Standard Bank of South Africa Limited v DT Jordan Carries (Pty) Limited (M14/19) [2020] ZANWHC 89 (21 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: M14/19

In the matter between:-

THE STANDARD BANK OF SOUTH AFRICA LIMTED

Applicant

and

DT JORDAN CARRIES (PTY) LIMITED

Respondent

(Registration Number: 2012/193158/07)

JUDGMENT

LEEUW JP

Introduction

[1] On the 29 January 2019 the applicant approached this Court, seeking the following order in terms of Notice of Motion:

“1. Confirming the cancellation of instalment sale agreement number 402070972/001

2. That the respondent shall immediately return the 2014 UD Truck GW26 490 TT with engine number GH13605134 and chassis number ADDE1100000001818 to the applicant:

3. That the applicant be granted leave to apply to this court on the same papers duly supplemented for an order that the respondent make payment to the applicant of any amount due to the applicant after the inspection, valuation and sale of the goods referred to in prayer 2 above;

4. That the respondent be ordered to pay the costs of this application on the attorney and client scale:”

The application is opposed by the respondent.

[2] The applicant is the Standard Bank of South Africa Limited (the Bank) a duly registered credit provider. The respondent D T Jordan Carriers (Pty) Ltd (Jordaan Carriers), is a duly registered company and is represented in these proceedings by its Director, Daniel Tshitso Jordan (Jordan).

Factual Background

[3] During September 2014, Jordan on behalf of the respondent, concluded an instalment sale agreement with the Bank in terms of which he purchased a 2014 UD Truck GW 26490TT (the truck) through the financial assistance of the Bank. The total purchase price was R1,152.290.00 with interest thereon. The respondent defaulted in its payment of the instalments towards the loan amount. As at 28 May 2018, Jordan arrears was in arrears in an amount of R43,633.73.

[4] On 31 May 2018, the Banks’ attorneys of record wrote a letter of demand to the respondent, requesting amongst others, payment of the arrear amount, which letter was delivered to the domicilium citandi et exeutandi by way of registered mail.

[5] When the respondent failed to remedy the default, and with the arrear amounts having increased to R44,580.06 as at 20 June 2018, the Bank terminated the agreement on 22 June 2018 and informed the respondent in writing about the termination. Consequently, the full amount outstanding in respect of the agreement

became due and payable. As at 20 June 2018, the respondent was indebted to the Bank in the sum of R601, 308.00 plus 09.300% interest per annum from 29 March 2018 to date of payment. On the 7 March 2019, this court per Gura J, granted applicant the order sought in the notice of motion stated above. This order was granted in the absence of the respondent. On 16 July 2019, the respondent applied for the rescission of the order granted in default.The application served before Nobanda AJ, on 28 November 2019. The order granted by default by Gura J was set aside on 12 December 2019.

[6] The applicant approached this court on the same papers previously filed on 29 January 2019 and filed a notice of set down on 27 February 2020. It is important to note that as at the time of the rescission of the order granted by Gura J, the truck was already repossessed by the applicant, and is presently in the possession of the applicant.

[7] In the respondent’s answering affidavit dated 4 March 2019, Jordan states amongst others that he made arrangements to pay the arrear amounts with the applicant, and that he did make some payments towards reducing the arrear amounts.

Submissions

[8] The applicant submits that a statement from the Bank dated 5 March 2019, shows that a deposit of R10,00.00 was made to the Bank on 9 May 2019; R14,000.00 on 6 June 2019, R15 000.00 on 4 July 2019; R15 000.00 on 3 October 2019 , and that when the respondent made further payments, especially in July 2019, it was already in arrears of R84, 580.00. The respondent’s monthly instalment according to the contract, was supposed to be R16, 619.31.

[9] The applicant disputes that Jordan ever made arrangements with an official of the Bank to pay arrear instalments. Jordan was not in a position to furnish the applicant with the name of the Bank official who made the arrangement with him.

[10] The respondent, through Jordaan avers that there is an amount of R57,000.00 paid to the Bank which is not reflected in the applicant’s attached Bank Statement. He further intimates that the respondent paid a further amount of R108,000-00 on 3 October 2019, which was 16 months after cancellation of the contract.

Analysis

[11] The order sought in terms of the notice of motion is for the confirmation of the cancellation of an instalment of sale agreement, which agreement was cancelled on 22 June 2018.

[12] On 13 July 2018, the applicant approached the Gauteng Division of the High Court on the same issue and as at 28 March 2018, the respondent was in arrears of an amount of R43, 633-73 and that the balance owing in terms of the Certificate of Balance was R601, 308-00. This application was withdrawn as per notice dated 24 January 2019.

[13] The applicant filed the present application, with this Court using the same papers, without updating the Certificate of Balance, which indicated that as at 20 June 2018, the balance owing was R601,308-00. The applicant sought to supplement its founding affidavit through a replying affidavit dated 29 January 2020, and filed with the Registrar on 3 February 2020, which was filed after the rescission of Gura J order in December 2019. The certificate of Balance was not updated.

[14] This application served before me on 5 October 2020. The respondent avers that he paid several amounts of money to the Bank which amounts are disputed by the applicant. All these amounts were paid and accepted by the applicant, the last payment being on 3 October 2019, after the cancellation of the contract.

[15] It is common cause that the National Credit Act[1] is not applicable in this application in view of the fact that the respondent is a company[2] and not a natural person. However, in the present case, it is common cause between the applicant and the respondent that certain monies were deposited towards the payment of the loan agreement, subsequent to the purported cancellation of the credit agreement. In view of the fact that the applicant has not filed a recent certificate of balance, indicating the total amount of arrears owed by the respondent, it is not possible to come to a conclusion that the respondent is in arrears of the instalment payments. It is in the circumstances not possible, to confirm the cancellation of the instalment sale agreement.

[16] As a result, the following order is made:

The application is dismissed with Costs.

_______________________________

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT,

Date of Hearing

: 08 October 2020

Judgment Handed Down on : 21 December 2020

Counsel for the Applicant : Advocate

A J venter

Instructed by

: Maree & Maree Attorneys

Counsel for the Respondent :

Advocate B Riley

Instructed by

: Van Rooyen Tlapi & Wessels

[1] Act No. 34 of 2005

[2] See Section 4 (1)(a)(i) which provides that: Subject to Section 5 and 6, this Act applies to every credit agreement between parties dealing at arm’s length and made within, or having effect within the Republic, except a juristic person whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made, equals or exceeds the threshold value determined by the Minister in terms of section 7.