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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023 -126064
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : NO
DATE: 9 May 2025
SIGNATURE:
In the matter between:
ABSA BANK LIMITED PLAINTIFF
AND
SYDNEY THIPE MODINGWANA DEFENDANT
JUDGMENT
MYBURGH, AJ
INTRODUCTION:
[1] The Plaintiff in the summary judgment applicationt was ABSA Bank Ltd, with
its status as a duly registered bank and its registration as an authorized Financial
Credit Provider in terms of Section 40 of the National Credit Act , Act 34 of 2005
(herein af ter referred to as “NCA”), being common cause.
[2] On 14 May 2019, at Centurion, the Plaintiff and the Defendant entered into a
written Instalment Sale Agreement, in terms whereof the Defendant purchased from
the Plaintiff a 2013 Nissan Juke 1.6, properly identified in the agreement, for the
purchase price of R85 652.17 (herein after referred to as “the Agreement”).
[3] In terms of the Agreement, the Defendant was further liable to pay to the
Plaintiff finance charges in the amount of R44 661.81 at a varia ble rate of 12.57%
per annum over a period of 72 months. The agreement afforded the Plaintiff the right,
in the event of the Defendant failing to make any payment in terms of the Agreement
or fail to comply with any other provision of the Agreement or any legal provision
applicable in respect of the said Agreement, to terminate the Agreement in which
event, the Plaintiff shall be entitled, subject to the provisions of Section 127 and
Section 129 read with Section 130 of the NCA, to the return and possess ion of the
motor vehicle.
[4] The Defendant failed to make the payments as required in terms of the
Agreement and was in arrears with monthly instalments in the amount of R 37
983.57.
[5] The Plaintiff duly complied with the prescripts of the NCA, specific ally Section
129 read with Section 130, by dispatching a letter of demand, informing the
Defendant that he was in default under the Agreement and has remained in default
for more than 20 business days and that the full outstanding amounts have become
due, owing and payable. The Defendant was informed of his options in terms of the
NCA, and insofar as he fails to make payment of the arrear amount outstanding plus
interest thereon at the default interest rate within 10 days from the date of delivery of
the no tice, the Plaintiff will approach a Court.
[6] The Defendant did not take any steps contemplated in Section 127 of the
NCA and as such the Plaintiff elected to cancel the Agreement.
[7] The Plaintiff thus claims, in this Summary Judgment, the return of the motor
vehicle, with the claim for damages, if any, to be postponed sine die .
[8] Before this Court the Defendant represented himself.
[9] On proper consideration of the Defendant’s affidavit resisting summary
judgment and his argument, all of the aforeme ntioned were common cause, save
that the Defendant argued that the Agreement was “voided” on 14 May 2019, being
the date on which the Agreement was, according to the Plaintiff, concluded. The
Defendant submitted that “…the Agreement voided when the unreg ulated
"Mechanical Breakdown Warranty" appeared on the agreement under "Additional
fees"”.
[10] In paragraphs 17 to 18 of the Defendant’s affidavit resisting summary
judgment, he states the following:
"The Plaintiff misrepresented the "Mechanical Breakdown Insurance" as what
the Defendant was buying, when in fact it is immediately converted to an
unregulated loan, namely "Mechanical Breakdown Warranty".
The "Mechanical Breakdown Warranty" was not misrepresented as an
insurance product, it is the actual unregulated lending product that
masquerades as the "Mechanical Breakdown Insurance", the insurance
product, the Applicant's summary is ambiguous and misle ading.”
[11] The Defendant argued that the Mechanical Breakdown Warranty contravened
Section 8(2) of the NCA and therefore, per paragraph 27 of his affidavit, “…voids the
credit agreement as it is based on an unlawful provision as per the NCA”.
[12] The De fendant, in argument, submitted that he is prepared to return the motor
vehicle to the Plaintiff once he has received repayment of all monies paid by him to
the Plaintiff, plus interest.
THE NATIONAL CREDIT ACT 34 OF 2005:
[13] The argument advanced by the Defendant should be considered against the
express provisions and dictates of the NCA, and as a point of departure, Section 8(2)
thereof, being the only express contravention submitted by the Defendant.
[14] Section 8(2) reads as follows:
(2) An ag reement, irrespective of its form, is not a credit agreement if it
is—
(a) a policy of insurance or credit extended by an insurer solely to maintain
the payment of premiums on a policy of insurance;
(b) a lease of immovable property; or
(c) a transaction between a stokvel and a member of that stokvel in
accordance with the rules of that stokvel.
[15] Sections 8(2)(b) and 8(2)(c) find no possible application in the present matter.
Section 8(2)(a) is applicable to policies of insurance and credit provided to the
insured by an insurer. In any event, Section 8(2) merely regulates the status of
certain agreements as not being credit agreements and does not impose any penalty
of voidness. I thus find the Defendant’s reliance on Section 8(2) as misplaced.
