SA Taxi Securitisation (Pty) Ltd v Nako and Others (19/2010, 21/2010, 22/2010, 77/2010, 89/2010, 104/2010, 842/2010) [2010] ZAECBHC 4 (8 June 2010)

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

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, BHISHO

Reportable: Yes

CASE NOS: 19, 21, 22, 77, 89, 104 & 842 / 2010

DATE HEARD: 11th May 2010

DATE DELIVERED: 8th June 2010

In the matters between:

SA TAXI SECURITISATION (PTY) LTD Applicant And LULAMA SHEILA NAKO 1st Respondent NELSON KAMENI MZWANDILE 2nd Respondent ZUKISANI DIELAPHANTSI 3rd Respondent VUMILE ZOTE 4th Respondent ZOTONONO JAMES MBOXWANA 5th Respondent BONGINKOSI MZILENI 6th Respondent TATANA JOSEPH AUGUST 7th Respondent

JUDGMENT

KEMP AJ

A Background

[1] The Applicant in this matter brought applications for summary judgment against the Respondents. Although all of the applications were opposed, there was no representation for the third Respondent when the matter was called and it was agreed, although there were slight differences between some of the matters, to deal with all of them together. Mr Clark represented all of the Respondents except for the third, and Mr Mundell represented the Applicant.

[2] It was common cause that the Applicant had financed motor vehicles which were supplied to the Respondents, to be used as taxis. The Respondents all fell into arrears, some sooner than others, and although they had all applied to be placed under debt review, the sixty day period referred to in section 86(1) of the National Credit Act (“the Act”) [1] had lapsed, and after waiting for the ten day period referred to in section 130(1)(a) of the Act, the Applicant cancelled the agreements and thereafter issued summons against the Respondents, seeking confirmation of the cancellation of the agreements, return of the

vehicles, damages and costs.[2] The Respondents all entered appearances to defend and in their oppositions to the Applicant’s applications for Summary Judgment, alleged that they were protected from the relief sought on two main grounds, namely that the lease agreements constitute reckless credit agreements and secondly, that applications in terms of section 87 are pending before a magistrate’s court.

[3] Although I am in respectful agreement with Plasket J, who in a recent judgment found that it was not a defence to a claim for the return of the vehicles that the credit extended had been extended recklessly,[3] I will however also deal with the merits of the alleged defences raised under this heading.[4]

The Respondent in each case set out reasons why he or she thought that the credit had been extended recklessly. They all maintained that they had consulted a firm of debt consultants, that they had been properly placed under debt review and other than the 5th Respondent, they all disputed receiving notice in terms of section 129(1) of the Act,[5] they all alleged that they had applications in terms of section 87 pending before the magistrate’s court, when they would also request that the debt review process be resumed in terms of section 86(11).

B The Issues

[4] What I am called upon to determine is thus whether the credit provider’s rights in respect of the subject matter of the agreement would be limited:

by a finding that the credit provider extended credit recklessly;

notwithstanding the valid termination of the debt review process (if the debt review process had been validly terminated);

by a proposal by the debt counsellor to a magistrate in terms of section 87.

C Allegations by the Respondents

[5] Other than the 5th Respondent, who relied entirely upon the construction of section 85(a) and (b) of the Act, the other Respondents all alleged that as the agreement constituted a reckless agreement, that they were therefore entitled to an order setting aside or suspending the agreement, although they did not make any submissions regarding the motor vehicles financed in terms of the agreement in the event of the agreements either being set aside or suspended, nor for how long the terms of suspension should be, on what conditions they should be suspended, or what their payments in that event should be.

[6] The 3rd Respondent also alleged that as the agreement had failed to provide for the dates on which subsequent payments should be made, and as he had not been informed on which dates payments should be made, even though he had been advised on what date the first payment should be made, that the Applicant should have first given him notice of the date on which payment should have been made, and that he was therefore not in mora. He alleged furthermore that no demand had been received prior to the cancellation of the agreement. It appears that clause 1.1 of the agreement provides for a date provided for in Part D of the agreement, which date was inserted, but that subsequent instalments

were to be paid on the stipulated Payment Date, and that there was no such date provided for in the agreement. The 3rd Respondent

nonetheless alleged in paragraph 22 of his affidavit that he made regular payments under his debt counsellor’s proposal. I am in respectful agreement with Levenberg AJ,[6] before whom a similar defence was raised. As in that case, there was a first instalment date and a provision for 60 equal monthly instalments and each subsequent instalment would have had to be paid within a month of the last.

