SA Taxi Impact Fund (RF) (Pty) Ltd v Kgasi (003406/2023) [2023] ZAGPJHC 1230 (27 October 2023)
The court found that the defendant's denial of the agreement and claims of misrepresentation, coercion, and reckless lending were inconsistent with his continued possession of the vehicle for over a year. The defendant failed to provide evidence supporting his allegations or to demonstrate how non-receipt of the...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1230
- Parties
- Applicant: SA Taxi Impact Fund (RF) (Pty) Ltd; Respondent: Kgasi, Lucas Joshua
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 003406/2023
- Procedural Posture
- Summary Judgment Application / Final Determination
- Outcome
- Summary judgment granted in favour of the applicant for immediate return of the vehicle and costs on the attorney and client scale.
- Judges
- Johann Gautschi AJ
- Legal Topics
- Summary Judgment, Credit Agreement, Reckless Lending, Section 129 Notice, Misrepresentation, Attorney and Client Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
SA Taxi Impact Fund (RF) (Pty) Ltd
Applicant
Kgasi, Lucas Joshua
Respondent
Procedural Posture
Summary Judgment Application / Final Determination
Legal Issues
- 1 Whether the defendant breached the credit agreement by failing to pay instalments.
- 2 Whether the credit agreement is void ab initio due to alleged misrepresentation, coercion, or reckless lending.
- 3 Whether the defendant's failure to receive the section 129 notice constitutes a valid defence.
Ratio Decidendi
The court found that the defendant's denial of the agreement and claims of misrepresentation, coercion, and reckless lending were inconsistent with his continued possession of the vehicle for over a year. The defendant failed to provide evidence supporting his allegations or to demonstrate how non-receipt of the section 129 notice prejudiced him. The applicant complied with statutory notice requirements, and the defendant's reliance on technical defences was rejected. The application for summary judgment was granted, and costs were awarded on the attorney and client scale due to the absence of a bona fide defence and the defendant's persistence in retaining the vehicle contrary to...
Court Disposition
Summary judgment granted in favour of the applicant for immediate return of the vehicle and costs on the attorney and client scale.
Orders
- The application for summary judgment is granted for immediate return by the defendant to the plaintiff of the vehicle, 2022 Toyota Quantum/HiAce 2.5 D-4D Sesfikile 16S with engine number 2KDB111318 and chassis number AHTSS22P707134605.
- The defendant is ordered to pay the costs of the summary judgment application on the scale as between attorney and client.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
LOCAL SEAT, JOHANNESBURG
CASE NO: 003406 /2023
DATE: 27 October 2023
In the matter between: SA TAXI IMPACT FUND (RF) (PTY) LTD Applicant/Plaintiff And KGASI, LUCAS JOSHUA Respondent/Defendant
JUDGMENT
Johann Gautschi AJ
1. The plaintiff, a registered credit provider, seeks summary judgment for the return of a taxi motor vehicle, 2022 Toyota Quantum/HiAce 2.5 D-4D Sesfikile 16S with engine number 2KDB111318 and chassis number AHTSS22P707134605, following cancellation of a written credit agreement (the agreement) between the plaintiff and the defendant as result of defendant’s alleged breach of the agreement by reason of the defendant failing to pay the instalments due in terms of the agreement.
2. The defence pleaded by the defendant is a denial that there ever was an agreement because he did not understand what he was signing, that he was induced into signing the agreement through a misrepresentation, that he was coerced into signing the agreement and that in any event the agreement was void ab initio because the credit granted to him by the plaintiff constituted reckless lending as provided in the National Credit Act, 34 of 2005 (the Act). The defendant also denies having received the letter required by section 129 of the Act.
3. The difficulty facing the defendant is that, whilst claiming that the agreement is void ab initio, he also claims to be entitled to retain the vehicle and has retained the vehicle for over a year since conclusion of the credit agreement in April 2022.
4. The heads of argument filed by the defendant’s own counsel draws attention to the judgment in Standard Bank Of South Africa Ltd v Panayiotts 2009 (3) SA 363 (W) in which it is held that the Act does not envisage that a consumer may claim that the credit agreement is reckless whilst at the same time retaining possession of the goods which form the subject matter of the agreement.
5. The judgment in SA Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases 2011 (1) SA 310 (GSJ) is to similar effect in pointing out that the Act does not contemplate the consumer retaining “the money and the box”.
6. The defendant’s reliance on his alleged failure to receive the section 129 notice in terms of the Act is also to no avail for reasons set out in the heads of argument of the plaintiff’s counsel.
7. Firstly, the Track and Trace report from the Post Office attached to the particulars of claim shows that a notification to collect the letter was sent from the post office. This is in compliance with the Constitutional Court judgment in Standard Bank v Kubyana CCT 65/13 which decided that the letter need only reach the defendant’s post office and does not need to be collected for the plaintiff to comply with the Act.
8. Secondly, as decided in ABSA Bank Ltd v Petersen 2013 (1) SA 481 (WCC), mere non-receipt of the section 129 letter is not by itself a defence as the respondent must explain how he would have availed himself of the rights afforded by the Act and to put up evidence to demonstrate the prospect of a debt-review application being successful. The defendant made no attempt to do so in the present case.
9. In the result, I am of the view that the application for summary judgment for return of the vehicle should be granted.
10. As regards costs of the view that an order for costs on the attorney and client scale is warranted given the clear absence of any basis for resisting the claim for return of the vehicle and the defendant’s persistence in refusing to return the vehicle contrary to clear legal authority recognised by the defendant’s counsel. I specifically refrain from ordering such costs in terms of the explicit provisions of the agreement so as to avoid pre-empting such disputes relating to the agreement as may still have to be adjudicated on in future litigation.
11. Accordingly, I make the following order:
ORDER:
1. The application for summary judgment is granted for immediate return by the defendant to the plaintiff of the vehicle, 2022 Toyota Quantum/HiAce 2.5 D-4D Sesfikile 16S with engine number 2KDB111318 and chassis number AHTSS22P707134605.
2. The defendant is ordered to pay the costs of the summary judgment application on the scale as between attorney and client.
27 October 2023