Maubane Bus & Consultants Property CC vs Toyota Financial Services (SA) (Pty) Ltd (CAMG 05/2010) [2011] ZANWHC 84 (10 March 2011)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO. CAMG 05/2010

In the matter between:

MAUBANE BUSINESS & CONSULTANTS PROPERTY CC ...........................APPELLANT

and

TOYOTA FINANCIAL SERVICES (SA) (PTY) LTD ...................................RESPONDENT

____________________________________________________________________________

CIVIL APPEAL JUDGMENT

GUTTA J.

A. INTRODUCTION

[1] This is an appeal against a summary judgment granted on 15 April 2010 in the Magistrates Court for the District of Odi, held at Ga-Rankuwa, in terms of which judgment was granted for:

“1) Confirmation of the cancellation of the agreement,

2) Repossession of the goods,

3) Costs on attorney and client scale to the taxed,

4) Damages postponed sine die.”

[2] The respondent’s claim arises from a breach of an Installment Sale Agreement (“the agreement”) entered into between the parties on 18 July 2007. In terms thereof, the appellant purchased from the respondent a Toyota Yaris T3 +5DR, with engine number 2N24508578 and chassis number JJDKW923X0201026 for a total amount of R188 197.20.

[3] The appellant in the Court a quo opposed the application for summary judgment on the following grounds, that:

3.1. the respondent failed to comply with the agreement in that the respondent did not inform the appellant that it has failed to comply with the agreement and that it is therefore cancelling the agreement. There was no notification of the intention to cancel the agreement;

3.2. in terms of the agreement, the appellant is entitled to make arrangements to pay the account and that the appellant attempted to make such arrangements;

3.3. the appellant had approached a debt counselor but was advised that they are unable to assist him as he does not have a stable income.

[4] At the hearing of the appeal, the appellant was not represented by counsel or an attorney, but by a member of the appellant, Mr Andrew Ntlhake Maubane, who only made submissions on one issue, namely, that the respondent failed to comply with the agreement to first afford the appellant an opportunity to make arrangements to pay before cancelling the agreement.

[5] As the appellant was not legally represented, I will endeavour in this judgment, to address all the reasons for the appeal as stated in the appellant’s “Reasons for the appeal” and not just the issue raised by the appellant as stated aforesaid.

B. MERITS

[6] The first ground of appeal is that the Court erred by failing to appreciate the difference in the two applications before it, namely, the application for summary judgment and the application for confirmation of the interim application to seize the goods in terms of the agreement. That the Court erred in using a test for one application as a test for the other application.

[7] This ground is without merit as the learned Magistrate stated clearly in the judgment that “this is an application for summary judgment pursuant to a summons in which confirmation of the cancellation of the agreement, repossession of the goods, costs on an attorney and client scale and damages, postponed sine die are claimed”. Furthermore, the Magistrate correctly considered whether the appellant had a bona fide defence in his adjudication of the application for summary judgment. Hence it is not surprising that the appellant elected not to pursue with this ground of appeal in both his heads of argument and in his address to Court.

[8] The further ground for appeal is that the respondent failed to give the appellant an opportunity to make an arrangement to pay his indebtedness in terms of the agreement. On reading the agreement, it is clear that there is no such duty on the respondent. There is however a duty in terms of the National Credit Act 34 of 2005 (“the NCA”), which I will elaborate upon later in the judgment.

[9] The appellant’s further ground of appeal, namely, that he did not receive any notification of the respondent’s decision to cancel the agreement, requires consideration.

[10] The terms of the agreement do not impose a duty on the respondent to notify the appellant of either its intention to cancel or the cancellation of the agreement.

[11] In terms of the agreement, in the event the appellant failed to pay any amounts due to the respondent, then the respondent has the right:

11.1. “to claim from you the amount which the seller would have been paid had you fulfilled all your obligations. To this end, the seller will be entitled to cancel the agreement, to take the goods back, sell the goods, keep all payments you have made and claim the balance from you as damages; or

11.2. to claim immediate payment of the full amount that the seller could claim in terms of the agreement, as if it was then due by you”.