[7] Other than the 5th Respondent, who as indicated above, relied only upon the construction of section 129(2) for his opposition, they all denied that an assessment as required in terms of section 80(1)(a) had been conducted, alternatively alleged that if it had been conducted, that:

“the preponderance of information available to it would clearly have shown that I did not understand or appreciate the risks, costs and obligations thereof,”

and submitted that on those grounds they were entitled to an order setting aside or suspending the agreement. Once again no submissions were made about what should happen in such an event.

[8] The balance of the Respondents also alleged that if an assessment had been carried out that it would have shown that entering into the agreement would have rendered them over indebted, and once again argued for the setting aside or suspension of the agreement, with no submissions about what should happen in such event, that they were in fact currently over – indebted and that they would accordingly be entitled to the relief provided for in section 85(a) or (b).[7]

D Section 129(2)[8] Defence

[9] The 5th Respondent, Mboxwana, relied only upon the provisions of section 129(2) of the Act, which he maintained, provided that the Applicant did not have the right to institute legal proceedings against him as the debt owed to it was subject to proceedings in the East London Magistrate’s Court that could result in a debt restructuring order. I do not agree. All section 129(2) provides is that the credit provider does not have to give notice proposing that the credit receiver refers the credit agreement to a debt counsellor, etc, if the credit receiver has already done so. The contention that section 129(2) prohibits the credit provider from taking action appears to be clearly incorrect.[9]

E Reckless Credit – The Specific Allegations

[10] In support for their contentions that the agreements had been entered into recklessly, the balance of the Respondents provided some background facts. They were contacted or made contact with a representative of a motor vehicle dealer and were advised to supply them with their drivers license, a copy of their identity document, three months bank statements, proof of address, in some cases a copy of their public driving permit, and a deposit, the amount of which required varied from R40,000 to R70,600. The Respondents were then contacted by the representative, some on the same day, others a few days later, and told that their application had been successful and that they could make arrangements to collect their vehicles. They were then given the agreement to sign, none of

them were given time to read it, it was not translated for them into their mother tongue, isiXhosa, and they were not advised that there would be interest payable, nor that it could fluctuate. They were all under the impression that ownership in the vehicle would pass to them on delivery, and other than in a few instances, and only in a very limited manner, they were not asked for any details relating to their financial means or ability to pay the instalments, income or expenditure.

[11] None of them alleged that they were maintaining instalments as required in the contracts or, besides the 3rd Respondent, Dielaphantsi, denied that the amounts claimed by the Applicant, if calculated in terms of the agreement, were due.

[12] I will now deal with each application to the extent that there may be differences between them.

1st Respondent - Nako

She was advised what the monthly instalment was but was allegedly never advised what the actual purchase price of the vehicle was. She was asked whether she could afford to pay the instalment of R8,198.99 per month, which she confirmed she could. She was asked for a deposit of R55,000.00, which she paid. Although the agreement only reflected that she had paid R50,000.00, the representative assured her that the R5,000.00 would be reflected in due course. Her first instalment of R8,198.99 was due on the 1st March 2009 and her arrears on the 21st December 2009 amounted to R10,979.04.

2nd Respondent - Kameni

[13] He paid a deposit of R70 600.00. He was asked if he could afford the instalment of R7 429.00 per month, to which he appears to have confirmed that he could, although on being asked what his net income was per day he alleged that he told them that it was approximately R150.00 per day. His first instalment of R8 198.99 was due on the 1st March 2009 and his arrears on the 21st December 2009 amounted to R19,447.96.

3rd Respondent - Dielaphantsi

[14] In addition to the other defences, he also maintained that he had never received a demand and that this was a pre-requisite to a proper cancellation. He also maintained that his debt counsellor had proposed a payment of R5,000.00 per month. He maintains that at a time when it became clear that the Appellant was not responding to the restructuring proposal, his Debt Counsellor advised him to proceed to make the payments as per his proposal, which he then did.

