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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO. 2022/006207
In the matter between:
ABSA BANK LIMITED Applicant
And
ETERNAL CITY TRADING 612 CC First Respondent
RODWELL COLLINS GUMPO Second Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THUPAATLASE AJ
Introduction
[1] The applicant instituted a vindicatory application for the return of 11 vehicles. The
basis for this application is the first respondent ’s failure to make monthly payments
as per the written sale agreements between the partie s, resulting in arrears
escalating over a prolonged period.
[2] Respondents are opposing the relief sought and submit that payments have been
made to the applican t in the amount of R 850 000.00. The respondents further
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED. NO/YES
…………………….. ………………………...
DATE SIGNATURE
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contends that the applicant did not take the said amount into account when
calculating arrears and as such the amount alleged to be arrear is incorrect.
[3] The respondents also deny receipt of the letters of demand and notices of
cancellation allegedly dispatched by the applicant. A further legal argument has been
raised regarding the applicant’s failure to establish its case in its founding affidavit.
Parties
[4] The applicant is ABSA Bank , public company which is duly registered and
incorporated with limited liability in accordance with laws of Republic of South Africa,
and registered as a bank in terms of Banks Act, 94 of 1990 as amended and also
registered as Credit Service Provider in terms of the National Credit Act 34 of 2005
(NCA).
[5] The first respondent is a Close Corporation (CC) duly incorporated and registered
in accordance with Close Corporation Act, 69 of 1984.
[6] The second respondent i s Rodwell Collins Gumpo, an adult male and who is
surety and co-principal debtor and sole member of first respondent.
Background
[7] The chronology of events as set out on the papers which I consider significant are
the following:
7.1. Between July and November 2020, the applicant and first respondent
concluded 11 instalments sale agreements. The purpose of which was for
purchasing of various assets. These assets were vehicles consisting of
tippers and tractors.
7.2. On 17 September 2020, the second respondent signed a suretyship in
favour of the applicant for all the debts ow ing by the first respondent to the
applicant.
7.3. First respondent breached the instalment sale agreements by defaulting
on its payments. The applicant dispatched several letters of cancellation
specifying the arrears and outsta nding balances and notifying the first
respondent of the cancellation of each of the agreements. The letters were
dispatched to the first respondent on 03 June 2022. The date reflected on
each of the notices is 0 4 June 2022. Whilst the respondent s are taking issue
with the discrepancy between the two dates, the applicant has attributed such
discrepancy to a typographical error during preparation of the notices.
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[8] Among the salient features of the agreement was to specifically exclude the
applicability of the NC A. The reason being that the first respondent is a juristic
person, and its annual turnover was above the threshold set by the Minister as per
s4(1)(a)(i) of the NCA. The purpose of such agreements was for the applicant to
provide the first respondent with loans. The loan amount s were to be used for the
acquisition of assets (vehicles).
[9] The assets purchased were to remain the properties of the applicant until first
respondent has discharged all its financial obligations towards the applicant.
[10] It was a further a term of the sale agreements that the first respondent is entitled
to possession and use of the asset s. This was contingent on the first respondent not
being in default with its payments. Upon the first respondent’s fulfilment of all its
financial obligations, the applicant would transfer ownership of the assets to the first
respondent.
[11] Apart from the financial obligations; the first respondent was obliged to keep the
assets in good working condition, and not permitted to sell, transfer or part with
possession or control of the assets to any other person without the applicant ’s
permission.
[12] In order to fulfil its obligations unde r the agreement, the first respondent
undertook to pay the instalments by their due dates. The first respondent as
borrower would be considered in default under the agreement if it failed to honour its
instalment obligations in full timeously, or failed to comply with any other conditions
under the agreement.
[13] In the event of a default, the applican t would be at liberty to cancel the
agreement; foreclose the outstanding balance of the loan amount; and repossess the
assets or enforce any security provided in terms of the agreement. In the event of
termination of the agreement due to the first respondent default ing, the applicant
shall be entitled to take control of the assets and to sell the assets.
[14] The first respondent agreed that notices may be sent by either letter or via
email. The first respondent also agreed that a certificate of balance produced and
signed by a manager of the applicant will suffice as evidence of the amount owed.
Legal issues to be determined.
[15] The first issue for determination is condonation for the late filling of the replying
affidavit. I accept that replying affidavit was quite voluminous and would have
required time to prepare.
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[16] The applicable legal principles regarding condonation are a well -worn path. A
party seeking condonation must provide details that caused the delay with sufficient
particularity. The basis being that the said party is essentially seeking an indulgence
from the court. The court in considering a condonation application is vested with
judicial discretion to determine whether or not to grant same.