[16] Albeit not specifically argued, I consider Section 89(1) to (2) of the NCA,
which reads as follows:
Unlawful credit agreements
(1) This Section does not apply to a pawn transaction.
(2) Subject to subSections (3) and (4), a credit agreement is unlawful if—
(a) at the time the agreement was made the consumer was an
unemancipated minor unassisted by a guardian, or was subject to —
(i) an order of a competent court holding that person to be
mentally unfit; or
(ii) an administration order referred to in Section 74(1) of the
Magistrates’ Courts Act, and the administrator concerned did not
consent to the agreement, and the credit provid er knew, or could
reasonably have determined, that the consumer was the subject
of such an order;
(b) the agreement results from an offer prohibited in terms of
Section 74(1);
(c) it is a supplementary agreement or document prohibited by
Section 91(a);
(d) at the time the agreement was made, the credit provider was
unregistered and this Act requires that credit provider to be registered;
or
(e) the credit provider was subject to a notice by the National Credit
Regulator or a provincial credit regulator re quiring the credit provider —
(i) to stop offering, making available or extending credit
under any credit agreement, or agreeing to do any of those
things; or
(i) to stop offering, making available or extending credit
under the particular form of credit agr eement used by the credit
provider,
whether or not this Act requires that credit provider to be registered,
and no further appeal or review is available in respect of that notice.
[17] In terms of Section 89(5), and if a credit agreement is unlawful in ter ms of this
Section, despite any other legislation or any provision of an agreement to the
contrary, a court must make a just and equitable order including but not limited to an
order that the credit agreement is void as from the date the agreement was ente red
into.
[18] The Defendant was not a minor, and as such Section 89(2)(a) finds no
application in the present matter. The agreement did not result from an offer
prohibited in terms of Section 74(1) not was it a supplementary agreement or
document prohibit ed by Section 91(a). At the time the Plaintiff was a registered credit
provider and was not subject to a notice by the National Credit Regulator or a
provincial credit regulator.
[19] The agreement that forms the subject of this summary judgment was
therefore not unlawful.
[20] Again, and although not specifically argued, I now turn to consider whether
the specific provision, being the “ mechanical breakdown warranty ”, was unlawful.
[21] Section 90 of the NCA deals with unlawful provisions of credit agreem ents.
The argument advanced by the Defendant seems to suggest that the “ mechanical
breakdown warranty ” provision was unlawful.
[22] There is simply no factual or legal basis to find that, in terms of Section
90(2)(a), its general purpose or effect was to d efeat the purposes or policies of the
Act, deceive the Defendant or subject the Defendant to fraudulent conduct.
[23] There is simply no factual or legal basis to find that, in terms of Section
90(2)(b), it directly or indirectly purports to waive or depri ve the Defendant of a right
set out in the Act, avoided the Plaintiff’s obligation or duty in terms of this Act, set
aside the effect of any provision of the Act or authorised the Plaintiff to do anything
that is u nlawful in terms of the Act or fail to do anything that is required in terms of
this Act.
[24] There is no waiver of rights contemplated in Section 90(2)(c) and did not the
from an offer prohibited in terms of Section 74(2) or (3), as contemplated in Section
90(2)(d). It did not make the agreement subject to a supplementary agreement
prohibited by Section 91(a), contemplated in Section 90(2)(e). It did not require the
Defendant to enter into a supplementary agreement, or sign a document, prohibited
by Section 91(a), contemplated in Section 90(2)(f) . It further did not purport to
exempt the Plaintiff from any liability contemplated in Section 90(2)(g). It did not
express any acknowledgement by the Defendant contemplated in Section 90(2)(h).
[25] The provision did not express an agreement to forfeit any money (Section
90(2)(i)), it did not purport to appoint the Plaintiff, or any employee or agent of the
Plaintiff as an agent of the Defendant for any purpose other than those contemplated
in Section 102 (Section 90(2)(j)). It did not contain an author isation for any person
acting on behalf of the Plaintiff to enter any premises for the purposes of taking
possession of goods to which the credit agreement relates, or grant of a power of
attorney in advance. It did not contain an undertaking to sign in ad vance any
documentation relating to enforcement of the agreement, a consent to a pre -
determined value of costs relating to enforcement of the agreement, a limitation of
the credit provider’s liability for an action contemplated in subparagraph (iv), or a
consent to any jurisdiction (Section 90(2)(k)).
[26] The “ mechanical breakdown warranty ” did not expresses an agreement by the
Defendant to deposit with the Plaintiff, or with any other person at the direction of the
Plaintiff, an identity document, credit or debit card, bank account or automatic teller
machine access card, or any similar identifying document or device or provide a
personal identification code or number to be used to access an account (Section
90(2)(l)).
[27] The “ mechanical breakdown warra nty” did not purport to direct or authorise
any person engaged in processing payments to give priority to payments for the
Plaintiff over any other credit provider (Section 90(2)(m)). It did not purport to
authorise or permit the Plaintiff to satisfy an obligation of the Defendant by making a
charge against an asset, account, or amount deposited by or for the benefit of the
Defendant, except by way of a standing debt arrangement, or to the extent permitted
by Section 124 (Section 90(2)(n)).
