Mercedes Benz Financial Services South Africa (Pty) Ltd v Mtutuzeli Paulos Ntloko t/a MP Ntloko Attorneys (7438/2012) [2012] ZAWCHC 166 (14 September 2012)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE)CAPE TOWN.

CASE NO:7438/2012

In the matter between:

MERCEDES BENZ FINANCIAL SERVICES

SOUTH AFRICA (PTY)LTD .............................Plaintiff

And

MTUTUZELI PAULOS NTLOKO t/a

MP NTLOKO ATTORNEYS ...........................Defendant

CORAM: CLOETE, A.J.

JUDGMENT BY: CLOETE, AJ

For Plaintiff: ADV. W.P STEYN

031-3063030

Instructing attorneys: BALSILLIES STRAUSS DALY INC

34 Bree Street,

CAPE TOWN.

Ms Lorina Venter

021 4102200

For Defendant: MR MP NTLOKO

0799226183

Instructed by: MP NTLOKO ATTORNEYS

1 Adderley Street

Date of Hearing: 6 September 2012

Date of Judgment: 14 September 2012.

Republic of South Africa

(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE

CASE NO. 7438/2012

MERCEDES BENZ FINANCIAL SERVICES

SOUTH AFRICA (PTY) LIMITED ................................................Plaintiff

and

MP NTLOKO ATTORNEYS ....................................................Defendant

Coram: CLOETE, AJ

Heard: 6 SEPTEMBER 2012

Delivered: 14 SEPTEMBER 2012

JUDGMENT

CLOETE, AJ:

[1 ] The plaintiff applies for summary judgment against the defendant to deliver up a 2006 Mercedes Benz C 180K Classic motor vehicle {"the vehicle"). The plaintiff's notice of application for summary judgment reflects that more extensive relief was initially sought but it is common cause, and was indeed approached by both parties on this basis, that the plaintiff only seeks return of the vehicle and the costs of the application.

[2] Although the contents of the opposing affidavit filed by the defendant (and the supplementary affidavit which he filed without

leave of the Court in which he sought to correct what he termed were certain errors in the opposing affidavit) are confusing and

contradictory in various respects, as I understand it his defence, in a nutshell, boils down to the following:

2.1. The agreement which he entered into with the plaintiff is in fact an instalment sale agreement and not a lease agreement. It is only in the case of a lease agreement that a person in his position would be obliged to return the vehicle to the plaintiff at the end of the lease period; and if it is not an instalment sale agreement then when he signed the agreement he believed that it was such having been fraudulently induced by the plaintiff's representative to sign;

2.2. Although he admits signing the agreement relied upon by the plaintiff, he claims - variously - that it was "practically impossible" to read it; and that when he signed the agreement he was experiencing "a moment of joy" (which he explained in argument meant that he did not properly read the agreement before he signed it since he was in "a state of euphoha'); and

2.3. Although it is common cause that the defendant paid all of the amounts due to the plaintiff save for the final payment referred to in the agreement, that payment is a lump sum or "balloon payment" which is "prohibited" in terms of s1 of the National Credit Act 34 of 2005 ("NCA'). This, he submitted, did not render the agreement void or invalid but simply meant that he was therefore not obliged to pay it to the plaintiff in order to retain the vehicle, this payment term being severable from the remaining terms of the agreement. (Clause 16.8 of the agreement provides that "If any of the provisions of this agreement contravene or conflict with any laws enforced in the Republic of South Africa for the time being such provisions shall be deemed to be of no force and effect without affecting the validity of any of the remaining provisions of this agreement").

[3] The vehicle is the subject matter of a written agreement, styled a "Contract Purchase Agreement between the plaintiff as "Seller" and the defendant as "Buyer", entered into between the parties on 29 November 2006. The preamble to the agreement reads that 'Whereas the Seller sells to the Buyer who buys the vehicle from the supplier/manufacturer described herein subject to the terms and conditions recorded herein...".

