Standard Bank of South Africa Limited v Dreyer NO and Another (M15/2019) [2022] ZANWHC 64 (17 November 2022)

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

(NORTH WEST DIVISON, MAHIKENG)

CASE NO.: M15/2019

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

NOT REVISED

In the matter between:

STANDARD BANK OF SOUTH AFRICA LIMITED Applicant/Plaintiff And ANDRIES JOHANNES DREYER N.O. (ID NO:[…]) 1stRespondent/Defendant ERICA MARCIA DREYER N.O. (ID NO:[…]) 2ndRespondent/Defendant

(In their capacity as Trustees of the DOORNFONTEIN TRUST NO. IT 144/88)

JUDGEMENT

MFENYANAAJ

[1] This matter served before me as an opposed matter on 3 November 20 2. At the outset it bears

mentioning that although the ref pondents have filed opposing pa ers, no further submissions were made on behalf of the respondents. This is despite having briefed counsel, albeit, as I was informed by counsel, at the last minute to argue the matter.

[2] On resumption of the hearing, I was advised by counsel that certain concessions and conter-concessions had been made leading to an agreement between the parties in respect of the preliminary issues pertaining to the issues before the court. In particular the following orders were made by agreement between the parties:

(i) That application in terms of Rule 30 has been withdrawn with costs to be in the cause.

(ii) that the applicant has consented to the admission of the respondents' answering affidavit into evidence.

(iii) that the respondent has consented to the admission of the applicant's further supplementary affidavit

[3] In light of these concessions and the ensuing orders, two issues remain for determination by this court, namely, (i) whether this court has the necessary jurisdiction to hear this matter and (ii) whether the applicant has complied with the provisions of section 127 of the National Credit Act (the Act)[1] and therefore entitled to the relief sought.

[4] Advocate Venter submitted on behalf of the applicant that not only has the applicant complied with sectipn 127 of the Act, it has also complied with all the relevnt sect ons in the Act. He further submitted that in addition to what is required in terms of section 127, the applicant went further to despatch notices by registered mail to the respondents. This, he submitted, is not required in terms of the Act, but was done merely as a matter of courtesy.

[5] As far as the factual matrix of this matter goes, it is common cause that on 23 August 2019 the applicant obtained a repossession order against the respondents in respect of two agreements concluded between the parties. Having satisfied all the requirements, the applicant attended to the sale of the repossessed goods in respect of both agreements. The sales yielded a shortfall. The applicant now seeks an order for payment of the shortfall amount.

[6] Section 127 (5) states :

"(5) After selling any goods in terms of this section, a credit provider must -

(a) credit or debit the consumer with a payment or charge equivalent to the proceeds of the sale less any expenses reasonably incurred by the credit provider in connection with the sale of the goods;and

(b) give the consumer a written notice stating the following -

(i) The settlement value of the agreement immediately before the sale;

(ii) the gross amount realised on the sale;

(iii) the net proceeds of the sale after deducting the credit provider's permitted default charges, if applicable, and reasonable costs

allowed under paragraph (a); and

(iv) the amount credited or debited to the consumer's

[7] Section 127 (7) statel:

"[7] If an amount is credited to the consumer's account and it is less than the settlement value immediately before the sale, or an amount is debited to the consumer's account, the credit provider may demand payment from the consumer of the remaining settlement value, when issuing the notice required by subsection (5) (b}."

[8] As far as compliance goes, Mr Venter set out in detail, both in his written and oral submissions what section 127 requires. In summary, he stated that there is no obligation on the applicant to send any notice in respect of this section, by registered mail or ensure physical delivery or that the notice was in fact received by the respondents. Mr Venter further submitted that the notices in terms of sections 127(5) and (7) are, in practice usually combined into one notice. This was conceded to by the respondents in their heads of argument.

[9] Mr Venter further submitted that the applicant had fully complied with the provisions of the Act. He stated that subsequent to the repossession of the goods a valuation was done and the figures sent to the respondents and the contents thereof fully comply with the provisions of the Act. He submitted further that the notices were sent by email to the second respondent's email as provided and used by her prior to the order and subsequent thereto. He added that this was also the email the respondents used to send correspondence in respect of the present proceedings, and was further confirmed as the respondents' functional email when the respondents' previous

attorneys withdrew as their attorneys of record on 6 September 2021. He fu1her subritted that the applicant has provid],d proo1 of receipt and rtading y the respondents which is not disprted by he respondents. Mr Venter summed up by saying that the notices were received and read by the respondent. Thus there cannot be any suggestion that there was no compliance with this provision.

[10] Mr Venter submitted that the content of the notices are fully compliant with the Act and the amounts are reflected in the Certificates of Balance which were provided to the respondents. At the hearing of the matter updated certificates of balance were handed in.

[11] Having opposed the application, the respondents in their answering affidavit challenge the manner of delivery of the further

supplementary affidavit filed by the applicant. That is the essence of the respondents' answering affidavit. That issue has become

settled between the parties and thus requires no further mentioning. The rest of the issues were raised by the respondents in the heads of argument. To the extent that the respondents dedicated their opposition to whether or not the applicant was entitled to file the said further supplementary affidavit, and nothing else, the respondent's concession in respect of the said affidavit leaves the applicant's version in its entirety, unchallenged.

