1.1 The Plaintiff is NEDBANK LIMITED, a duly registered commercial bank with limited liability duly incorporated in terms of the Laws of the Republic of South-Africa with its principal place of business situated at 33 HOOFDT STREET, FORUM 1, LEVEL 4, BRAAMPARK, JOHANNESBURG, GAUTENG.
1.2 The plaintiff is a registered credit provider in accordance with Section 40 of the National Credit Act, Act 34 of 2005.
The defendant is D SONGO, an adult male with full legal capacity whose full and further particulars are unknown to the Plaintiff currently residing at 6 SMIT STREET, MENLOPARK, PRETORIA, GAUTENG also being the Defendant’s chosen domicilium citandi et executandi.
On/or about 20 JULY 2005 and at PRETORIA, the plaintiff therein represented by a duly authorized employee and defendant who acted in person, entered into a written Instalment Sale Agreement (hereinafter referred to as “the agreement”), which agreement is attached hereto as ANNEXURE “A” and the terms of which are requested to be read together herewith as if specifically incorporated herein.
In terms of the aforementioned agreement the plaintiff sold to defendant the following goods, namely:
1 X USED OPEL ASTRA 1.6 CDE A/C P/S, 2002 - MODEL, ENGINE NUMBER C16SPA7997 AND CHASSIS NUMBER ADMRT69BA2B
(hereinafter referred to as “the goods”)
The total purchase price at which defendant bought the goods from plaintiff is calculated as set out in the agreement attached hereto as ANNEXURE “A” as follows:
Total cash price R 98 942-95
Vat at 14 % R 13 852-01
Revenue stamps R 0-00
Sub Total R112 794-96
Less initial payment R 12 000-00
Principal debt R100 794-96
Plus finance charges at 9.650 % per annum R 23 994-18
The balance of the purchase price was payable in 54 monthly instalments of R2 310-91 each, the first payment to be made on 26 AUGUST 2005 and thereafter on the 26th day of each consecutive month with the final instalment payable on 26 OCTOBER 2010.
7.1 The said goods were delivered to the defendant and defendant is still in possession thereof.
7.2 The defendant has paid the initial payment and has paid certain further instalments.
It was an express term of the agreement that:
8.1 Plaintiff will at all material times during the subsistence of the agreement remain the owner of the goods and neither the defendant, nor anybody on her behalf, will during the agreed period be entitled to obtain ownership of the goods or to retain possession, use or enjoyment thereof other than as provided for in the agreement.
8.2 Should defendant breach any of the terms or conditions of the agreement, or fail to pay any amount in terms of the agreement when it is due, plaintiff will be entitled, as he deems fit and without prejudice to any of his other rights, to immediately request payment of all amounts that are payable in terms of the agreement, regardless of whether such amounts are due at the stage or not, alternatively, to cancel the agreement, to repossess the goods, to retain all payments that have already been made by defendant and to claim as damages the difference between the outstanding balance and the resale value of the vehicle.
8.3 In the event of cancellation of the agreement defendant is obliged to return the goods to plaintiff.
8.4 Plaintiff is entitled, on request, to recover all costs and disbursements (including costs between attorney and client from defendant) that plaintiff incurred directly or indirectly in order to enforce any rights in terms of the said agreement.
8.5 Any amount due in terms of the agreement, not paid on the due date, would bear additional finance charges, at the rate specified in the agreement.
8.6 If the word “fixed” does not appear next to the finance charges on the face of the agreement, the following conditions shall apply:
8.6.1 Should the prime lending rate publicly quoted by the plaintiff from time to time (evidenced by means of a certificate under the hand of any manager of the applicant, whose status need not be proved) be increased or decreased, the finance charges yet to accrue on the unpaid instalments payable in terms of the agreement, will be increased or decreased commensurately with the change in the prime lending rage. The period over which the instalments are payable, shall remain unchanged;
8.6.2 In the event of the agreement being subject to the provisions of the Usuary Act, No. 73 of 1968, as amended, the finance charge rate arising from the paragraph above, shall not exceed the maximum permissible rate in terms of the said Act;
8.7 The defendant, in writing and in terms of Section 45 of Magistrate's Court Act Nr 32 of 1944, consented to the jurisdiction of any Magistrate's Court having jurisdiction over the defendant, notwithstanding the fact that the amount of the claim or the value in dispute might exceed such jurisdiction.