[4] Although in small type the agreement is easy to read. It describes the vehicle, including its engine and chassis numbers. It describes the extras selected by the defendant. It stipulates that the period of the agreement is 60 months commencing with a first instalment payable of R4333.53 on 2 January 2007 followed by 59 equal monthly instalments of R4333.53 as from 2 February 2007. It reflects a guaranteed value of the vehicle of R106 680 on expiry of the agreement being 2 December 2011. That guaranteed value was initialled by the defendant and is the only payment which is actually disputed by him for purposes of this application (although he attacks the rate of interest and claims to dispute the amount of the finance charges, these are irrelevant to the plaintiff's claim for return of the vehicle since they can be dealt with by way of a counterclaim in due course).

[5] Below the place where the defendant's signature is appended are the words "This Agreement commences upon signature hereof. Sign it only if you want to be legally bound by its terms."

[6] Attached thereto is a schedule which sets out further terms and conditions. This schedule bears the defendant's initials above the words "/ hereby confirm that I have read and understood the terms hereof." For purposes of this application the relevant clauses contained in the schedule are as follows.

[7] Clause 1, which provides that

"1. OWNERSHIP

Ownership shall not pass to you, the Buyer and the Seller shall remain the owner of the vehicle at all times provided that you shall be entitled to purchase the vehicle in the manner set out in clause 22.4 of this agreement upon expiry of the Agreement and subject to approval by the Seller in its sole and absolute discretion."

[8] Clause 22, the relevant portion of which provides that

"22 EXPIRY

22.1. The Seller guarantees that the vehicle shall have the Guaranteed value in the payment schedule hereto at the expiry of this agreement if you have complied with all of your obligations in terms of this agreement. 22.2. Upon expiry of the agreement you shall at your own cost return the vehicle to the Seller in the same good condition in which the vehicle was received, fair wear and tear only accepted [sic] at an address specified by the Seller, together with all documents and service records relating to the vehicle.... 22.4 Subject to the provisions of clause 22.2 you shall be entitled to purchase the vehicle at the value referred to in clause 22.1 above by payment of such amount together with Vat thereon either 22.4.1 Immediately in one lump sum payment or 22.4.2. By payment of twelve equal instalments in the amount set out in the schedule hereto " [9] It is apparent from the aforegoing that even if one interprets the agreement to mean that only the guaranteed value constitutes the "purchase price" there is no obligation on the defendant to pay it in one lump sum since he has the opsion to pay it in instalments. [10] In his opposing papers the defendant did not fully explain his understanding of the meaning of an instalment sale agreement. He made contradictory averments, claiming first that"/ will give the history of events that could have led me to sign an instalment sale agreement, of which I still believe it is" and second, in the very next paragraph, "Applicant fraudulently induced me to enter into an agreement which appears as if it is an instalment sale agreement yet it is not" (at p 36 of the paginated record). To compound the confusion he claimed (at p 65 of the paginated record) that "Applicant is implying that the agreement which I signed on 26 November 2006 [sic] is a finance lease. In an instalment sale agreement, there is no doubt at the end of 5 years, when the purchaser has paid all the instalments, the ownership shall pass to the purchaser. However, in a finance lease, the lease is much like an instalment purchase agreement because the risks of ownership lie with the lessee". The only indication of the defendant's understanding of an instalment sale agreement is to be found on p 69 of the paginated record where he stated that "in terms of an instalment agreement I am entitled to the ownership of the vehicle after the end of a term". [11] Be that as it may, it is my view that the final payment stipulated in the agreement does not fall foul of the NCA. "Instalment