[17] The position was articulated as follows in the case of Uitenhage Local Council v
SA Revenue Services 2004 (1) SA 292 held that: ‘ Condonation is not to be had
merely for the asking. A full detailed and accurate account of the cause of the delay
and their effects must be furnished as to enable the court to understand clearly the
reasons and to assess the responsibility. It must be obvious that, if the non -
compliance is time related, the date, duration, and extent of any obstacle on which
reliance is placed, must be spelt out’.
[18] In Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus) 2008 (2) SA 472 (CC) the constitutional court at para [22] elaborated further
that: ‘ An application for condonation must give a full explanation for the delay. In
addition, the explanation must cover the entire period of the delay. And what is more,
the explanation given must be reasonable’.
[19] The interest of a party in the finalization of the matter is another factor to be
considered. This consideration was stated as follows in Dengetenge Holdings (Pty)
Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] All
251 (SCA) that: ‘the degree of non -compliance, the explanation therefor, the
importance of the case, a respondent’s interest in the finality of the judgment of the
court below, the convenience of this court and avoidance of unnecessary delay in
the administration of justice’. Both parties submitted the affidavits re plying and
answering affidavits out of time. It is however evident that the parties to the litigation
will be better served by allowing the matter to proceed. I can see no prejudice for any
of the parties.
[20] In the present matter I am disabused of the fact that the delay was inordinate on
the part of the defendant. The delay was for 1 4 days. Therefore, I am unpersuaded
that the defendant acted in a flagrant and gross manner as it is clear that he made
reasonable efforts to comply with the Rules. In the premises condonation is granted.
[21] The first respondent attaches three payment notices showing that between
periods 29 June 2022 and 21 September 2022 an amount of R 850 000. 00 was paid
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to service its various loan accounts. It is not the first respondent’s argument that the
said amount represent s the total arrears. It agreed that the certificate of balance
generated by the manager of the applicant shows a significantly high amount of
arrears. It is not denied that the sum of R 850 000. 00 was paid, however the various
loan accounts remain in arrears for an amount of R 1 411 146. 44. I am satisfied that
the first respondent is still in default with its payment obligations.
[22] In FIRSTRAND BANK LTD v BECK ESTATES (PTY) LTD 2009 (3) SA 384 (T)
the court dealt with the is sue where the amount reflected in the summons and the
notice of motion are different as a result of payment which occurred after the
proceedings were commenced. In the present case the respondents contend that the
arrear amount reflected in the certificate of balance was incorrect as such amount
does not take into account the sum of R 850 000.00.
[23] The court in FIRSTRAND BANK at para 29 held that: ‘the deponent can be
criticized for failing to refer to the amount by which the inde btedness has been reduced after
issue and service of summons , this would not constitute evidence beyond that required by
rule 32. It would have meant that the court was not misled as to the amount outstanding as
at date of deposing to the affidavit in support of the summary judgment application’.
[24] At para 30 the court continued: ‘I can see no reason why the court cannot itself
reduce the amount in respect of which summary judgment is granted where it is apparent
from the papers that there has been a reduction in the amount claimed in the summons.
There is no prejudice to the respondents. To refuse to grant summary judgment in respect of
the balance owing merely because the application failed to reduce the amount claimed in the
summons would be, to my mind , to ignore the import of provisions of subrule (6) . In a
number of authorities our courts have recognised that a plaintiff may be granted less than
claimed in the papers because this deviation from that which is claimed in the papers neither
adversely affects the defendant’s rights nor is it detrimental to him’.
[25] I note that the above remarks were made in the context of summary judgment
application. I am of the considered view that the same principle finds application in
this matter in so far as it relates to indebted amount being reduced since the
issuance of a certificate of balance . Therefore, the discrepancies between the
amount reflected in the certificate of balance and the actual amount owed can be
corrected by this court. Th is can be done by simply deducting R850 000.00 from
amount as reflected in the certificate of balance, thereby making the balance owing
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equal to R 1 411 146. 44. The respondents will not suffer any prejudice, nor will such
a correction be detrimental to their case.
[26] Lastly, the question which occupied much of the court ’s time was regarding the
letters of demand and the notices of cancellation of which were purportedly
dispatched to the first respondent. The respondent denies receipt of such notices.
The question is w hether denial of receipt of the l etters of cancella tion is of any
significance to a vindicatory application in the context of each of the sale agreement.
[27] I should add that the answering affidavit of the first respondent does not place
many issues in disputes. The first respondent appears to be content with challenging
whether there was proper cancellation of the agreement . The respondents do not
provide any defence which would be sufficient to defeat the application.
[28] The relationship between the applicant and the respondents is governed by the
numerous sale agreements concluded between the parties. It is therefore pivotal that
any action contemplated by either party must be within the agreement.
