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[2016] ZAGPPHC 662
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Nedbank Limited v Matemane (20072/2014) [2016] ZAGPPHC 662 (29 July 2016)
REPUBLIC
OF SOUTH
AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 20072/2014
DATE:
29 JUJY 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
NEDBANK
LIMITED
...............................................................................
PLAINT
I
FF
And
MATEMANE,
NIKWANE
VINCENT
..........................................................
DEFENDANT
JUDGMENT
AC
SASSON, J
[1]
The plaintiff (Nedbank Limited) approached this court for an
order
confirming the cancellation of the Instalment Sale Agreement dated
5 December
2012; that the plaintiff is entitled to sell the vehicle - a
Hyundai
Mighty HD 72 - in terms of section
127(2) of
the National Credit Act ("NCA");
[1]
that the plaintiff may apply for damages in an amount calculated in
terms
of
section 127(6) -
(9) of the
NCA and interest on the said damages at a rate of 11.50% per annum
from
4
March 2014
to date of payment and costs
in the
amount of R 650.00 together with the Sheriff's costs.
Relevant
facts
[2]
Most of the facts in this matter are common cause. The plaintiff and
the defendant (Mr Matemane) entered into an Instalment
Sale
Agreement on 5 December 2012 ("the agreement") in terms of
which the plaintiff sold a new Hyundai Mighty HD 72
vehicle
(hereinafter referred to as "the vehicle") to the defendant
for a total cost of R 556 228.83. In terms of the
agreement the
defendant had to pay the unpaid balance by way of 71 instalments of
R 7 711.51 each commencing in January 2013
until the final
instalment on 26 December 2018.
[3]
It was common cause - and it also appears from the agreement itself
- that ownership would remain vested in the plaintiff
until all
amounts due by the defendant in terms of the agreement had been paid
in full. The defendant was also required to keep
the vehicle
comprehensively insured at all time. More in
p
articular, the
defendant is obliged to keep the vehicle in his possession or under
his control at all times. If the vehicle is
not kept at the chosen
domicilium citandi et executandi
of the defendant, he must
inform the plaintiff of the address at which the vehicle is kept.
Furthermore, should the defendant
commit a breach of contract the
plaintiff would be entitled to the remedies as set out in the
agreement.
[4] The
defendant took delivery of the vehicle and commenced with payment as
per the agreement on 26 January 2016.
[5] It
is common cause that on 16 June 2013 (a Sunday) the vehicle was
impounded by the South Africa Police Services ("SAPS")
after it was suspected that a fraudulent permit was issued to the
defendant when it collective stock at Komati Land at Sabie
Nelspruit. The vehicle was taken to SAPS where it was stored.
[6]
On 27 August 2013 the plaintiff removed the vehicle from SAPS for
safekeeping. It was not disputed that the plaintiff removed
the
vehicle from SAPS without informing the defendant thereof.
[7] It
was also not disputed that the plaintiff unilaterally cancelled the
defendant's debit order with effect August 2013. Mr
du Tait on
behalf of the plaintiff explained that debit orders were
automatically cancelled by the plaintiff once a matter has
been
handed over to the legal department (in this case to the department
that investigated fraud). It is also common cause that
no payments
were made towards the instalment sale agreement as from the date of
the cancellation of the debit order.
[8] I
interpose here to deal with the issue of immediate cancellation of
the debit order once the account has been handed over
the legal
department. The submission on behalf of the defendant was that this
smacks of highhandedness and that it amounts to
unfair tactics
towards the defendant who had paid at least one instalment towards
the vehicle even after it had been impounded
by SAPS. There is some
merit in this argument particularly in light of the fact that the
defendant was not in arrears at the
stage when the account was
handed over to the legal department and particularly in light of the
fact that the defendant was not
even forewarned that his debit order
was about to be cancelled by the plaintiff. At the very least the
plaintiff should have
forewarned the defendant that his debit order
was about to be cancelled.
[9]
The criminal charges against the defendant were withdrawn on 21
October 2013 (four months later) and the vehicle was released.
The
defendant thereafter went to SAPS to retrieve his vehicle only to
find that his vehicle was removed by the plaintiff for
safekeeping.
[1O]
In October 2013 the defendant was advised by Mr Coetzee of the
plaintiff that the vehicle would be released upon payment
of the
arrears and the storage fees. The defendant refused to make this
payment.
[11]
On 14 November 2013 the defendant wrote a letter to the plaintiff to
complain about the fact that the vehicle was removed
by the
plaintiff and that he (the defendant) was now required to also pay
for storage costs. He also complained about the fact
that the
plaintiff had cancelled his debit order facility. In the letter the
defendant request the assistance of the plaintiff
in order to
resolve the matter.
[12] On
7 February 2014 a section 129 notice was sent to the defendant
advising him of the fact that the account was in arrears
in the
amount of R 47 092.08 and that he may contact a debt councillor or
make use of an alternative dispute resolution agent
to resolve the
issue of the arrears. It is common cause that the defendant received
the said notice but that he made no payments
pursuant to the letter.
[13] Clause
5.4 of the agreement states that the defendant is required to keep
the vehicle in a position or under his control at
all times. If the
vehicle is no longer kept at the defendant's stated address, the
defendant must inform the plaintiff thereof.
