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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: CIV APP MG33/2023
In the matter between: -
M. T. MOTSWANE Appellant
and
BMW FINANCIAL SERVICES Respondent
Coram: Reid Jet Mfenyana J
D elivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date for hand-down is deemed to be 06
January 2025.
ORDER
The appeal is dismissed with costs.
YES/ NO
YES /NO
YES /NO
YES /NO
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JUDGMENT
Mfenyana J
Introduction
[1] This is an appeal against the whole judgment and order of the
Magistrates' Court in Vryburg, handed down on 12 July 2023.
[2] In the notice of appeal delivered on 14 Septembe r 2023, the appellant
contends that the court a quo erred in finding that the appellant does
not have a bona fide defence, and in finding that the agreement is
invalid.
[3] In the amended notice of appeal dated 11 October 2023 the appellant
concedes that the court a quo correctly concluded that the agreement
between the appellant and the respondent was invalid. However, the
appellant avers that the court a quo should have concluded that in the
absence of a valid agreement, no case had been made out for
summary judgment as there was no underlying causa.
[4] In the heads of argument filed on behalf of the appellant, it is submitted
that the court a qua did not make a finding that the agreement is invalid
and as such, this ground of appeal was not proceeded with by the
appellant. Thus, the sole ground of appeal is t~at the court a qua erred
in rejecting the appellant's defence that he did not read the agreement
before signing it.
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[5] The facts of the matter relevant to this appeal are that the respondent
(as plaintiff) in the court a quo, issued a summons against the appellant
(defendant) for cancellation of an instalment sale agreement concluded
between them, and for an order authorising the sheriff to attach and
seize the motor vehicle forming the subject-matter of the agreement,
and hand it over to the respondent. After the appellant filed his plea,
the respondent brought an application for summary judgment, alleging
that the appellant had no bona tide defence, and had filed the plea
solely for purposes of delay. The court a quo agreed with the
respondent and granted summary judgment against the appellant.
[6] In granting the application, the court a quo considered whether the
defence raised by the appellant was bona tide. The court noted that the
appellant had been in possession of the motor vehicle since 2008 or
2009 and even went to the extent of putting himself under debt review.
Thus, the court rejected the appellant's contention that he considered
the agreement to be invalid. It further considered that despite stating
that he had paid diligently towards the agreement, the appellant did not
challenge the payment breakdown provided by the respondent in
response to the appellant's notice in terms of Rule 23(15) of the
Magistrates' Court Ru les. The court further dismissed the appellant's
defence that he did not read the agreement as bad in law, as he ought
to have known the terms and conditions of the agreement he was
putting his signature on. He also initialled and signed the affidavit
resisting summary judgment. Ultimately the court found that all the
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defences raised by the appellant were not bona fide.
[7] In the heads of argument, the appellant concedes that a person who
affixes their signature to an agreement cannot under normal
circumstances claim that they did not read the agreement as the
principle of caveat subscriptor is a trite principle in our law. However, in
this instance, further contends the appellant, the defence he raised was
that he was not able to read the terms and conditions of the agreement,
as the respondent informed him that he should simply sign the
agreement, and he would "drive a fancy car".
(8] It is thus the appellant's contention that the respondent took advantage
of the appellant and cannot be allowed to rely on the agreement as
there was no meeting of m inds. According to the appellant, he signed
the affidavit resisting summary judgment as this was explained to him
as he was legally represented. In my view, this has nothing to do with
whether or not the appellant read the agreement before signing it as
this was his defence in the court a qua. This is also the basis on wh ich
the court a quo dismissed the defence.
(9] In opposing the appeal, the respondent argues that there is no ground
of appeal relied on by the appellant, having abandoned his initial
complaint that the agreement is invalid. For this reason the respondent
avers that the appeal should be dismissed with punitive costs. In this
regard, it is worth pointing out that the appellant did not abandon his
defence that the agreement is invalid, as raised in the court a quo.
What he no longer relies on is the averment that the court a quo found
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that the agreement is invalid. It is common cause that the court a qua
did not make such finding.
[10] The respondent further contends that the defence raised by the
appellant is simply that he did not read the agreement, w hich is not
sustainable as he is bound by the terms of the agreement on the basis
of the principle of caveat subscriptor which is based on quasi mutual
assent. Thus, the conclusion is that the appellant assented to the terms
of the agreement. This is also confirmed by the appellant's conduct in
making payments in respect of the agreement.
[11] It is trite that in terms of the principle of caveat subscriptor the
responsibility to understand the agreement before signing is on the
person signing the agreement. The appellant has conceded this. He
however contends that he did not read the agreement because the
respondent instructed him not to read the agreement. On the other
hand he states that he is illiterate. The fact that the respondent, as
contended by the appellant informed the appellant not to read the
agreement does not take the matter much further. It is not the
appellant's case that he was forced to sign the agreement. According
to him he was merely told that he wou ld drive a fancy car. That cannot
amount to inducement. He does not say that he did not want to sign the
agreement, or what terms of the agreement would have caused him not
to sign the agreement, had he read it.
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[12) In Langeveld v Union Finance Holdings (Pty) Ltd1 the court had the
following to say about the principle of caveat subscriptor.
"There is a strong praesumptio hominis (popular presumption or
presumption common among persons) that anyone who has signed a
document had the animus (intention) to enter into the transaction
contained in it, and she is burdened with the onus of convincing the Court
that she in fact had not entered into the transaction by virtue of the maxim
caveat subscriptor (a person who signs must be careful). As A J Kerr
says: 'It is a sound principle of law that a man, when he signs a contract,
is taken to be bound by the ordinary meaning and effect of the words
which appear over his signature."
(13) By putting his signature on the agreement, the appellant purported to
have understood the terms of the agreement. Further by paying for the
motor vehicle in terms of the agreement, he understood the monthly
repayment terms of the agreement. He could not comply with
something he did not understand.
(14] In the circumstances, there is no merit to the averments by the
appellant. The court a quo correctly rejected the defence raised by the
appellant. The appeal falls to be dismissed.
Order
(15) In the result the following order is made:
The appeal is dismissed with costs.
2007 (4) SA 572 (W ).
S MFENYANA
JUDGE OF THE HIGH COUR T
NORTH WEST DIVISION, MAHIKENG
I agree.
FMM REID
JUDGE OF THE H IGH COURT
NORTH WEST DIVISION, MAHIKENG
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APPEARANCES
For the appellant
Instructed by
Email
For the respondent
Instructed by
Email
Date reserved
Date of judgment
N Jagga
Du Plessis Viviers
c/o Smit Neethling Inc.
lit2@smitneethling.co.za;
G V Maree
MacRobert Inc.
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c/o CJP Oelofse Attorneys
mhk3@cjpo .co.za; mhk6@cjpo .co.za
22 March 2024
06 January 2025