agreement" is defined in that Act as follows: "instalment agreement' means a sale of movable property in terms of which - (a) All or part of the price is deferred and is to be paid by periodic payments; (b) Possession and use of the property is transferred to the consumer; (c) Ownership of the property either - (i) Passes to the consumer only when the agreement is fullycomplied with; or (ii) Passes to the consumer immediately subject to a right of thecredit provider to re-possess the property if the consumerfails to satisfy all of the consumer's financial obligations under the agreement; and (d) Interest, fees or other charges are payable to the credit provider in respect of the agreement, or the amount that has been deferred". [emphasis supplied] [12] "Periodic payments" are not defined in the NCA, and I have been unable to find any cases subsequent to the inception of the NCA which deal with the meaning thereof for purposes of the NCA. [13] The defendant submitted that the definition of "instalment agreement" in the NCA does not provide for "lump sum contracts" as did its predecessor, the Credit Agreements Act 75 of 1980. In support of this submission he referred in his papers to Sandoz Products (Pty) Ltd v Van Zyl NO 1996(3) SA 726 (C) and Ukubona 2000 Electrical CC v City Power Johannesburg (Pty) Ltd 2004 (6) SA 323 (SCA). Both of these cases were decided before the advent of the NCA. In Sandoz Products the Court found (at 732 B-C) that a transaction in terms of which the purchase price is payable by way of one lump sum at a stated or determinable future date fell within the definition of "instalment sale transaction" in s1 of the Credit Agreements Act. "Instalment sale transaction" was defined in that Act as follows: '"instalment sale transaction' means a transaction in terms of which - (a) goods are sold by the seller to the purchaser against payment by the purchaser to the seller of a stated or determinable sum of money at a stated or determinable future date or in whole or in part in instalments over a period in the future; and (b) the purchaser does not become the owner of those goods merely by virtue of the delivery to or the use, possession or enjoyment by him thereof." [14] The Court in Sandoz Products was dealing with one lump sum payment as opposed to payment in instalments. What is helpful however is that the definition of

"instalment sale transaction" in the Credit Agreements Act specifically included a transaction in which payment would be made "in whole or in part in instalments over a period in the future". There is no mention either in the definition of "instalment sale agreement" in the Credit Agreements Act or in the definition of "instalment agreement" in the NCA that such "instalments" or "periodic payments" are to be equal instalments, or that those instalments must be paid at regular specified intervals. [15] In Ukubona the Supreme Court of Appeal approved the findings of the Court in Sandoz Products, and went on to say the following at 327 D: "...(T)he definition encompasses a sale where the purchase price is payable in a lump sum at a future date as well as one where the purchase price is payable, in whole or in part, in instalments." [16] "Periodic" is defined in the Chambers Twentieth Century Dictionary as meaning "recurring regularly in the same order; loosely, occurring from time to time"; and in the Concise Oxford English Dictionary as meaning "appearing or occurring at intervals". [17] The defendant also referred me to J M Otto, Guide to the National Credit Act at para 8.2.3.4, where the author deals with the meaning of "instalment agreement" in the NCA. Relying on Sandoz Products and Ukubona the author submits that the definition of "instalment agreement" in the NCA "clearly does not provide for lump-sum contracts as did its predecessor in the Credit Agreements Act". He refers to a "lump-sum contract" as meaning an agreement in terms of which the price is paid in a lump sum and no instalments are payable. The author concludes that the definition of "instalment agreement' in the NCA "only covers contracts of sale in which the price is payable by means of instalments"; and at footnote 28 "the Act uses the expression "periodic payments". Nothing suggests that these payments should be equal in size. In practice the instalments will almost invariably be of the same size except for the deposit (if one is required at all) and possibly the final instalment." In casu and at worst for the plaintiff the final payment of R106 680 is itself susceptible to payment in instalments in accordance with clause 22.4 of the agreement. It is thus my view that the final payment falls squarely within the definition of "instalment agreement contained in the NCA and that this payment term is not severable from the other terms of the agreement as contended by the defendant. [18] The defendant also submitted that the instalments in an instalment sale agreement are regulated in that the monthly instalments or repayments shall not differ by more than 10% from one month to the next. However s 89 of the NCA, which details unlawful credit

