IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

This is an appeal against the judgment in the Cape Town Magistrate's Court on 14 May 2009, granting summary judgment in favour of the respondent against the appellant in the following terms:

2.     An order directing the appellant to return the vehicle to respondent.
3.	For   payment   of   the   outstanding   balance   on   the agreement in an amount of some R239 000 plus interest.
4.	Costs on the attorney/client scale.

The respondent bank and credit provider in terms of the National Credit Act 34 of 2005, sued the appellant for the above relief, rising out of an instalment sale agreement, which she had concluded with the appellant on 22 January 2007. In terms whereof the appellant purchased the vehicle against an undertaking that she would pay the price, together with finance charges and that by way of 60 monthly instalments commencing in December 2006. Amongst the terms of the agreement were that the respondent would remain owner of the vehicle until it was paid off and, in the event of the appellant failing to make regular payments, the respondent would be entitled to cancel the agreement, to claim the outstanding balance and to take possession of the vehicle, the market value of which would be set off against the appellant's indebtedness and to claim costs of any legal proceedings on the attorney and client scale.

In its particulars of claim, the respondent averred that by

It is necessary in the first place to set out the relevant portions of the appellant's opposing affidavits. In an affidavit deposed to on 9 March 2009 the appellant explained that she was married to her husband in community of property, that he bought her a different vehicle as a gift whereafter they "exchanged" the vehicle and bought the present vehicle. She states further:

"After a year of problems with the vehicle, we exchanged  the  car and  bought  a  Peugeot  307 station wagon. I signed the finance agreement on behalf of my husband using a power of attorney given to me by him. This is how I obtained the credit with the bank as it was based on his income."

On 14 May 2009, appellant, now enjoying formal legal representation, deposed to yet a further affidavit, terming it a supplementary opposing affidavit. After furnishing some background, the appellant stated she was advised that her initial opposing affidavit was defective in that it failed to fully disclose the nature and grounds of her defence.   She then avers that she was advised and believed that the instalment sale agreement was null and void, because:

"In terms of section 15(2)(f) Matrimonial Property Act, a spouse married in community of property shall not, without the written consent of the other spouse, enter, as a consumer, into a credit agreement to which the provisions of the National Credit Act apply."

Section 15 of the Matrimonial Property Act 88 of 1994 provides, insofar as it is relevant, as follows:

"Powers of spouses -
(1) Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property, may perform any juristic act with  regard to the joint estate without the consent of the other spouse.
(2) Such a spouse shall not, without the written consent of the other spouse - ... (f) enter as a consumer into a credit agreement, to which the provisions of the National Credit Act, 2005 apply as "consumer" and "credit agreement" are respectively defined in that Act but this paragraph does not require the written consent of a spouse before incurring each successive charge under a credit facility as defined in that Act; ...
(5) The consent required for the performance of the acts contemplated in paragraphs (a), (b), (f), (g) and (h) of subsection (2), shall be given separately in respect of each act and shall be attested by two competent witnesses...."

On appeal it was contended on behalf of the appellant, that the magistrate had erred in granting the drastic remedy of summary judgment, where the appellant had raised a triable issue or defence, namely, that being married in community of property, before she could validly conclude the instalment sale agreement she had to have the consent of her spouse, given separately in respect of the written transaction and attested by two competent witnesses in compliance with the provisions of section 15(2)(f) and 15(5) of the Matrimonial Property Act.

It was contended on behalf of the appellant further, that by implication the magistrate found, incorrectly, that the power of attorney referred to by the appellant in her initial opposing affidavit satisfied the "deemed consent" provisions in section 15(9)(a) of the Act. I can find no trace of any such finding in the magistrate's brief reasons and in my view the provisions of section 15(9)(a) need not be considered in the determination of this appeal.

The argument on behalf of the appellant in regard to the critical issue of her husband's consent is set out in the appellant's heads of argument as follows:

This was indeed the critical issue in the summary judgment application but the magistrate could hardly consider it in the absence of the power of attorney or any information from the appellant concerning its terms or the circumstances in which the appellant obtained it from her husband. Assuming for present purposes that the appellant was, at the material time, married in community of property, she could not ordinarily enter into the instalment sale agreement without the written consent of her husband. However, implicit, if not explicit, in her initial opposing affidavit was that she concluded the agreement with his consent embodied in a power of attorney. The actual wording which she used "I signed ... on behalf of my husband", cannot have been literally meant since the form of the agreement was that the appellant and respondent were the only parties thereto.

"It seems to me that if, on the material before it, the court sees a reasonable possibility that an injustice may be done if summary judgment is granted, that is a sufficient basis on which to exercise its discretion in favour of the defendant."

Glaringly absent from this final affidavit is any reference to the power of attorney upon which she previously relied or any explanations to why she now contends that the agreement was concluded without her husband's written consent. It is clear that, in deposing to the supplementary affidavit, the appellant's attention was pertinently drawn to the material provisions of section 15 of the Matrimonial Property Act, to her first opposing affidavit in which the provisions of the act were mentioned and to the need for her to disclose the full nature and grounds of any defence.

Secondly, whilst the agreement indicates that only her salary was taken into account and makes no mention of her husband or his income, she states that the credit she obtained was based on his income. Again no explanation for this anomaly is furnished by the appellant. Additionally, notwithstanding her averment that the agreement is void, the appellant does not tender the return of the vehicle to the respondent, nor explain what its fate will be pending the outcome of any trial. Although the appellant appears not to have been formally legally represented until she filed her final opposing affidavit, her first two opposing affidavits strongly suggest that they were drafted by someone with legal experience.

In conclusion, I am, therefore, not persuaded that the magistrate erred in granting summary judgment or, to put it differently, that there is a reasonable possibility that an injustice may be done if summary judgment is granted. In the result, I would dismiss the appeal with costs.

NGEWU, AJ