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[2021] ZAGPPHC 370
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Nalek Security (Pty) Ltd t/a Nalek Security (Pty) Ltd and Another v First Bank t/a Wesbank and Another (49347/2018) [2021] ZAGPPHC 370 (28 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
Case
Number
: 49347/2018
In
the matter between:
NALEK
SECURITY (PTY) LTD t/a
NALEK
SECURITY (PTY)LTD
FIRST
APPLICANT
(REG.
NO.: 2014/032142/07)
KGASOANE,
JOHN KARABO
SECOND
APPLICANT
and
FIRST
BANK LTD t/a WESBANK
FIRST
RESPONDENT
(REG.
NO: 1929/001225/06)
THE
DEPUTY SHERIFF OF THE HIGH
COURT
JOHANNESBURG SOUTH
SECOND RESPONDENT
JUDGMENT
KUBUSHI
J
Delivered:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and
time for hand-down is
deemed to be 10h00 on 28 May 2021.
INTRODUCTION
[1]
The applicants seek an order that the first respondent be interdicted
and restrained from
attaching and taking possession of a 2015
MERCEDES-BENZ S 63 AMG COUPE motor vehicle, with engine number
15798560070733 and chassis
number WDD2173772A007803; ("the motor
vehicle") under an order of this court granted on or about
October 2018 under case
number 49347/2018, pending the deliberation
of an application under the above case number which application will
be served on the
first respondent.
[2]
In addition, the applicants seek an order in terms of which any
further execution of an
order of this court that was granted on or
about October 2018 under case number 49347/2018 is stayed/pended;
pending the settlement
of correct amount due to the first respondent.
[3]
Only the first respondent is opposing the application. The first
respondent’s defence
against the applicants’ claim is
that the applicants failed to make out a case for interim relief as
sought in prayer 1 and
that the relief they seek in prayer 2 is
res
judicata
and the court is
functus officio
in respect
thereof.
[4]
The applicants have not filed a replying affidavit and heads of
argument as same could not
be found on Caselines.
[5]
This court has directed that the application be determined on the
papers filed on Caselines
without oral hearing as provided for in
this Division’s Consolidated Directives re Court Operations
during the National State
of Disaster issued by the Judge President
on 18 September 2020.
[6]
The defences raised by the first respondent are preliminary in nature
and may be dispositive
of the issues in this application if decided
in the first respondent’s favour; and they ought to be dealt
with at the outset
before the merits of the application are
considered.
BACKGROUND
[7]
It is common cause that due to the first applicant's breach of its
payment obligations in
terms of the instalment sale agreement (“the
agreement”) concluded between the first applicant and the first
respondent,
the first respondent instituted proceedings for the
return and repossession of the motor vehicle it financed in terms of
the agreement.
The applicants defended the summons and the first
respondent pursued judgment by way of the summary judgment procedure
provided
for in Rule 32 of the Uniform Rules of Court.
[8]
It is also not in dispute that on 11 October 2018 the court granted
judgment against the
applicants for cancellation of the agreement and
repossession of the motor vehicle. This judgment has not been
rescinded and is
still of force and effect. On the basis of that
judgment, the Registrar on
7 November 2018 issued a warrant for delivery of the motor vehicle.
The first respondent allegedly attempted to execute the warrant
for
delivery on 14
November 2018 without
success.
[9]
It is, also, common cause that pursuant to the said judgment granted
on 18 October 2018,
the applicants, on 28 November 2018, issued an
application for an order in the following terms:
9.1
That ( the first respondent be compelled to apply for the taxation
and or other assessment
of the legal and/or related costs charged to
the applicants' written instalment sale agreement since inception of
legal and/or
action proceedings against the applicants for
determination of reasonableness; That the applicants be granted a
period of 3 (three)
months within which to appoint an accredited
third party auditor in order to determine the actual outstanding
balance due and payable
by the applicants to the first respondent;
9.2
Alternatively, that the execution of an order of this Honourable
Court that was granted
on or about October 2018 under case number
49347/2018 be stayed pending the settlement of the correct arrear
amount due to the
first respondent;
9.3
Costs.
[10]
The matter was fully opposed and was dismissed with costs on 29 May
2019. The first respondent had
undertaken to ensure that the opposed
motion papers in this application are filed in the court file but has
not done so. These
allegations by the first respondent are, in any
event, not denied by the applicants.
PRELIMINARY
POINTS
[11]
According to the first respondent the applicants’ case for an
interim interdict is meritless,
in that the applicants have failed to
make out a case for interim relief and due to the fact that as at
date of preparing the opposing
affidavit (September 2019 and amended
December 2019), no other application for deliberation had been served
on the first respondent.
