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2024
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[2024] ZALMPPHC 156
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Absa Bank Limited v Gaberton Investment (Pty) Ltd and Another (2359/2020) [2024] ZALMPPHC 156 (29 October 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
(1) REPORTABLE: YES/NO
(2) OF INTREST TO THE
JUDGES: YES/NO
(3) REVISED: YES/NO
DIAMOND AJ
29 October 2024
CASE
№:
2359/2020
In the matter between:
ABSA BANK LIMITED
PLAINTIFF
and
GABERTON
INVESTMENT (PTY) LTD
FIRST
DEFENDANT
MOKGOBA
GABRIEL MESO
SECOND
DEFENDANT
JUDGMENT
DIAMOND A J:
BACKGROUND
[1]
The Plaintiff issued Summons against the First
Defendant on 18 March 2020.
[2]
The First Defendant filed a notice of appearance
to defend on the 30
th
day
of November 2020.
[3]
The background to the summons is simple: on or
about 15 August 2019 the Plaintiff and the First Defendant entered
into a written
instalment sale agreement, in respect of the purchase
of a certain Caterpillar Grader. In terms of this agreement the First
Defendant
was obliged to pay monthly instalments to the Plaintiff and
ownership of the Caterpillar Grader would be transferred to the First
Defendant once the First Defendant has complied with all its
financial obligations in terms of the instalment sale agreement.
[4]
The instalment sale agreement contains the usual
cancellation clauses in the event of breach of contract of either of
the parties,
and the clause that should the Plaintiff have to proceed
with legal action that the First Defendant shall pay the costs of the
plaintiff on a scale as between Attorney and Client.
[5]
The Plaintiff alleges in paragraph 7 of its
Particulars of Claim that it complied with all its obligations in
terms of the instalment
sale agreement. To this the First Defendant
pleaded as follows “
The contents
herein are denied, and the Plaintiff is put to proof thereof.
”
[6]
The Plaintiff further pleaded in paragraph 8 of
its Particulars of Claim that the First Defendant breached the terms
of the instalment
sale agreement by failing to punctually pay the
instalment amounts. The First Defendant “
vehemently”
denies this allegation and pleads, in
amplification, of this denial by requiring the Plaintiff to prove
that the official representing
the Plaintiff had the necessary
authority to sign and enter into the agreement.
If
that is proven, the First Defendant relies on
force
majeure
, because of between the period
March 2020 and November 2020 its lack of income during the lockdown
period resulting from the Covid
pandemic, made it objectively
impossible for the First Defendant to comply with its obligations.
[7]
The Plaintiff further alleged, in its Particulars
of Claim, that it duly cancelled the agreement as per the
cancellation clause
contained in the agreement.
[8]
The First Defendant recorded two special pleas,
the first being that the Plaintiff failed to comply with the
stipulations of Section
129 of the National Credit Act, 2005 (Act 34
of 2005) and the second that the Plaintiff did not file a notice in
terms of Section
41A of the Uniform Rules of Court.
[9]
This matter came before me on 22 July 2024.
[10]
On the morning of 22 July 2024, at 09:24, just
before the commencement of the trial, Everton Dankuru, the attorneys
representing
the First Defendant filed a notice of withdrawal as
attorneys of record. The First Defendant appeared in person.
[11]
At the outset of the proceedings, the First
Defendant applied, orally, for a postponement of the trial to afford
him the opportunity
to employ a new firm of attorneys to represent
him. I dismissed the application and indicated that the reasons will
follow with
the final judgment.
[12]
The trial proceeded and the Plaintiff led evidence
to the effect that the instalment sale agreement was concluded by a
properly
authorised official and furthermore and more important for
purposes of this judgment, to the effect that the First Defendant
failed
punctual payments and that, on 5 February 2020, the First
Defendant was already in arrears in the amount of R 146 057,36.
[13]
Throughout the evidence, the First Defendant was
given the opportunity to cross-examine the witness testifying on
behalf of the
Plaintiff. After the Plaintiff closed its case, the
First Defendant was given the opportunity to proceed to present
evidence to
the court. The First Defendant declined the opportunity
to cross-examine the witness testifying on behalf of the Plaintiff
and
furthermore declined the opportunity to present its case to the
court. His reason was that he was in no position to make a meaningful
contribution to the case and that he needed a postponement in order
to employ the services of an attorney.