[12] The appellant had given his physical address domicilum citandi et executandi (“domicilium”) as the address where all his post, notices and other communications were to be sent.

[13] On 08 November 2009, the respondent delivered to the applicant, at his domicilum by registered mail, a notice in terms of Section 129(1)(a) wherein the appellant was informed, inter alia, of the following, that:

13.1. he was in arrears with 5.95 installments amounting to R19 029.42;

13.2. the total balance outstanding under the agreement, including the arrears amounted to R119 401.26;

13.3. he was called upon to pay the arrear amount within 10 business days of the date of receipt;

13.4. should he fail to pay the arrear amount of R19 029.42 on the said period, the respondent would initiate the necessary action for return of the goods and that he would be liable for damages suffered;

13.5. should he dispute any of the above amounts, he may refer to an alternative dispute resolution agent, consumer court or ombudsman in order to resolve the dispute;

[14] Section 65(2)(a) of the NCA provides the credit grantor with six alternatives to deliver the notice in terms of Section 129(1)(a).

Notice by ordinary mail would have been sufficient to establish compliance. In casu the creditor guarantee went beyond what was expected and delivered the notification by registered mail. Accordingly, sending only registered mail is proper delivery despite it not being specified in the NCA. See Roussouw & Another v FirstRand Bank Ltd 2010 (6) SA 439 (SCA).

[15] A period of 10 days lapsed from the date when the Notice in terms of Section 129(1)(a) was delivered to the appellant. Summons was issued on 26 January 2010.

[16] From the aforegoing, it is apparent that:

16.1. the appellant was notified that he was in arrears with his installments, and was called upon to pay the arrears within 10 days, which the appellant failed to pay;

16.2. the appellant was afforded an opportunity to refer the dispute to a dispute resolution agent, consumer court or ombudsman. Hence he was afforded an opportunity to ‘make arrangements’ in so far as his indebtedness is concerned.

16.3. after the 10 days lapsed, the respondent was entitled to cancel the agreement without notifying the appellant of the cancellation;

16.4. further, the respondent sought confirmation of the cancellation in its summons and particulars of claim;

[17] The Magistrate correctly found that a letter in terms of Section 129(1) of the NCA, “was sent per registered post to the domicilum citandi et executandi of the appellant on 06 December 2009. This in essence closes off the avenue of escape available to the appellant”.

[18] Rule 32(3)(b) requires the defendant to set out in his affidavit sufficient facts which, if proved at the trial, will constitute an answer to the plaintiff’s claim. See Marsh & Another v Standard Bank of SA Ltd 2000 (4) SA 947 at 949; Breitenbach v Fiat SA (Edms) 1976 (2) SA 226 (T).

[19] Corbett JA, as he then was, in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426, summarised the enquiry conducted by the Court, namely, whether:

19.1. the defendant has ‘fully’ disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

19.2. on facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona fide and good in law.

[20] Corbett JA, at 426A–E held that the defendant must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.

[21] The appellant’s affidavit lacked sufficient particularity and the appellant failed to disclose a defence which is both bona fide and good in law.

C. CONCLUSION

[22] I am of the view that the learned Magistrate did not misdirect himself and exercised his discretion properly. The learned Magistrate

correctly found that the appellant does not have a bona fide defence to the action. Accordingly, the appeal should fail.

D. ORDER

[23] For these reasons, I make the following order:

a) The appeal is dismissed with costs.

_________________

N. GUTTA

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

APPEARANCES

DATE OF HEARING : 11 FEBRUARY 2011

DATE OF JUDGMENT : 10 MARCH 2011

COUNSEL FOR APPELLANT : A.N. MAUBANE IN PERSON

COUNSEL FOR RESPONDENT : ADV VAN DEN HEEVER

ATTORNEYS FOR APPELLANT : PULE INC.

ATTORNEYS FOR RESPONDENT : HACK, STUPEL & ROSS ATTORNEYS