[15] He also alleged that he had made total payments of R192,455.94 under the agreement, including a deposit of R55,000. The amount paid appears to be incorrect, especially when regard is had to the first instalment of R8,674.62 only being due on 1 June 2009. In proof of his submission that he had made the payments alleged he annexed as “N3” to his affidavit what he alleged was proof of payment to the Applicant. Before dealing with N3 I will deal with N2, which was the proposal by his Debt Counsellor dated 21 September 2009, in which his debt counsellor noted that his outstanding commitment to the Applicant was R217,943.96. This appears

to have been the figure that his debt counsellor received in the certificate of balance. N3 commences with what appears to be an

extract from a ledger account. The last page of N3 is what appears to be a print out emanating from a firm of attorneys, and the first page appears to be a ledger printout from the same firm of attorneys. What is revealing, is that it commences with a debit, passed by way of journal entry, of R396,305.00 on the 1st September 2009 and then on the same day another journal entry passes a credit of R178,351.04. The credit does not appear to be a payment to the Applicant. Underneath the credit are four further credits. The first, on the 1st October 2009 appears to be a payment to the Applicant, of R35.40, the second to fourth payments took place on the 1st November 2009, the 1st December 2009 and the 1st January 2010, all for amounts of R4,888.50. Copies of extracts from the banking records of the attorneys are then reflected on the next three pages, confirming three of the payments, although the dates vary, and on the last page is what appears to be the firms total payments to the Applicant, which does not appear to relate to the Respondent, as it is a figure of R762,585.51. It appears to be clear from the printouts and also from the Debt Counsellor’s proposal, that the Respondent never made a payment of R176,351.04 and that that conclusion was reached by whoever drafted his opposing affidavit, without carefully considering all of the documents. His averment that he has made regular payments under his debt counsellor’s proposal is also at odds with a payment of R176,351.04 being made. His denial of the arrear amount of R20,563.18 claimed by the Applicant can not be sustained if he alleges in justification therefore that he has maintained payments under his debt counsellor’s proposal.

[16] In any event, by saying that he has made payments under his debt counsellor’s proposal he is admitting that he has paid less than required and can therefore not be heard to deny that he is in arrears.

[17] It appears quite clear that the Respondent failed to make the first instalment of R8,674.62 on the 1st June 2009 and that this version would be consistent with the Applicants contention that his arrears amounted to R20,563.18 on the 21st December 2009, if one considers that seven instalments would have been due, less the approximately R15,000.00 that the Respondent appears to have paid. It is possible that he might have paid something besides what he has revealed to his Debt Counsellor, but the Applicant’s allegation that he is in arrears appears to be consistent with the facts.

4th Respondent - Zote

[18] He paid a deposit of R55,000.00 and although he was advised what the instalment was he informed them prior to signing that it was too high. He was allegedly informed that as the documents had been prepared that he had to sign them. He addressed a letter to the Applicant advising them that he could not afford the monthly instalment anymore as a result of which they reduced the instalment by R124.02 to R7,000.00, which he still struggled to pay.

6th Respondent - Mzileni

[19] The Respondent in this matter paid a deposit of R50,000.00, in addition to providing the other documents requested. He alleged that he informed the salesman that he only earned approximately R5,000.00 per month and that the instalment for the new taxi should be in that region. When he returned to sign, a few days later, he noted that the payment was in the region of R9,000.00 and allegedly advised the salesman that he had previously told him that he could only afford R5,000.00 per month. The response was allegedly to the effect that that instalment was based on people staying in Gauteng and that it would be reduced as he was based in the Eastern Cape.

[20] Also annexed to his affidavit was an affidavit by his debt counsellor, confirming that an application was pending. The application allegedly went to Court on the 9th March 2010 but the matter was postponed by agreement to the 25th May 2010. Mr Clark argued that it would be incongruous for this court to rule on a matter which was effectively sub judice before a magistrate’s court. I do not agree. What the magistrate is due to decide is whether to agree with the debt counsellor’s

proposal, whether the agreement constituted a reckless agreement, and whether the debt review process should be reinstated. The

magistrate’s order cannot operate retrospectively and cannot affect the facts that were before me when these applications were argued.[10] If the magistrate’s court orders that the debt be restructured or that the debt review process should be reinstated then those orders are quite capable of being carried into force, whether or not the agreement is cancelled and whether or not I order that the vehicles be returned.

