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[2016] ZAGPJHC 78
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South African Bank of Atehns v Dube (2014/38776) [2016] ZAGPJHC 78 (29 April 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/38776
DATE:
29 APRIL 2016
In
the matter between:
THE
SOUTH AFRICAN BANK OF
ATEHNS
......................................................................
Applicant
And
DUBE,
SIPHO PATRICK (ID NO:
57…………)
................................................................
Respondent
JUDGMENT
ADAMS
AJ:
[1].
The applicant
seeks an order against the respondent for confirmation that a Credit
Agreement concluded between the parties was cancelled
and for the
return of a 2012 Land Rover 5.0 S/C with, Vin number: SA……..
And Engine number: 1…………S
(‘the
motor vehicle’)
.
The cause of action relied upon by the first applicant is clearly the
rei
vindicatio
.
[2].
The applicant
is the owner of the vehicle in respect of which the parties concluded
a written Credit Agreement on the 29
th
June 2012
(‘the
agreement’)
.
In terms of this agreement the respondent was given possession of the
vehicle at a purchase price of R1,520,000.01, with credit
given for
the deposit paid of R900,000.00, resulting in a net capital advance
of R620,0001.01, to which interest charges and service
fees were
added in the sum of R123,314.86. in terms of the agreement, the
unpaid balance was payable in 48 instalments of R15,485.73
per month.
[3].
The agreement
provided that should the respondent default in the punctual payment,
the applicant was entitled to cancel the agreement
after having made
a demand in terms of the National Credit Act.
[4].
As at the 31
st
August 2014 the respondent was in arrears in the sum of R62,323.04,
and on the 15
th
September 2014 the applicant addressed to the respondent a written
demand in terms of section 128 of the National Credit Act. The
respondent failed to respond to the demand within the statutory
period of 10 business days. On the 7
th
October 2014, the applicant cancelled the instalment sale agreement
with the respondent.
the
respondent’s version
[5].
The respondent
opposes the relief sought by the applicant.
[6].
Respondent
denies that a credit agreement in respect of the vehicle was
concluded between the parties. He alleges that the paper
trail was a
fabrication and a scam perpetrated by the CEO of the applicant and
its staff aimed at assisting him (the respondent)
to obtain a loan of
R620,000.01. He was at all times the owner of the vehicle, which,
according to the respondent was never the
subject of an instalment
sale agreement or any other credit agreement. He does not however
give any indication as to how he acquired
the ownership of the
vehicle.
[7].
The version of the
respondent is far – fetched and borders on the ridiculous. It
presupposes a conspiracy of epic proportions
involving senior
executives of the applicant and staff members of the Dealership which
sold the vehicle to the applicant.
[8].
For these reasons, I am of the view that
the version of the respondent is far – fetched and stands to be
rejected on the papers.
The
law
[9].
In
Plascon –
Evans v Van Riebeeck Paints,
1984 (3)
623 (AD), the principles relative to the assessment of factual issues
in motion proceedings are set out as follows at pg
634:
‘
It
seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some
clarification
and, perhaps, qualification. It is correct that, where in proceedings
on notice of motion disputes of fact have arisen
on the affidavits, a
final order, whether it be an interdict or some other form of relief,
may be granted if those facts averred
in the applicant's affidavits
which have been admitted by the respondent, together with the facts
alleged by the respondent, justify
such an order. The power of the
Court to give such final relief on the papers before it is, however,
not confined to such a situation.
In certain instances the denial by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or
bona fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T) at 1163 - 5;
Da
Mata v Otto NO
,
1972 (3) SA 858
(A)
at 882D - H).
If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under Rule 6
(5) (g) of the Uniform Rules of Court (cf
Petersen
v Cuthbert & Co Ltd,
1945 AD 420
at
428; Room Hire case supra at 1164) and the Court is satisfied as to
the inherent credibility of the applicant's factual averment,
it may
proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant
is
entitled to the final relief which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
,
1983 (4) SA 278
(W) at 283E - H). Moreover, there may be exceptions
to this general rule, as, for example, where the allegations or
denials of
the respondent are so far-fetched or clearly untenable
that the Court is justified in rejecting them merely on the papers
(see
the remarks of BOTHA AJA in the
Associated
South African Bakeries case
, supra at
924A)
.
[10].
Applying these principles to the present
case, I am of the view that the respondent’s version is far –
fetched and clearly
untenable and should be rejected on the papers.
[11].
I am therefore of the view that the first
applicant has made out a case for the relief sought in this
application.
order:
Accordingly,
I make the following order:-
1.
It is hereby confirmed that the credit
agreement concluded between the parties on the 29
th
June 2012 was cancelled.
2.
The respondent shall return and deliver to
t
he applicant the
2012 Land Rover 5.0 S/C with, Vin number: S…………
and Engine number: 1………….
(‘The
motor vehicle’)
.
3.
In the event of the
respondent refusing and / or failing to return to the - applicant the
motor vehicle, the sheriff of this court,
or his lawfully appointed
deputy, is hereby authorised and directed to attach and remove the
said vehicle and to return and deliver
same to the applicant.
4.
The respondent shall pay the applicant’s
costs of this application on the scale as between attorney and
client, including
the cost of Senior Counsel.
L
ADAMS
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON: 26th April 2016
JUDGMENT
DATE: FOR THE APPLICANTS: 29th April 2016
Mr.
John Peters SC
INSTRUCTED
BY: K G Tserkezis Incorporated
FOR
THE RESPONDENT: Adv Boonzaaier
INSTRUCTED
BY: Zwiegers Attorneys