8.8 A certificate by a manager of the plaintiff (whose authority need not be proved) shall for all purposes be prima facie evidence of the matters / sums therein stated.
Defendant failed to make payments as agreed in the agreement and was in arrears in the amount of R5 005-13 on 05 SEPTEMBER 2007.
10.1 The foresaid agreement is a pre-existing credit agreement as defined in the National Credit Act 24 of 2005. (Hereinafter called “The Act”).
10.2 The plaintiff duly delivered a notice in accordance with S129(1)(a) of The Act to the defendant on 10 SEPTEMBER 2007. A copy thereof is attached hereto as ANNEXURE “B”. 10.3 The defendant has failed to respond to the aforesaid notice in terms of S129(1)(a) of The Act within 10 (ten) business days after delivery thereof.
10.4 The defendant is in default with his obligations in terms of the credit agreement for a period of 20 (twenty) business days.
10.5 The defendant has not surrendered the goods to the plaintiff as contemplated in S127 of The Act.
10.6 The Honourable Court has not been approached while there is any matter arising from the contract pending before the Tribunal.
10.7 The Honourable Court has not been approached in the circumstances envisaged in S130(3)(c) of The Act, namely, despite the defendant having:
10.7.1 surrendered the asset to the bank in terms of S127 of the Act and before the asset has been sold;
10.7.2 agreed to a proposal made in terms of the S129 notice and acted in good faith in fulfilment of the agreement;
10.7.3 complied with an agreed plan as contemplated in S129(1)(a); or
10.7.4 brought the payments under the agreement up to date as contemplated in S129(1)(a) of the Act.
10.8 A duly signed certificate as proof of compliance with the previsions of the NCA is attached hereto as ANNEXURE “C”. 11.
11.1 In the aforesaid premises plaintiff is entitled to demand full payment of all arrear amounts and any other amount due and payable in terms of the agreement, alternatively to cancel the agreement, to repossess the goods, to retain all payments already made by defendant in terms of the agreement and to claim payment of all due amounts that remain unpaid on date of cancellation.
11.2 Plaintiff elected to cancel the agreement, as plaintiff did in writing on 10 JANUARY 2008 and as is evident from ANNEXURE “D” attached hereto, alternatively plaintiff cancels the agreement herewith.
11.3 The defendant is therefore in unlawful possession of the goods.
In the premises:
12.1 The plaintiff is entitled to repossess the goods;
12.2 The plaintiff is further entitled to an order declaring the amounts paid by the defendant to be forfeited in favour to the plaintiff;
12.3 The plaintiff is entitled to recover from the defendant an amount calculated by deducting from the balance of the purchase price, the deposit and instalments paid, such value as the goods may have upon their return to the plaintiff and such reduction of finance charges to which the defendant may be entitled.
The plaintiff will be unable, until the return of the goods to it and the subsequent determination of the value thereof, to determine the amount due to it in terms of paragraph 12.3 supra.
Notwithstanding due demand, the plaintiff fails and refuses to return the goods to the plaintiff and/or to pay the claimed amounts and/or any portion thereof.
The above court has jurisdiction, as the defendant is resident within the jurisdiction area of the court.
WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST THE DEFENDANT IN THE FOLLOWING TERMS:
1. The Defendant is ordered to forthwith return -
One Used: OPEL ASTRA 1.6 CDE A/C P/S
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B To the Plaintiff;
2. The Sheriff of the High Court is authorized and request to attach, cease and hand over the to the Plaintiff, wherever it may be found -
One Used: OPEL ASTRA 1.6 CDE A/C P/S
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B 3. Forfeiture of all moneys paid by the Defendant to the Plaintiff in terms of the agreement annexed to Plaintiff's summons as ANNEXURE "A". 4. Leave is granted to the Plaintiff to apply for -
4.1 Damages, if any, in an amount to be calculated by subtracting the current market value of the aforesaid goods (as well as a rebate on unearned financial charges from the balance outstanding, if applicable);
4.2 Interest on the said damages at the rate of 9.650 % per annum.
5. Cost of suit on the scale as between attorney and client;
6. Further and/or alternative relief.
SIGNED AT PRETORIA ON THIS THE ___________ DAY OF JANUARY 2008
Admitted in terms of Section 4(2) ATTORNEY FOR PLAINTIFF
of Act 62 of 1995 419 KIRKNESS STREET
REF.: W VAN HEERDEN/KN2880
ANNEXURE/ AANHANGSEL “A” All pleadings, applications and documents dealing with High Court litigation must in terms of the High Court Act 30 of 2008 read in conjunction with GG nr 31948 dated 2 February 2009 as from 1 March 2009 refer to the new names of the various divisions of the High Courts.
RENAMING OF HIGH COURTS ACT 30 OF 2008 The High Courts seated in the places mentioned in the first column of the table hereunder, shall be known by the names set out in the second column of the said table:
WET OP DIE HERBENAMING VAN DIE HOË HOWE 30 VAN 2008 Die Hoë Howe, gesetel op die plekke in die eerste kolom van die tabel hieronder vermeld, bekend onder die name in die tweede kolom van vermelde tabel uiteengesit:
SETEL VAN HOF
HOFNAAM VAN HOË HOF
Oos-Kaap Hoë Hof, Bhisho
Vrystaat Hoë Hof, Bloemfontein
Wes-Kaap Hoë Hof, Kaapstad
KwaZulu-Natal Hoë Hof, Durban
Oos-Kaap Hoë Hof, Grahamstad
Suid Gauteng Hoë Hof, Johannesburg
Noord-Kaap Hoë Hof, Kimberley
Noordwes Hoë Hof, Mafikeng
Oos-Kaap Hoë Hof, Mthatha
KwaZulu-Natal Hoë Hof, Pietermaritzburg
Oos-Kaap Hoë Hof, Port Elizabeth
Noord Gauteng Hoë Hof, Pretoria
Limpopo Hoë Hof, Thohoyandou
ANNEXURE/ AANHANGSEL “B”
[THE MOTIONS IN THE MAGISTRATES’ COURT DVD (DVD NO 1) MAY BE ORDERED VIA THE LECTURER AT A COST OF R18-00. ] Extract from Magistrates’ Court Bench Book APPLICATIONS IN THE MAGISTRATES’ COURT Part 7 Applications 7.1 General
Application procedure provides a mechanism, other than trial action, by means of which relief may be obtained from a court of law. Trial actions are commenced by way of summons, while applications are initiated by way of a notice of application (also referred to as a notice of motion) which is usually supported by an affidavit, or affidavits, that set out the facts upon which the applicant relies for relief. An affidavit is a document containing a statement of facts which is signed and sworn to by the witnesses in front of a commissioner of oaths. In an application, the party initiating proceedings is referred to as the applicant. The party called upon to answer the application is known as the respondent.
A significant distinction exists between application procedure in the Magistrates’ Courts and motion proceedings in the High Courts in that application procedure is widely used for claiming substantive relief in the High Court in matters not involving a material dispute of fact. The increased utilization of application procedure was a development which was able to take place in the High Courts because they have inherent jurisdiction to regulate their own procedure, but the Magistrates’ Courts do not have such inherent jurisdiction and are, therefore, limited to the use of application proceedings only where provided for, either expressly or by necessary implication, in the MCA or the Magistrate’s Court rules.