7th Respondent - Tatana

[21] The Respondent, clearly a male if regard is had to his name, Joseph, and the four relevant digits of his identity number, alleged in the opening paragraph of his affidavit that he was a female. This was no doubt a typographical error which seems to be confirmed by a subsequent allegation in his affidavit that he travelled to Vereeniging with his wife. The reason I mention this apparently

insignificant error is that most of the opposing affidavits were obviously similar, with only certain relevant facts changing. Whilst the Respondents cannot be penalised for using the same attorneys who use similar pro forma affidavits if the facts are indeed similar, the impression is created that these oppositions could just be opportunistic attempts, either by the debt counsellors concerned, who it must be borne in mind, earn not insignificant fees,[11] or by the Respondents concerned.

[22] The Respondent in this matter had to pay a deposit of R40,000.00 and had to provide the usual documents. He was given R100.00 for petrol and was also asked if he could afford to make payment of the R7,949.78 required, which he indicated that he could.

F - Reckless Credit

[23] Section 81 of the Act provides as follows:

“ Prevention of reckless credit

(1) When applying for a credit agreement, and while that application is being considered by the credit provider, the prospective consumer must fully and truthfully answer any requests for information made by the credit provider as part of the assessment required by this section.

(2) A credit provider must not enter into a credit agreement without first taking reasonable steps to assess-

(a) the proposed consumer's-

(i) general understanding and appreciation of the risks and costs of the proposed credit, and of the rights and obligations of a consumer under a credit agreement;

(ii) debt re-payment history as a consumer under credit agreements;

(iii) existing financial means, prospects and obligations; and

(b) 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.”

[24] It appears from the affidavits of the Respondents that they were not required to complete any application forms regarding their income and expenditure, or to disclose the extent of their outstanding commitments. They were only required to submit proof of their addresses, a copy of their identity documents, three months bank statements, in some cases copies of their public drivers licenses and copies of their drivers licenses. The question must then be asked whether the credit provider took reasonable steps

to assess:

· the proposed consumer's general understanding and appreciation of the risks and costs of the proposed credit, and of the rights and obligations of a consumer under a credit agreement;

their debt re-payment history as a consumer under credit agreements;

·their existing financial means, prospects and obligations; and whether there was 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.

G Reckless Credit – Evaluative Mechanisms And The Discretion Of The Credit Provider

[25] It must be borne in mind that in terms of section 82 of the Act that the credit provider is entitled to determine for itself the evaluative mechanisms or models and procedures to be used in meeting its assessment obligations under section 81, provided that they result in a fair and objective assessment.

The court can probably take judicial notice of the fact that credit checks are available to anyone with a computer and access to the internet. Armed with an identity number, three months bank statements and proof of a residential address, a prospective credit provider could probably comply relatively easily with all of the requirements barring the first:

gthe proposed consumer's general understanding and appreciation of the risks and costs of the proposed credit, and of the rights and obligations of a consumer under a credit agreement.”

[26] It is debatable whether, armed with the information given and whatever access to computerized credit checks the credit provider no doubt obtained, they were not adequately armed with sufficient information to make an informed decision on the first criterion. To label such a decision as reckless would I feel, be a little presumptuous and not take into account the realities of the modern business world.

[27] Beyond making the bald statement that:

“An assessment would also have shown that entering into the agreement would have rendered me over indebted”,

none of the Respondents set out what their financial positions were when they applied for the finance and the court is unable to establish from what they have set out whether there is any merit in their argument that the agreements were in fact entered into recklessly in the sense that the credit receivers were in fact unable to service the instalments at the time when the agreements were entered into.

[28] Reckless credit is defined in section 80 as being a credit agreement wherein a credit provider failed to conduct an assessment as required by section 81, irrespective of what the outcome of such an assessment might have concluded at the time, or if they did conduct an assessment, entered into the agreement despite the fact that the preponderance of information available indicated that the consumer did not generally understand or appreciate the consumer’s risks, costs or obligations under the proposed credit agreement, or where entering into that agreement would make the consumer over-indebted.

