BMW Financial Services (South Africa) (Pty) Ltd v Moosa (24607/2019) [2020] ZAGPPHC 552 (23 April 2020)

REPUBLIC OFSOUTH AFRICA

IN THE HIGH COURT OFSOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 24607/2019

In the matter between:

BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY) LTD Applicant/Plaintiff

and

SHAHEEDA MOOSA

Respondent/Defendant

JUDGMENT

PHAHLANE, AJ

[1] This is an opposed application for summary judgment in which the applicant seek confirmation of the cancellation of the written

instalment sale agreement; return of the assets described in the aforesaid written instalment sale agreement; and leave to approach

this court for payment of the amount due to the applicant.

Factual Background

[2] On 21 February 2017-, and at Birman, Johannesburg, the applicant concluded a written Instalment sale agreement (herein referred to as “the agreement") with the respondent wherein the respondent purchased a BMW 320d GT M SPORT A/T (F34) for an amount of R900 740.00 with the principal debt amounting to R907 437.oo. In terms of the agreement, the respondent was required to pay 71 consecutive monthly instalments of R15 078.74 and one (1) residual payment of R262 790.75 to be made on 01 March 2023. The agreement contained the reservation of ownership clause. in terms of which ownership shall remain vested in the seller until the full purchase price has been paid. On 21 February 2017 a release note was sent to Melrose Arch Auto (i.e. “the dealership” where the vehicle was purchased) wherein the applicant confirmed-that payment will be made to the dealership against presentation of validated documentation including the original registration document evidencing BMW Financial Services as titleholders as stated In the letter of approval. The ‘release note' also stated that the respondent confirmed and acknowledge having received in good order and condition, - the goods described (i.e. a new BMW 320d GT M5PORT A/T(F34J). The first payment fell due on 01 April2017. According to the payment history document, the respondent defaulted on the

instalment sale agreement from December 2017 until June 2018, and again from February 2019 until the date when the matter came before court in December 2019. The last payment received was in January 2019 for R8000,00. According to the particulars of claim, the total amount outstanding on the motor vehicle Is in excess of R1 million (and according to the certificate o:f balance, the exact amount owed is R1 186 519.96 as at 19 February 2019) and the arrears are R115 608.65, as reflected in the statement of account.

[3] It is common course between the parties that the respondent thereafter went for debt counselling. This is confirmed in paragraph

"22 of her opposing affidavit where she raises several defences by way of points in limine, which I will deal with individually hereunder.

[4] The matter comes before me for a determination of the following issues which are in dispute, i.e:- whether: (a) the respondent

breached the instalment sale agreement, (b) the applicant complied with the provisions of the National Credit Act 34 of 2005, (c) and whether the respondent has a bona fide defence to satisfy the refusal to grant the order in favour of the applicant.

Legal Principles

[5] Rule 32 (3)(b) of the Uniform Rules obliges a respondent In summary Judgment proceedings-to adduce a bono fide defence by way of an affidavit which discloses fully the nature and grounds of the defence and the material facts relied upon[1]. The facts so set out must make out a defence which is good in law. If these requirements are satisfied summary judgment will be refused. It suffices to say the issue in a summary Judgment application is not whether the defence raised is likely to succeed or fall but whether it is bona fide[2].

[6] The Supreme Court of Appeal stated the purpose of summary judgment in Joob Joob lnvestments (Pty) Ltd v Stocks Mavundla Zek Joint Venture[3] as follows:

“… (I)t was intended 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. Having regard to its purpose and its proper application, summary judgment

proceedings do not hold terrors and are 'drastic' for a defendant who has no defence. Perhaps the time has come to discard the 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".

The defences raised are as follows:

Transfer of proceedings

[7] In her affidavit, the respondent argued that the matter should be transferred from the high court to the Roodepoort magistrate’s

court because she lives in Roodepoort, and indicated that having the matter heard by the hight court constitutes an abuse of the process by the applicant who should only be entitled to the magistrate's courts costs, and further that there is no disincentive for suing out of the high court.

