Nedbank Limited (t/a MFC, A division of Nedbank Limited) v Lewis (97066/16) [2017] ZAGPPHC 1158 (10 November 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE.

(2) NOT OF INTEREST TO OTHER JUDGES.

(3) REVISED

CASE NO.: 97066/16

10/11/2017

In the matter between:

NEDBANK LIMITED

PLAINTIFF

(t/a MFC, A DIVISION OF NEDBANK LIMITED)

and

LEWIS, RITA SUZETTE

DEFENDANT

Heard: 10 October 2017

Delivered 10 November 2017

JUDGMENT

VAN DER SCHYFF AJ

Background

[1] The plaintiff in this matter, Nedbank Limited, is a credit provider duly

registered as such in terms of the National Credit Act, No. 34 of 2005.

[2] Plaintiff's case as set out in the particulars of claim is that plaintiff and defendant entered into a written Fixed Rate Instalment Agreement on or about 25 October 2013.

[3] In terms of this agreement the plaintiff sold to the defendant 1 x NISSAN MICRA 1.2 VISIA + 5DR (D82), 2013 MODEL, ENGINE NUMBER: HR 12859884A and CHASSIS/SERIAL NUMBER: MDHFBUK 1320514241 . The collectable amount was R200 245.68 payable in 71 instalments of R2 781.19 at monthly intervals.

[4] It was an express term of the agreement that:

(i) Plaintiff (or its successor) will at all times remain owner of the goods and that neither defendant, nor anybody on her behalf, will be entitled to obtain ownership of the goods or retain possession, use or employment thereof other than as provided for in the agreement.

(ii) Should defendant breach any of the terms or conditions of the agreement, or fail to pay any amounts in terms of the agreement when it is due, plaintiff (or its successors) will be entitled as it deems fit and without prejudice to any of its other rights, to immediately request payment of all amounts that are payable in terms of the agreement, regardless of whether such amounts are due at the stage or not, alternatively to cancel the agreement, to repossess the goods, to retain all payments that have already been made by defendant and to claim the difference between the damages and outstanding balance payable in terms of the agreement and the resale value of the vehicle.

(iii) In the event of cancellation of the agreement defendant is obliged to return the goods to the plaintiff.

(iv) Plaintiff is entitled on request to recover all costs and disbursements (including costs between attorney and client) that the plaintiff

occurred directly or indirectly in order to enforce any rights in terms of the said agreement from the defendant.

[5] Plaintiff complied with all its obligations in terms of the agreement and the

vehicle was delivered to the defendant.

[6] Defendant defaulted with her obligations in terms of the agreement by failing

or refusing to effect payment of the agreed amounts timeously or at all.

[7] It is common cause between the parties that by 1 October 2015, the defendant was in default with her obligations in terms of the agreement in the amount of R31 016.34, and that no further payments had since been made by defendant to plaintiff.

[8] Plaintiff claims that it is entitled to cancel the agreement and to repossess

the goods. Plaintiff claims further to be entitled to an order declaring the amount paid by the defendant to be forfeited in favour

to the plaintiff; and to recover from defendant an amount calculated by deducting from the balance of the purchase price, the deposit and instalments paid, such value as the goods may have upon their return to the plaintiff and such reduction of finance charges to which the defendant may be entitled.

[9] Plaintiff elected to cancel the agreement. Plaintiff states that the required

notice in terms of section 129(1) of the National Credit Act, No. 34 of 2005, was delivered to the defendant on or about 15 October 2015 by way of registered mail. Plaintiff claims that it cancelled the agreement in writing on 19 November 2015 "G", alternatively with the institution of the action and the service of summons. Plaintiff subsequently claims that defendant is in unlawful possession of the goods.

[10] It is common cause that the defendant is still in possession of the vehicle that is the subject matter of the Instalment Sale Agreement between the parties. She is using it on a daily basis, although no payments have been made

since the issue of summons.

[11] Defendant admits that a written Fixed Rate Instalment Sale Agreement was concluded between herself and the plaintiff (plea para [5]). She pleads however that plaintiff was represented by "Statinsky" as their agent in

the assessment stage of the agreement. Defendant claims that Statinsky then altered the content of the assessment form to mispresent her financial position and credit affordability. As a result plaintiff relied on incorrect information to conclude the instalment agreement with defendant. Defendant alleges Statinsky was at all material times acting for, and on behalf of the plaintfif. She

further pleads that the agreement was a reckless agreement as defined in the National Credit Act, No. 34 of 2005 as provided for, in that plaintiff failed to do an assessment of defendant’s existing financial means, prospects and obligations and failed to take reasonable steps to assess whether there is a reasonable basis to conclude that any commercial purpose may prove to be successful, if the consumer has such a purpose for applying for that credit agreement.

[12] The defendant specifically denies that the certificate of compliance with the NCA attached to the plaintiff s particulars of claim as annexure "E" is correct. She specifically takes issue with paragraph

6 thereof and contends that, contrary to what is stated in the certificate, there is a matter which is a class action before the

National Tribunal Council (sic) established in terms of Act 34 of 2005.

[13] Although defendant admits the default, she avers (and I need to quote this from the pleadings since the wording of this paragraph is unclear) "The defendant had a dispute with the plaintiff and Statinsky could not be resolved until the dispute was referred to the National Credit Regulator's Tribunal. The dispute remains not finalised to

date." Read in context of the plea the court accepts that the defendant wanted to state: "The defendant had a dispute with the plaintiff and Statinsky [which] could not be resolved until the dispute was referred to the National [Consumer] Tribunal".

