Port Elizabeth – There will be no “699” class action. On Thursday Port Elizabeth High Court Judge Dayalin Chetty dismissed, with costs, attorney Duncan Heuer’s application to have the R699 vehicle owners certified as a class.
This was so they could bring a class action against the Satinsky Group – the company behind the now-collapsed “Drive a New Car from R699 per month” deal – and the three banks which chose to finance those deals.
About 24 000 people across the country are affected, most of whom are battling to afford their monthly instalments since they stopped getting advertising fees in return for doing relatively high mileage with those stickers on their cars.
Heuer, of Port Elizabeth law firm Pieterse, Cary, Finlaison Inc, chose local resident Johannes Ignatius Bartosch, a contract worker with a motor manufacturer, as “the 699 man” to represent all the others.
The ultimate aim was to have the credit agreements with the banks – Nedbank’s MFC, Absa and Standard – declared to be reckless lending in terms of the National Credit Act, thus declared null and void and cancelling the consumers’ rights and obligations. The banks would then have to take back the cars.
In responding affidavits, all three banks said Heuer’s claims were based on hearsay and speculation; that the Satinsky clients’ experiences varied too greatly to satisfy the requirements of a class action, and that the Port Elizabeth High Court had no jurisdiction to decide on the matter.
“The entire case is predicated upon extravagant assertions.”
Judge Chetty agreed with the jurisdiction issue, saying Heuer’s papers were “based entirely on conjecture and assertions”.
Assertions such as that the banks did not conduct proper affordability assessments, and the consumers didn’t understand or appreciate the risks, costs and obligations of the contracts they signed.
He said Heuer had “dismally failed to disclose any cause of action whatsoever”.
The attorney’s persistence in urging those affected to participate in the litigation by registering their details via SMS – despite the banks’ “cogent and valid” opposition – was, the judge said, “to my mind a matter of aggrandisement pursued for self-interest, and not in the public interest”.
He dismissed the application with costs, to be paid de bonis propriis, which is an expression of a court’s disdain at an attorney’s conduct.
Those 699-ers who wish to pursue their reckless-lending claims against their banks will now have to do so individually.
All three banks welcomed the ruling on Thursday. Nedbank said MFC, which has about 14 000 Satinsky clients, had a dedicated process in place to help the affected clients “and remains committed to working with all clients to explore viable solutions in line with the National Credit Act”.
“We believe that this is the correct application of the law to the facts of the case,” said Absa, which has 6500 Satinsky clients.
“Absa has and will continue to assist clients who are under financial stress,” it added.
And Standard Bank, which, with 3600 Satinsky clients, is the least exposed, said it granted loans only if “all the credit and affordability criteria have been met”.
“We would look at assisting customers rescheduling their loans, as is the normal collection practice for accounts in arrears,” the bank said.