[8] Although counsel for the respondent did not address the court with regards to this aspect, it was argued on behalf of the applicant that the high court has the inherent jurisdiction to entertain this matter because the amount claimed by the applicant is in excess of the amount of R400 000.00 and over the jurisdiction of the magistrate court. Advocate Van Der Walt for the applicant further argued that, though the principle of actor sequitur forum rei is applicable, the applicant is dominus litis and thus entitled to determine the court where litigation will occur because this principle is not outdated, given the fact that at the time of issuing the summons, the respondent owed an amount in excess of R1 million to the applicant.

[9] I agree with the submissions made because the monetary Jurisdiction of the magistrate court is R400 000.00. Thus, the high court has jurisdiction to entertain matters where the amount claim from any creditor is in excess of R 400 000,00[4] It therefore follows that the defence raised by the respondent cannot stand and is therefore dismissed.

Inability to verify the cause of action

[10] The applicant's claim Is based on the instalment sale agreement fora motor vehicle which was d e live red to the respondent. However, the respondent alleg.es that the applicant misrepresented itself in that it acted both as the seller of the motor vehicle and a credit provider in respect of the credit that was provided to her, and was as-such, a victim of a fraudulent scheme perpetuated by the employee of the dealership where she bought the motor vehicle. This allegation flows from the fact that the applicant had in paragraph 4.1 of its particulars-of claim stated that: “that the defendant purchased from the plaintiff a BMW 3200 GT M SPORT A/T (F34 ) (05044200-2017) motor vehicle with engine number 57789817and chassis: number WBA8T32070G441010 for the sum of R900 740 .00 with the principal debt amounting to R907 437.00".

[11] The respondent further alleges that she bought the said vehicle with extras which she later realised that they were not actually extras but came standard with the vehicle she bought. Mr Webbstock argued. on behalf of the respondent that the-agreement which the respondent had entered into, and what she had received in terms of that agreement, were not the same and further that the applicant having confirmed that it sold the vehicle to the respondent, means that there was a material misrepresentation on the part of the applicant. It is the respondent's contention that the applicant will be unjustifiably enriched by claiming the shortfall on the vehicle in terms of the agreement.

[12] The applicant denied the alleged fraudulent theme and submitted that its role in the transaction was that of a financier only. ln order to determine whether the respondent has a bona fide defence In this regard, the court must determine whether in the process of concluding a contract with the respondent, the applicant acted mala fide. As indicated above, when the respondent took delivery of the vehicle. on 21 February 2017, she signed a 'release note' wherein she confirmed and acknowledge having received her vehicle, in good order and condition as described. She was Informed on a letter dated

6 October 2017 wherein it is stated that: 'the invoice for sale as negotiated between yourself and the dealer for the new BMW 320GT with VIN number OG441106 indicated a negotiated total price of R906 240 and included certain manufacturer options as well as dealer fitted options. In respect of your request relating to proof of the extras fitted to your car, we refer you to the signed release note in which you declare that you took delivery of the goods as described. The dealership is best placed to assist you further in respect of the accessories quoted”.

[13] Advocate Van Der Walt submitted, and correctly so, that the applicant who was the financier, had nothing to do with the extras fitted in the vehicle. This is so because the agreement signed by the respondent clearly identifies the applicant as the credit provider, and nothing else. The applicant's 'transaction or dealings' with the respondent was based on the fact that the applicant had to advance money to the respondent after making a determination on whether or not she can afford to buy the vehicle, and on that basis, pay over the money to the dealership where the vehicle was purchased, subject to the terms and conditions as they appear on the agreement.

[14] In my view, there is no merit on the points raised by the respondent. I can find no mala fide on the part of the applicant and the respondent's allegations can therefore not stand. It is also my view that this is merely a technical defence by the respondent, clearly devoid of any bona fides, and trying to stand in the way of the applicant in its application for a summary judgment.

[15] It was argued on behalf of the respondent that Ms Liandri Briel who deposed to an affidavit on behalf of the applicant did not have the ability to verify the cause of action.

[16] In Blue Chip Z (Pty) Ltd v Ryneveldt[5] the Supreme Court of Appeal in explaining the meaning of the-expression ‘cause of action', stated that:

“Cause of action” is ordinarily used to describe the factual basis, the set of material facts, that begets the plaintiff’s legal right of action and, complementarily, the defendant’s debt".