agreements as well as s 90 of the NCA, which details the unlawful provisions of a credit agreement, make no mention of this. [19] In my view it follows that this defence must fail. [20] I turn to deal with the remaining defences, namely fraudulent misrepresentation and the alleged failure by the defendant to read the agreement properly before he signed it. [21] In Nedperm Bank Ltd v Verbri Projects CC 1993(3) SA 214 (W) 220 B-E the Court set out what is required when a party relies on fraud as follows: "At the outset one has to observe that it is trite that fraud is a most serious matter and the type of allegation which is not lightly made and which is not easily established. What is important is that a factual basis must be laid for an allegation of fraud, and it is not sufficient, particularly in an affidavit resisting summary judgment, merely to put up speculative propositions or to raise submissions or to advance arguments on probabilities which might indicate a fraud. What is essential is that there should be hard facts, as it were, upon which the Court can exercise the discretion which it is given in terms of the Rule relating to summary judgment. Rule 32(3)(b) makes it plain that the affidavit to resist summary judgment successfully must satisfy the Court, by evidence, of the fact that the defendant has 'a bona fide defence' to the action, and furthermore 'such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor'. The emphasis therefore is plainly on 'material facts'. The proposition is a trite one and has been dealt with in a number of cases where the Rule has been considered by our Courts". [22] The representation that the defendant claims was made to him consisted in the plaintiff presenting him with an agreement bearing the heading "Contract Purchase Agreement". Other than that he has failed to set out any material facts which could assist me in determining whether there is any substance at all to this defence. He has simply not met the requirements referred to in Nedperm Bank and his "defence" on this ground, such as it is, must fail. [23] The defendant also claims that he did not read the agreement properly before he signed it, and that he had the bona fide and reasonable (albeit mistaken) belief that the guaranteed value referred to in the agreement meant that "when I want to purchase another vehicle I can trade in the current vehicle and the guaranteed value would be R106 680. In other words, I will choose to use it as a deposit or I can sell it at that particular amount. However this could only happen after 5 years when I have finished paying ..." Notably the defendant does not allege that he formed this belief due to any misrepresentation on the part of the plaintiff. [24] The circumstances in which a party may raise his own mistake in order to avoid liability under a contract are limited: see Osman v Standard National Credit Corporation Ltd 1985(2) SA 378 (C) at 387 B. In Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) at 76B-E Malan J A (also referring to National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) and Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis [1992] ZASCA 56; 1992 (3) SA 234 (A)) said: ....'The respondent's defence is that he lacked the intention to be bound and therefore that no agreement of suretyship was concluded. Contractual liability, however, arises not only in cases where there is consensus or a real meeting of the minds but also by virtue of the doctrine of quasi mutual assent. Even where there is no consensus contractual liability may nevertheless ensue. The respondent's mistake is a unilateral one. Referring to the mistake of the kind the respondent laboured under it was said in National & Overseas Distributors Corporation (Pty) Ltd v Potato Board: "Our law allows a party to set up his own mistake in certain circumstances in order to escape liability under a contract into which he has entered. But where the other party has not made any misrepresentation and has not appreciated at the time of acceptance that his offer was being accepted under a misapprehension, the scope for a defence of unilateral mistake is very narrow, if it exists at all. At least the mistake (error) would have to be reasonable (Justus) and it would have to be pleaded." [25] In the present matter the defendant has not set out any facts which could lead me to conclude that his mistake was reasonable. He is a qualified attorney who practices for his own account. He appeared himself at the hearing and presented full argument. In correspondence annexed to his opposing affidavit he refers to himself as "Director: Corporate and Commercial" of his firm. As I have said his initials appear next to the guaranteed value in the agreement; he signed the agreement above the words "Sign it only if you want to be legally bound by its terms" and he initialled the schedule to the agreement above the words "/ hereby confirm that I have read and understood the terms hereof. His signature appears three times and his initials four times on the agreement. That he signed the agreement when he was experiencing a moment of joy or was euphoric is no defence in law. The fact of the matter is that as an attorney who holds himself out to have expertise in the area of commercial law he could reasonably have been expected to read the agreement properly before he signed it. That he did not do so cannot be laid at the plaintiff's door. [26] I should mention that the defendant also raised another defence although it seems to me that this was really thrown into the melting pot in passing. He claimed that there was a "conflict of interest" since the supplier of the vehicle and its financier are one and the same company. On the papers before me this is factually incorrect. In any event the defendant has failed to explain how this so-called conflict of interest would entitle him to retain the vehicle, and this defence requires no further consideration. [27] In all the circumstances I am satisfied that the defendant has failed to disclose a defence which is bona fide and good in law. In my view the ineluctable inference is that the defendant has entered an appearance to defend solely for the purpose of delaying and/or frustrating the plaintiff's claim. [28] Clause 15.3 of the agreement entered into between the parties provides that the plaintiff is entitled to costs on the attorney and client scale. [29] In the result summary judgment is granted in favour of plaintiff as follows: 1. The defendant shall forthwith return to the plaintiff the 2006 Mercedes Benz C180 Classic Motor Vehicle with engine No 27194630834573 and chassis No WDC 2030462 R 253095; 2. Costs of the application on the scale as between attorney and client. CLOETE, AJ

