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[2021] ZAGPJHC 389
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Standard Bank of South Africa Limited v Lusolink International Export (Pty) Ltd and Another (33589/19) [2021] ZAGPJHC 389 (4 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 33589/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
04/06/2021
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Applicant
and
LUSOLINK
INTERNATIONAL EXPORT (PTY) LTD
First
Respondent
GABRIEL
GARY
MOONSAMY
Second Respondent
JUDGMENT
YACOOB
J:
1.
The applicant seeks an order confirming the
cancellation of three instalment sale agreements, and ordering the
return of three motor
vehicles to it.
2.
The first respondent concluded the
instalment sale agreements with the applicant, for the purchase of
the three vehicles. The second
respondent represented the first
respondent in the conclusion of these agreements and also is the
first respondent’s guarantor.
The National Credit Act does not
apply to the agreements as the purchaser was a juristic person.
3.
The first respondent has breached the
agreements by defaulting on its payments, prompting the applicant to
approach the court for
the relief set out above.
4.
The respondents’ affidavit was filed
late and, although an affidavit was filed purporting to support an
application for condonation,
there was no formal application. The
applicant submitted that neither affidavit should be admitted.
5.
I consider that it is in the interests of
justice to have the respondents’ version before the court and
allow the affidavits.
6.
The respondents contend that a judgment has
already been granted in this matter and an application for leave to
appeal is pending.
7.
The matter was set down on the unopposed
roll because the answering affidavit was filed late. The court then
granted an interim
order that the vehicles be returned to the
applicant for safekeeping pending the determination of this matter.
No decision was
made on the merits. In those circumstances I may hear
the matter.
8.
The first respondent’s defence set
out in the answering affidavit (which is deposed to by the second
respondent) is that it
did not receive the default notices which the
applicant sent to both the nominated
domicilia
and by email, and that the price it was charged for one of the
vehicles (“the coupe”) was R300 000 more than market
price, when it was represented to be market price. Finally, the first
respondent contends that the applicant ought not to have
instituted
motion proceedings but action proceedings since an expert would have
to testify about the value of the vehicles.
9.
The first respondent does not deny
that it received the cancellation letters which were sent to the same
addresses as the default
notices. It must be noted that each
agreement has a different
domicilium
address. The contract requires only that the applicant send the
default notices to the first respondent. Letters for all three
agreements were sent to each of the different address provided by the
first respondent. In addition, all were sent by email.
There is
no contention by the respondents that the email address was
incorrect.
10.
It is by now well established that all a
creditor has to do is establish that it has dispatched the necessary
notices, as a recalcitrant
debtor cannot be forced to collect notices
from the post office, or even to acknowledge an email. Even where the
National Credit
Act applies, and the requirements of notice are much
stricter, all that has to be done by the creditor is prove that the
notices
were received by the relevant post office.
11.
The first respondent also does not set out
any evidence of what the market price of the coupe may have been, nor
any other evidence
that may support its case. It also sets out no
defence for the default on the other two agreements. In any event,
the value or
market price is not relevant at this stage of
proceedings. All that the respondents are required to do is return
the vehicles.
The value or market price is relevant only if damages
are claimed after the vehicles have been sold.
12.
In any event, the first respondent entered
the contract for the purchase of the coupe on the basis of the price
that is contained
in the contract. No steps were taken to correct any
purported error or misrepresentation.
13.
There is clearly also no merit in the
contention that damages may not be claimed in motion proceedings. In
this case, in any event,
the contracts provide for a claim to be made
on the basis of a certificate of balance, which is a liquid document.
14.
In any event, the issue is whether the
applicant who has chosen to initiate motion proceedings rather than
action proceedings is
able to prove its case. In this case, the
applicant clearly has proved its case.
15.
For these reasons I make the following
order:
1.
The First Respondent is ordered to immediately return to the
Applicant the:
1.1.1. 2018
Ford Ranger 3.2 TDCI Wildtrak AT with engine number [....] and
chassis number [....].
1.1.2. 2016
Mercedes Benz GLE Coupe 450/43 with engine number [....] and chassis
number [....].
1.1.3. 2013
Mercedes Benz S500 BE with engine number [....] and chassis number
[....].
2.
The sheriff of the court is authorised to attach and remove the
aforesaid vehicles from the possession of the First Respondent
or wherever else and in whose possession, it may be found and to hand
it to the Applicant or its representatives.
3.
The Applicant is granted leave to apply to this court on the
same
papers duly supplemented for an order that the first and second
Respondents jointly and severally the one paying the other
being
absolved make payment to the applicant of any amount due to the
Applicant after the inspection valuation and sale of the
vehicles.
4.
First and second Respondents jointly and severally the one paying
the
other being absolved are to pay the costs of this application.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for Applicant: AJ Venter
Instructing
Attorneys:
Martins Weir-Smith Inc
Respondent’s
Legal Representative: Mervyn
Fehler (Attorney)
Date
of hearing: 22 June 2020
Date
of judgment: 04 June 2021