[17] Ms Liandri Briel cited herself as a collection analyst of the applicant, assigned and-duly authorized to depose to the affidavit on behalf of the applicant in her affidavit which support the application for summary judgment, she stated that:.

“1. I am the Collections Analyst of BMW ANANCTAL SERVICES (SOUTH AFRICA) (PTY) LTD ('the plaintiff') situated at 1 Bavaria Avenue, Randjespark Extension 1.7, Midrand. Therefore, I am duly authorized to depose to this affidavit The facts herein contained are within personal knowledge and belief and are both true and correct.

2. I have been assigned this matter by the plaintiff and have access to and control over all the files, accounts and other documents relating to the written instalment agreement concluded between the defendant and the plaintiff, I have studied same and confirm the correctness thereof and I can swear positively to the facts set out in the summons and particulars of claim.

3. I confirm that the defendant is indebted to the plaintiff in the sum of R1 186 519.96 on the grounds as stated in the summons and particulars of claim attached hereto and I hereby verify the cause of action set out In the summons and particulars of claim and I verify the amount claimed. I have attached a copy of the defendant's payment history which reflects her arrear amount to date marked Annexure 'BC1'

4. I verily believe that the defendant does not have a bona fide defence to the plaintiffs claim and in my opinion, appearance has been entered into solely for the purpose of delay. The notice of intention to defend dated the 25th of April 2019 was served on the 25th of April 2019. A copy of the notice is attached hereto for the above Honourable Court's attention marked as Annexure 'BC2’”.

[18] The respondent also raised the issue that a certain Mr Chhotalal who deposed to an affidavit on behalf of the applicant as the manager at Asset and Loss Recovery, BMW Financial Services, confirmed that he has access to. and control over all her flies and records pertaining to her instalment agreement and familiarised himself there with. Her contention is that Mr Chhotalal had in his affidavit indicated that a notice in terms of section 129 of the National Credit Act (NCA) has been issued and delivered by registered mail, which was not the case, because there Is 'no track and trace‘·report that an email has been sent to her. The respondent further argues that the fore going raises serious doubts about Ms Briel's actual knowledge of the contents of the file relating to her Instalment agreement and her ability to verify the cause of action to satisfy the requirements of rule 32 (2) of the Uniform Rules of Court.

[19] In Rees v Investec Bank[6], the bank had proceeded on the suretyship agreements against the appellants and the suretyships provide.cl for a certificate of balance to be issued which would serve as a liquid document or constitute prima facie proof of the sureties' indebtedness. The deponent in that case, Mrs Ackerman, relied on the information at her disposal which she

obtained in the course of her duties as the bank's recoveries officer to swear positively to the contents of her affidavit. She had, prior to the institution of the action, corresponded with the applicant's attorney with regards to the principal debtors' delinquent accounts and had also addressed letters of demand to them, received letters of response which canvassed the appellant's defences. She could thus swear positively to the facts, verify the cause of action and the amount claimed and assert that in her opinion the appellants did not have a bono fide defence to the action and had entered an appearance to defend solely for the purpose of delay. These factors show that the requirements set out in Maharaj are met[7].

[20] In Marharaj v Barclays National Bank Ltd supra the bank applied for a summary judgment wherein the branch manager's assistant deposed to the supporting affidavit. The appellant raised, by way of a point in limine an objection that the opposing supporting affidavit did not comply with Rule 32 (2).as this rule required that the affidavit be made by a person who can swear positively to the fact verifying the cause of action and the amount claimed, whereas the affidavit filed was deposed to by the assistant bank manager who was not privy of the agreement concluded between the appellant and the bank. The court a quo dismissed the point in limine and granted the summary judgment. The decision of the court a quo was confirmed on appeal wherein the court stated that:

"In my view, the requirements of this portion of the Rule were correctly stated by Theron J, In Fischerelgesellschaft F Busse & Co, Kommanditgesellschaft v African Frozen Products (Pty) Ltd 1967 (4) SA 105 (C) at 108 as follows:

(a) that the affidavit should be made by the plaintiff himself or by any other person who can swear positively to the facts

(b) that it must be an affidavit verifying the cause of action anti the amount if any, claimed and

