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[2011] ZAKZPHC 61
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SA Taxi Securitisation (Pty) Ltd v Meek (6650/10) [2011] ZAKZPHC 61 (1 January 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No: 6650/10
In
the matter between:
SA
TAXI SECURITISATION (PTY) LTD
...................................................................................................
Plaintiff
And
MEEK
MOYI ROBINSON
.........................................................................................................................
Defendant
JUDGMENT
SEEGOBIN
J
INTRODUCTION
[1]
This is an opposed application for summary judgment arising from a
credit agreement governed by the provisions of the
National Credit
Act 34 of 2005
[‘the Act’].
[2]
The plaintiff, SA TAXI SECURITISATION (PTY) LTD, instituted action
against the defendant, MOYO ROBINSON MEEK, on 25 August 2010
arising
out of certain alleged breaches of a lease agreement between them.
The plaintiff claimed,
inter alia
,
the return of the leased vehicle and costs to be taxed on the scale
as between attorney and client. The plaintiff annexed copies
of both
the lease agreement and the notice in
terms
of
section 86(10)
of the Act to its particulars of claim. The
defendant filed his appearance to defend on 14 September 2010.
Thereafter the plaintiff
applied for summary judgment in which it
claimed return of the vehicle in question and payment of costs as set
out above.
FACTUAL
BACKGROUND
[3]
The agreement in question was entered into on 23 June 2009. It
related to the lease of a 2009 Toyota Quantum Sesflkile. In terms
of
the agreement, the defendant was obliged to pay to the plaintiff a
deposit of R45 000,00, an initial rental of R8 543,77 on
1 August
2009 followed by 59 equal rentals of R8 543,77 payable on each
corresponding day of each consecutive month. The defendant
took
delivery of the vehicle while ownership thereof remained vested in
the plaintiff. The defendant thereafter breached the agreement
by
failing to pay the rentals due. By 4 August 2010 the defendant was in
arrears in the sum of R41 145,67.
[4]
It is apparent that the defendant experienced financial difficulties
as he applied to a debt counsellor for debt review in terms
of
section 86(1)
of the Act. It is not clear on the papers precisely
when the debt review application was made by the defendant. However,
the relevant
debt counsellor delivered a notice as contemplated in
section 86(4)(b)(i)
of the Act on 5 May 2010. It seems that
thereafter neither the debt counsellor concerned nor the defendant
took any of the further
steps contemplated in subsections 86(5), (6),
(7) or (8) of the Act. Three months having elapsed since the delivery
by the debt
counsellor to the plaintiff of the notice in terms of
section 86(4)(b)(i)
of the Act, the plaintiff on 4 August 2010, gave
notice to the defendant, the debt counsellor and the National Credit
Regulator
in the prescribed form, of its election to terminate the
debt review in terms of
section 86(10)
of the Act. As at the date of
this notice the defendant was alleged to have been in arrears in the
sum of R41 145,67. The total
amount outstanding by the time summons
was issued was the sum of R255 550,30.
[5]
The full extent of the relief claimed by the plaintiff in its
particulars of claim were (1) for confirmation of termination
of the
agreement; (2) return of the vehicle in question; (3) forfeiture of
all amounts paid by the defendant in terms of the agreement;
(4)
expenses incurred for removal, valuation, storage and sale of the
vehicle; (5) a postponement of the claim for damages until
such time
as the vehicle was recovered, valued and the defendant credited with
such value; (6) affording the plaintiff the opportunity
to set the
matter down, duly supplemented, for judgment on the issue of damages,
and (7) attorney and client costs to be taxed.
As already mentioned
the summary judgment application only concerns the relief set out in
(2) and (7) above.
DEFENDANT’S
OPPOSING AFFIDAVIT
[6]
In his opposing affidavit, the defendant raised the following issues
which were pursued in argument on 3 March 2011. First,
he contended
that the affidavit put up by the applicant in support of its
application for summary judgment was hearsay and did
not pass muster
within the context of the requirements of Rule 32 of the Uniform
Rules in that the deponent does not state that
he was personally
involved in any of the transactions relating to the defendant.