22.1. The Seller guarantees that the vehicle shall have the Guaranteed value in the payment schedule hereto at the expiry of this agreement if you have complied with all of your obligations in terms of this agreement.

22.2. Upon expiry of the agreement you shall at your own cost return the vehicle to the Seller in the same good condition in which the vehicle was received, fair wear and tear only accepted [sic] at an address specified by the Seller, together with all documents and service records relating to the vehicle....

22.4 Subject to the provisions of clause 22.2 you shall be entitled to purchase the vehicle at the value referred to in clause 22.1 above by payment of such amount together with Vat thereon either

22.4.1 Immediately in one lump sum payment or

22.4.2. By payment of twelve equal instalments in the amount set out in the schedule hereto "

[9] It is apparent from the aforegoing that even if one interprets the agreement to mean that only the guaranteed value constitutes the "purchase price" there is no obligation on the defendant to pay it in one lump sum since he has the opsion to pay it in instalments.

[10] In his opposing papers the defendant did not fully explain his understanding of the meaning of an instalment sale agreement. He made contradictory averments, claiming first that"/ will give the history of events that could have led me to sign an instalment sale agreement, of which I still believe it is" and second, in the very next paragraph, "Applicant fraudulently induced me to enter into an agreement which appears as if it is an instalment sale agreement yet it is not" (at p 36 of the paginated record). To compound the confusion he claimed (at p 65 of the paginated record) that "Applicant is implying that the agreement which I signed on 26 November 2006 [sic] is a finance lease. In an instalment sale agreement, there is no doubt at the end of 5 years, when the purchaser has paid all the instalments, the ownership shall pass to the purchaser. However, in a finance lease, the lease is much like an instalment purchase agreement because the risks of ownership lie with the lessee". The only indication of the defendant's understanding of an instalment sale agreement is to be found on p 69 of the paginated record where he stated that "in terms of an instalment agreement I am entitled to the ownership of the vehicle after the end of a term".

[11] Be that as it may, it is my view that the final payment stipulated in the agreement does not fall foul of the NCA. "Instalment

agreement" is defined in that Act as follows:

"instalment agreement' means a sale of movable property in terms of which -

(a) All or part of the price is deferred and is to be paid by periodic payments;

(b) Possession and use of the property is transferred to the consumer;

(c) Ownership of the property either -

(i) Passes to the consumer only when the agreement is fullycomplied with; or

(ii) Passes to the consumer immediately subject to a right of thecredit provider to re-possess the property if the consumerfails to satisfy all of the consumer's financial obligations under the agreement; and

(d) Interest, fees or other charges are payable to the credit provider in respect of the agreement, or the amount that has been deferred".

[emphasis supplied]

[12] "Periodic payments" are not defined in the NCA, and I have been unable to find any cases subsequent to the inception of the NCA which deal with the meaning thereof for purposes of the NCA.

[13] The defendant submitted that the definition of "instalment agreement" in the NCA does not provide for "lump sum contracts" as did its predecessor, the Credit Agreements Act 75 of 1980. In support of this submission he referred in his papers to Sandoz Products (Pty) Ltd v Van Zyl NO 1996(3) SA 726 (C) and Ukubona 2000 Electrical CC v City Power Johannesburg (Pty) Ltd 2004 (6) SA 323 (SCA). Both of these cases were decided before the advent of the NCA. In Sandoz Products the Court found (at 732 B-C) that a transaction in terms of which the purchase price is payable by way of one lump sum at a stated or determinable future date fell within the definition of "instalment sale transaction" in s1 of the Credit Agreements Act. "Instalment sale transaction" was defined in that Act as follows:

'"instalment sale transaction' means a transaction in terms of which -

(a) goods are sold by the seller to the purchaser against payment by the purchaser to the seller of a stated or determinable sum of money at a stated or determinable future date or in whole or in part in instalments over a period in the future; and

(b) the purchaser does not become the owner of those goods merely by virtue of the delivery to or the use, possession or enjoyment by him thereof."

