SA Taxi Securitisation (Pty) Ltd v Mthethwa and Others (2012/11001, 2012/17723, 2013/12927) [2013] ZAGPJHC 191 (27 July 2013)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

SOUTH GAUTENG HIGH COURT JOHANNESBURG

CASE NO: 2012/11001

CASE NO: 2012/17723

CASE NO: 2013/12927

DATE:26/07/2013

In the matter between:

SA TAXI SECURITISATION (PTY) LIMITED …................................................Plaintiff

(Registration Number: 2005/021852/07)

(under all three case numbers)

and

MTHETHWA, THULANE DOMINIC....................................................................Defendant

(Identity Number: ...)

(under case number 2012/11001)

MASEKO, SELMA KLUMANEGO …................................................................Defendant

(under case number 2012/17723)

HLOPHE, PHILLIP.................................................................................................Defendant

(under case number 2013/12927)

JUDGMENT

FISHER AJ:

[1] This judgment is in respect of three applications for summary judgment (i.e. under case number 2012/1101 against Mr Mthethwa; under case number 2012/17723 against Mrs Maseko; and under case number 2013/12927 against Mr Hlope). The claims in these matters are for the return in, each instance, of a motor vehicle being a mini-bus taxi that is the subject matter of a credit agreement in the form of a lease agreement.

[2] The Plaintiff is common to all three cases. In each case the Plaintiff alleges that the Defendant is in arrears with payments

under the lease agreement in question, that the agreement has been cancelled, and that it is thus entitled to return of the vehicle.

[3] The parties in each of the applications are represented by the same attorneys and counsel respectively. The lease agreement in each instance is standard in form. The applications and the defences raised in each case are substantially similar. I have dealt with these cases together, in that the issue that I have decided in respect of each of them, is germane to and dispositive of all of them.

[4] The Defendants in all the matters have raised a litany of technical defences that are all similar in nature. It is not necessary for me to consider these defences by reason of the conclusion to which I have come on the issue in question.

[5] The Mthethwa and Maseko matters came before Foulks-Jones AJ on 18 March 2013. One of the points raised by Mr Mthethwa was that the notice in terms of section 86(10) of the National Credit Act "(NCA’) relied on by the Plaintiff was not delivered to him in terms of the NCA. Mrs Maseko raised a similar point in relation to the notice in terms of section 129(1)(a) which was relied on by the Plaintiff in that application.

[6] In terms of section 129(1 )(b) legal proceedings to enforce the agreement may only be brought after the providing of such notices. It was accepted by Foulks-Jones AJ that the Defendant in each instance had established the defence of non-delivery of the notice in question. Accordingly, the Court employed the provisions of section 130(4)(b), which provide as follows:

In any proceedings contemplated in this section, if the court determines that-

(a) ...

(b) the credit provider has not complied with the relevant provisions of this Act as contemplated in sub-section 3(a) or has approached the court in circumstances contemplated in subsection 3(c), the court must-

(i) adjourn the matter before it; and

(ii) make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed;...”

[7] Thus, these applications were adjourned and provision was made in each instance for service of the notice on the Defendant and the subsequent setting down of the application after such service.

[8] The service requirements in each case were complied with and the matters set down for a resumption of the hearings, which came before me.

[9] Reference to clause 8.2 of the standard lease agreement in all the matters deals with the Plaintiff’s right to cancel the agreement on default. It reads as follows:

“8.2 Upon an event of default or the loss, damage or destruction of the vehicle as determined in 5.1 the Lessor may, subject to the

provisions of the Act and any other applicable legislation, at its election and without prejudice to any remedy which is [sic/ may have in terms of this agreement or otherwise -

8.2.1 without notice, claim immediate payment of all instalments, whether then due for payment or not, provided that if the Lessee does not make immediate payment, the lessor may, notwithstanding the election to claim immediate payment in terms of this sub-clause, claim the relief set out in clause 8.2.2 below; or

8.2.2 after due demand, cancel this agreement, obtain possession of the vehicle and recover from the Lessee, as pre-established liquidated damages, the total amount of payments not yet paid by the Lessee, whether same

are due for payment or not or the proceeds of any insurance policy paid by the Lessor in respect of the vehicle. In addition, the Lessor shall be entitled to claim from the Lessee any amount of any value added tax payable in respect of such damages. For the purpose of this sub-clause, "due demand” shall mean immediately on demand unless the Lessee is entitled to notice, in which case ‘‘due demand’’ shall mean the giving of such notice to which the Lessee is entitled”. (My emphasis)

[10] Reference to such clause reveals that a distinction is drawn therein between the right to cancel against a lessee who is not entitled to notice and the right to cancel against a lessee who is entitled to notice.

[11] Reference to the agreement (which as aforesaid is a standard agreement used by the Plaintiff) reveals that generally the rights of lessees are dealt with differently depending on whether or not the NCA applies to the transaction in question. I can discern no basis for distinguishing between lessees in relation to the right to receive notice, other than the applicability or otherwise of the NCA. Accordingly, on a literal interpretation of the clause in this context, it operates differently, depending upon whether or not the NCA applies.

[12] In terms of sub-clause 8.2.2 the Plaintiff is entitled “after due demand' to cancel the agreement and obtain possession of the vehicle. “Due demand" is defined to mean “immediately in relation to a lessee who is not entitled to notice” (i.e. where the NCA does not apply).

[1] Where, however, the lessee is entitled to notice (i.e. where the NCA does apply) “due demand' is defined to mean “the giving of such notice to which the lessee is entitled".

[2] The Defendants in these matters are “entitled” to receive either notices in terms of section 86(10) or section 129(1 )(a), depending on the circumstances of each matter.