Second, it was contended that the plaintiff failed
to place the
defendant in
mora
as required in terms of clause 8.2.2 of the agreement, alternatively,
that the plaintiff failed to set out the necessary averments
to
entitle it to the relief sought in the application for summary
judgment. Third, it was contended that the debt review process
had
not been terminated lawfully for want of proper delivery of the
notice in terms of section 86(10) of the Act. The basis for
the third
contention was that in paragraph 38 of his opposing affidavit, the
defendant avers that he verbally informed the plaintiff
of both his
residential address as well as his postal address. He further averred
that as he is not familiar with legal terminology
he did not know
what the words ‘
domicilium
address'
meant. He states that had
he known or was informed that he would be receiving notices in the
mail, he would have demanded that
it be sent to his postal address
since he does not receive any mail at his residential address. He
draws attention to the fact
that the agreement in question appears to
be a standard form agreement which only makes provision for one
address. The agreement
excludes provision for the postal address
which he supplied to the plaintiff. Lastly, he avers that there is no
proof that the
plaintiff informed him of his options in terms of
section 65(2) of the Act.
PLAINTIFF’S
SUBMISSIONS
[7]
In his heads of argument and in oral submissions before me, Mr
Moodley
,
on behalf of plaintiff, contended that the defendant failed to set
out sufficient facts in his opposing affidavit which, if proved
at
the trial, would constitute an absolute defence to the plaintiffs
claim for delivery of the vehicle. The defence raised must
be one
that is valid in law. He submitted that the defendant was not
entitled to raise technical defences to evade summary judgment.
Allegations contained in an opposing affidavit which are needlessly
bald, vague or sketchy will entitle a court to consider whether
the
defendant has set out a bona fide defence or not. The plaintiff
relied in this regard on the matters of
SA
Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases
2011 (1) SA 310
(GSJ) at paras 25 - 29 and
Breitenbach
v
Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 227 - 228. It was submitted, with regard to
the issue of authority on the part of the deponent to the affidavit
in support
of the application for summary judgment, that the deponent
had gone far enough in such affidavit to make it plain that he not
only
had the requisite authority but also bore personal knowledge of
the matter. Reliance in this regard was placed on the matter of
Technological Pump Development CC t/a
TPD Water Services
v
Irving
630CC t/a B & M Pumps and Another
2007 (3) SA 370
(T). It was further argued that the defendant did not
provide any material evidence to prove that he was not in arrears.
With regard
to termination of the debt review process, it was
contended that no further steps were taken by the defendant nor did
he provide
details of his current financial position. It was
accordingly submitted that the defendant failed to satisfy the court
that he
in fact has a bona fide defence to the claim.
DEPONENT’S
AUTHORITY
[8]
The deponent to the affidavit in support to summary judgment averred
as follows [pp 21 - 22 of the indexed bundle]:
‘
1.
I am the general manager legal of the above named plaintiff in this
matter and am duly authorized to depose to this affidavit
on behalf
of the plaintiff.
2.
The fact herein set out fall within my personal knowledge and are
true and correct.
3.
In consequence of such position held by me with the plaintiff, I have
in my possession and under my control the file and records
of the
plaintiff pertaining to this matter, the contents of which I have
familiarized myself with during the course of the plaintiffs
dealings
with the defendant and for purposes of this matter. By virtue of the
aforegoing, I have personal knowledge of the facts
deposed to by me
herein.
4.
I have read the plaintiffs summons, particulars of claim and
application for summary judgment in this matter. I can and do swear
positively to the claim set out in the summons and particulars of
claim and verify the plaintiff s cause of action.’ [My
emphasis]
[9]
In his opposing affidavit, the defendant specifically challenges the
deponent’s authority on the basis that the deponent
did not
have personal knowledge of the transactions entered into the
plaintiff and defendant [p 26 of the indexed bundle]. A similar
challenge was raised in
Shackleton
Credit Management (Pty) Ltd
v
Microzone Trading 88 CC and Another
2010 (5) SA 112
(KZP). This case involved an application for summary
judgment. The applicant had taken cession of a number of claims from
ABSA.
