FFS Finance South Africa (Pty) Ltd v Moonsamy (15/37701) [2016] ZAGPJHC 333 (7 December 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION JOHANNESBURG

CASE NO: 15/37701

Not reportable

Not of interest to other judges

Revised.

7 December 2016

In the matter between:

FFS FINANCE SOUTH AFRICA (PTY) LTD

Applicant

and

JEREMY ALLESANDRO MOONSAMY

Respondent

JUDGMENT

YACOOB, AJ:

[1] This is an application for the return to the applicant by the respondent of a 2015 Ford Figo 1.4 Ambiente, with Engine Number EG70685 and Chassis Number MAJAXXMRJ1EG70685 (“the vehicle”), and confirmation of the credit agreement in terms of which the respondent purchased the vehicle from the applicant.

[2] The respondent purchased the vehicle from the applicant in terms of a credit agreement on 12 February 2016, for R156 250,99, with finance charges of R53 201,41. A monthly instalment was to be paid by the respondent.

[3] The respondent paid three monthly instalments, the last in June 2015. As a result of the respondent’s failure to pay, the applicant cancelled the agreement.

[4] The applicant relies in its founding affidavit on a copy of the agreement, which is annexed to the affidavit as Annexure “A”,

which purportedly includes a clause to the effect that, notwithstanding delivery, ownership of the vehicle does not pass to the respondent, but remains with the applicant.

[5] The respondent does not deny his breach of the agreement as far as his non-payment is concerned. However, he denies that the agreement to which he is a party included a provision in which the applicant retained ownership. He alleges that it was represented to him that he would own the vehicle, and that the vehicle was now “his”, and that he only signed two pages at the time the transaction occurred, which are the first and last pages of Annexure A. He alleges that he had never seen the pages in between the first and last pages, he had never been referred to them, and points out that neither his signature nor initials appear on these intervening pages.

[6] An examination of annexure A shows that, indeed, the first and last pages have signatures and initials of the respondent and the

applicant’s representative (who is identified in the replying affidavit as Mr Oelofse), and that the intervening pages are unmarked save for the initials of the deponent to the founding affidavit and the commissioner of oaths.

[7] Annexure A does not have page numbers, so it would not be obvious to someone presented with the two pages that pages were missing, and the last pages does not have any paragraph numbers, so that it cannot be ascertained whether it follows on from the first page or not. Although the last page includes an acknowledgement that copies of the “Terms and Conditions” have been provided to the respondent, there is no indication of what, or how many pages, those terms and conditions are.

[8] In its replying affidavit, the applicant makes much of the fact that the respondent states he only signed two pages, and annexes a number of other documents which were signed by the respondent, including a pre agreement, a record of advice and a debit order authorisation. More significantly, a different version of annexure A is annexed, this time with two more sets of initials on the intervening pages, one of which is clearly that of Mr Oelofse, and the other which may or may not be that of the respondent.

[9] There are also a number of allegations regarding the far-fetched nature of the respondent’s version, essentially because, if he drove off in a car without paying for it, he must have entered into a credit or finance agreement. There is no response to the respondent’s allegation that he was never informed of the applicant’s retention of ownership, that representations were made to him that the car was now “his”, and to the fact that the middle pages of annexure A to the founding affidavit do not bear any initials other than those of the deponent and the commissioner of oaths.

[10] It is clear that the applicant misunderstood the respondent’s case entirely. The respondent does not dispute that he entered into a credit agreement. He disputes the terms of that credit agreement, and in particular, that the agreement into which he entered provided for the applicant to retain ownership. This simple contention is entirely ignored by the applicant, both in its replying affidavit and in the written argument that was filed.

[11] Nor is any explanation proffered in the replying affidavit for the discrepancy between annexure A to the founding affidavit and the initialled version annexed to the replying affidavit.

[12] At the hearing of the matter, the applicant’s counsel submitted that “everyone knows” that an instalment sale agreement reserves ownership to the credit provider. On being asked why then it was necessary to include a clause in the agreement to that effect, her response was that “it is for people like the respondent” who deny that ownership did not pass to them.