Even in the High Courts, where a much wider range of relief may be sought through application, it is accepted that such procedure is not without its limitations and that it not appropriate for deciding real and substantial disputes of fact. The reason for this is that in trial actions witnesses must appear in person and may be subjected to cross-examination so that their credibility may be tested. Seeing and hearing the witnesses give evidence enables the court to decide which witness is more credible or reliable.
When a court has only affidavits before it, and where the affidavits set out conflicting facts, it may be very difficult for the court to decide which deponent is more credible or reliable.
Applications may be used for two purposes:
• to claim substantive relief;
• to claim procedural relief.
In the Magistrates’ Courts there is very little scope for claiming substantive relief by way of application. Almost all the provisions of the Act and rules which provide for the application procedure deal with applications which are of a procedural nature and which enable parties to claim relief in connection with litigation already instituted by way of trial action. These are generally known as interlocutory applications because they take place during the course of the trial action, but there are some which are preliminary in nature and some which would be brought after judgment has been given, such as applications relating to execution of judgments. Rule 55(9) provides that all interlocutory matters may be dealt with upon application.
7.1.2 Ex parte applications
As a general rule, applications must be brought on notice to the party against whom relief is claimed. This general rule is expressed in rule 55(1), which provides that, except where otherwise provided, an application to the court for an order affecting any other person shall be on notice. In certain circumstances, a party may bring an application to court without first notifying the party against whom relief is claimed. Such an application is called an ‘ex parte application’.
In the High Courts the only circumstance in which an applicant may proceed ex parte, where relief is claimed against another party, is where the purpose of the application would be defeated if notice were to be given to the party against whom relief is claimed. For instance, where the party who wants to claim relief believes that the other party will hide or destroy evidence if he becomes aware of an impending action, then giving notice to that party of an application to attach the evidence would probably have the result that the evidence would be hidden or destroyed before the attachment order can be granted and served. In the High Courts urgency alone is not accepted as a ground for proceeding ex parte, unless the urgency is so great that there is not enough time to serve notice before bringing the application.
In the Magistrates’ Courts these same principles should apply, but, unfortunately they have been distorted because
• rules 56 and 57 provide for certain types of application to be brought ex parte without adding the requirement that they should be brought ex parte only if the giving of notice would defeat the purpose of the application; and
• there is no provision for urgent applications in the MCA or rules, and therefore the only way a party can obtain an order quickly without having to go through the usual process of serving notice and enrolling the matter for hearing is to proceed ex parte (although rule 9(14) does allow the court to reduce the notice period for an application on good cause shown – see J & B Rule 9--4 to 9--15).
As a result of these distortions, a general opinion prevailed before 1997 that the types of application governed by rules 56(1) and 57(1) could always be brought ex parte, despite the fact that rule 55(8) provides that in every application the person substantially interested shall be made respondent. Rule 55(9), which provides that any application which may be brought ex parte may also be brought on notice, may have been partly responsible for this opinion, because its wording creates the impression that proceeding ex parte, where this is authorized, is the rule rather than the exception.
The belief that parties had the right to proceed ex parte in applications governed by rules 56 and 57 was dispelled in Office Automation Specialists CC and Another v Lotter 1997 (3) SA 443 (E), a case in which it was held that parties should be allowed to proceed ex parte only where there is good reason to dispense with the giving of notice to the party against whom relief is claimed. At 447A--C, the court quoted the following passage from the 8th edition of Jones and Buckle:
‘Though Rule 56 empowers magistrates' courts to grant ex parte orders affecting other parties' interests, the Rule does not do away with the common-law principle that the courts are extremely loath to grant any such orders upon ex parte application. Rule 56 is quite consistent with the common-law principle; it is an empowering provision, not an abolishing one, and it is still true to say that applications should be made ex parte only when there is some good reason for that procedure … – reasons such as urgency, or that the giving of notice would defeat the very object for which the order is sought.’
At 448A-C the court concluded: ‘I accordingly conclude that, while applications of the type referred to in Rule 56(1) can be brought ex parte, an applicant bringing such an application does so at his peril if he does not make out a good and proper case as to why an order should be granted without notice to the other party.’