[28] The “ mech anical breakdown warranty ” did not state or imply that the rate of
interest is variable, except to the extent permitted by Section 103(4) (Section
90(2)(o)).
[29] Even on the broadest reading of the affidavit resisting summary judgment and
the heads of arg ument filed by the Defendant, such provision in the agreement does
not fall fowl of Section 90. The inclusion of an unlawful provision, in any event, does
not carry with it the automatic result of voidness of the agreement in toto .
[30] I therefore find that the “ mechanical breakdown warranty ” was not an unlawful
provision in terms of Section 90 and did not result in the Agreement being void.
[31] The Defendant did not allege an inability to pay or over -indebtedness and as
such it is accepted that the Agreement complied with Sections 79, 80 and 81 of the
NCA.
[32] Lastly, the Defendant also argued that, due to the inclusion of the provision in
the Agreement, the Plaintiff contravened the Prevention of Organized Crime Act 121
of 1998 C hapter 3 and was involved in money laundering. These arguments are
rejected as baseless.
THE APPLICABLE TEST IN SUMMARY JUDGMENT PROCEEDINGS:
[33] In Maharaj v Barclays National Bank Ltd , 1976 (1) SA 418 (A) at 4268 -C
Corbett JA outlined the principl es and what is required from a Defendant in order to
successfully oppose a claim for summary judgment as follows:
“All that the Court enquires into is: (a) whether the defendant had "fully"
disclosed the nature and grounds of his defence and the material f acts upon
which it is founded, and (b) whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a defence which is
both bona fide and good in law. If satisfied on these matters the Court must
refuse summ ary judgment either wholly or in part, as the case may be. The
word "fully", as used in the context of the Rule (and its predecessors), has
been the cause of some judicial controversy in the past. It connotes, in my
view, that, while the defendant need not deal exhaustively with the facts and
the evidence relied upon to substantiate them, he must at least disclose his
defence and the material facts upon which it is based with sufficient
particularity and completeness to enable the court to decide whether th e
affidavit discloses a bona fide defence. ”
[34] See also in this regard Breitenbach vs Fiat SA (Edms) Bpk 1976 (2) (TPD)
226 at 229E -H and South African Land Arrangements CC v Nedbank Limited
2015 JDR 2364 (SCA) para [13].
[35] In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1 (SCA) Navsa JA said:
'[31] The summary judgment procedure was not intended to "shut a defendant
out from defending", unless it was very clear indeed that he had no case in
the action. It was int ended to prevent sham defences from defeating the rights
of parties by delay, and at the same time causing great loss to plaintiffs who
were endeavouring to enforce their rights.
[32] The rationale for summary judgment proceedings is impeccable. The
proce dure is not intended to deprive a defendant with a triable issue or a
sustainable defence of her/his day in court. After almost a century of
successful applications in our courts, summary judgment proceedings can
hardly continue to be described as extraord inary.'
[36] I find, having properly considered the affidavit resisting summary judgment,
the heads of argument filed by the Defendant as well as the argument presented in
Court, that the Defendant had fully disclosed the nature and grounds of his defence
and the material facts upon which it is founded.
[37] I interpose to state that, at the onset of the matter, I enquired from the
Defendant whether he required legal assistance, which he confirmed he did not. He
came over eloquently and was more than capabl e in expressing himself, evidenced
by the fact that he drafted his own pleadings.
[38] However, and having regard to the discussion above, the defence raised by
the Defendant is not good in law. There is no triable issue or sustainable defence
insofar as it concerns the return of the motor vehicle. On the Defendant’s own
version, he should not retain the motor vehicle. Having made such finding it is
unnecessary to make any finding on bona fideis .
[39] In the result I am satisfied that the Plaintiff is ent itled to be awarded summary
judgment in its favour insofar as the return of the motor vehicle is sought.
ORDER
[40] I therefore make the following order:
1. Ex abudandi cautela the cancellation of the Instalment Sale Agreement
is confirmed.
2. Summary judgment is granted in favour of the Plaintiff against the
Defendant, and the Defendant is directed to return the vehicle identified as a
2013 NISSAN JUKE 1.6 ACENTA motor vehicle with engine number H[...]
and chassis number S[...] to the Plaintiff.
3. The Defendant is ordered to pay the costs of this application, such
costs to include the costs of counsel on Scale B.
4. The remaining issues are postponed sine die .
SJ MYBURGH
ACTING JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
FOR PLAINTIFF: Adv J Eastes Room
Cell: 072 570 6297
Email: eastes@lawcircle co za
Delberg Attorneys
Tel: (012) 361 5001
Ref: L Kilian/ZT/AVAF -D0075
FOR DEFENDA NT: In person
Email: sydneymodingwana@gmail.corn
Cell: 082 294 2854