[13] The applicant’s counsel is clearly mistaken in the law. If an instalment sale agreement does not specify that ownership is retained by the credit provider, then ownership passes to the purchaser.[1]

[14] I pause to note that the definition of an instalment agreement in the National Credit Act, 34 of 2005 (“the Act”), is a sale of moveable property in which the price is to be paid in periodic payments, the purchaser is given use and possession of the property, and either ownership passes to the purchaser only when the agreement is “fully complied with”, or ownership passes immediately to the purchaser but the purchaser has the right to repossess the property.

[15] It is clear that the definition is merely a manner of identifying an instalment sale agreement for purposes of the Act. Thus, an agreement which displays those elements is an instalment agreement for purposes of the Act. The definition does not purport to import these provisions into an agreement which calls itself an instalment agreement or instalment sale agreement.[2]

[16] If the applicant wishes to rely on retention of ownership in terms of an agreement, it must, therefore, establish that that is what the agreement provided.

[17] It is well established that an applicant in motion proceedings must make out its case in the founding affidavit.[3] The point raised by the respondent appears ex facie the founding affidavit itself, yet the applicant plainly does not reply to it when it is raised. It is this failure that, in the end, must be fatal to this application.

[18] The applicant’s counsel submitted, at the hearing of the matter, that it may then be appropriate for the matter to be referred to oral evidence. I do not think this is appropriate. The issue was raised early on by the respondent, in his answering affidavit, and again in his heads of argument. The applicant failed either to respond, explain, or make an application for the matter to be referred to oral evidence. It was only when this Court pointed out the discrepancy between the two versions of annexure A at the hearing that counsel made the submission that this would be appropriate.

[19] However, in view of the applicant’s continued and consistent failure to deal with the issue after it was raised, it is my view that the applicant should not have yet another opportunity to deal with it.

[20] The applicant’s counsel also made an appeal to justice and equity in her address to this court. It was not compelling. The applicant had at its command an attorney and counsel, as well as a department of “secured legal collections” of which the deponent to the founding affidavit is National Manager. Despite this, it did not give attention to a basic issue, and did not respond properly to it when it was raised by the respondent, who is an individual, and who was represented by only an attorney.

[21] The manner in which this matter has been dealt with by the applicant and its representatives appears in the circumstances to have been both careless and cavalier.

[22] I pause to note that, contrary to counsel’s submissions, the remedy the applicant seeks is not the only remedy open to it. It is entitled to claim the money owing to it, or to claim whatever is due to it consequent on cancellation of the contract. Beyond that I do not go, as it is not for this court to give the applicant legal advice. Nor is it for this court to find reasons to grant the applicant relief which are not put forth either by its papers or by the argument put forward on its behalf.

[23] I find, therefore, that the applicant has not established that the agreement between itself and the respondent provided that it retained ownership of that vehicle.

[24] The applicant has not relied on any other basis for the relief it sought in this application.

[25] For the reasons above, I make the following order:

1. The application for the return of the 2015 Ford Figo 1.4 Ambiente, with Engine Number EG70685 and Chassis Number MAJAXXMRJ1EG70685 on the basis that the applicant has retained ownership thereof in terms of a credit agreement with the respondent is dismissed.

2. The applicant is to pay the costs of this application.

_________________

S YACOOB

Acting Judge of the South Gauteng

High Court, Johannesburg

Date of Hearing: 05 December 2016

APPEARANCES

APPLICANT:

C Humphries (Ms)

Instructed by Smit Sewgoolam Incorporated

RESPONDENT:

M Fehler (attorney)

[1] Lendalease Finance (Pty) Ltd v Corporacion de Mercado Agricola and Others 1976 (4) SA 464 (A) at 489G-490G

[2] Of course, this does not mean that an agreement which calls itself an instalment agreement but does not display all the characteristics

in the definition is not a credit agreement. It is simply not an instalment agreement for purposes of the Act.

[3] Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (W) 323G, 323J-324A; Union Finance Holdings Ltd v I S Mirk Office Machines II (Pty) Ltd and Another 2001 (4) SA 842 (W) 847D-E.