The applicant’s attorney deposed to the affidavit in
support of summary judgment. In his opposing affidavit the second
respondent
raised an objection that the applicant’s attorney
could not have had the requisite knowledge to swear positively to the
facts.
The court noted the requirements in Uniform Rule 32(2) that
the affidavit must be made by the applicant himself or some other
person
who can swear positively to the facts verifying the cause of
action. The court relied, at 115F, on
Fischereigsellschaft
F Busse & Co Kommanditgesellschaft
v
African Frozen Products (Pty) Ltd
1967 (4) SA 105
(C) in which it was
held that the requirement that the affidavit be made by a person who
can swear positively to the facts meant
that that person must have
direct or personal knowledge of the facts alleged in the particulars
of claim and that the statement
must not be based on the deponent’s
own information or belief.
[10]
In my view, the facts of the present matter are distinguishable from
those in
Shackleton
.
In that case the deponent to the affidavit was the applicant’s
attorney and the applicant’s claim was a ceded claim
as opposed
to direct claim. The court referred to the deponent as being twice
removed from the applicant’s claim [119A].
In the present
matter the deponent to the affidavit is employed by the applicant
company in the position of a general manager of
legal affairs.
Furthermore, the applicant’s claim is a direct claim and not a
ceded claim. It is nonetheless important to
note, for the purposes of
the present matter, the
obiter
statement by Wallis J in
Shackleton
to the effect that a person may, by virtue of his employment, acquire
sufficient personal knowledge of the facts to depose to an
affidavit
in support of summary judgment. Wallis J held that each case depends
on its own facts [119E].
[11]
After perusing the papers I noticed that Mr Hainsworth signed both
the section 86(10) noticed that is annexed to the summons
and the
certificate dated 24 August 2010. I also note that a different
person, Mr Sachin Maharaj, deposed to the affidavit in support
of
summary judgment. Indeed, it appears as though yet another person had
signed the contract of lease between the plaintiff and
the defendant.
This does not necessarily mean that the deponent could not have
acquired sufficient personal knowledge of the facts.
The deponent
avers that he has under his possession and control the files and
records of the plaintiff that pertain to this matter
and that he has
‘
familiarised'
himself
with these files and records ‘...
during
the course of the plaintiff’s dealings with the defendant and
for purposes of this matter'
This
phrase suggests that the deponent was involved on an ongoing basis in
the transaction entered into between the plaintiff and
the defendant.
I am therefore satisfied that on the facts of this case the deponent
acquired sufficient personal knowledge of the
facts to enable him to
depose to the affidavit.
NOTICE
OF DEMAND
[12]
The defendant argued that the lack of due demand in terms of the
contract of lease disentitles the plaintiff from claiming
judgment
for delivery of the leased vehicle. Clause 8.2 of the lease
agreements reads [p 11 of the indexed bundle]:
‘
8.2
Upon an event of default or the loss, damage or destruction of the
vehicle as determined in 5.1 the Lessor may, subject to the
provisions of the Act and any other applicable legislation, at its
election and without prejudice to any remedy which it may have
in
terms of this agreement or otherwise-
8
.
2.1
...
8.2.2.
after due demand, cancel this agreement, obtain possession of the
vehicle and recover from the Lessee, as pre-estimated liquidated
damages, the total amount of payments not yet paid by the Lessee,
whether same are due for payment or not or the proceeds of any
insurance policy paid by the Lessor in respect of the vehicle. In
addition, the Lessor shall be entitled to claim from the Lessee
any
amount of any value added tax payable in respect of such damages.
For
the purpose of this sub-clause, “due demand” shall mean
immediately on demand unless the Lessee is entitled to notice,
in
which case “due demand” shall mean the giving of such
notice to which the Lessee is entitled.
