Absa Bank Ltd v Jakobo (2562/2013) [2013] ZAFSHC 228 (28 November 2013)
- Citation
- [2013] ZAFSHC 228
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- L. M. Sesele
- Case number
- 2562/2013
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- L. M. Sesele
- Case number
- 2562/2013
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant complied with section 129 of the National Credit Act by sending and delivering the required notice to the respondent via registered mail. The respondent admitted arrears of R2,961.13 and failed to demonstrate that the account was brought up to date. Payments made in June 2013 did not extinguish the arrears as at 16 August 2013. The respondent did not disclose a bona fide defence that would defeat the applicant's claim. Accordingly, the requirements for summary judgment were satisfied and the applicant was entitled to cancellation of the agreement and return of the vehicle.
Court disposition
Summary judgment granted in favour of the applicant; agreement cancelled; return of vehicle ordered; leave granted to prove damages; costs awarded on party and party scale.
Orders
- The agreement between the parties is cancelled.
- The defendant is ordered to return forthwith to the applicant the 2008 Dodge Caliber 2.0 CVT SXT A/T, with specified engine and chassis numbers; failing which the sheriff is authorised to attach and deliver the vehicle to the applicant.
- The applicant is granted leave, on the same papers properly supplemented, to prove its damages, if any.
- Costs are awarded on a party and party scale.
02
Material facts
Parties
Absa Bank Ltd
Applicant Counsel: Adv. J. ElsTsheliso Bernard Jakobo
Respondent Counsel: Mr. M. J. PonoaneAmounts and remedies
- Arrear Amount as at 3 June 2013: ZAR 8,774.08
- Arrear Amount as at 16 August 2013: ZAR 2,961.13
- Monthly Instalment: ZAR 5,219.02
- Payment Made on 1 June 2013: ZAR 5,500
- Payment Made on 27 June 2013: ZAR 5,500
- Payment Made for July 2013: ZAR 360
03
Procedural history
Posture
Summary Judgment Application / Application for Summary Judgment After Delivery of Notice of Intention to Defend
04
Questions and positions
Legal issues
- 01
Whether the plaintiff complied with section 129 of the National Credit Act before instituting proceedings.
- 02
Whether the defendant has a bona fide defence to the summary judgment application.
- 03
Whether the defendant is in arrears under the instalment sale agreement.
Party arguments
- Applicant
- The applicant contends that the respondent breached the instalment sale agreement by failing to pay monthly instalments, resulting in arrears of R2,961.13 as at 16 August 2013. The applicant asserts compliance with section 129 of the National Credit Act, evidenced by a track and trace print-out confirming delivery of the notice by registered mail. The applicant argues that payments made by the respondent do not extinguish the arrears and that no bona fide defence is disclosed.
- Respondent
- The respondent opposes summary judgment on the grounds of alleged non-compliance with section 129 of the National Credit Act and claims to have paid R11,000 in two instalments during June 2013. The respondent asserts that these payments constitute a bona fide defence and disputes the arrears claimed by the applicant.
05
Court’s reasoning
Legal principles
- 01
Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) at paras [75] – [77]
Compliance with section 129 of the National Credit Act requires proof that the notice was sent by registered mail and delivered to the consumer.
- 02
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A – D
A defendant opposing summary judgment must disclose a bona fide defence that is good in law.
- 03
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at page 11 paras [21] – [32]
Summary judgment may be granted where the defendant admits arrears and fails to bring instalments up to date.
- 04
Breytenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227G-H
Payment of instalments after the arrears date does not constitute a defence if the account remains in arrears.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant complied with section 129 of the National Credit Act by sending and delivering the required notice to the respondent via registered mail. The respondent admitted arrears of R2,961.13 and failed to demonstrate that the account was brought up to date. Payments made in June 2013 did not extinguish the arrears as at 16 August 2013. The respondent did not disclose a bona fide defence that would defeat the applicant's claim. Accordingly, the requirements for summary judgment were satisfied and the applicant was entitled to cancellation of the agreement and return of the vehicle.
Obiter and limits
- The court noted that compliance with statutory notice requirements is essential before enforcing credit agreements.
- The mere payment of instalments after default does not automatically cure the breach if arrears persist.
