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[2024] ZAGPJHC 79
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ABSA Bank Limited v Mavundza (2022-050518) [2024] ZAGPJHC 79 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2022-050518
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
SEVENGWANI
ANA MAVUNDZA
Respondent
JUDGMENT
WRIGHT J
1.
On 23 November 2018, the applicant bank sold a
vehicle to the respondent, Ms Mavundza under a written credit
agreement. The bank
now seeks return of the vehicle under the rei
vindicatio.
2.
In the agreement, Ms Mavundza chose as
domicilium, 1[…] B[…] P[…], Alexandra.
3.
Ms Mavundza fell into arrears. On 14 March 2022,
the bank sent a letter under
section 129
of the
National Credit Act,
34 of 2005
to the domicilium address. In the letter it is
stated that the account has been in arrears for more than twenty
days, that
Ms Mavundza has ten business days to rectify the breach
and that if the letter is not complied with, the credit agreement
will
be automatically cancelled.
4.
This letter is annexed to the founding affidavit
as is proof of posting in the form of a registered postal slip and
proof of tracking
in the form of a track and trace report showing
that the letter was received by the relevant post office.
5.
Ms Mavundza denies receiving the letter. She may
well not have but that could only be due to a failure to collect it.
6.
Ms Mavundza says that she had informed the bank
of change of address sometime before the bank sent the
section 129
letter. She refers in her answering affidavit to an annex to it but
there is none. Upon enquiry by the bank’s attorney, Ms
Mavundza’s attorney sent the annex. This document is a bank
printout dated 10 August 2022, some five months after the
section 129
letter was sent. It lists a physical address for Ms Mavundza of “
N[…] Street House number 25[…]
“
in Mamelodi, different to the chosen domicilium. This document is by
no means a communication from Ms Mavundza at all. In
my view, the
allegation by Ms Mavundza that she informed the bank of change of
address is incorrect.
7.
Attached to the founding affidavit is a Notice of
Termination dated 30 May 2022 and signed, according to the bank by Ms
Mavundza.
Ms Mvundza says that she was spoliated of the vehicle on
that day when bank agents arrived at her house in Limpopo. She says
that
the notice was signed by her son. She says that she was misled
by the agents into believing that the notice merely confirmed that
the vehicle had been “
inspected and
taken in the condition that it was, and further that I have removed
every item that belongs to me
“. The
bank’s agents took the vehicle.
8.
Ms Mavundza approached the Magistrate’s
Court in Mamelodi and on 29 June 2022 obtained a temporary order in
the form of a
rule nisi for the return of the vehicle to her. On 3
August 2022, after the bank had been heard, the Magistrate discharged
the
rule nisi with punitive costs. The effect of the Magistrate’s
Order was to declare Ms Mavundza’s possession of the vehicle
unlawful.
9.
Ms Mavundza is bound by the order of the
Magistrate. Her defence that she was tricked into releasing the
vehicle is not open to
her.
10.
Ms Mavundza admits possession of the vehicle,
that the bank is the owner and that she is still in arrears. A point
of lack of jurisdiction
raised by Ms Mavundza was sensibly abandoned.
11.
In my view, there is no defence to the
application.
12.
The agreement provided for punitive costs
in the event of litigation by the bank.
ORDER
1.
The respondent and/or
any other party that may be in possession of the motor vehicle 2018
Quantum Minibus Kombi 2.5D bearing VIN
number A[…] is to
return the vehicle to the applicant forthwith.
2.
In the event that such
person fails or refuses to do so, the applicant may approach the
sheriff or the SAPS to give effect to this
order.
3.
The respondent is to
pay the applicant’s costs on the attorney and client scale.
_______________
GC Wright
Judge of the High Court
Gauteng Division,
Johannesburg
HEARD
: 30 January 2024
DELIVERED
: 30 January 2024
APPEARANCES
:
APPLICANT
Adv N Alli
Instructed by
Jay Mothobi Inc
anthony@jay.co.za
011 268
3500
RESPONDENT
Adv R Masipa
Instructed by
Cedrick Thoka Attorneys
081 206 5459
cedrickthokainc@gmail.com