[14]
What follows is the judgment of this court and the
reasons for the judgment.
APPLICATION FOR
POSTPONEMENT
[15]
It is
trite that a postponement is not merely for the asking. The party
requesting the postponement must provide a compelling justification
for the postponement.
[1]
[16]
The court stated in
Kleynhans
in paragraph 23 that the court is
generally inclined to grant the postponement if the reason for the
postponement is fully explained
and justified, especially if justice
demands further time for the applicant to present the case
adequately.
[17]
Furthermore,
prejudice is a vital factor in the court’s consideration.
[2]
[18]
It is against the backdrop of the above
considerations that the application for postponement was dismissed.
The First Defendant
could not give any reason why his attorney of
record withdrew, other than to state that it could not have been for
financial reasons
since he had adequate access to funds to enable him
to proceed with the litigation.
[19]
Apart
from the above, what, in my view, is important to consider is the
context and the nature of the case.
The
First Defendant offered two special pleas in its plea, none of which
is even vaguely convincing.
[3]
[20]
As far
as the merits are concerned, the plea of the First Defendant
contains, for all practical purposes, an admission to the pivotal
case of the Plaintiff and that is the First Defendant was in arrears
by end of February 2020, entitling the Plaintiff to the relief
sought. What the First Defendant did plead though, was that it was
excused from performing due to supervening impossibility of
performance flowing from the Covid 19 lockdown. This plea of
supervening impossibility for the reasons set out in the plea is also
patently untenable
[4]
[21]
The gist of the case of the Plaintiff was
furthermore extremely simple - it turned exclusively on the question
whether the First
Defendant made payments in terms of the contract,
or not. It should have been extremely simple to answer to this case –
First
Defendant simply had to present proof of payments of the
instalments of the monthly instalments. In fact, to do so would be so
simple that the First Defendant would have been able to do so in
person in court. There are no legal complexities involved in this
question. This he did not do, in fact, he stated in his plea that he
was unable to pay due to the Covid 19 lockdown measures.
[22]
A particular important factor is the question of
prejudice suffered by the parties and in this instance the Plaintiff,
should the
application for postponement be successful. The prejudice
that the Plaintiff would have suffered is self-evident: while the
Plaintiff
would have to await a new trial date, the First Defendant
would have been in possession and use of the asset, an asset which
are
subject to depreciation and to the risk of physical damage.
[23]
I am therefore satisfied that for all the above
reasons the appropriate judgment to the application for postponement,
was to dismiss
the application, as I did.
[24]
Since the trial proceeded, for all practical
purposes on an unopposed basis, and there was no version for the
First Defendant on
record, the Plaintiff would have been entitled to
judgment, for all practical purposes on a default basis.
[25]
I will however very shortly, in fairness to the
First Defendant, deal with the special pleas and the merits as it
appears from the
pleadings.
SPECIAL PLEAS
[26]
The first special plea of the first the defendant
was that the Plaintiff failed to comply with section 129 of the
National Credit
Act, 2005 (Act 34 of 2005)(“NCA”).
[27]
This
special plea is untenable. It is common cause that the First
Defendant is a juristic person, and that the First Defendant entered
into a large agreement as described in section 9(4)(b) of the NCA, in
that the value of the transaction exceeded R 250 000 –
00
[5]
.
The entire transaction falls outside the scope of the NCA, and there
was no need for the Plaintiff to comply with the stipulations
of the
NCA.
[28]
The second special plea was that the Plaintiff
failed to comply with the stipulations of Rule 41A, in that the
Plaintiff failed
to file the necessary notice in terms of the rule
and that for that reason the combined summons of the Plaintiff was a
nullity
and completely defective.
[29]
This
plea is equally untenable. It is clear that the Rule 41A does not
provide for any sanction for non-compliance with the rule.
It has
been held that mediation in terms of this rule is an entirely
voluntary process and that an unwilling party cannot be compelled
to
mediate.
[6]
[30]
Furthermore,
it has been held that non-compliance with Rule 41A and its provisions
are not fatal to the proceedings.
[7]
[31]
The Plaintiff did eventually file a Rule 41A
notice, indicating clearly that the did not wish to consider
mediation proceedings
in terms rule 41A, lead to any tangible
outcome.
[32]
There is no indication that the First Defendant
pursued this objection seriously by employing the mechanisms in the
uniform rules
of court in the event of any of the parties committing
an irregular proceeding. It simply relies on the fact that
non-compliance
results
in
the
entire
proceedings
to
be
a
nullity.
