Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

CASE NO: 27771/2010

In the matter between:

and

JUDGMENT DELIVERED: 15 APRIL 2011

BINNS-WARD, J:
[1] In this matter the plaintiff applies for summary judgment in the form of an order directing the defendant to deliver up to the plaintiff a 2006 BMW Z4 motor vehicle. The vehicle had been the subject matter of an instalment sale agreement concluded between the parties in January 2008. In terms of that agreement the defendant was obliged to pay an initial deposit of R1 000 and, thereafter, 59 monthly instalments of R8 143,18. The agreement provided, as usual, that ownership of the vehicle would remain vested in the plaintiff until the full amount owed under the contract had been settled. The defendant failed to comply with his payment obligations under the agreement and was R25 533,69 in arrears as at 30 November 2010. In terms of the agreement the defendant would be 'in default' if, having breached the agreement, he failed to remedy the breach within the time period specified in a written notice to him by the plaintiff.
[2] The instalment sale agreement was a credit agreement within the meaning of that term in the National Credit Act 34 of 2005 ('the Act'). A consideration of the terms of the agreement makes it clear that many of them were determined with reference to the requirements of the Act. It is evident in that regard that the written notice provision just mentioned was predicated on the requirements of s 129(1)(a) of the Act.
[3] The plaintiff duly gave notice to the defendant in terms of s 129(1)(a) of the Act drawing the fact that he was 'in default' to his attention and proposing that he might wish, amongst other things, to refer the issue to a debt counsellor to develop a plan so that payments under the agreement might be brought up to date. The notice advised the defendant that should he fail to act in accordance with the proposal within ten business days, action would be instituted against him without further notice for cancellation of the agreement, return of the goods and legal costs. The notice was sent to the defendant by registered post at his nominated address on 23 November 2010. The notice given to the defendant in terms of s 129(1)(a) of the
Act also served as the contractually agreed notice-to-remedy-breach provision, mentioned above.

[5] The plaintiff made the following allegations in paragraph 13 of its particulars of claim:

2. The Defendant has failed to refer the agreement to either a debt counsellor....to resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date.
3. The Defendant has not surrendered the ASSET to the Plaintiff as contemplated in Section 127 of the National Credit Act.

[6] The defendant does not take issue with the allegations in para 13 of the particulars of claim in his affidavit in opposition to the application for summary judgment. He avers that he submitted the agreement for debt review to a debt counsellor on 13 January 2011, some four days before summons was served on him. The defendant attached to his opposing affidavit a copy of the debt counsellor's Form 17.1 notice to credit providers of the receipt of his application, which, on its face, confirms his evidence that an application for debt review was submitted on 13 January 2011.

[12]    In the result the following orders are made:
(a) The termination of the instalment sale agreement concluded between the plaintiff and the defendant on 10 January 2008 in respect of a 2006 BMW Z4 2.0i motor vehicle with engine no. B453H929 and chassis no. WBAZ12030LY61427 is confirmed.
(b) The defendant is directed to forthwith deliver the said vehicle up to the plaintiff.
(c) All amounts paid by the defendant to the plaintiff up to date of termination of the agreement are declared forfeit in favour of the plaintiff.
(d) The plaintiff's claims in terms of para (d), (e) and (f) of the summons are stood over for later determination.
(e) The defendant is ordered to pay the plaintiff's costs of suit incurred thus far in the action.

						Judge of the High Court