BMW Financial Services SA (Pty) Ltd v Malefane (977/2022) [2023] ZANWHC 71 (8 June 2023)

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

NORTH WEST DIVISION, MAHIKENG

CASE NO: 977/2022

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

BMW FINANCIAL SERVICES SA (PTY) LTD

Applicant

AND

MOLEKO JEOFFREY MALEFANE

Respondent

Heard: 27 MARCH 2023

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 08 JUNE 2023.

ORDER

The following order was made

“1. Judgement is granted in favour of the Plaintiff in that an order is granted for:

1.1 Confirmation of termination of the agreement;

1.2 Return of a LAND ROVER RANGE ROVER SPORT 5.0 V8 SVR (423KW) Engine Number 1[...] 1[...] and Chassis Number S[...] 1[...] ("the vehicle") to the Plaintiff forthwith;

1.3 The quantum portion of the Plaintiff's claim is postponed sine die, the Plaintiff is authorised to approach the court on the same papers for its claim for damages once the vehicle has been returned and sold;

1.4 Defendant is ordered to pay costs.”

JUDGMENT

DJAJE DJP

[1] The plaintiff instituted an action against the defendant for the confirmation of cancellation of a sale agreement and the return of the motor vehicle to wit a Land Rover Range Rover Sport 5.0 V8 SVR (423KW) Engine Number 1[...]) and Chassis Number S[...]. The defendant filed a notice to defend and a plea to the action. The plaintiff brought an application for summary judgment which was opposed by the defendant.

[2] For the sake of convenience the parties will be referred to as they appear in the action. On 7 September 2018 the plaintiff and the defendant entered into a written instalment sale agreement in terms of which the plaintiff sold a Land Rover Range Rover Sport to the defendant. The amount recoverable was R2 850 560-38 after an initial payment of R 748 792-49 was deducted. The balance was to be paid in monthly instalments. It was further agreed that in the event that the defendant fails to comply with his obligation of paying the monthly instalments the plaintiff will be justified in cancelling the agreement and claim return of the vehicle. The defendant fell in arrears of the monthly instalments and on 2 October 2021 the arrears were R46 604-64. As a result of the breach by the defendant, the plaintiff terminated the agreement and now seek to confirm the cancellation of the agreement and the return of the vehicle.

[3] As a result of the defendant filing a plea to the action, the plaintiff brought a summary judgment application. In opposing the summary judgment, the defendant argued that the plaintiff had not complied with the provisions of section 129 ad 130 of the National Credit Act. In addition, the defendant argued that he intended to continue making payment of the monthly instalments as soon as his businesses were on track after being adversely affected by the Covid 19 pandemic.

[4] The procedure of summary judgment has for many years been regarded as an extraordinary and stringent one in that it closes the doors of the court to the defendant and permits a judgment to be given without a trial. In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) paras 32-33 Navsa JA, the court held that:

“The rationale for summary judgment proceedings is impeccable. The procedure 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 application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) case at 425G-426E, Corbett JA was keen to ensure, first, an examination of whether there has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts on which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good in law. A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor. Having regard to its purpose and its proper application, summary judgment proceedings only hold terrors and are “drastic” for a defendant who has no defence. Perhaps the time has come to discard these labels and to concentrate rather on the proper application of the rule, as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425G-426E”

[5] The defendant has to satisfy the court by affidavit that he has a bona fide defence to the claim on which summary judgment is being applied for. The word ‘satisfy’ does not mean ‘prove’. What the rule requires is that the defendant must set out in his or her affidavit facts which, if proved at the trial, will constitute an answer to the plaintiff’s claim. See Visser v Kotze (519/2011) [2012] ZASCA 73 (25 May 2012)

[6] The only defence raised by the defendant in this matter is that the plaintiff did not comply with the provisions of section 129 of the National Credit Act. Section 129 provides that:

“SECTION 129.

Section 129, read with Section 130, of the National Credit Act ("THE NCA") provides that when a consumer falls into default in terms of a credit agreement, the creditor is required to send a written notice to the defaulting consumer to advise the consumer that the credit agreement be referred to a debt counsellor, alternatively dispute resolution agent, consumer Court or ambud with jurisdiction with the aim of resolving the default and / or develop and agree to a payment plan in order to bring the arrear payment up to date. Prior to relevant amendments there were a number of issues pertaining to the actual delivery and receipt of the section 129 notice, with the crux of the issue being whether it is required that the defaulting must actually receive the notice before the credit provider can approach the relevant court for further legal action. In terms of Section 130 of the NCA, the consumer has 10(ten) business days from receipt of the Section 129 notice to respond thereto, failing which the credit provider may proceed to institute legal proceedings.”

[7] In this matter the plaintiff on 28 October 2021 sent a letter to the defendant with the following contents:

“NOTIFICATION IN TERMS OF SECTION 86(10) OF THE NATIONAL CREDIT ACT OF THE NATIONAL CREDIT ACT

1. We act on behalf of our client, BMW FINANCIAL SERVICES SA (PTY) LTD.

2. On 07 SEPTEMBER 2018 you entered into a credit agreement with our client, BMW Financial Services SA (Pty) Ltd, relating to a LAND ROVER RANGE ROVER SPORT 5.0 V8 SVR (423KW) vehicle with engine number 1[...] and chassis number S[...].

3. You have breached the said agreement by failing to make regular payments of your monthly instalments as provided for in the said agreement and as at 2 OCTOBER 2021 is in arrears in an amount of R46 604.64.

4. Our client was informed that you applied for debt counselling on or about 17 JUNE 2021. (Form 17.1- DEBTCO GROUP).

5. A period of 60 (sixty) business days has lapsed since the application for a debt review without resolution and the account remains in arrears and the current instalments have not been paid.

6. You are hereby given formal notice that BMW FINANCIAL SERVICES (PTY) LTD terminates the review and shall proceed with the enforcement of the agreement.”

[8] The said letter was sent by registered post to the defendant’s chosen domicilium. Proof of dispatch was attached to the particulars of claim. It is clear in the letter that the defendant was informed of the arrears in terms of the agreement with the plaintiff and that the plaintiff intends to enforce the agreement. In addition, the plaintiff attached a certificate of compliance with section 129 that a notice in terms of section 129 of the NCA was sent to the defendant and there was no response.

[9] Section 129 of the NCA clearly provides that the consumer should be provided with a notice before the commencement of legal proceedings and that includes a notice in terms of section 86(10) of the NCA. The letter sent to the defendant on 28 October 2021 was a notice in terms of section 86(10) of the NCA as contemplated in section 129 of the

NCA. There is clearly no doubt that the plaintiff did comply with the provisions of section 129 of the NCA.

[10] In his affidavit resisting the summary judgment the defendant does not raise any bona fide defence. Instead, he acknowledges that he is in arrears and will be able to make payment once his income is stable. This is clearly not a defence contemplated in the application for summary judgment.

[11] It is my view that the defendant did not raise any valid defence to the plaintiff’s claim and as such the relief as prayed for in the summary judgment application should be granted.

Order:

[12] Consequently, the following order was made:

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING: 27 MARCH 2023 DATE REQUEST FOR REASONS: 06 APRIL 2023 DATE OF JUDGMENT: 08 JUNE 2023 COUNSEL FOR THE APPLICANT: ADV RILEY COUNSEL FOR THE RESPONDENT: IN PERSON