For
all
the above reasons
therefore, the second special plea is dismissed.
MERITS
[33]
In my view, there can be no dispute as to the
merits of the claim of the Plaintiff.
[34]
The First Defendant pleads that the official that
signed the agreement was not authorised to do so. This is a bald
denial, and not
explained in any way at all. This failure to place an
explanation before the court is odd, since it is clear from the
pleadings
that after the signing of the agreement, the contract was
carried into effect by both parties. The First Defendant received the
grader and made certain payments, although it defaulted in the end.
The testimony of the Plaintiff’s witness confirmed the
authority of the official that signed the agreement and the First
Defendant did not present any contrary evidence. This defence
was
disingenuous and can only be rejected.
[35]
The only remaining defence, on the merits, is that
the First Defendant should be excused from performance because of
supervening
impossibility, owing to the Covid 19 lockdown measures.
This defence can be rejected with reference to the pleadings only.
The
Plaintiff’s case is that by the end of February 2020, the
account of the First Defendant was in arrears, and it is based on
these arrears that the action was instituted. The Covid 19 lockdown
measures were only in effect (and this was even pleaded by
the First
Defendant itself), as from March 2020.
On
the basis of this fact that this defence should be dismissed.
[36]
Apart
from the above, the question as to whether financial inability to
pay, caused by the Covid 19 lockdown measures, was repeatedly
raised
before South African courts and the courts have consistently ruled
that the lockdown measures could only cause a temporary
inability to
perform, and moreover it did not necessarily bring about objective
impossibility to perform
[8]
.
This defence should therefore also be dismissed.
CONCLUSION
[37]
For all of the above reasons I am of the opinion
that judgment should be granted in favour of the Plaintiff.
It is hereby ordered:
1.
The cancellation of the instalment sale agreement
concluded by the Plaintiff and the First Defendant, that commenced on
14 August
2019, is confirmed.
2.
The First Defendant or anybody in possession of it
is ordered to forthwith deliver to the Plaintiff:
CATERPILLAR 140H MOTOR
GRADER
ENGINE NUMBER 1[…]
SERIAL: NUMBER X[…]
YEAR OF FIRST
REGISTRATION 2007
3.
The Sheriff for the district of the High Court
wherein the asset has been situated is to give effect to prayer 2.
4.
The Plaintiff is granted leave to apply to this
court on the same papers, supplemented in so far as may be necessary
for judgment
in respect of any damages, and further expenses incurred
by the Plaintiff in the repossession of the said goods.
5.
The First Defendant is to pay the costs of suit of
the Plaintiff on a scale as between attorney and client.
DIAMOND AJ
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
:
22 July 2024
JUDGMENT
DELIVERED ON
:
29 OCTOBER
2024
.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand-down of the judgment is deemed to be 29 OCTOBER 2024.
FOR
THE PLAINTIFF
:
Adv Z Marx du Plessis
INSTRUCTED
BY
:
VZLR INC.
[1]
See
Legal
Practice Council v Kleynhans (6160/24)
[2024] ZAWCHC 196
(5 August
2024)
,
Pars 20
– 25 (“
Kleynhans
”
),
and the authorities are referred to in that case.
[2]
Kleynhans
,
Par. 24.
[3]
See
below.
[4]
See
below.
[5]
Annexure
C
to
the particulars of claims a copy of instalment sale agreement and
the first the defendant admits having entered into the agreement.
In
terms of this annexure, the value of the transaction was R 1 7997
000 – 00.
[6]
Kalagadi
Manganese (Pty) Ltd & Others v Industrial Development
Corporation of South Africa & (
2020/12468)
[2021] ZAGPJHC 127 at paragraph 30
[7]
Sokhani
Development & Consulting Engineers (Pty) Ltd v Alfred Nzo
District Municipality
(1254/2024)
[2024] ZAECGHC 40 (26 April 2024). See also
Growthpoint
Properties Limited v Africa Master Blockchain Company (PTY)
Ltd
(2020/43806) [2022] ZAGPJHC 836 (26 October 2022) , Pars 26 –
27.
[8]
SeeFirstrand
Auto Receivables (RF) Limited v Zungunde (19875/2021
)
[2023] ZAGPPHC 60 (27 January 2023), Par
21 – 23.