(c) that it must contain a statement by the deponent that in his opinion there is no bona fide defence to the action and that the notice of intention to defend has been delivered solely for the purpose of delay

…

As regards requirement (b) above I think that the English version of the Rule Is quite clear. The Rule demands, in my view, that the affidavit, whether mode by the plaintiff himself or by another person, should verify the cause of action and the amount, if any, claimed … Moreover, the word 'verifying' cannot be taken to qualify the words ‘facts' and to be port of the definition al the 'any other person' who may make the affidavit, as has been held in some cases since this would run counter to the meaning of the word 'verifying' and the grammatical construction of the sentence In which these words occur. The relevant meanings of ·verify' in the Short Oxford English Dictionary are: 'to testify or affirm formally or upon oath, to testify to, to assert as true or certain'.

Clearly facts do not verify, a person verifies an alleged state of facts and where the verification takes the form of a sworn affidavit it may be said figuratively chat the affidavit verifies the facts. It is therefore plain that the words 'verifying the cause of action and the amount, if any, claimed, also refer to the content of the affidavit…”

[21] In Kurz v Ainhirn[8] the court referred with approval to the case of Maharaj supra and stated that:

“I have to be satisfied chat the plaintiff can and does swear positively to the material fact; not that he has complied with a given formula. In this case, he not only asserts that he can swear positively to the facts, he does so and indicates the reason why he is able to do so, namely that he is a liquidator of the close corporation having been duly appointed as such some nine months ago. As such, he clearly had both the opportunity and the duty to obtain knowledge of the relevant facts from, inter alia, the documentary records of the dose corporation and interrogation of the defendant'.

[22] It is against the backdrop of these cases that Ms Briel's affidavit must be viewed. Paragraphs :1 and 2 of Ms Briel's affidavit makes it clear that she was in control of the accounts of the respondent and can vouch for, and confirm the amount claimed by the applicant and verify the cause of action. In considering the above principles, I am of-the view that Ms Briel satisfied the court in verifying the applicant' s cause of action.

[23] The respondent alleged in her affidavit that Ms Briel confirmed that a section129 notice was sent by registered post and further that she indicated that delivery ln the form of service by the sheriff and by registered post was confirmed In the particulars of claim. This allegation in my view, is misplaced because no such averment has been made in the particulars of claim. What is clear from the particulars of claim is the fact that the applicant avers that the notice in terms of section 86 (10)[9] has been delivered by the sheriff by affixing same to the domicilium address of the respondent.

[24] It does-not appear from the reading of the particulars of claim that the section 129 notice has been sent. In fact, the applicant avers in paragraph 1.1 of its particulars of claim as follows: “the defendant has not voluntarily returned and/or surrendered the vehicle to the plaintiff and the defendant has not terminated the instalment sale agreement in terms of section 129 of the National Credit Act and the plaintiff is therefore entitled to repossession of the vehicle”.

[25] It is therefore clear from the aforesaid that Ms Briel's affidavit in verifying the cause of action as set out in the summons and particular, of claim, was only limited to the fact that a section 86(10) notice was served because the respondent was in default, and that “the applicant has cancelled the instalment sole agreement, alternatively cancels the agreement and is as such, entitled to a return of the vehicle”[10].

[26] With regards to Mr Chhotalal having declared that a section 129 notice was served on the respondent, counsel on behalf of the applicant submitted that· there was an administrative error in the composition of the affidavit regarding section 129 notice being sent, and that such an error does not detract from the fact that the applicant complied with the requirements of the Act in that It caused a notice in terms of section 86 (10) of the Act to be served on the respondent at her chosen domicilium"[11]. Counsel further argued that the applicant could not have sent a section 129 notice because the respondent was under a debt review at the time when she breached the agreement between herself and the applicant, and as such, the applicant was obliged in terms of the Act to send a notice In terms of section 86 (10) of the Act, which it duly did.

[27] I agree with this submission and it Is my view that the respondent cannot escape liability of her indebted ness under the agreement

based on a technicality, as this would not serve the interests of justice. What cannot be avoided is the fact that Ms Briel satisfied

the court in verifying the applicant's course of action. Having said that the respondent did not specifically attack the authority of Ms Briel and Mr Chhotalal in her affidavit, but only that they cannot verify the cause of action. In the circumstances, I am of the view that the respondent's defence in this regard should be dismissed.