H Reckless Credit - Conclusion

[29] I do not believe that it can be postulated as a general rule that a credit provider who has taken a policy decision to grant credit on the basis of the information supplied by the Respondents in the current matters, together with background information that is readily available to credit providers today, has granted credit recklessly. I am also satisfied that the Respondents would in any event have to hand back the vehicles if the agreement is set aside or suspended.[12]

[30] What in my view is fatal to the Respondent’s opposition is the fact that the Act does not prohibit the Applicant from cancelling the agreement in the event of a breach, and once validly cancelled, the Act does not permit its re-instatement.[13] Once the agreement has been cancelled it would appear that the credit receiver is still afforded the protection of the Act with regards to the balance outstanding but that the credit provider is entitled to the residual obligations flowing from a valid cancellation of an agreement.[14]

I The Law

[31] Counsel referred to a number of judgments in support for their respective arguments. Mr Mundell, for the Applicant, relied heavily on the SA Taxi Securitisation (Pty) Lts v Mbatha case,[15] whilst Mr Clark, for the Respondents, relied primarily on the Changing Tides judgment. [16]

[32] Mr Clark argued that the Changing Tides judgment was clear. It prohibited any legal action whilst an application for a debt review was pending before a magistrate. The only qualification to this rule was if the application was not prosecuted with expedition. He relied for this argument on the following dictum by Binns Ward AJ:

…In the ordinary case it would be inappropriate for a credit provider to give notice in terms of the provision if a relevant application was already pending before a magistrates’ court and being prosecuted with reasonable efficiency. The object of the provision of s 86(10) cannot be to permit a credit provider carte blanche, without good reason, to negate the operation and effect of a debt review process instigated in terms of s 86 of the NCA.[17]

[33] It must be borne in mind that the learned judge was dealing with applications where the subject matter of the disputes were the

defendant’s homes. The bar against the applicant for summary judgment is of necessity raised higher in such a case.[18] Although it may well be inappropriate[19] for a credit provider to give notice in terms of section 86(10) if an application was already pending before a magistrate’s court and being prosecuted with reasonable efficiency, it does not appear to me that on a proper construction of the statute, that the credit provider’s right to terminate can be curtailed just because it may be inappropriate or offend ones sense of moral fair play. As pointed out by Mr Mundell, the learned judge went on to say that:

“The evident purpose of the notice by a credit provider in terms of s 86(10) of the NCA is to enable the consumer and/or the debt counsellor to urgently bring an application to a magistrate in terms of s 86(7)(c), or 86(8)(b) if that has not by then already been done, alternatively, if such an application is already pending, to approach the magistrate for an order in terms of s86(11) of the NCA that the debt review should be resumed. I can conceive of no other reason for the requirement in terms of s 130(1)(a) of the NCA that at least 10 business days must have elapsed after notice to the consumer as contemplated in terms of s 86(1) before a credit provider may institute proceedings for the enforcement of a credit agreement.” [20]

[34] It appears to me that the learned judge recognized the right of a credit granter to validly terminate the debt review procedure in terms of section 86(10) and to commence legal proceedings in terms of section 86(1), and his comments regarding the inappropriateness of a credit provider cancelling the process notwithstanding an application to the magistrate’s court appear then to be obiter.

As indicated above, I am in respectful disagreement with the conclusion reached by Kathree-Setiloane AJ in Standard Bank of South Africa Limited v Kruger.[21] The learned judge commences her interpretation of section 86(10) of the Act by having regard to the purpose and objectives of section 86 of the Act and the Act as a whole,[22] and then concludes that:

gThe purpose of the Act is clearly to promote and protect consumers. The Act must accordingly be interpreted to give effect to this core purpose.”

[35] I am unable with respect, to agree with that summary of the purpose of the Act. The Act has many other objectives, among them to provide for the promotion of responsible credit granting, with all of the complexities that entails. To interpret the Act through the lenses of “the promotion and protection of consumers” is with respect to lose sight of the other objectives of the Act and to load the bias in favour on consumers unfairly against the rights of the credit providers and ultimately, to potentially prejudice the rights of consumers, as their well being and accessibility to credit is premised on a healthy and profitable industry.

[36] The learned judge views as untenable the idea that a creditor can rely on the inability of a magistate’s court to finalise an application in terms of section 86(7) within sixty days of the application by the credit receiver to the debt counsellor, meaning effectively less than sixty days for the magistrate’s court, depending on how long the debt counsellor took, and concludes that section 86(10) only permits a credit provider to terminate a debt review that has not been submitted to a magistrate’s court.