[14] The Court in Sandoz Products was dealing with one lump sum payment as opposed to payment in instalments. What is helpful however is that the definition of

"instalment sale transaction" in the Credit Agreements Act specifically included a transaction in which payment would be made "in whole or in part in instalments over a period in the future". There is no mention either in the definition of "instalment sale agreement" in the Credit Agreements Act or in the definition of "instalment agreement" in the NCA that such "instalments" or "periodic payments" are to be equal instalments, or that those instalments must be paid at regular specified intervals.

[15] In Ukubona the Supreme Court of Appeal approved the findings of the Court in Sandoz Products, and went on to say the following at 327 D:

"...(T)he definition encompasses a sale where the purchase price is payable in a lump sum at a future date as well as one where the purchase price is payable, in whole or in part, in instalments."

[16] "Periodic" is defined in the Chambers Twentieth Century Dictionary as meaning "recurring regularly in the same order; loosely, occurring from time to time"; and in the Concise Oxford English Dictionary as meaning "appearing or occurring at intervals".

[17] The defendant also referred me to J M Otto, Guide to the National Credit Act at para 8.2.3.4, where the author deals with the meaning of "instalment agreement" in the NCA. Relying on Sandoz Products and Ukubona the author submits that the definition of "instalment agreement" in the NCA "clearly does not provide for lump-sum contracts as did its predecessor in the Credit Agreements Act". He refers to a "lump-sum contract" as meaning an agreement in terms of which the price is paid in a lump sum and no instalments are payable. The author concludes that the definition of "instalment agreement' in the NCA "only covers contracts of sale in which the price is payable by means of instalments"; and at footnote 28

"the Act uses the expression "periodic payments". Nothing suggests that these payments should be equal in size. In practice the instalments will almost invariably be of the same size except for the deposit (if one is required at all) and possibly the final instalment."

In casu and at worst for the plaintiff the final payment of R106 680 is itself susceptible to payment in instalments in accordance with clause 22.4 of the agreement. It is thus my view that the final payment falls squarely within the definition of "instalment agreement contained in the NCA and that this payment term is not severable from the other terms of the agreement as contended by the defendant.

[18] The defendant also submitted that the instalments in an instalment sale agreement are regulated in that the monthly instalments or repayments shall not differ by more than 10% from one month to the next. However s 89 of the NCA, which details unlawful credit

agreements as well as s 90 of the NCA, which details the unlawful provisions of a credit agreement, make no mention of this.

[19] In my view it follows that this defence must fail.

[20] I turn to deal with the remaining defences, namely fraudulent misrepresentation and the alleged failure by the defendant to read the agreement properly before he signed it.

[21] In Nedperm Bank Ltd v Verbri Projects CC 1993(3) SA 214 (W) 220 B-E the Court set out what is required when a party relies on fraud as follows:

"At the outset one has to observe that it is trite that fraud is a most serious matter and the type of allegation which is not lightly made and which is not easily established. What is important is that a factual basis must be laid for an allegation of fraud, and it is not sufficient, particularly in an affidavit resisting summary judgment, merely to put up speculative propositions or to raise submissions or to advance arguments on probabilities which might indicate a fraud. What is essential is that there should be hard facts, as it were, upon which the Court can exercise the discretion which it is given in terms of the Rule relating to summary judgment. Rule 32(3)(b) makes it plain that the affidavit to resist summary judgment successfully must satisfy the Court, by evidence, of the fact that the defendant has 'a bona fide defence' to the action, and furthermore

'such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor'.