[28] It is common course between the parties that the conclusion of the instalment sale agreement and the relevant terms and conditions

applicable thereto are not in dispute. In determining whether the respondent breached the agreement, this court must also determine

whether at the time of Instituting a claim against the respondent, such an agreement was terminated or cancelled. Mr Webbstock argued that the applicant did not cancel the agreement between the parties, and failure thereof, does not entitle the applicant to an attachment order sought for the vehicle. He further argued that in terms of clause 11.3.2 of the agreement, the applicant was supposed to send a notice of cancellation to the respondent, but instead, the applicant sent a notice in terms of section 86(10) of the Act, terminating the debt review proceedings and informing the respondent that it will enforce the agreement.

[29] Clause 11.3.2.1 thereof provides that the-agreement is subject to the provisions of the NCA and states that: 'the seller should draw the default to your notice in writing in terms of section 129 of the NCA and propose that you refer this agreement to a debt counsellor alternative dispute resolution agent, consumer court or ombud with jurisdiction with the intent that the seller and you resolve any dispute under this agreement or develop or agree on a plan to bring the payment under this agreement to date'.

[30] Mr Webbstock insisted that the applicant have not enforced the agreement or complied with the agreement as there was no notice of cancellation of the agreement. It is also the respondent's contention that the applicant should have sent her a written notice in terms of section 129(1) of the NCA before commencing with legal proceedings as she had already applied for a debt review and that the section 86(10) was an appropriate notice to send. She further argued that the applicant as the credit provider should have brought to her attention, the fact that she was in default and advised her to apply for debt counselling.

[31] It is rather strange that the respondent would argue that the applicant should have sent her a written notice in terms of section

129 before commencing legal proceedings while she at the same time admits that she was under a debt review. She however acknowledges and stated that a section86(10) notice was an appropriate notice to be served with. As stated above, it is the applicant's case that it could not have sent a section 129 notice because the respondent was under a debt review at the time when she breached the agreement and as such, the applicant was obliged to send a notice in terms of section 86 (10) of the Act, which it duly did . In term, of-section 86(2) which relates to an application for a debt review[12], a consumer may not make such an application in respect thereof, if at the time of making such an application, the credit provider has taken steps to enforce the agreement In terms of section 129.

[32] Had the applicant commenced with the process as required in terms of section 129, of making rearrangement plans with the respondent In terms of the agreement, the respondent would not have been able .to enter a debt review programme. Put differently, the respondent was only able to apply for a debt review because the applicant had not started the process under section 129, This being so, it follows that the applicant would not trove been able to commence with legal proceedings to enforce the agreement before providing notice to the respondent, as contemplated in section 129. It therefore make sense why the respondent argued that she was not served with or did not receive the section 129 notice and that there was no track and trace of such at the post office, because the applicant never sent this notice.

[33] The respondent having submitted that the section 86 (10) notice was the appropriate notice to serve, she however on the other hand argues that she never received the section 86 (10) notice. She insists that it would not have been possible for the sheriff to access her property to attach the notice to the principal door at her house, unless he was admitted by someone on the property, as she stays in a residential complex. She stated that she asked the people staying at her complex and none of the people who may have been present on the property at the relevant time gave the sheriff access.

[34] A perusal of the record shows that on 15 March 2019 the applicant served a notice in terms of section 86 (10) of the Act to the respondent, The notice was served by the sheriff on the respondent at her chosen domicilium as per the instalment sale agreement which she signed, and the return of service indicates that 'service was served by leaving a copy thereof to the outer door, as no other manner of service was possible'. This notice was also served on the consumer credit council and the National Credit Regulator. The notice was again delivered to the respondent as it was attached to the summons which were served on her.

