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[2] What follows are the reasons for my order.
[3] The plaintiff’s claim is based on a lease agreement concluded between Sunlyn
(Pty) Ltd and the first defendant. (The plaintiff became a party to the lease
agreement in place of Sunlyn (Pty) Ltd in terms of agreements that are not
relevant to the issues before me). In terms of the lease agreement, in the event
that the first defendant defaults on its obligation to pay the rent, the lessor is entitled to: (a) cancel the lease agreement; (b) obtain possession of the truck
leased to the first defendant under the lease agreement; (c) collect payment of the arrear rent and other outstanding amounts; and (d) as liquidated damages,
claim payment of all other amounts that would have fallen due from the date of cancellation to the normal expiry date of the lease agreement, plus the present
value or book value of the truck at the date of cancellation, less the monetary
value of the truck at the time of its recovery when it is restored to the possession of the lessor.
[4] The second defendant is liable as co-principal debtor with the first defendant for
the latter’s debts to the plaintiff, in terms of a guarantee concluded between the second defendant and Sunlyn (Pty) Ltd. (The plaintiff replaced Sunlyn (Pty) Ltd as a party to the guarantee, also in terms of agreements that are not relevant to the application for summary judgment).
[5] In their plea and in the affidavit resisting summary judgment, the defendants rely
on section 48 of the Consumer Protection Act 68 of 2008 ( the CPA), contending
that the terms of the lease agreement that allow the plaintiff, upon cancellation, to both obtain possession of the truck and claim payment of amounts that would
otherwise only become payable in the future, are unfair, unreasonable, or unjust
as contemplated by section 48 of the CPA.
[6] As the plaintiff does not rely on the exclusion in section 5(2)(b) of the CPA (as
one might have expected), or any other exclusion, I must take it for granted that
the CPA applies.
[7] It seems to me that the defendants have a bona fide defence in contending that
section 48 of the CPA applies to the terms of the lease agreement referred to above. Whethe r those terms indeed do fall foul of section 48 on a full evaluation
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of all the facts is another matter, but it does not seem appropriate to me that that
enquiry should be undertaken in summary judgment proceedings.
[8] For these reasons I made the order referred to above.
__________ _______
H A VAN DER MERWE
ACTING JUDGE OF THE HIGH COURT
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Heard on: 5 March 2025
Delivered on: 6 March 2025
For the plaintiff : Adv J G Botha instructed by Oosthuizen Du Toit Berg and Boon
Attorneys
For the first and second defendant s: Mr CW Haveman, CWH Attorneys
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