The contention, therefore, is that the
applicants seek an interim interdict pending the resolution of
disputes in another application,
which disputes are not yet alive as
at date of this application, and which it submits are in any event
non-existent.
[12]
The first respondent submits, further that, the relief sought in
prayer 2 is exactly the same as the
relief that was sought in terms
of prayer 3 of a previously opposed motion which was instituted by
the applicants against the first
respondent. The first respondent
contends that the applicants having previously approached the court
for relief in the same terms,
[1]
which relief was dismissed, absent any new evidence, the relief in
prayer 2 of this application is
res
judicata
and the court is
functus
officio
in respect thereof. Accordingly, the first respondent argues that
prayer 2 should, therefore, be dismissed outright.
DISCUSSION
[13]
What all these amounts to is that the applicants have not been able
to make out a case prayed for in
their notice of motion, as will
appear more fully hereunder.
Re: Prayer 1
[14]
In terms of prayer 1, the applicants are in essence seeking an
interim interdict the effect of which
is to restrain the first
respondent from enforcing the summary judgment order for repossession
of the motor vehicle. The interim
order is based on a pending
application which was supposed to have been served on the first
respondent. As correctly argued by
the first respondent, the
applicants seek an interim interdict pending the resolution of
disputes in another application, which
disputes are not yet alive as
the said application has not yet been served on the first respondent.
It is common cause that
as at the date of the hearing of this
application, the envisaged application had not been served on the
first respondent. Under
the circumstances, it would, thus, be safe to
infer that such failure to serve the application means that the
disputes are non-existent.
It follows that without any pending
application, and/or existing disputes between the applicants and the
first respondent, the
applicants have failed to establish a case for
interim relief.
Re: Prayer 2
[15]
From the evidence presented by the first respondent in its papers,
which evidence has not been challenged
by the applicants, it is
evident that the facts raised in these papers by the applicants are
the same as those raised in the previous
application by the
applicants. Therefore, in terms of prayer 2, the applicants having
not denied the fact that the order granted
against them on 29 May
2019 exists and has not been rescinded, renders prayer 2 of the
applicants’ notice of motion,
res judicata
and this
court is
functus officio,
in respect thereof.
[16]
Of great importance in this matter is that the applicants have
admitted the facts relating to the action
that was instituted by the
first respondent against them for repossession of the motor vehicle.
The effect is that the first applicant
having acted in breach of the
agreement resulted in the agreement being cancelled when judgment was
granted in favour of the first
respondent on 11 October 20I8. In
terms of the agreement, the first respondent was to remain the owner
of the motor vehicle until
the first applicant had paid all the
amounts due under the agreement. Thus, the order of 11 October 2018
entitled the first respondent
to enforce its ownership rights in
relation to the motor vehicle against the applicants. The applicants'
willingness to act in
any manner in terms of the instalment sale
agreement, at this stage, is irrelevant because it is after the fact,
and the cancelled
agreement cannot be resuscitated and/or reinstated
by the applicants’ payment of arrear instalments.
[17]
The first applicant's lack of funds occasioned by the circumstances
set out in the applicants’
founding papers, is really
unfortunate but, is in actual fact, irrelevant for purposes of this
application. The fact remains that
the first applicant acted in
breach of the agreement, which in terms of the order granted on 11
October 2018 (which order has not
been rescinded and remains of force
and effect), entitled the first respondent to the cancellation of the
agreement and further
entitles the first respondent to take control
of the motor vehicle to recover the debt due to the it.
COSTS
[18]
The first respondent prays for the application to be dismissed with
costs on an attorney and client
scale. The contention is that this
application is unjustified, and an ill-motivated, and perseveres in
delaying the repossession
of the first respondent's motor vehicle.
For this reason, the first respondent argues that a cost order
against the applicants
on a punitive attorney and client scale, is
warranted. I agree.
ORDER
[19]
Therefore, I make the following order
1.
The application is
dismissed.
2.
The applicants are
ordered to pay the first respondent’s costs of the opposed
application jointly and severally, on an attorney
and client scale.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Counsel
: UNKNOWN
Applicant’s
Attorneys
:
John Karabo Kgasoane Attorneys
Respondent’s
Counsel
: Adv I OSCHMAN
Respondent’s
Attorneys
: Bezuidenhout Van Zyl & Associates
Date
of hearing
: 20 April 2021
Date
of judgment
: 28 May 2021
[1]
See paragraph 9.2 of this judgment.