[37] Once a debt review has been submitted to a magistrate’s court in terms of section 87 then the relief afforded under section 86(10) she held, is no longer available. The learned judge found that any other interpretation would lead to an absurdity, as any delay occasioned at the instance of the court or even any delay due to unforeseen circumstances would deprive the consumer of the opportunity to have the matter properly determined by that court.[23] Any other view, the learned judge held, would not be consistent with the core objective of the Act, which as the learned judge put it, is the promotion and protection of consumers.[24]

[38] The learned judge referred to the concerns expressed by Lamont J in the Firstrand Bank matter, [25] that a debt counsellor could delay matters indefinitely and although sharing his concerns, pointed out that in the matters before her, the matters had been referred to the magistrate’s court and that although she agreed that there was a lacuna in the Act, appeared to think that it would not result in anomalies in all cases. The learned judge again sought to interpret the provisions of section 86(10) in the light of:

gtheir proper context and not to the detriment of the consumer, which the Act so clearly seeks to protect.”

[39] What the learned judge appears, with respect, to have lost sight of, are the provisions of section 86(11) of the Act, which provides:

gIf a credit provider who has given notice to terminate a review as contemplated in subsection (10) proceeds to enforce that agreement in terms of Part C of Chapter 6, the Magistrate's Court hearing the matter may order that the debt review resume on any conditions the court considers to be just in the circumstances.

[40] Section 87 is itself dependant on a proposal made in terms of section 86. To argue that because section 86(10) is qualified by the words “that is being reviewed in terms of this section” that the review considered in the sub section is only the review by the debt counsellor, loses sight of the fact that the section 87 procedure is based on a proposal made in terms of section 86 and also loses sight of the protection expressly afforded the credit receiver in terms of section 86(11). It would otherwise appear to have been unnecessary to use the words “hearing the matter”, which clearly appear to apply to a matter pending before it. If the learned judge’s interpretation is correct then there would have been no matter before the magistrate in terms of section 86(10) and no need to use the words “hearing that matter.”

[41] What must not be ignored in the balancing act between the competing rights and obligations are the rights of the credit granter. The credit granter is entitled to payment of the instalments until such time as a court orders to the contrary and the Act recognizes that if a credit receiver is in breach, that the credit provider may, subject to the restrictions contained in the Act, cancel the agreement and regain possession of the subject matter of the agreement. The credit provider is then obliged to dispose of the goods and to credit the credit receiver’s account with the proceeds.[26] If a particular interpretation of the Act leads to absurdities, then I would prefer to choose the interpretation that leaves the existing law as untroubled as possible and would rely on the legal presumption that statute law does not alter the existing law more than is necessary.[27] As conceded by Kathree-Setlioane AJ when considering the difficulties pointed out by Lamont J, her interpretation of the Act also leads to the anomaly that a mala fide credit receiver could suspend all proceedings against him or her by abusing the provisions of the Act.

J Conclusion

[42] I am not satisfied that the Respondents have raised a defence on the papers. It appears to me on the contrary, that the Applicant has validly cancelled the agreements in terms of the Act, and is entitled to the subject matter of the agreements. Notwithstanding the cancellation of the agreements, residual obligations remain,[28] one of the residual obligations being to pay costs as between attorney and client in the event of the credit provider having to enforce its rights in the courts.

[43] Summary judgment is accordingly granted in favour of the Applicant, with costs as between attorney and client, against the Respondents listed hereunder, as follows:

(a) LULAMA SHEILA NAKO (case no. 19/2010), for the return of the 2009 TOYOTA QUANTUM SESFIKILE with engine number 2[...] and chassis number J[...] to the plaintiff forthwith;

(b) NELSON KAMENI MZWANDILE (case no. 21/2010), for the return of the 2007 TOYOTA SIYAYA 12 SEATER with engine number 4[...] and chassis number A[...] to the plaintiff forthwith;

(c) ZUKISANI DIELAPHANTSI (case no. 22/2010), for the return of the 2009 TOYOTA QUANTUM SESFIKILE with engine number 2[...] and chassis number J[...]0 to the plaintiff forthwith;

(d) VUMILE ZOTE (case no. 77/2010), for the return of the 2007 TOYOTA SIYAYA 12 SEATER with engine number 4[...] and chassis number A[...]5 to the plaintiff forthwith;

(e) ZOTONONO JAMES MBOXWANA (case no. 89/2010), for the return of the 2009 FOTON 2.2 PETROL 13 SEATER with engine number B[...] and chassis number L[...] to the plaintiff forthwith;

(f) BONGINKOSI MZILENI (case no. 104/2010), for the return of the 2009 TOYOTA QUANTUM SESFIKILE with engine number 2[...] and chassis number J[...]9 to the plaintiff forthwith;

(g) TATANA JOSEPH AUGUST (case no. 842/2010), for the return of the 2008 TOYOTA QUANTUM SESFIKILE with engine number 2[...] and chassis number J[...]5 to the plaintiff forthwith.

