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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

Date: 2009-11-19

UNREPORTABLE

Case Number: 18995/09

In the matter between:

MERCEDES BENZ FINANCIAL SERVICES SA (PTY) LTD Applicant

and

VILJOEN ANNA JOHANNA HELENA Respondent

JUDGMENT

SOUTHWOOD J

[1] The plaintiff applies for summary judgment against the defendant for the return of Mercedes Benz C320 CDI ELEGANCE motor vehicle with engine number 6429604050885 and chassis number WDD2040222R007398 (‘the vehicle’) and costs of the application on the scale as between attorney and client. The defendant opposes the application and, in argument, raises only one issue, that the plaintiff is precluded from suing the defendant for any of the relief in the summons by virtue of the provisions of section 86 of the National Credit Act 34 of 2005 (‘the Act’).

[2] In its particulars of claim the plaintiff alleges that –

(1) on 27 August 2008 it entered into a written instalment sale agreement (‘the agreement’) with the defendant in terms of which it sold the vehicle to the defendant;

(2) in terms of the agreement –

(i) notwithstanding delivery of the vehicle to the defendant, ownership of the vehicle remains vested with the plaintiff;

(ii) a total amount of R700 632,91 (including finance charges of R261 139,91) was payable as set out in the agreement’s payment schedule: i.e. a first instalment of R8 958,35 on 7 October 2008; 59 instalments of R8 958,35 each, commencing on 7 November 2008 and a final (residual) instalment of R164 272 on 7 September 2013;

(iii) if the defendant failed to pay any instalments on due date or perform any of its other obligations in terms of the agreement the plaintiff would be entitled to cancel the agreement, claim return and possession of the vehicle, retain all payments made in terms of the agreement and recover such damages as it is entitled to together with costs on the scale as between attorney and client;

(3) the plaintiff delivered the vehicle to the defendant on or about 27 August 2008;

(4) the plaintiff has performed all its obligations in terms of the agreement;

(5) the defendant breached the agreement by failing to pay the instalments and on 2 December 2008 was in arrears with its instalments in the amount of R18 653,32;

(6) on 2 December 2008, by prepaid registered post, the plaintiff delivered to the defendant a letter advising the defendant of her arrears and demanding payment of the outstanding balance, which letter complies with section 129 of the Act;

(7) the defendant failed to make payment as demanded and the plaintiff cancelled the agreement alternatively does so by service of the summons;

(8) the agreement is subject to the Act and the plaintiff has complied with the relevant practice note, as appears from the attached certificate. (The certificate states that the plaintiff sent the notice in terms of section 129(1) of the Act to the defendant by registered post; that the defendant had been in default for a period of 20 business days in respect of her obligations under the agreement and that at least 10 business days had elapsed from the date of the dispatch of the letter in terms of section 129(1) of the Act; that the defendant had failed to respond to the notice in terms of section 129(1) and the matter is not before a debt-counsellor; a debt dispute resolution agent, a consumer court or an ombudsman and/or a national credit tribunal which could effect an order or matter to be determined by the court.)

[3] To avoid summary judgment the defendant is required by Rule 32(3)(b) to set out in her affidavit facts, which if proved at the trial, will constitute an answer to the plaintiff’s claim. The Rule also requires that the defendant satisfy the court that the defence is bona fide. This means that the defendant must swear to a defence, valid in law, in a manner which is not inherently and seriously unconvincing. Finally, it is required of the defendant that she set out the facts on which she relies ‘fully’. This means that the statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff’s claim. If the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the court to consider in relation to the requirement of bona fides – see Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227G-228F.

[4] The defendant’s answering affidavit raises two defences:

(1) the non-joinder of her husband to whom she is married in community of property;

(2) the action was instituted contrary to the provisions of sections 66, 84 and 88(3) of the Act which offers protection to her because she applied for debt review in terms of section 86(1) of the Act on 19 January 2009, which was before the plaintiff’s summons was served on her. The defendant states that the agreement does not qualify in terms of section 86(2) of the Act to be excluded from her debt review.

The defendant’s counsel did not persist with the first defence and argued only that the application for debt review precludes the plaintiff’s claim

[5] The defendant did not dispute any of the plaintiff’s allegations referred to and, significantly, did not pertinently deny that she received the notice which the plaintiff posted to her on 2 December 2008. The tracking notice reflects that the letter was received on 15 January 2009 (i.e. before the defendant’s application for a debt review). The defendant does not dispute this or state that she received some other document. Her evidence regarding the notice is evasive and disingenuous and cannot be said to raise a bona fide dispute.

[6] In argument, the plaintiff’s counsel relies on two unreported judgments which he contends have decided the issue: a judgment of Du Plessis J in Nedbank Ltd v Ditshiho Motaung TPD Case No 22445/07 delivered 16 April 2008 and a judgment of Lamont J in R F Potgieter v Greenhouse Funding (Pty) Ltd and Another WLD Case No 31825/2008 delivered 20 January 2009. The effect of the judgments is the same. An application in terms of section 86(1) of the Act does not apply to a credit agreement where the credit provider has already sent the notice contemplated by section 129(1) of the Act to the consumer before the consumer applies for a debt review and the credit provider is therefore not precluded from instituting action against the consumer. It is not contended that these judgments are clearly wrong and I should therefore follow them. In the present case the plaintiff sent the notice (a letter dated 2 December 2008) to the defendant by registered post and on the available evidence it was received by 15 January 2009, before the defendant applied for a debt review. The defendant has not denied the allegations in the summons regarding compliance with section 129 of the Act or disputed any of the statements in the certificate of compliance with practice rule no 28. The defendant is therefore not protected by the provisions of the Act.

Order

[7] Summary judgment is granted against the defendant and the following orders are made:

1. The defendant is ordered to deliver forthwith to the plaintiff Mercedes Benz C320 CDI ELEGANCE motor vehicle with engine number 6429604050885 and chassis number WDD2040222R007398;

2. The defendant is ordered to pay the costs of this application on the scale as between attorney and client.

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B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 18995/09

HEARD ON: 17 November 2009

FOR THE APPLICANT/PLAINTIFF: ADV. S.G. MARITZ

INSTRUCTED BY: Strauss Daly Inc.

FOR THE RESPONDENT/DEFENDANT: ADV. J.H. MOLLENTZE

INSTRUCTED BY: CMM Attorneys Inc

DATE OF JUDGMENT: 19 November 2009

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