The emphasis therefore is plainly on 'material facts'. The proposition is a trite one and has been dealt with in a number of cases where the Rule has been considered by our Courts".

[22] The representation that the defendant claims was made to him consisted in the plaintiff presenting him with an agreement bearing the heading "Contract Purchase Agreement". Other than that he has failed to set out any material facts which could assist me in determining whether there is any substance at all to this defence. He has simply not met the requirements referred to in Nedperm Bank and his "defence" on this ground, such as it is, must fail.

[23] The defendant also claims that he did not read the agreement properly before he signed it, and that he had the bona fide and reasonable (albeit mistaken) belief that the guaranteed value referred to in the agreement meant that

"when I want to purchase another vehicle I can trade in the current vehicle and the guaranteed value would be R106 680. In other words, I will choose to use it as a deposit or I can sell it at that particular amount. However this could only happen after 5 years when I have finished paying ..."

Notably the defendant does not allege that he formed this belief due to any misrepresentation on the part of the plaintiff.

[24] The circumstances in which a party may raise his own mistake in order to avoid liability under a contract are limited: see Osman v Standard National Credit Corporation Ltd 1985(2) SA 378 (C) at 387 B. In Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) at 76B-E Malan J A (also referring to National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) and Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis [1992] ZASCA 56; 1992 (3) SA 234 (A)) said:

....'The respondent's defence is that he lacked the intention to be bound and therefore that no agreement of suretyship was concluded. Contractual liability, however, arises not only in cases where there is consensus or a real meeting of the minds but also by virtue of the doctrine of quasi mutual assent. Even where there is no consensus contractual liability may nevertheless ensue. The respondent's mistake is a unilateral one. Referring to the mistake of the kind the respondent laboured under it was said in National & Overseas Distributors Corporation (Pty) Ltd v Potato Board:

"Our law allows a party to set up his own mistake in certain circumstances in order to escape liability under a contract into which he has entered. But where the other party has not made any misrepresentation and has not appreciated at the time of acceptance that his offer was being accepted under a misapprehension, the scope for a defence of unilateral mistake is very narrow, if it exists at all. At least the mistake (error) would have to be reasonable (Justus) and it would have to be pleaded."

[25] In the present matter the defendant has not set out any facts which could lead me to conclude that his mistake was reasonable. He is a qualified attorney who practices for his own account. He appeared himself at the hearing and presented full argument. In correspondence annexed to his opposing affidavit he refers to himself as "Director: Corporate and Commercial" of his firm. As I have said his initials appear next to the guaranteed value in the agreement; he signed the agreement above the words "Sign it only if you want to be legally bound by its terms" and he initialled the schedule to the agreement above the words "/ hereby confirm that I have read and understood the terms hereof. His signature appears three times and his initials four times on the agreement. That he signed the agreement when he was experiencing a moment of joy or was euphoric is no defence in law. The fact of the matter is that as an attorney who holds himself out to have expertise in the area of commercial law he could reasonably have been expected to read the agreement properly before he signed it. That he did not do so cannot be laid at the plaintiff's door.

[26] I should mention that the defendant also raised another defence although it seems to me that this was really thrown into the melting pot in passing. He claimed that there was a "conflict of interest" since the supplier of the vehicle and its financier are one and the same company. On the papers before me this is factually incorrect. In any event the defendant has failed to explain how this so-called conflict of interest would entitle him to retain the vehicle, and this defence requires no further consideration.

[27] In all the circumstances I am satisfied that the defendant has failed to disclose a defence which is bona fide and good in law. In my view the ineluctable inference is that the defendant has entered an appearance to defend solely for the purpose of delaying and/or frustrating the plaintiff's claim.

[28] Clause 15.3 of the agreement entered into between the parties provides that the plaintiff is entitled to costs on the attorney and client scale.

[29] In the result summary judgment is granted in favour of plaintiff as follows:

1. The defendant shall forthwith return to the plaintiff the 2006 Mercedes Benz C180 Classic Motor Vehicle with engine No 27194630834573 and chassis No WDC 2030462 R 253095;

2. Costs of the application on the scale as between attorney and client.

CLOETE, AJ