[3] “Due demand" in terms of sub-clause 8.2.2 thus means the giving of such statutory notices. Pertinently, in terms of the clause, it is only after the giving of this notice that cancellation and return of the vehicle can ensue.

[4] Thus, the notice provisions in the NCA, which the Plaintiff is obliged to comply with before it may approach the Court for an order to enforce a credit agreement, have been expressly incorporated into the agreement so that they operate in this context as a lex commissoria. Accordingly, the right to cancel accrues only after the notices to which the Defendants are entitled in terms of the NCA (and thus the agreement) are given. The Plaintiff was not entitled to institute action before this cause of action had accrued (See Chesterfield Investments (Pty) Ltd v Venter 1972 (2) SA 19 (W); De Wet NO v Ace NO 1998 (4) SA 694 (T) at 706; Kragga Kamma Estates CC v Flanagan [1994] ZASCA 137; 1995 (2) SA 367 (A).)

[5] On the basis that the notices have been found by Foulks-Jones AJ not to have been delivered in the Mthethwa and Meseko matters, the causes of action in each matter had not yet accrued as at the date of the institution of the actions. Furthermore, such purported causes of action could not be verified by the deponent to the founding affidavit in each instance.

[18] The Hlope matter is on a slightly different footing to the other two matters in that there was no adjournment of the matter in terms of section 130(4). In this matter, the question of whether the Plaintiff had established that there has been proper delivery of the section 129 letter comes before me. In this regard, Mr Hlope, not only denies receipt of the letter, which is alleged to have been delivered to his domicilium address (which delivery was sought to be established by the Plaintiff in the normal way by a “track and trace report') but he puts forward an alternative “track and trace report' in respect of the same postal item. He alleged that this “track and trace report” was drawn from the website of the South African Post Office by his attorneys. It is significantly at variance with the “track and trace report' relied on by the Plaintiff. Whilst the document relied upon by the Plaintiff reveals that there has been a "first notification” to collect the document, this record of notification is absent from the report put forward by Mr Hlope. If Mr Hlope was indeed not notified to collect the document, then proper delivery has not been established.

[19] In this regard, it is pertinent that Cameron J had the following to say in relation to this notification in Sebola and Another v Standard Bank of South Africa Limited and another 2012 (5) SA 142 CC at pp166-167 paragraphs [77] to [79]:

“[77] The credit provider’s summons or particulars of claim should allege that the notice was delivered to the relevant post office and that the post office would, in the normal course, have secured deliver/ of a registered item notification slip, informing the consumer that a registered article was available for collection. Coupled with proof that the notice was delivered to the correct post office, it may reasonably be assumed in the absence of contrary indication. and the credit provider may credibly aver, that

notification of its arrival reached the consumer and that a reasonable consumer would have ensured retrieval of the items from

the post office.

[78] The evidence reguired will ordinarily constitute adeguate proof of delivery of the s 129 notice in terms of s 130. Where the credit provider seeks default judgment, the consumer’s lack of opposition will entitle the court from which enforcement is sought to conclude that the credit provider’s averment that the notice reached the consumer is not contested.

[79] If, in contested proceedings, the consumer assert that the notice went astray after reaching the post office, or was not collected, or not attended to once collected, the court must make a finding whether, despite the credit provider’s proven efforts, the

consumer’s allegations are true, and, if so, adjourn the proceedings in terms ofs 130(4)(b).”

(My emphasis)

[20] In the circumstances, Mr Hlope has made out a case for the non-delivery of the section 129 notice to his domicilium address.

[21] I was urged by Ms Stevenson, on behalf of the Plaintiff, thus to adjourn the Hlope matter in terms of section 130(4) in the

circumstances. However, given my findings above in relation to the defence which arises because of the lack of delivery of the notice qua contractual requirement (as opposed to statutory requirement) in my view such an adjournment would serve no purpose in that it would not resolve

the defence on the contract.

[22] In the circumstances, the Defendant in each instance has established that it has a defence to the claim on an interpretation of the agreement.

[23] It may well be argued by the Plaintiff in due course that, from the perspective of contractual (rather than statutory) compliance it is not necessary for it to go to the lengths described in the Sebola case supra. In this regard, there is a deeming provision in sub-clause 11.2 of the agreements which provides that any notice delivered by hand or sent by registered post to the lessee’s

domicilium “shall be deemed to have been delivered by hand on due date of delivery or, if sent by registered post, on the third day after posting". The counter-argument to this, however, is that clause 8.2.2, in importing into the contract the terms of the statute, has the effect that “the giving of such notice" has the meaning, as contained in the statute, which would include judicial pronouncements on the statute, including the requirements set out in the Sebola case supra at pp166-167.

[24] The fact that the Plaintiff has a possible argument in this regard does not, however, detract from the fact that the Defendants are able to establish a bona fide defence on the point. It may be that it would be necessary, in due course, at the trials to lead evidence pertaining to the intention of the parties in relation to the interpretation of sub-clause 8.2.2.

[25] In all the circumstances, I make the following orders:

1. In the matter under case number 2012/11001:

1.1 The application for summary judgment is dismissed.

1.2. The costs of the application will be costs in the main action.

2. In the matter under case number 2012/17723:

2.1 The application for summary judgment is dismissed.

2.2. The costs of the application will be costs in the main action.

3. In the matter under case number 2013/12927:

3.1 The application for summary judgment is dismissed.

3.2. The costs of the application will be costs in the main action.

DC FISHER

Acting Judge of the High Court

APPEARANCES:

For the Plaintiff:

Ms Rosalind Stevenson, instructed by Marie-Lou Bester Inc (011-486 0775) For the Defendant:

Mr K Lavine, instructed by Larry Marks Attorneys (011-440 5337)

DATE OF HEARING

10 June 2013

DATE OF JUDGMENT

_ July 2013