WesBank customer’s 20-year quest for justice is now at ConCourt

In November 2004, former Ministry of Health communications manager Mzukisi Ndara bought a used 2004 Nissan X-Trail but was charged for a new one and extras he did not request.

He asked WesBank to cancel the sale because it was based on misrepresentations that he said were fraudulent, but the bank refused.

He has been fighting the case for 20 years, at staggering personal cost.

He was blacklisted, his credit facilities were cancelled, as a result he lost two homes and was forced to resign his government job. He also lost his wife; He says this was largely due to his depression over the family’s worsening financial situation.

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Long legal battle

The case, which likely cost millions of rand for both parties, went from the Eastern Cape High Court, which ruled in 2015 that his claim was time-barred, to the Supreme Court of Appeal and then to the ConCourt. They all agree with the high court decision.

The Prescription Act imposes a three-year time limit for bringing a claim of this nature, and in response Ndara says that he only became fully aware of all the facts in 2013 and that his claim against the bank in this case was not statute-barred.

In August this year, the Constitutional Court rejected Ndara’s appeal against this decision and ruled in favor of car dealer WesBank and Weir Investments.

Now Ndara has once again appealed to the ConCourt to set aside the earlier high court decision.

There has been no one-way traffic in WesBank’s favor in the courts.

In 2014, the Eastern Cape High Court rejected WesBank’s application to dismiss the case.

Later in 2018, Justice Buyiswa Majiki set aside the same court’s previous decision denying Ndara’s leave to appeal, which was obtained in Ndara’s absence.

Perhaps the most surprising aspect of this case is that it has continued for nearly 20 years and has not been resolved by other means.

When asked for comment, WesBank’s head of marketing and communications, Lebogang Gaoaketse, says: “WesBank welcomes the decision of the Constitutional Court, which affirmed the bank’s position in rejecting the allegations made by Mr. Ndara. The matter was heard in various courts, including the country’s highest court, and all of them rejected his claims.

“We will continue to oppose or defend any action or application brought by Mr. Ndara.

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Banks don’t like to lose

Every bank has disgruntled customers who file their complaints online.

There is little disagreement that banks often win against customers who take them to court.

Even if the merits of the case appear to favor the customer, banks win by bearing the legal costs that force their customers to give up the fight.

But Ndara isn’t done yet. He published a 400-page book. Quest for JusticeIt details the dire consequences of this botched car purchase.

What is surprising about this book is the endorsements Ndara has received from some heavyweight legal minds.

Mzukisi Ndara’s Quest for Justice. Image: Ndara’s Facebook page

Retired ConCourt Judge Edwin Cameron writes: “Your narrative is a Dickensian tale about the delays and uncertainties of the law, the evasions of lawyers and journalists, with occasional light points of bravery, loyalty and competence.” “Surprising, surprising and disturbing,” writes retired ConCourt Judge Edwin Cameron.

And former public protector Thuli Madonsela said: “Your story needs to be told so that business and government understand that they cannot continue to ignore its people who believe that the end justifies the means to profit.”

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The merits of the case ‘have not yet been discussed’

Throughout his ordeal, Ndara relied on his constitutional right to have his case heard before a competent court.

He was defeated on technical issues (such as statute of limitations) but maintains that the merits of his case have not yet been argued.

Unless someone stands up and fights for consumer rights, he says, the abuses he claims to have suffered will continue to be a routine occurrence.

“I may have been included in a vehicle sales contract tainted by misrepresentations, but it is a legitimate question to consider how this has affected every aspect of my life,” he writes Quest for Justice. “After all, I was also an accomplice in this incident, I signed the documents without using my mind.”

He may not have implemented his idea, but he argues that doesn’t exonerate the bank or the dealership.

At the time, they were subject to the Credit Agreements Act, which predated the National Credit Act 2007 and held lenders liable for “any act, omission or representation”.

He alleges in court documents that the car sale was riddled with misrepresentations.

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sales

He was sold a “new” 2004 Nissan a senior government executive.

The Nissan was originally a show model with a few thousand kilometers and had to be discounted to R270 000.

The offer-to-purchase agreement contained only the signature of the dealer representative.

Ndara claims this was not carelessness, but rather part of his “connivance in fraud”.

He was then told by the dealer that the R35 340 extras he was charged were a mandatory requirement of WesBank, but he later learned this was not true.

There were various offers to “reload” the contract with a lower interest rate, but Ndara insisted that the installment sales contract be canceled on the grounds of fraudulent misrepresentation.

In 2007, he was sent a restructured installment sales contract and was told that if he did not sign, the vehicle would be seized and he would be responsible for the entire unpaid balance.

Under threat of repossession, he signed the restructured agreement.

It also alleges that the trade-in vehicle, the Nissan Almera, had an outstanding balance of approximately R141,000 paid to Absa, but continued to be charged for both vehicles by WesBank.

He later discovered that he had been blacklisted by WesBank in 2007; This was a major event that led to the cutting off of access to credit from all banks.

He was later forced to sell two houses he owned in East London with his late wife.

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‘Fraud breaks all agreements’

Despite the losses he has suffered in court over the years, Ndara vows to continue fighting.

He argues that under common law fraud breaks all agreements.

“Few people in my situation have fought their cases as I have, all the way to the ConCourt, but I believe I must do this and win for the rights of ordinary South Africans who are being abused by banks,” Ndara said. he told Moneyweb.

This article is republished from Moneyweb. To read original here.