L D KEMP

ACTING JUDGE OF THE HIGH COURT

Counsel for the Applicant : Adv Mundell Attorneys for the Applicant : Marie-Lou Bester Inc. c/o Smith Tabata Inc 126 Alexandra Road KING WILLILAM’S TOWN Counsel for the 1,2,4,5, 6 & 7th Respondents : Adv Clark Attorneys for the 1, 2, 4, 6 and 7th Respondents: Cr Knoesen Attorneys c/o Hutton & Cook Sutton Square KING WILLIAM’S TOWN Attorneys for the 5th Respondents: Gerhard Stoltz Inc c/o Eybers Attorneys 31 Arthur Street KING WILLIAM’S TOWN

[1] Act 34 of 2005.

[2] Mr Mundell, for the Applicant, advised at the hearing of the matter that the Applicant would only be seeking Summary Judgment for the return of the vehicles and costs as between attorney and client.

[3] SA Taxi Securitisation (Pty) Ltd v T Booi and Three other similar matters (ECG), an unreported judgment handed down on 20 May 2010 under case no’s 4077, 5065, 4021 and 5069/2009, at page 19 para 51.

[4] The Act has proven to be fertile ground for litigation and there are many opposing views on the interpretation of the various sections of the Act. See for instance Roestoff, M 2009, 'Enforcement of a credit agreement where the consumer has applied for debt review in terms of the National Credit Act 24 of 2005. First Rand Bank v Smith (unreported case number 24208/08 (WLD))', Obiter, vol. 30, no. 2, pp. 430-437, in a criticism of an unreported judgment by Lamont J under case No. 24205/08, (incorrectly referred to in the article as 24208/08) handed down on 31 October 2008. Lamont J appears to advocate a reasonable period of time in which the debt review process should be completed, and proposes a period of three months, or sixty court days. Roestoff points out that s 86(10) provides for exactly that period of time, after which the credit provider is entitled to terminate the debt review process in terms of s 86(10), and maintains that it is unnecessary to provide for time limits already provided for in the Act. See also Standard Bank of South Africa Limited v Kruger and Others (GSJ), an unreported judgment by Kathree-Setiloane AJ (Case No.s 45438 and 39057/2009, (with which I respectfully disagree for the reasons mentioned hereunder at paras 34 et seq) where the learned judge found that once a debt review is referred to a Magistrate’s Court for consideration, that any termination

of the debt review would be unlawful. (at page 10 para 14).

[5] Although the Applicant never alleged in either the Particulars of Claim or the affidavit supporting the application for Summary

Judgment that there had been compliance with s 129(1), it was probably what prompted the Respondents to see their debt counselors.

The notice is however peremptory (See Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors) 2009 (2) SA 512 (D), unless s 129(2) applies, as it does here, due to the fact that the Respondents all had applications pending before the Magistrate’s

Court that could result in a debt restructuring order. (although Kathree-Setiloane AJ had a contrary interpretation of s 129(2) in Standard Bank of South Africa Limited v Kruger and Others, as discussed in para 10 and footnote 9 hereunder).

[6] See SA Taxi Securitisation (Pty) Ltd v Mbatha & 2 Similar Matters (GSJ) Case numbers 51330/09, 52948/09 & 53080/09 an unreported judgment handed down on 30 March 2010.

[7] In terms of section 85 (a) and (b): “ …the court may- (a) refer the matter directly to a debt counsellor with a request that the debt counsellor evaluate the consumer's circumstances and make a recommendation to the court in terms of section 86 (7); or (b) declare that the consumer is over-indebted, as determined in accordance with this Part, and make any order contemplated in section 87 to relieve the consumer's over-indebtedness.”