4
[My emphasis]
[13]
The phrase ‘
...subject to the
provisions of the Act and any other applicable legislation
...’
clearly indicates that the parties intended the
National Credit Act
to
override their private agreement in the event of a conflict
between the Act and their agreement. The defendant referred the
matter
to a debt counsellor and thereafter the debt review
proceedings were referred to the magistrate’s court. The
defendant thereby
brought into play the machinery of the Act and its
provisions governed the relationship between the parties. The
plaintiff delivered
its termination notice in terms of the Act. It
thereafter served summons on the defendant. A summons is a form of
demand. Applying
the definition of ‘
due
demand
’ in clause 8.2.2 to the
facts of the present case, I am satisfied that the summons
constitutes sufficient immediate demand
and that, having called into
play the provisions of the Act, the only notice that the defendant
was entitled to was the termination
notice in terms of the Act.
SERVICE
OF THE DEBT REVIEW TERMINATION NOTICE
[14]
The plaintiff argued that there was proper service of the termination
notice on the defendant. Paragraph 12 of the plaintiffs
particulars
of claim reads [p 6 of the indexed bundle]:
‘
On
the 5
th
of
AUGUST 2010 the plaintiff gave notice to the Defendant, the debt
counsellor and the National Credit Regulator, in the prescribed
manner, of its election to terminate the debt review in terms of
Section 86(10)
of the Act. A copy of that notice is annexed marked
“B’V
[15]
The defendant contended that he did not receive the termination
notice because he was not aware that all notices were being
sent to
his residential address as opposed to his postal address. The
defendant further contended
that
he did not understand legal terminology such as ‘
domicilium
address'
and that had he known that
all notices were being sent to this address he would have objected
and demanded that all notices be sent
to his postal address instead.
The defendant claimed to have telephonically informed the plaintiff
of his postal address.
[16]
Clause 11 of the lease agreement reads:
'11.
Domicilium and Notices
11.1.
The Lessee chooses its domicilium citandi et executandi
(‘domicilium’) for all purposes as its address on the
face of this agreement. The Lessee may change its domicilium by
written notice delivered by hand or sent by registered post to
the
Lessor.
11.2.
Any notice delivered by hand or sent by registered post to the
Lessee’s domicilium shall be deemed to have been received
if
delivered by hand, on due date of delivery o, if sent by registered
post on the third day after posting.’
[17]
It is clear from the above clause that the agreed method for changing
the domicilium address was by way of written notice delivered
by hand
or sent by the registered post. Oral amendment of the domicilium
address was not agreed to between the parties. A further
obstacle to
the defendant’s argument is the non-variation clause, which is
contained in clause 12 of the lease agreement
and it reads:
‘
12.
Non-Variation
12.1.
This is the entire agreement between the parties relating to the
vehicle. There are no implied or tacit terms or conditions
to be read
into this agreement.
12.2. ...
12.3.
This agreement may not be amended, cancelled or novated except and
only to the extent that such amendment, cancellation or
novation is
reduced to writing and signed by both parties. No relaxation by the
Lessor of any of the terms of this agreement shall
be deemed to be
waiver of the Lessor’s rights and the Lessor may enforce the
terms strict at any time.
12.4.
The signature of this agreement by the Lessor and the Lessee will
mean that any prior agreement/s between the Lessor and the
Lessee in
respect of the vehicle described herein is cancelled and the terms of
this agreement shall determine the contractual
relationship between
the Lessor and the Lessee.’
[18]
In contracts there is a difference between, on the one hand, the
delivery address to which notices are to be sent and, on the
other
hand, the method of delivery to that address. The defendant is
concerned with the former and not with the latter. In my view,
the
defendant claims to have telephoned the plaintiff and informed it of
his postal address. There is no indication as to whether
this was
done before the signing of the contract or afterwards. The defendant
does not allege specific facts such as the date of
the alleged phone
call and the person with whom he spoke.
