT:
PHALATSI, AJ
HEARD ON:
1
MARCH 2012
_______________________________________________________
DELIVERED ON:
8 MARCH 2012
_______________________________________________________
[1] This is an
application for summary judgment. The plaintiff sued the defendant in
terms of a lease agreement entered into by
the parties on the 23
rd
of February 2010, read with an addendum to the said agreement dated
8
th
March 2010.
[2] In terms of the
agreement, the plaintiff leased a vehicle, namely, a 2010 CMC
AMANDLA, to the defendant.
[3] The plaintiff avers
in its particulars of claim that the defendant has breached the
agreement in that he has failed to pay the
instalments in terms of
the agreement and the addendum, and on 18 July 2011, he was in
arrears with his payments in the sum of
R13 672.49. A section
129 notice was sent to defendant, but he did not respond thereto.
[4] As a result of the
breach, the plaintiff cancelled the agreement, as it is entitled to
do in terms of the agreement, and claimed
the following relief:
confirmation of
termination of the agreement;
return of the vehicle;
forfeiture of all
amounts paid by the defendant in terms of the agreement;
expenses incurred for
removal, valuation, storage and sale of the vehicle;
leave to apply for
damages and interest at the rate of 30.40% per annum, from date of
demand, to date of payment; and
attorney and client
costs.
[5] These prayers are all
catered for in the agreement.
[6] In order to resist
the granting of summary judgment, the defendant must show that he has
a
bona fide
defence, and to that he must set out the nature
and grounds of his defence fully. (See
MAHARAJ v BARCLAYS
NATIONAL BANK LTD
1976 (1) SA 418
(A) and
JOOB JOOB
INVESTMENTS (PTA) LTD v STOCKS MAVUNDLA ZEK JOINT VENTURE
2009 (5) SA 1
(SCA).) In this case, the defendant has raised four
defences, with which I deal below.
[7] The defendant
disputes that he is in arrears, for reasons that I will deal with
later. In his opposing affidavit resisting summary
judgment, the
defendant raised the following defences. The first is that the
plaintiff has not complied with the requirements of
Rule 32(2), in
that the deponent to the affidavit in support of an application for
summary judgment is described as Legal Manager
of the plaintiff,
which entitled her to have possession and control of the files and
records of the plaintiff relating to this
matter. This does not mean,
so the argument goes, that the deponent has personal knowledge of the
facts that could enable her to
swear positively to the facts. . This
argument is difficult to comprehend as, the deponent to plaintiff’s
affidavit says
that the respondent’s file is under her control
and she has personal knowledge thereof and counsel for the defendant,
correctly,
in my view, abandoned it during the hearing.
[8] The second defence
raised by the defendant was that this court does not have
jurisdiction to hear this matter, in that the total
amount repayable
in terms of the agreement is R297 689.92, which amount falls
within the jurisdiction of the Regional civil
courts. Clause 9.1 of
the agreement provides,
inter alia,
as follows, “The
Lessor shall be entitled to institute all or any proceedings against
the Lessee in connection with this agreement
in the High Court ….
and any costs awarded against the Lessee shall be awarded and paid in
accordance with the terms of
this agreement on the High Court scale”.
In the light of this clause, Counsel for the defendant again wisely
abandoned this
argument. The high court has not been deprived of its
jurisdiction.
[9] The next basis of the
defendant’s defence was that of misrepresentation, in that the
defendant was under the impression
that he was entering into an
instalment sale agreement, which would entitle him to become the
owner upon paying all his instalments
in full, and not a lease
agreement, where he would never become the owner. It would seem that
the submission was that in terms
of the present agreement, the
defendant would under no circumstances become the owner of the
vehicle. This defence cannot, in the
light of the fact that the
written document contains all the terms of the agreement, be raised.
Apart from that, contrary to the
said submission, the agreement
stipulates that upon payment of all amounts due to the plaintiff in
terms of the agreement, the
purchaser would be entitled to purchase
the vehicle from the Lessor for a purchase price of R100-00. The
effect hereof was that,
regardless of the nature of the agreement,
the defendant would ultimately become the owner of the vehicle, upon
discharge of all
his obligations in terms of the agreement. This
argument is therefore devoid of any merit and I reject it. In any
event, counsel
for the defendant did not pursue this argument during
the hearing.
[10] The defendant later
filed a supplementary affidavit, to which the plaintiff did not
object, raising a further defence that
the agreement, inclusive of
the addendum, is null and void, in that it was concluded at a fixed
interest rate of 30.40% per annum,
in contravention of the National
Credit Act 34 of 2005, (“the Act”). The defendant avers
that he is therefore not in
arrears because the plaintiff charged
excessive interest.
[11] The maximum interest
rate that a credit provider may charge a consumer for a credit
agreement must not exceed the applicable
maximum prescribed rate
determined in terms of Section 105 of the Act. The formula is as
provided for in Regulation 42, as set
out in Government Gazette No.
28864 dated 31 May 2006. The said maximum interest rate is calculated
according to a formula where
the reference rate is the ruling Reserve
Bank repurchase rate (commonly called the repo rate) as at the time
that the credit agreement
is entered into.
[12] Different maximum
rates apply to different credit agreements. The plaintiff attached a
certificate to its particulars of claim,
certifying that it is
registered with the National Credit Regulator as both a credit
provider and also registered to provide development
credit. The repo
rate as at 23 February 2010 was 7% per annum. The maximum interest
rate that a credit provider may charge if it
is a development credit
agreement is, according to the formula “Repo rate x 2.2 + 20%”;
accordingly the maximum interest
rate was 7% x 2.2 + 20% = 35.40%. In
terms of Section 10 of the Act, a credit agreement, irrespective of
its form, type or category,
is a developmental credit agreement if,
at the time the agreement is entered into, the credit provider holds
a supplementary certificate
certifying that it is registered to
provide development credit AND that the credit agreement is entered
into for the purpose of
development of a small business.
[13] The defendant argued
that the agreement
in casu,
is not a developmental credit
agreement as it is not so alleged in the particulars of claim and
further that the agreement itself
is not labelled as such. It is,
however, common cause that the plaintiff leased a vehicle to the
defendant for the purpose of running
a taxi business (which is a
small business) and that the plaintiff is registered to provide
developmental credit, in compliance
with Section 10 of the Act. I
therefore find that the said credit agreement is nothing else than a
developmental credit agreement.
The plaintiff did, therefore, not
contravene Section 105 of the Act, as the interest rate of 30.40% is
less than the maximum permissible
interest rate, which is 35.40%.
[14] In the premises, I
am satisfied that the defendant has failed to demonstrate a
bona
fide
defence to the plaintiff’s claim and that the
plaintiff is entitled to be granted summary judgment in its favour.
Counsel
for the plaintiff only moved for prayers 1, 2, 4 and 6 of the
notice of motion.
[15] I therefore make the
following order:
Summary judgment is
granted in favour of the plaintiff, against the defendant for:
Confirmation of the
cancellation of the agreement and addendum, between the plaintiff
and the defendant;
Return of the
2010
CMC AMANDDLA
vehicle with engine number
E26413
and
chassis number
LA61BAS329B503855
to the Plaintiff, forthwith;
Expenses incurred for
the removal, valuation, storage and sale of the vehicle;
Attorney and client
costs to be taxed.
__________________
N. W. PHALATSI, AJ
On behalf of the
applicant: Adv J H Mollentze
Instructed by:
Bezuidenhouts Inc
BLOEMFONTEIN
On behalf of the
respondent: Mr M C Mokulubete
Instructed by:
Mabalane Seobe Inc.
BLOEMFONTEIN
/eb