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2024
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[2024] ZAECMKHC 5
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Volkswagen Financial Services SA (Pty) Ltd v Nceba Giwu N.O (3792/2023) [2024] ZAECMKHC 5 (18 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NUMBER.:
3792/2023
In
the matter between:
VOLKSWAGEN
FINANCIAL SERVICES SA (PTY) LTD
Plaintiff
And
NCEBA
GIWU N.O.
Defendant
JUDGMENT
Beshe
J
[1]
In October 2023 plaintiff issued summons
against the defendant seeking the following:
(a) Cancellation of an
agreement in respect of a specified motor vehicle.
(b) The return of the
said motor vehicle, described as a 2015 Volkswagen Polo GP 1.4
Trendline Tip motor vehicle with given Chassis
and Engine Numbers.
(c) Costs of suit.
(d) Alternative relief.
It is common cause that
the plaintiff had entered into an instalment agreement in respect of
the said motor vehicle with one Amandla
Dimanda. Mr Dimanda passed
away on the 25 February 2022. The defendant is cited in his capacity
as the appointed executor in respect
of Mr Dimanda’s estate.
The defendant holds a letter of authority in this regard issued by
the Master on 23 June 2022.
[2]
Defendant filed a notice of intention to
defend the action. Duly filed a plea. Defendant pleaded that
the
motor vehicle was handed over to the plaintiff’s official upon
deceased’s death. Defendant stated categorically
that it was
not in possession of the motor vehicle.
[3]
Defendant having entered an appearance to
defend, plaintiff applied for summary judgment in respect
of which
the same relief as prayed for in the summons is sought.
[4]
In plaintiff’s affidavit in support of
summary judgment, it is admitted that plaintiff is in
possession of
the motor vehicle but is unable to sell same without an order
granting the delivery of the motor vehicle. It was
argued on behalf
of the plaintiff that should the court not be amenable to issue the
order in this regard, it should issue an order
confirming the return
of the motor vehicle. To this end, an amendment of the summary
judgment application was sought to reflect
that what is sought is the
confirmation of the return of the motor vehicle. In my view, this
will not be necessary as the court
is also asked to grant any
alternative relief it may deem fit in the circumstances.
[5]
It is common cause that defendant on behalf
of deceased’s wife is unable to keep up with the
payment of the
instalment. That much is also clear from the correspondence exchanged
between the parties, inter alia about the
settlement amount. The
defence raised by the defendant is that the motor vehicle was
voluntarily returned to the plaintiff. There
is no provision in the
agreement that stipulates that the sale of the repossessed motor
vehicle must be preceded by a court order.
Regarding the order for
the cancellation of the agreement, defendant contends that the
agreement was terminated upon the repossession
of the motor vehicle.
I could not find any such clause in the contract to that effect.
[6]
The reliance by defendant on the failure by
the plaintiff to comply with clause 11 of the agreement
is misplaced.
This clause provides for the voluntary surrender of the goods to the
plaintiff. Clause 11.1 provides that the defendant
may terminate the
agreement by giving the plaintiff a written notice and surrendering
the goods to the plaintiff. The goods may
have been surrendered or
repossessed, but there is no evidence of a written notice by the
defendant to terminate the agreement.
The requirement for a written
notice is also provided for by Section 127 of the National Credit
Act, Act 34 of 2005. Both parties
alluded to part of this provision.
Everything else, including the provision by credit provider of the
estimate value of the good
and as well as any other prescribed
information follow after the receipt by the credit provider of a
notice of cancellation from
the consumer. By parity of reason, until
such time the agreement is cancelled by any of the parties, the
requirement to have the
goods appraised and subsequently sold does
not become due.
[7]
For these reasons, I am of the view that the
plaintiff has made out a case for cancellation of the
agreement as
well as for an order confirming the return of the motor vehicle to
the plaintiff.
[8]
Accordingly, summary judgment is granted in
favour of the plaintiff against the defendant for:
(a) The cancellation of
the agreement in respect of the motor vehicle described in paragraph
(b) below.
(b) Confirmation of the
return of a 2015 Volkswagen Polo GP 1.4 Trendline Tip motor vehicle
with given Chassis and Engine Numbers.
(c) Costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff
Adv:
K.L. Watt
Instructed
by
MANILAL
BREWIS ATTORNEYS
C/o
HUXTABLE ATTORNEYS
26
New Street
MAKHANDA
Ref:
01M100062/87004844535
Tel.:
046 – 622 2692
For
the defendant
Adv:
Z.A. Mqokozo
Instructed
by
NCEBA
GIWU INC.
C/o
YOKWANA ATTORNEYS
10
New Street
MAKHANDA
Ref.:
Ms L Bulube
Tel.:
046 – 622 9928
Date
Heard
16
January 2024
Date
Reserved
16
January 2024
Date
Delivered
18
January 2024