It is important to note that a court will never grant final relief on an ex parte basis. If notice is not given to the respondent, then once the order is granted, the order must be served on the respondent together with a copy of the application. Such an order is called a rule nisi. It informs the respondent that on a certain date, which is called ‘the return day’ the respondent may appear before the court to show cause why the order granted ex parte should not be confirmed. The audi alteram partem principle thus prevails in that, on the return day, the respondent is afforded the opportunity to oppose the application and to request the court to set the order aside. Rule 55(7) provides that any person affected by an order made ex parte may apply to discharge it on not less than 12 hours’ notice. In other words, the party against whom the ex parte order was granted may anticipate the return day by giving the applicant not less than 12 hours’ notice that the matter has been set down for hearing. The purpose of this subrule is to enable a party who is prejudiced by an ex parte order to get the matter before court quickly.
Another principle which has been applied very strictly by courts in respect of ex parte applications is the principle that the applicant has the duty of utmost good faith to disclose to the court all facts which are relevant, including facts which tend to detract from the applicant’s case and favour the party against whom relief is being sought. If an order has been made on an ex parte application and it later appears that material facts that might have influenced the decision of the court to grant the order were not disclosed, the court has a discretion to set aside the order on the ground of nondisclosure and make a punitive order. It is irrelevant whether the omission of facts was made wilfully or negligently. The reason for this requirement is that hearing a matter in the presence of only one party negates the audi alteram partem principle, one of the most important principles underlying the rules of civil procedure.
There are numerous cases in which this principle has been applied: In Cometal-Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 (W) at 414 it was held that failure to set out all the facts which might influence the court (whether these facts are favourable to the applicant or otherwise) will justify the court setting aside a rule nisi on the return date.
See also Gainsford and others NNO v HIAB AB 2000 (3) SA 635 (W); MV Rizcun Trader (4) v Manley Appledore Shipping Ltd 2000 (3) SA 776 (C). • In Ex parte Madikiza et uxor 1995 (4) SA 433 (Tk5) at 437A--B it was held that the absence of acceptable reasons for failure to disclose a material fact is one of the reasons the court will take into consideration in exercising its discretion whether to grant or deny the relief sought.
• In J W Jagger & Co (Rhodesia) (Wholesaling) (Pvt) Ltd v Mubika 1972 (4) SA 100 (R) it was held that, even though he may be partially successful in an application, an applicant may be ordered to pay the costs of the application if he has negligently failed to disclose any material facts.
• In Schlesinger v Schlesinger 1979 (4) SA 342 (W) an order obtained ex parte was set aside with costs, on the scale as between attorney and client, because the applicant was found to have displayed a reckless disregard of a litigant’s duty to a court to make a full and frank disclosure of all known facts that might influence the conclusion the court reaches.
Recent case law has made it clear that the requirement of utmost good faith to disclose all material facts applies whenever only one party is before the court at the time when the application is made. Thus, in a default-judgment application the applicant has a duty to disclose all relevant facts to the court because, even though the summons was served on the defendant, at the time when the default-judgment application is made it is only the applicant who is before the court. See Bankorp Ltd v Ridl and Another 1993 (4) SA 276 (D).
It has also been held that the normal duty which counsel and attorneys have to direct the court’s attention to relevant authority should be taken particularly seriously in ex parte applications – Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W).
One kind of application which must of necessity be brought ex parte is an application for substituted service because, if documents cannot be served on the defendant/respondent in any of the usual ways prescribed by rule 9, then it stands to reason that notice of the application for directions as to how service should be effected cannot itself be served.
In terms of rules 55(5) and (6), except where otherwise provided, ex parte applications must be made in writing, stating shortly the terms of the order applied for and the grounds on which the application is made, and need not be supported by an affidavit or other evidence. Examples of rules which ‘provide otherwise’ are rules 56 and 57, both of which require the applications which they regulate to be supported by an affidavit and prescribe what must be contained in the affidavit.