[29] Applicant has launched a rei vindicatio application. As I understand the applicant
does not rely on the sale agreements. The applicant explains that as an owner of the
merx it is entitled to recover from whomsoever is in possession or has detention of it.
Applicant relies on old maxim ubi rem inventio ibi.
[30] The fact that the requirements of rei vindicatio have been met is incontrovertible.
Applicant is the owner of the property as clearly stipulated in the agreement. The
thing is still in existence and clearly identifiable. The respondents have possession or
detention of thing at the time of the institution of this application.
[31] The respondents’ submission is that the applicant has not acted as prescribed
by sale agreements and in particular clause 13 thereof. This clause is common to all
11 sale agreements which were entered into by the applicant and first respondent .
Clause 13 under the heading " Default & Consequences” stipulates as follows” ‘If you are
in default we may: - [My emphasis].
- by notice to you end the Agreement and demand immediate payment of the whole
outstanding balance of your loan with continuing interest, fees, and costs.
- re-possess the Asset or;
- enforce any Security provided in terms of this Agreement’.
[32] The Sale Agreement gives the applicant an election whether to send such a
notice or not . In this case the applicant dispatched notices to the respondent. The
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only issue are the dates of posting and the date reflected as the date on which the
notices were written. The anomaly has been explained by the applicant.
[33] The assertion by the respondents that ‘the agreement makes specific mention
that should the party be in default notice must be provided to the applicant, to either
end the agreement and demand immediate payment of the whole outstanding
balance of the loan with continuing interest, fees and costs ’ is not entirely correct.
The use of the word ‘may’ in the Sale Agreement makes it clear that the issuing of a
notice is not compulsory. The applicant had a choice whether to serve the notice of
cancellation or not.
[34] It is my view that there was substantial compliance with the notice to cancel the
agreement. The explanation of the dates is plausible and is accepted by the Court. I
am satisfied that the applicant is entitled to the relief sought. I am satisfied that the
requirements of rei vindicatio have been proved.
Order
IT IS ORDERED THAT:
1. The First Respondent shall return to the Applicant:
1.1. a 2018 SCANIA G460 6 X4 TRUCK TRACTOR with engine number
DC13106L[….] and chassis number 9BSG6X400039[…];
1.2. a 2018 SCANIA G460 6X4 TRUCK TRACTOR with engine number
DC13106L[…] and chassis number 9BSG6X400039[…];
1.3. a 2018 SCANIA R460 6X4 TRUCK TRACTOR with engine number
DC13101[…] and chassis number 9BSR6X400039][...];
1.4. a 2020 CIMC SIDE TIPPER LINK TRAILER with chassis numbers
ADSH236WAL1[…] and ADSH236WAL1[…];
1.5. a 2018 SCANIA G460 6X4 TRUCK TRACTOR with engine number
DC13106L01[…] and chassis number 9BSG6X400039[…];
1.6. a 2020 CIMC SIDE TIPPER LINK TRAILER with chassis numbers
ADSH236WAL1[…] and ADSH236WAL1[…];
1.7. a 2020 CIMC SIDE TIPPER LINK TRAILER with chassis numbers
ADSH236WAL1[…] and ADSH236WAL1[…];
1.8. a 2019 SCANIA R460 NGT 6X4 TRUCK TRACTOR with engine
number DC13144L01[…] and chassis number 9BSR6X40003[…]; and
1.9. a 2015 VOLVO FH 440 6X4 TRUCK TRACTOR with engine number
D1355[…] and chassis number YV2RS02DXF[…],
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(“the vehicles”).
2. If the First Respondent fails and/or refuses to return the vehicles to the Applicant
forthwith, then and in that event the Sheriff of the above Honourable Court is hereby
authorised and directed to enter upon the First Respondent’s premises, or wherever
the vehicles are being kept, to attach the vehicles and return same to the Applicant.
3.The Respondents shall pay the costs of this application including the reserved
costs of 17 October 2022, jointly and severally the one paying, the other to be
absolved, on the scale as between attorney and client.
4.The Applicant is granted leave to apply to this Honourable Court, on the same
papers duly supplemented, for payment by the Respondents to the Applicant of any
remaining balance due to the Applicant after the inspection, valuation and sale of the
vehicles
________________________________
THUPAATLASE AJ
HIGH COURT ACTING JUDGE
GAUTENG LOCAL DIVISION
Date of Hearing: 23 October 2023
Judgment Delivered: 17 January 2024
For the Applicant: Adv C Denichaud
Instructed by: Jay Mothobi Incorporated
For the Respondent: K Howard
Instructed: SN Mazibuko Attorneys