About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 145
|
|
CTI Education Group (Pty) Ltd v Minister of Education and Others (18508/2009) [2009] ZAGPPHC 145 (30 November 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2009-11-19
UNREPORTABLE
Case Number:
18995/09
In the matter between:
MERCEDES BENZ
FINANCIAL SERVICES SA (PTY) LTD
Applicant
and
VILJOEN ANNA
JOHANNA HELENA
Respondent
JUDGMENT
SOUTHWOOD J
[1]
The
plaintiff applies for summary judgment against the defendant for the
return of Mercedes Benz C320 CDI ELEGANCE motor vehicle
with engine
number 6429604050885 and chassis number WDD2040222R007398 (‘the
vehicle’) and costs of the application
on the scale as between
attorney and client. The defendant opposes the application and, in
argument, raises only one issue, that
the plaintiff is precluded from
suing the defendant for any of the relief in the summons by virtue of
the provisions of
section 86
of the
National Credit Act 34 of 2005
(‘the Act’).
[2] In its particulars of claim the
plaintiff alleges that –
(1) on 27 August 2008 it entered into
a written instalment sale agreement (‘the agreement’)
with the defendant in terms
of which it sold the vehicle to the
defendant;
(2) in terms of the agreement –
(i) notwithstanding delivery of the
vehicle to the defendant, ownership of the vehicle remains vested
with the plaintiff;
(ii) a total amount
of R700 632,91 (including finance charges of R261 139,91) was payable
as set out in the agreement’s payment
schedule: i.e. a first
instalment of R8 958,35 on 7 October 2008; 59 instalments of R8
958,35 each, commencing on 7 November
2008 and a final (residual)
instalment of R164 272 on 7 September 2013
;
(iii) if the defendant failed to pay
any instalments on due date or perform any of its other obligations
in terms of the agreement
the plaintiff would be entitled to cancel
the agreement, claim return and possession of the vehicle, retain all
payments made in
terms of the agreement and recover such damages as
it is entitled to together with costs on the scale as between
attorney and client;
(3) the plaintiff delivered the
vehicle to the defendant on or about 27 August 2008;
(4) the plaintiff has performed all
its obligations in terms of the agreement;
(5) the defendant breached the
agreement by failing to pay the instalments and on 2 December 2008
was in arrears with its instalments
in the amount of R18 653,32;
(6) on 2 December
2008, by prepaid registered post, the plaintiff delivered to the
defendant a letter advising the defendant of
her arrears and
demanding payment of the outstanding balance, which letter complies
with
section 129
of the Act;
(7) the defendant failed to make
payment as demanded and the plaintiff cancelled the agreement
alternatively does so by service
of the summons;
(8) the agreement
is subject to the Act and
the
plaintiff has complied with the relevant practice note, as appears
from the attached certificate. (The certificate states that
the
plaintiff sent the notice in terms of
section 129(1)
of the Act to
the defendant by registered post; that the defendant had been in
default for a period of 20 business days in respect
of her
obligations under the agreement and that at least 10 business days
had elapsed from the date of the dispatch of the letter
in terms of
section 129(1)
of the Act; that the defendant had failed to respond
to the notice in terms of
section 129(1)
and the matter is not before
a debt-counsellor; a debt dispute resolution agent, a consumer court
or an ombudsman and/or a national
credit tribunal which could effect
an order or matter to be determined by the court.)
[3] To avoid
summary judgment the defendant is required by
Rule 32(3)(b)
to set
out in her affidavit facts, which if proved at the trial, will
constitute an answer to the plaintiff’s claim. The
Rule also
requires that the defendant satisfy the court that the defence is
bona
fide
.
This means that the defendant must swear to a defence, valid in law,
in a manner which is not inherently and seriously unconvincing.
Finally, it is required of the defendant that she set out the facts
on which she relies ‘fully’. This means that
the
statement of material facts must be sufficiently full to persuade the
court that what the defendant has alleged, if it is proved
at the
trial, will constitute a defence to the plaintiff’s claim. If
the defence is averred in a manner which appears in
all the
circumstances to be needlessly bald, vague or sketchy, that will
constitute material for the court to consider in relation
to the
requirement of
bona
fides
–
see
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T)
at
227G-228F.
[4] The defendant’s
answering affidavit raises two defences:
(1) the non-joinder of her husband to
whom she is married in community of property;
(2) the action was instituted contrary
to the provisions of
sections 66
,
84
and
88
(3) of the Act which
offers protection to her because she applied for debt review in terms
of
section 86(1)
of the Act on 19 January 2009, which was before the
plaintiff’s summons was served on her. The defendant states
that the
agreement does not qualify in terms of
section 86(2)
of the
Act to be excluded from her debt review.
The defendant’s
counsel did not persist with the first defence and argued only that
the application for debt review precludes
the plaintiff’s claim
[5] The defendant
did not dispute any of the plaintiff’s allegations referred to
and, significantly, did not pertinently deny
that she received the
notice which the plaintiff posted to her on 2 December 2008. The
tracking notice reflects that the letter
was received on 15 January
2009 (i.e. before the defendant’s application for a debt
review). The defendant does not dispute
this or state that she
received some other document. Her evidence regarding the notice is
evasive and disingenuous and cannot
be said to raise a
bona
fide
dispute.
[6] In argument,
the plaintiff’s counsel relies on two unreported judgments
which he contends have decided the issue: a judgment
of Du Plessis J
in
Nedbank
Ltd v Ditshiho Motaung
TPD
Case No 22445/07 delivered 16 April 2008 and a judgment of Lamont J
in
R
F Potgieter v Greenhouse Funding (Pty) Ltd and Another
WLD
Case No 31825/2008 delivered 20 January 2009. The effect of the
judgments is the same. An application in terms of
section 86(1)
of
the Act does not apply to a credit agreement where the credit
provider has already sent the notice contemplated by
section 129(1)
of the Act to the consumer before the consumer applies for a debt
review and the credit provider is therefore not precluded from
instituting action against the consumer. It is not contended that
these judgments are clearly wrong and I should therefore follow
them.
In the present case the plaintiff sent the notice (a letter dated 2
December 2008) to the defendant by registered post and
on the
available evidence it was received by 15 January 2009, before the
defendant applied for a debt review. The defendant has
not denied
the allegations in the summons regarding compliance with
section 129
of the Act or disputed any of the statements in the certificate of
compliance with practice rule no 28. The defendant is therefore
not
protected by the provisions of the Act.
Order
[7] Summary judgment is granted
against the defendant and the following orders are made:
1. The defendant is
ordered to deliver forthwith to the
plaintiff
Mercedes Benz C320 CDI ELEGANCE motor vehicle with engine number
6429604050885 and chassis number WDD2040222R007398;
2. The defendant is ordered to pay the
costs of this application on the scale as between attorney and
client.
____________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE
NO: 18995/09
HEARD
ON: 17 November 2009
FOR
THE APPLICANT/PLAINTIFF: ADV. S.G. MARITZ
INSTRUCTED
BY: Strauss Daly Inc.
FOR
THE RESPONDENT/DEFENDANT: ADV. J.H. MOLLENTZE
INSTRUCTED
BY: CMM Attorneys Inc
DATE
OF JUDGMENT: 19 November 2009