A failure to inform the
plaintiff of the location of the vehicle may be a criminal offense.
It is common cause that the defendant
did not inform the plaintiff
that the vehicle was impounded by SAPS.
[14] Was
the defendant in breach of clause 5.3 once the vehicle was impounded
by SAPS which entitled the plaintiff to cancel the
agreement? I am
in agreement with the submission on behalf of the plaintiff that the
defendant was in breach of the agreement
from the moment the vehicle
was impounded by SAPS. Once the vehicle was impounded by SAPS the
defendant had no access to the vehicle,
he could not remove the
vehicle and he could not operate the vehicle. In fact, on his own
version, he only returned to SAPS to
claim the vehicle after the
vehicle was formally released four months later after criminal
charges against him were withdrawn.
The defendant was therefore in
breach of the agreement not only because he lost control and
possession of the vehicle but also
because he failed to inform the
plaintiff that the vehicle was impounded by SAPS and no longer in
his possession or under his
control. This, in my view, constitutes a
breach of the agreement entitling the plaintiff to cancel the
agreement.
[15]
Although some criticism may be expressed against the conduct of the
plaintiff in unilaterally cancelling the defendant's
debit order,
the fact remains that the contract was breached entitling the
plaintiff to cancel the contract.
[16]
This breach of the contract should, however, not be viewed in
isolation and it cannot be ignored what had happened after
the
criminal charges were withdrawn against the defendant and after the
vehicle was released. Despite the fact that the defendant
was in
breach as at June 2013, the plaintiff only issued a formal section
129 notice some months later on 7 February 2014 and
only cancelled
the contract on 3 March 2014. Furthermore, by his own admission, the
defendant was contacted by Mr Coetzee from
the plaintiff in October
2013 and was informed that he should pay the arrears together with
storage and towing fees. Despite having
been informed to pay the
arrears the defendant made no effort to make any payments towards
the arrears. In fact, it was his evidence
that he could not make any
payments because he could not earn any money a result of the fact
that his vehicle was impounded by
SAPS. He also conceded that the
plaintiff could not be blamed for the fact that the vehicle was
impounded by SAPS.
[17]
I have pointed out in argument to counsel that the Court does have a
measure of sympathy with the defendant who was caught
up in a
fraudulent scheme which resulted in his vehicle being impounded by
SAPS. However, the court cannot lose sight of the
fact that the
defendant did not - and as a matter of fact by his own admission
could not - make any payments towards settling
the arrears when he
was first required to do so by Mr Coetzee as far back as October
2013. Even after a formal opportunity was
granted to the defendant
in terms of the section 129 notice to settle the arrears no efforts
were made by him to do so.
[18]
On 3 March 2014 the defendant was informed that the contract was
cancelled
inter alia
on the basis that the defendant had
failed to maintain possession of the truck as well as failed to pay
the monthly instalments
due to the plaintiff. The arrears as at 7
February 2014 was R 47 092.08.
[19] I
am therefore satisfied that the defendant was in breach of the
agreement and that the plaintiff is entitled to cancel the
agreement.
Counterclaim
[20]
The defendant filed a notice to amend its plea and counter-claim on
the eleventh hour. Despite the lateness thereof the amendment
was
not opposed and the amendment was granted. In terms of the amendment
the defendant claim the return of the vehicle and an
order that the
vehicle should be restored to the condition it was in before the
plaintiff's repossession thereof. The defendant
further claim
payment of any expenses or cost that may have been accumulated after
the goods were removed from the plaintiff.
The defendant also seeks
an order that the entire agreement be reconstructed.
[21]
At the outset I must point out that no case is made out in the
counterclaim for the (amended) relief sought. Furthermore,
no
evidence whatsoever was placed before the court to substantiate the
counter-claim. In fact, it was conceded by the defendant
that no
evidence was placed before the court to substantiate the
counter- claim. I should also point out that counsel on behalf
of the
defendant during closing argument withdrew the counter-claim. In
light of the fact that the counter-claim is without any
merit
whatsoever it is dismissed with costs.
Order
[22]
In the event the following order is made:
The
Instalment Sale Agreement concluded on 5 December 2012 between the
plaintiff and the defendant has been cancelled.
2. The
plaintiff is entitled to sell the vehicle identified as a New
Hyundai Mighty HD72 F/C CC (Engine number: D4DBC514535 and
KMFGA17BRCC205594) in terms of section 127(2) of the National
Credit Act.
3.
The plaintiff is granted leave to apply for damages in an amount
calculated in terms of section 127(6) - (9) of the National
Credit
Act and interest on the said damages at a rate of 11.50% per annum
from
4
March 2014 to date.
4.
Costs in the amount of R 650.00 together with the Sheriff's
costs.
5.
The defendant's counter-claim is dismissed with costs.
AC SASSON
JUDGE OF THE
HIGH COURT
Appearances:
For
the plaintiff : Adv J
Minnaar
Instructed by
: DRSM Attorneys
For the
defendant : Adv BM Motshwane
Instructed
by
: Dale
Attorneys c/o Seabi
Attorneys
[1]
Act 34 of
2005.