[12] It is settled law that a party stands or falls by its papers and the facts stated therein. It does not avail a party to seek to raise new averments in argument. The allegations raised in the respondent's papers have been overtaken by events and are thus of no consequence. Whatever is raised in the respondent's heads of argument, to the extent that it attempts to raise new allegations, is irrelevant and falls to be ignored. It is therefore little wonder that Mr Riley, who appeared on behalf of the respondents made no submissions at the hearing of the matter.

The law

[13] The provisions of sections 127(5) and (7) are self-explanatory. They are premised on, and follow upon the satisfaction of the preceding provisions of section 127 which relate to the termination of an instalment agreement and subsequent possession of the goods by the credit provider. It follows therefore that once a credit provider has satisfied the requirements of section 127(5), it would be entitled to demand payment of the shortfall in terms of section 127(7). Should such demand, being a demand which meets the requirements of these provisions not be complied with, the credit provider is entitled in terms of section 127(8)(a) to commence proceedings and obtain judgement.

[14] Mr Venter gave a thorough account of the applicant's compliance with these provisions. He demonstrated to the court how the applicants have from the granting of the order of 23 August 2019 sought to comply with that order and the provisions of the Act culminating in the present application, which followed on the applicant's crediting of the respondent's account with the proceeds of the sales as is required in terms of the Act. He referred the court to various judgements[2] on various aspects of the application. In dealing with the manner of the delivery of the notice, Mr Venter submitted that in the

Edwards[3] judgement the SCA confirmed that delivery of the notice is section 127 by registered mail is not what the legislature had envisaged when it used the words, 'give the consumer written notice'. He stated further that the respondents do not dispute that the notice was sent, or that they recived the notice as the email receipts show that the respondents not only received the notices but read them.

[15] According to the certificates of balance the respondents are indebted to the applicant in the amounts of R1 601 152.63 and R5 260 376.24 in respect of accounts 40 324 486/001 and

40 324 486/0002.

Conclusion

[16] To the extent that it can be said that the issue of jurisdiction was not canvassed by the respondents on the papers, it is a point of law which this court may not turn a blind eye on and which the court may raise mero motu. I agree with Mr Venter that in as much as there is concurrency of jurisdiction between the Magistrates' ourt and the High court, that does not oust the jurisdiction of the High Court. The observation made by the SCA in Mpongo[4] is instructive in this regard.

[17] The court held that:

"there are other indications in the NGA which demonstrate incompatibility with an ouster of the High Court's jurisdiction and strengthen the conclusion that no such inference of an ouster can be drawn.'[5]

[18] Any challenge on the jurisdiction of this court is therefore not sustainable. In any event it is trite that the High has an inherent jurisdiction to entertain any matter brought before it.

[19] As regards compliance, there can be no gainsaying that the applicant has satisfied all the requirements of the Act and is entitled to the relief it seeks. Once the applicant had 'proved that the notice was sent to (the respondents), (the respondents) had to explain why it was not reasonable to have expected the notice to reach (their) attention[6]. They have not done so. They bemoan the delivery of the notice at their chosen domicilium address. I have already found this was not required and as submitted by the applicant, was done out of courtesy and in addition to the email notifications.

Costs

[20] The general rule is that costs follow the result. The relief sought by the applicant is a natural progression in these kinds of matters. Having realised a shortfall, they were entitled to bring an application to recover the shortfall. I cannot find any justifiable reason why the respondents saw it fit to persist with their opposition for as long as they did, only to abandon much of it at the doorstep of the court.

There is thus no reason why the applicant should be put out of pocket in the circumstances. While the respondents' conduct warrants a punitive cost order, the scale of costs is also regulated by the agreement concluded between the parties.

Order

[21] In the result the following order is made:

1. This court has the jurisdiction to hear this matter.

2. The applicant is granted leave to file a further supplementary affidavit.

3. The late filing of the respondents' answering affidavit is condoned.

4. The respondents shall pay an amount of R1 601 152,64 together with interest thereon at the rate of 13.250 in respect of account number: 40 324 486/001, calculated from 23 November 2018 to date of payment.

5. The respondents shall pay an amount of R5 260 376.24 together with interest thereon at the rate of 13.250 in respect of account number: 40 324 486/002, calculated from 23 November 2018 to date of payment.

6. The respondents shall pay the costs of the application on attorney and client scale, including the costs of the Rule 30 application.

S MFENYANA AJ

ACTING JUDGE OF THE HIGH COURT

HIGH COURT,MAHIKENG

APPEARANCES

For the Applicant : Adv. A J Venter Instructed by: Martins Weir-Smith Attorneys C/O Maree & Maree Attorneys For the Respondents : Adv. B Riley Instructed by: HSL Du Plessis Attorneys C/O Smit Stanton Attorneys

Heard on: 3 November 2022

Judgement handed down on: 17 November 2022

[1] 34 o/2005

[2] Nedbank Limited v Silinda;also Nedbank v 1\1ateman; also Standard Bank v lvfpongo; also Baliso v FirstRand Bank.

[2] Nedbank Limited v Silinda;also Nedbank v 1\1ateman; also Standard Bank v lvfpongo; also Baliso v FirstRand

Bank.

[3] Edwards v FirstRand Bank Ltd 2017(1) SA 316 (SCA).

[4] Standard Bank of South Africa Ltd and Others v Mpongo and Others 2021 (6) SA 403 (SCA).

[5] Per Sutherland AJA (as he then was) with Maya P, Petse JA, Dambuza JA and Plasket JA concurring at para 80.

[5] Per Sutherland AJA (as he then was) with Maya P, Petse JA, Dambuza JA and Plasket JA concurring at para

80.

[6] Edwards supra; at para 44.