[19]
The method of delivery of notices to the domicilium address, which is
a different issue from the delivery address itself, is
provided for
in clause
of
the lease agreement. The defendant argued that the notices should
have been sent to his postal address and not his residential
address. The defendant did not object to the notices being sent by
registered post. In support of this argument, the defendant
relied
on
section 65(2)
of the Act, which provides for the consumer’s
right to receive documents. This subsection deals with the method of
delivery
of documents. The defendant also relied on the separate
concurring judgment of Cloete JA in
Rossouw
and Another
v
Firstrand
Bank Ltd
2010 (6) SA 439
(SCA).
Cloete JA stated at 457B - D:
‘
Unless
credit providers inform consumers of their options in terms of
s
65(2)
, the benefits of that section are likely to remain illusory
rather than real. A consumer could hardly complain if the method of
delivery of a document chosen by him or her proves ineffective. But
for so long as credit providers standard form contracts which
make
provision for one possibility only - in the present matter, a notice
sent by registered post to an address (which, in the
absence of an
address specified, will be the address of the mortgaged property) -
the argument loses sight of reality. Credit providers
should
accordingly not complain if courts require compliance to the letter
with both the Act and the terms of credit agreements
In
the present matter the lease agreement provides for two different
methods of delivery, that is by hand or by registered post,
and not
merely one method of delivery. The thrust of Cloete JA’s
judgment concerned the method of delivery chosen by the
consumer. As
I said before the method of delivery is different from the address at
which delivery is to be made. This is more than
a mere technical
distinction. The defendant’s argument centres on the delivery
address and not the method; he would have
preferred his postal
address to his residential address. I am of the opinion that the
plaintiff was entitled to deliver the termination
notice by
registered post to the agreed address.
[20]
I now turn to the issue as to whether the plaintiff lawfully
terminated the debt review process. Reference was made to the
Full
Court judgment of the Western Cape High Court in
Wes
bank, a division of FirstRand Bank Ltd v Papier
(14256/10)
[2011] ZAWCHC 2
(1 February 2011). Incidentally, this case
was approved and applied in
Firstrand
Bank Ltd t/a Wes bank
v
Sewsunker
[2011] JOL 26982
(KZP) at paras 24 and 25.
[21]
In my opinion, the case does not avail the defendant. I am of the
view that
Papier
is factually distinguishable from the present matter. In
Papier
the defendant applied to the debt counsellor for debt review. The
debt counsellor sent out a notice informing all recipients that
the
debt review application had been successful and this notice was
followed by another notice to the effect that the defendant
was
over-indebted. In the latter notice the debt counsellor informed the
credit providers that the debt obligations were in the
process of
being restructured and attached an instalment offer to the notice
[para 4]. The debt counsellor therefore took a further
step over and
above the
section 86(4)(b)(i)
notice. The court narrowly framed the
issue as being whether a credit provider is entitled to terminate
debt review proceedings
in cases where a debt rearrangement order has
been applied for but not yet granted [para 26]. In the present
matter, the plaintiff
pleads, in paragraph 11.3 of its particulars of
claim, that the debt counsellor took no further steps as contemplated
by subsections
86(5), (6), (7) or (8) of the Act. The defendant, in
his opposing affidavit, only alleges that the debt review in the
magistrate’s
court was set down for 21 October 2010. The
defendant did not attach a copy of the papers from the debt review
proceedings or any
of the notices sent by the debt counsellor as to
whether or not the defendant was over-indebted. The defendant has not
produced
any evidence to gainsay the plaintiffs factual allegation
that no further steps where taken by the debt counsellor after
delivery
of the
section 86(4)(b)(i)
notice.
[22]
I am of the view that the plaintiff has complied with the statutory
requirements for delivery of the termination notice. The
termination
of the debt review process was therefore lawful.
ORDER
[23]
In the result, I grant the relief sought in paragraphs 2 and 7 of the
plaintiffs notice of application for summary judgment.
SEEGOBIN, J