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[2023] ZAECMKHC 116
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Nedbank Limited v Bukweni N.O (1970/2022) [2023] ZAECMKHC 116 (24 October 2023)
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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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 1970/2022
In
the matter between:
NEDBANK
LIMITED
APPLICANT
and
NONKULULEKO
BUKWENI N.O.
(ID
NO: 9[…]) in her capacity
as
Master’s Representative in the
Estate
of the Late Mankuntswana Bukweni
RESPONDENT
JUDGMENT
Rugunanan
J
[1]
The subject matter of this application concerns a
Toyota Hiace minibus (the motor vehicle) which is currently in the
possession
of the respondent. The respondent is the duly appointed
Master’s representative in the estate of the late Makuntswana
Bukweni.
The latter, as purchaser, acquired the motor vehicle from
the applicant on 18 December 2019 in terms of an electronically
concluded
instalment sale agreement.
[2]
The purchaser subsequently passed away on 24 March
2021.
[3]
The applicant, by way of vindicatory proceedings,
claims the return of the vehicle contending that as owner thereof it
is entitled
to recover possession from the respondent – and
given that the instalment sale agreement between itself and the
deceased
has terminated, the respondent was and remains at all times
material hereto in unlawful possession of the vehicle.
[4]
The proceedings were instituted on 23 June 2022
and the notice of motion and founding affidavit served personally on
the respondent
on 29 June 2022.
[5]
The applicant seeks return of the vehicle on the
basis that the instalment sale agreement was terminated upon the
death of the purchaser
as principal debtor. According to the
certificate of balance attached to the founding affidavit the
outstanding balance due in
terms of the agreement as at 13 June 2022
is indicated as R422 964.16. And since the respondent is not
authorised to remain
in possession of the vehicle, and refuses to
surrender it to the applicant, the applicant maintains that she is an
unlawful possessor
and it seeks return of the vehicle so that it may
be sold and the proceeds be credited towards the reduction of the
outstanding
balance due to the applicant in terms of the agreement.
[6]
At
the commencement of the proceedings the applicant raised two points
in
limine
.
The first is that the respondent deposes to the answering affidavit
in her capacity as an adult female whereas the pronoun in
the
commissioner’s certification clause refers to the deponent as a
person of male gender. The regulations governing the
administration
of an oath or affirmation
[1]
require that the deponent to a declaration shall sign it in the
presence of a commissioner of oaths
[2]
.
The incorrect certification of the deponent’s gender may
justify the inference that the deponent did not sign the affidavit
in
the presence of a commissioner of oaths and may render the answering
affidavit liable to be set aside as an irregular proceeding.
The fact
of the matter is that the applicant did not lodge an objection in
terms of rule 30 of the uniform rules of court and ought
to have done
so if it was serious in not being prepared to overlook the
commissioner’s use of the incorrect pronoun.
[3]
The point
in
limine
has
no merit.
[7]
The second point relates to the failure by the
respondent to seek condonation for the late filing (by 7 days) of the
answering affidavit,
which had been delivered on 4 August 2022. The
application for condonation was filed almost a year later during
July 2023.
The explanation is extremely lean in content – the
deponent attributing the delay to the conduct of the matter in the
hands
of her local attorney.
[8]
The applicant also sought condonation for the
failure by some nine months to have filed its replying affidavit
timeously. While
the delay is certainly lengthy, I am satisfied that
good cause has been shown for granting condonation. The deponent to
the replying
affidavit states that it became necessary for the
applicant to terminate the mandate of its original attorneys of
record and new
attorneys had to be appointed. The circumstances
surrounding this process caused a delay in the preparation of the
replying affidavit
which rendered it impossible for the applicant to
have filed within the normal time frames provided for in terms of the
rules.
[9]
In assessing both applications for condonation it
is deemed unnecessary to enter upon a recital of the principles
applicable to
their evaluation or to gratuitously repeat the contents
of the parties’ affidavits. I am of the view, in the
circumstances
of this matter, that in the interests of achieving
finality in the matter, it will be prudent to determine the merits of
the application.
The
rei vindicatio
[10]
One
of the incidents of ownership (
dominium
)
is the right of exclusive possession of a thing with the necessary
corollary that an owner may claim their property wherever found
and
from whomsoever holding it. The
rei vindicatio
is
available to an owner who has been deprived of their property without
consent and who wishes to recover it from someone else
who retains
possession.
[4]
[11]
In
vindicatory proceedings it is trite that the claimant need do no more
than allege and prove that they are the owner of the property,
that
the other party is holding the property, and t
hat
the property in question is still in existence and is clearly
identifiable
[5]
.
[12]
The
onus
is on the holding
party to allege and establish an enforceable right (such as a right
of retention or a contractual right) to continue
to hold against the
owner.
[13]
The
rei vindicatio
postulates that once a claimant establishes
ownership in the thing in issue, and where the respondent is in
possession at the commencement
of the action, the thing shall
immediately be returnable.