[14] Defendant denies that notices in terms of section 129(1) of the National Credit Act, No.34 of 2005, were sent to the correct addresses by registered mail. She claims that delivery per track and trace could not be affected, and denies that the notifications reached her. Defendant denies being in unlawful possession of the goods.

[15] Defendant denies that the Instalment Agreement was cancelled. She denies receipt of the cancelation letter.

[16] In reply to the defendant's plea, plaintiff inter alia denies that "Statinsky" or any of its representatives or employers acted at any stage or in any capacity for or on behalf of plaintiff. Plaintiff also denies that reckless credit was advanced to the defendant.

[17] The parties held a pre-trial conference on 5 October 2017. At the pre-trial conference they agreed that there was no issue in dispute that had to be referred to mediation, arbitraiton or determination by a third party. They also agreed in terms of rule 33(4) of the uniform rules of court, that the only issue that needs to be decided at trial is whether there is any legally binding agreement in existence entitling the defendant to possession of the motor vehicle. They additionally agreed that all other disputes are to be postponed sine die pending the finalisation of the "alleged proceedings before the National Credit Tribunal as pleaded by the defendant."

- see Index: Pre-trial and minutes paras 5 and 7.

[18] On the 10th of October 2017 the defendant applied for the matter to be postponed. The main gist of the argument for postponement was that the defendant referred the matter to the National Credit (sic) Tribunal. She averred that the proceedings before the Tribunal might influence how this matter proceeds and requested the court to

postpone the action sine die, pending the outcome of the National Credit (sic) Tribunal. The application for postponement was refused. In paragraph 45 below, defendant's argument advanced for the postponement and the court's view thereof will be revisited since it is relevant also to the relief sought by defendant during the trial.

[19] It must be noted that counsel for the defendant stated in argument in support of the application for postponement, that defendant's legal representative did not have specific instructions to agree to the separation of issues at the pre-trial conference. This claim is however not included in the defendant's founding affidavit in support of a postponement. In this regard it is necessary to take cognisance of authority I was referred to by plaintiffs counsel, namely Harms

JA's dicta in Filta-Matix (Pty) Ltd v Freudenberg and Others [1997] ZASCA 110; 1998 (1) SA 606 (SCA): 'To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of Rule 37, which is to limit issues and to curtail the scopee of the litigation (cf Price NO v Allied-JBS Building Society 1980 (3) SA 874 (A) at 882D-H). If a party elects to limit the ambit of his case, the election is usually binding (A J Shepherd (Edms) Bpk v Santam Versekeringsmaatskappy Bpk 1985 (1) SA 399 (A) at 4158--D; Chemfos Ltd v Plaasfosfaat (Pty) Ltd 1985 (3) SA 106 (A) at 1141--1158).' [The only statement that defendant made in her affidavit in support of a postponement that relates indirectly to this aspect is that she "managed to consult with her legal team for the purpose of these proceedings on Monday 9 October 2017" and that she then instructed her legal representatives to seek a postponement pending the Tribunal's outcome.]

[20] With the application for postponement denied, plaintiff requested the court, at the onset of the hearing, to make an order stating that:

1. the question relating to the defendant's continued possession of the motor vehicle, its return and the attachment thereof as claimed by plaintiff in terms of prayers 1 to 3 of the plaintiff's particulars of claim shall be first disposed of and adjudicated upon separately;

2. while all other disputes, claims and defences as contained in the pleadings are stayed and postponed pending finalization of the dispute referred to in paragraph 1 above.

[21] Counsel for defendant did not object to the court ordering the separate adjudication of the question pertaining to the defendant's continued possession of the motor vehicle, its return and the attachment thereof as claimed by plaintiff in terms of prayers 1 to 3 of the plaintiff's particulars o-f claim, and the subsequent staying and postponement of the remainder of disputes, claims and defences as contained in the pleadings. The order was accordingly granted.

[22] Plaintiff then submitted that the duty to begin with the leading of evidence was on defendant since, upon a proper interpretation of the pleadings, it was common cause that plaintiff cancelled the instalment sale agreement, but that defendant disputes that plaintiff was entitled to do so.

[23] Without any objection, counsel for defendant called defendant to testify. Defendant testified that plaintiff would benefit from the misrepresentation committed by "Statinsky" Group of Companies prior to the conclusion of the instalment sale agreement if plaintiff were allowed to repossess the car. She indicated that her husband, who is 78, is unemployed and that she is the only one who is gainfully employed. She also stated that she would have no means of

transport if the car is repossessed and that she might lose her job if judgment is granted against her. On a question by the court as to why she stopped making payments to plaintiff, she stated that she could not keep up with the monthly instalments. She confirmed that she reported the matter to the National Credit Regulator.

[24] Plaintiff did not cross-examine the witness.

[25] Defendant did not call any other witnesses. Counsel for defendant argued that the plaintiff was not legally permitted to cancel the credit agreement when the matter was under consideration, and pending before the National Consumer Tribunal.

[26] Judgment was reserved and the court adjourned.

[27] While considering the matter for judgment, it struck me that neither of the parties addressed me on the applicability of section 130(3)(a) of the National Credit Act, No. 34 of 2005, read with sections 129 and section 130(4)(a) of the same Act. Since the court has not yet delivered judgment and has thus not became functus officio in this matter, both parties' legal representatives were invited to "assist the Court by submitting comprehensive additional written heads of argument on only the following questions:

- a) whether the order by the court to separate and dispose of the adjudication of the questions relating to the Defendant's continued possession of the motor vehicle, its return and the attachment thereof as claimed by Plaintiff in terms of prayers 1 to 3 of the Plaintiff's particulars of claim precludes the court from taking into account the statutory requirements contained in section 130(3)(a) read with sections 129 and section 130(4)(a) of the National Credit Act;