[7] In terms of section 85 (a) and (b):

“ …the court may-

(a) refer the matter directly to a debt counsellor with a request that the debt counsellor evaluate the consumer's circumstances and make a recommendation to the court in terms of section 86 (7); or

(b) declare that the consumer is over-indebted, as determined in accordance with this Part, and make any order contemplated in section 87 to relieve the consumer's over-indebtedness.”

[8] S 129 provides as follows: “Required procedures before debt enforcement (1) If the consumer is in default under a credit agreement, the credit provider- (a) may draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date; and (b) subject to section 130 (2), may not commence any legal proceedings to enforce the agreement before- (i) first providing notice to the consumer, as contemplated in paragraph

(a), or in section 86 (10), as the case may be; and (ii) meeting any further requirements set out in section 130. (2) Subsection (1) does not apply to a credit agreement that is subject to a debt restructuring order, or to proceedings in a court that could result in such an order.”(my emphasis)

[8] S 129 provides as follows:

“Required procedures before debt enforcement

(1) If the consumer is in default under a credit agreement, the credit provider-

(a) may draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date; and

(b) subject to section 130 (2), may not commence any legal proceedings to enforce the agreement before-

(i) first providing notice to the consumer, as contemplated in paragraph

(a), or in section 86 (10), as the case may be; and

(ii) meeting any further requirements set out in section 130.

(2) Subsection (1) does not apply to a credit agreement that is subject to a debt restructuring order, or to proceedings in a court that could result in such an order.”(my emphasis)

[9] I disagree, with respect, with the learned judge in the Standard Bank v Kruger matter (supra at para 26) where she concludes that s 129(2) confirms that a termination in terms of s 86(10) is precluded once a matter has been reviewed in terms of s 87. All s 129(2) does, in my respectful view, is recognize that notice to a credit receiver recommending that the matter be referred to a debt counselor is superfluous, if it has already been referred to a debt counselor.

[10] See as to finding against retrospectivity of a Magistrate’s Court order an unreported judgment by Dambuza J in Stow v Firstrand Bank and Another (ECP) (Case No 536/2010) delivered on 25 May 2010.

[11] Five per cent on the first two years payments and then two per cent thereafter. Bearing in mind that each applicant’s indebtedness

was a few hundred thousand rand, it could be a lucrative source of business, with no shortage of willing applicants.

[12] See SA Taxi Securitisation v Booi and Others (supra) at p 19 para 51 “…even if the credit extended to the defendants was recklessly extended, that is no defence to the claims of the plaintiff for the return of the vehicles.”

[13] See s 129(4)(c) of the Act.

[14] See SA Taxi Securitisation (Pty) Ltd v Booi and Others (supra) at p 14 para 41:“The effect of cancellation is to end the primary obligations of the parties – their obligations to perform – but it does not terminate secondary obligations…,” and the authorities quoted therein.

[15] Supra.

[16] Changing Tides 17(Pty) Ltd NO v Erasmus and Another; Changing Tides 17(Pty) Ltd NO v Cleophas and Another; Changing Tides 17(Pty) Ltd NO v Frederick and Another (WCC) Unreported case no. 18153/09, 12 November 2009 by Binns-Ward AJ.

[17] At para 30, dealing with the credit provider’s right to cancel in terms of s 86(10).

[18] See pages 7-8, para 10 of the judgment. “Section 26(3) of the Constitution does underscore the susceptibility of direct execution clauses ot the courts’ discretion when it comes to the granting or refusal of prayers for their enforcement if that would affect a defendant’s occupation of hi/her home. When it is apparent that there is reasonable prospect that less harsh or invasive means are available for the settlement of the underlying indebtendness, the couts are obliged to be circumspect about the specific enforcement of such contractual provisions. In each of the current matters the debt review and re-arrangement provisions of the NCA appear on the face of the facts that may be discerned on the papers to afford a basis for the possibility of a less harsh or invasive means having been available; assuming that the Act had been properly applied.”

[19] See the Changing Tides judgment at page 24 para 30.

[20] At para 32.

[21] Supra.

[22] At page 5 para 10.

[23] At page 11 para 16.

[24] At p 11 para 17.

[25] Supra.

[26] In terms of s131, read with s 127(5) - (9) of the Act.

[27] See Joubert The Law of South Africa First Reissue 25 Part 1 – 328.

[28] See SA Taxi Securitisation (Pty) Ltd v Booi and Others (supra) at p 14 para 41