[14]
It is apparent from a reading of the respondent’s
answering affidavit that the applicant’s ownership of the motor
vehicle
is not seriously disputed. What the respondent seeks to place
in issue is that the copy of the agreement attached to the founding
affidavit does not disclose the signature of her deceased father and
that there is no proof that the conclusion of the agreement
was
facilitated with a one-time pin.
[15]
Moreover, she puts up the argument that she made
payments to the applicant and was therefore entitled to have been
served with a
notice in accordance with
section 129
of the
National
Credit Act 23 of 2005
before the applicant had resorted to
instituting this application.
[16]
I deal with these aspects below.
The authenticity of
the agreement
[17]
Section 2
(3) of the
National Credit Act
specifically
provides that a signature or initial may be effected by
way of an advanced electronic signature or an electronic signature as
defined
in the Electronic Communications and Transactions Act 36 of
2005. An inspection of every page of the copy of the agreement
attached
to the founding affidavit discloses that the agreement was
signed by the deceased whose name, identity number and time of
signature
by means of a one-time pin is evident. The electronic
signature utilised by the deceased as purchaser/buyer accords with
the provisions
of the legislation aforesaid.
[18]
In the circumstances, the copy of the agreement is
valid and enforceable.
[19]
In her challenge to the applicant’s
ownership of the vehicle the respondent contends that the vehicle in
her possession bears
the registration JMG[…] which does not
accord with the vehicle register number HPX[…] indicated in
the Certificate
of Registration which is attached to the founding
affidavit.
[20]
This discrepancy is inconsequential.
[21]
The engine number and vehicle identification
number in the instalment sale agreement accord with those indicated
in the Certificate
of Registration respectively as 2TR[…] and
AHT[…]. There is no dispute about this and no dispute about
the make and
model of the vehicle in question, it being a Toyota
Hiace.
[22]
It follows that the identity and existence of the
vehicle have also been established.
The payment plan
[23]
In seeking to establish the existence of a right
to possession, the respondent avers that the applicant accepted
monthly instalments
from herself and her family in respect of the
motor vehicle. The applicant correctly points out in its replying
affidavit that
this simply does not pass muster. An item purchased
under an instalment sale agreement can only be an asset in a deceased
estate
if it has been paid in full – until then it is a debt in
the estate and the heirs and/or executor and/or Master’s
representative
of the estate has absolutely no say over the property.
[24]
It is considered incumbent nonetheless to mention
something of material significance about the content of the
agreement. Clauses
3.3; 7.1; and 7.1.3 of the agreement specifically
provides that the applicant will remain owner of the vehicle until
all amounts
due under the agreement has been paid by the purchaser
and if the latter dies, the applicant may proceed with the
enforcement or
termination of the agreement and take repossession of
the vehicle.
The section 129 notice
[25]
As to the averment that such a notice was to be
sent to the respondent, this is misplaced. A Master’s
representative appointed
in terms of
section 18(3)
of the
Administration of Estates Act 66 of 1965
does not fall within the
scope of the definition of the word ‘consumer’ in the
National Credit Act.
[26]
As such, the National credit act is not applicable
and the respondent cannot assert an entitlement to have received such
a notice
prior to the institution of these proceedings.
[27]
It is patently clear that the respondent has not
established a right to retain possession of the vehicle of which the
applicant
has established ownership.
[28]
In the circumstances the following order issues:
1.
The late filing of the applicant’s replying
affidavit is condoned.
2.
The late filing of the respondent’s
answering affidavit is condoned.
3.
Each party shall pay their own costs in seeking
condonation.
4.
The respondent is directed to return a 2019 Toyota
Hiace 2.7 Sesfikile with engine number 2TR[…] and vehicle
identification
number AHT[…] to the applicant within five (5)
days of service of this order.
5.
Should the respondent fail to comply with
paragraph 1 of this order, the Sheriff is hereby authorised to attach
the aforestated
motor vehicle and to hand same over to the applicant.
6.
The applicant is hereby authorised so sell the
aforementioned motor vehicle and credit the proceeds towards the
reduction of the
debt.
7.
The respondent shall pay the costs of this
application.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant:
C
G T Cordell
(heads of argument by
P Jacobsz
),
Instructed by Wheeldon Rushmere & Cole, Makhanda (Ref: S Amm).
For
the Respondent:
Z
Matukuta
, Instructed by Mgangatho Attorneys, Makhanda (Ref. A
Mgangatho)
Date
heard:
3
August 2023
Date
delivered:
24
October 2023
[1]
Issued under
section 10
of the Justices of the Peace and
Commissioner of Oaths Act 16 of 1963 and published in Government
Notice R774, Government Gazette
No. 8169 of 23 April 1982.
[2]
Regulation 3(1).
[3]
See for example
Absa
Bank Ltd v Botha NO and Others
[2013] ZAGPPHC
163; 2013 (5) SA 563 (GNP).
[4]
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
1999
(2) SA 986
(T) at 995I;
Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours
1958
(3) SA 285
(A) at 297E;
Sorvaag
v Pettersen and Others
1954
(3) SA 636
(C) at 639G.
[5]
Van Der
Merwe and Another v Taylor NO and Others
2008 (1) SA 1
(CC) para 114.