[35] Relying on the unreported judgment of SA Taxi Development Finance (Pty) Ltd v Phalafala, case number 1512/2013, with regards to whether service has been effected or not, counsel on behalf of the applicant argued that proper service has been effected. This court referred to the case of Rossouw & another v Firstrand Bank Ltd 2010 (6) SA 439 (SCA) at paras 23 and 31 where the Supreme Court of Appeal reiterated that the actual receipt of the required notice was unnecessary, and stated that:

"[23] Recourse must therefore be had, first, to s65 of the Act which deals with the consumer's right to receive 'documents' which I understand to include notices. The material provisions of the section read:

"delivered" unless otherwise provided for, means sending a document by hand, by fax, by e-mail or registered mall to an address chosen in the agreement by the proposed recipient, if no such address is available, the recipient's registered address".

"[31] It appears to me that the legislature's grant to the consumer of a right to choose the manner of delivery inexorably points to an intention to place the risk of non-receipt on the consumer's shoulders. With every choice lies a responsibility and it is after all within a consumer's sole knowledge which means of communication will reasonably ensure delivery to him. It is entirely fair in the circumstances to conclude from the legislature's express language in s 65(2) that it considered despatch of a notice in the manner chosen by the appellants in this matter sufficient for purposes of s 129(1)(o) and that actual receipt is the consumer's responsibility". (See Votani Majola v Nitro Securitisation (567/10) [2011] ZASCA 180 (30 September 2011) at para 19, the court stated that: "There was thus proper service of the s 129 notice on the appellant and the fact that he never received it does not render the notice invalid and the issue of summons premature"). (See also Munien v BMW Financial Services (SA) (Pty) Ltd 2010 (1) SA 549 (KZD) para 22)".

[36] As guided by Rossouw supra regarding delivery of notices, section 65 (1) of the Act provides that:

'(1) Whenever a party to a credit agreement ls required or wishes to give legal notice to the other party for any purpose contemplated in the agreement, this Act or any other law, the party giving notice must deliver that notice to the other party at­

(a) the address of that party as set out in the agreement

(b) …..’

[37] The respondent's defence or bare denial that she was not served with the section 86 (10) notice is unfounded. In my view, the fact that the respondent alleges that applicant's section 86(10) notice did not state that the instalment sale agreement is being cancelled but that it will enforce the credit agreement, means that the respondent acknowledges and confirms that she has been served with the section 86 (10) notice. It is also my view that the applicant complied with the provisions of section 65(1l(a) of the Act, by delivering the notice to the respondent's chosen domicilium in terms of the agreement[13]. I am therefore satisfied that the section 86 (10) notice was properly served on the respondent.

[38] The importance of whether or not the debtor is in default of the credit agreement in respect of section 86 (10) is highlighted in Collett v First Rand Bank[14] which holds that where a consumer Is in default a credit provider may enforce the agreement once the debt review is terminated in terms of the section.

[39] While the respondent holds the view that the agreement· has not been terminated, advocate Van Der Walt on behalf of the applicant argued that, not only did the applicant terminate the debt counselling process, but it also terminated the agreement of sale because it was entitled to, in terms of the agreement. Counsel submitted that the applicant was given such powers by a clause entitling the applicant to demand specific performance, payment of accelerated damages and repossession of the motor vehicle.[15] He further submitted that it is on this basis that the applicant opted to terminate the agreement and seek repossession of the motor vehicle. The applicant has in paragraph 7 of its particulars of claim dated 8 April 2019, stated that; "the plaintiff has cancelled the instalment sale agreement, alternatively cancels the agreement herewith and is entitled to return of the vehicle to it".

[40] In paragraph 6.5 of the particulars of claim, it is averred that; "ln terms of section 86 (10) notice, the defendant was advised that the defendant was in default under a credit agreement that is being reviewed and has been in default for a period exceeding 60 business days”.

[41] Paragraph 6.6 avers that; "the defendant has failed to make payment of the arrears and the plaintiff is therefore entitled to cancel the agreement, take repossession of the vehicle and claim for the difference between the outstanding balance as set out in paragraph 4 above and any amount realized from the sale of the vehicle".

[42] At paragraph 6.7 it is averred that: “at least 10 days after delivery of the section 86 (10) notice has lapsed and the defendant has:

6.7.1 not responded to the section 86 (10) notice and

6.7.2 not surrendered the vehicle to the plaintiff as contemplated by the provisions of section 127 of the National Credit Act No 34 of 2005".