Court disposition
Summary judgment granted in favour of the applicant; agreement cancelled; return of vehicle ordered; leave granted to prove damages; costs awarded on party and party scale.
- The agreement between the parties is cancelled.
- The defendant is ordered to return forthwith to the applicant the 2008 Dodge Caliber 2.0 CVT SXT A/T, with specified engine and chassis numbers; failing which the sheriff is authorised to attach and deliver the vehicle to the applicant.
- The applicant is granted leave, on the same papers properly supplemented, to prove its damages, if any.
- Costs are awarded on a party and party scale.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 2562/2013
In the matter between:
ABSA
BANK LTD..............................................................................................................Applicant
and
TSHELISO
BERNARD JAKOBO..................................................................................Respondent
JUDGMENT BY: SESELE, AJ
HEARD ON: 31 OCTOBER 2013
DELIVERED ON: 28 NOVEMBER 2013
[1] This is an application for summary judgment for cancellation of the instalment sale agreement, return of the motor vehicle, 2008 Dodge Caliber 2.0 CVT SXT A/T, with engine number 8[…], and chassis number 1[…].
[2] The instalment sale agreement between the parties was entered into on 11 July 2011.
[3] The plaintiff alleges in the summons that the defendant is in breach of the agreement in that the defendant failed to pay the monthly instalment and that the arrear amount as at 3 June 2013 was R8 774,08.
[4] The plaintiff launched this application in terms of Rule 32 after delivery of the notice of intention to defend the action is supported by the affidavit of Renier Jansen Van Rensburg.
[5] The defendant opposes the application on the following grounds:
5.1 The plaintiff’s non-compliance with section 129 of the National Credit Act 34 of 2005;
5.2 That the defendant has a bona fide defence in that the defendant paid R11 000,00 in two instalments of R5 500,00 each on 1 June 2013 and 27 June 2013 respectively.
[6] The plaintiff attaches “track and trace print-out to the summons which confirmed that the notice in terms of section 129 was posted by registered mail at the Bloemfontein post office on 5 June 2013 and was delivered to the respondent on 7 June 2013. The tracking number on the registered mail corresponds to the tracking number on the track and trace “print-out”.
[7] It therefore follows that there is no merit in the defendant’s contention that the plaintiff failed to comply with the requirements of section 129 – Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) at paras [75] – [77].
[8] The plaintiff alleges in the affidavit in support of this application that the defendant was in arrears with payment of R2 961,13 as at 16 August 2013. Furthermore, the plaintiff alleges that defendant paid instalments in February 2013, March 2013, April 2013, May 2013 and June 2013. The defendant did not pay in January 2013 and paid R360,00 only for July 2013 whereas the monthly
instalment is R5 219,02. The arrears as per the instalment agreement statement issued on 10 August 2013 is R2 961,13.
A copy of statement is attached to the opposing affidavit marked annexure “A”.
[9] It is therefore patently clear, by his own admission in the form of annexure “A”, that the defendant is indeed in arrears with R2 961,13. The plaintiff is therefore entitled to the remedy in terms of rule 32 – Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at page 11 paras [21] – [32].
[10] The defendant does not disclose a bona fide defence which is good in law – Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A – D,
[11] The payment the defendant made in June 2013 will not constitute a defence even if the matter proceeds to trial because the defendant was in arrears on 16 August 2013. There is further no further allegation that the instalments in terms of the agreement are in fact up to date – Breytenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227G-H.
ORDER
[12] I accordingly grant summary judgment and make the following order:
12.1 That the agreement between the parties is cancelled.
12.2 That the defendant is ordered to return forthwith to the plaintiff, certain 2008 Dodge, model Caliber 2.0 CVT SXT A/T, with engine number 8[…] and chassis number 1[…], failing which the sheriff is directed to authorise to attach the vehicle whenever it may be found and hand same to the plaintiff.
12.3 That the plaintiff is granted leave, on the same papers properly supplemented, to prove its damages, if any.
12.4 Costs on party and party scale.
_______
L. M. S. SESELE, AJ
On behalf of the applicant: Adv. J. Els
Instructed by:
EG Cooper Majiedt Inc.
BLOEMFONTEIN
On behalf of the respondent: Mr. M. J. Ponoane
P.J. Ponoane Attorneys
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