[43] Where a debt review has been terminated and there is no rearrangement made, the credit provider may enforce the agreement if it has complied with section 86(10)[16], The summons was served on the respondent after the notice ln terms of sectien86(10) was served. There are no valid contractual defences raised by respondent, and the applicant was as entitled to cancel the agreement. Under the circumstances, I am of the view that the applicant has complied with the provisions of the Act as required and that the instalment sale agreement bas properly been terminated.

[44] Turning to the question whether the respondent breached the instalment sale agreement, the agreement is subject to a non-variation clause. The following clauses are relevant in the determination of the breach:

Clause 5.6: In the absence of a written buy-back or trade-back agreement between the seller and you. you remain liable for payment of all instalment including the final instalment. ...

Clause 5.7: You may not delay or withhold any amount payable.

Clause 5.8 : If the seller cancels this agreement and you dispute such cancellation. you must continue to pay as set out in this agreement or recalculated in terms of agreement whilst you remain in possession of the goods. The acceptance of such payments by the seller shall not in any way prejudice the seller's claim for cancellation or any other claim which the seller may have.

[45] In light of the terms and conditions of the agreement as set out in the abovementioned clauses, it is clear that the respondent was in breach of the instalment sale agreement as she failed and neglected to pay the·instalment as required, and has remained in default since February 2019. The allegation that she was de-frauded by the dealership with regards to the extras in her vehicle did not give the respondent the entitlement to withhold payment under a binding agreement. In my view the respondent was in breach of the agreement between herself and the applicant.

[46] Looking at the totality of the evidence before me, it is clear that the respondent has filed an affidavit resisting summary judgment, which affidavit contained only the technical defences as enunciated above. In my view, It is not that the respondent did not understand what the applicant's claim is all about, but she deliberately avoided and failed to establish a bona fide defence and to set out the nature and grounds of her defence, and the facts upon which those defences are based with sufficient clarity to satisfy the court that the she has a bona fide defence which is good in law.

[47] In my view, the respondent’s defences are clearly devoid of any bona fides and were raised to stand in the way of the applicant who is clearly entitled to the relief sought. In any event, the respondent has not, in her opposing affidavit, denied that she was in default of her obligations in terms of the instalment sale agreement, and neither did her counsel deny this aspect in his address and submissions to the court. The respondent also did not place in dispute, her indebtedness to the applicant in terms of the instalment sale agreement or that she was in default of her obligations when the cause of action accrued. What she however admits is the fact that she is still in possession of the vehicle belonging to the applicant and her counsel also confirmed that she has not paid or attempted to pay any instalment since February 2019 to the date of trial. In the circumstances, the court is satisfied that a proper case for the repossession of the motor vehicle has been made.

[48] In the circumstance, I make the following order:

1. The applicant's cancellation of the instalment sale agreement is confirmed.

2. The respondent is ordered forthwith to return to. the applicant, the BMW 320d GT M SPORT A/T(F34)(05044:200-2017) with engine numb.er 57789817 and chassis number WBA8T32070G441010 falling which the sheriff is authorised to attach and seize the said vehicle, and hand it over to the applicant wherever it may be found.

3. The applicant is granted leave to approach this court for an order enforcing the remaining obligations of the respondent in terms of the said agreement, which is as follows:

3.1 Payment of the sum due to the applicant after deductions of the proceeds of the sale of the vehicle in terms of section 131 of the National Credit Act 34 of 2005

4. The respondent is ordered to pay the costs of suit including the costs of the application for summary judgment.

_____________________

P. D PHAHLANE

ACTING JUDGE OF THE HIGH COURT

For the Plaintiff : ADV. S.G. VAN DER WALT

Instructed by : MACROBERT INCORPORATED

BROOKLYN

For the Defendant : MR M. WEBBSTOCK

Instructed by : MATTHEW WEBBSTOCK ATTORNEYS

SANRDINGHAM, JOHANNESBURG

Date of Judgment : 23 April 2020

[1] Tentley Maudesley & Co. Ltd v Carburol (Pty) Ltd and Another 1949 (4) SA 873 (C); Lombard v Van der Westhuizen 1953 (4) SA 84 (C) at 88; See also Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 266 (T) at 227F where the court stated that "One of the things clearly required of a defendant by Rule 32(3)(b) is that he sets out in his affidavit which, if proved at the trial, will constitute an answer to the plaintiff's claim. If he does not do that, he can hardly satisfy the court that he has a defence.”

[2] Muller and Others v Botswana Development Corporation Ltd 2003 (1) SA 621 (SCA)

[3] 2009 (5) SA 1 (SCA) at paras 31 and 33

[4] Section 173 or the Constitution confers on the High Court the inherent power to protect and regulate their own processes in the interest of justice. See Oosthuizen v Road Accident Fund (258/2010) (2011) ZASCA 118 (06 July 2011) where the court stated that: “It follows that a high court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. A court will, in that case, be entitled to fashion the means to deal with the problem to enable it to do justice between the parties.

[5] (499/15) [2016] ZASCA 98 (03 June 2016)

[6] 2014 (4) SA 220 (SCA)

[7] Maharaj v Barclays National Bank LTD 1976 (1) SA 418 (A)

[8] 1995 (2) SA 408 D

[9] Section 86(10) provides that if a consumer is in default under a credit agreement that is being reviewed in terms of this section,

the credit provider in respect of that credit agreement may give notice to terminate the review in the prescribed manner to – (a) The consumer (b) The debt counsellor; and (c) The National Credit Regulator at any time at least 60 business days after the date on which the consumer applied for the debt review.

[9] Section 86(10) provides that if a consumer is in default under a credit agreement that is being reviewed in terms of this section,

the credit provider in respect of that credit agreement may give notice to terminate the review in the prescribed manner to –

(a) The consumer

(b) The debt counsellor; and

(c) The National Credit Regulator at any time at least 60 business days after the date on which the consumer applied for the debt review.

[10] Para 7 of the Notice of Motion

[11] See: Sebola & another v Standard Bank of South Africa Limited [2012] ZACC 11; 2012 (5) SA 142 (CC) – ‘the court stated that the credit provider must make averments that satisfy the court from which enforcement is sought that the notice on the balance of probabilities reached the consumer’.

[12] Application for debt review: Sec 86(2) provides that: An application in terms of this section may not be made in respect of, and does not apply to, a particular credit agreement if, at the time of that application, the credit provider under that credit agreement has proceeded to take the steps contemplated in section 129 to enforce that agreement.

[12] Application for debt review:

Sec 86(2) provides that: An application in terms of this section may not be made in respect of, and does not apply to, a particular credit agreement if, at the time of that application, the credit provider under that credit agreement has proceeded to take the steps contemplated in section 129 to enforce that agreement.

[13] See: Munien v BMW Financial Services (SA) (Pty) Ltd 2010 (1) SA 549 (KZD) – In rejecting the appellants’ second defence that they did not receive the notice, the court relied on the parties’ agreement to a method of communicating set out in clauses 21.1 to 21.3 of their agreement.

[14] 2011 (4) SA 508 (SCA)

[15] Clause 11.3 of the agreement provides as follows: Upon an even of default, the seller may, as its election and without prejudice to any other remedy which it may have in terms of this agreement otherwise – 11.3.1.1 claim immediate payment of all amounts payable, whether then due for payment or not … 11.3.1.2 after due demand, cancel this agreement, obtain possession of the good and recover from you, as pre-estimated liquidated damages, the total amount of payables not yet paid by you whether same are due for payment or not … 11.3.2.1 draw the default to your notice in writing in terms of section 129… 11.3.2.2 … 11.3.2.3 … cancel this agreement, obtain possession of the goods and recover from you

[15] Clause 11.3 of the agreement provides as follows: Upon an even of default, the seller may, as its election and without prejudice to any other remedy which it may have in terms of this agreement otherwise –

11.3.1.1 claim immediate payment of all amounts payable, whether then due for payment or not …

11.3.1.2 after due demand, cancel this agreement, obtain possession of the good and recover from you, as pre-estimated liquidated damages, the total amount of payables not yet paid by you whether same are due for payment or not …

11.3.2.1 draw the default to your notice in writing in terms of section 129…

11.3.2.2 …

11.3.2.3 … cancel this agreement, obtain possession of the goods and recover from you

[16] Changing Tides 17 (Pty) Ltd v Grobler and Another (2011) ZAGPPHC