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[2015] ZAGPPHC 705
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Nedbank Limited t/a MFC v Khoele (25090/15) [2015] ZAGPPHC 705 (21 August 2015)
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
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GAUTENG
DIVISION, PRETORIA
(HIGH
COURT OF SOUTH AFRICA)
CASE
NO: 25090/15
In
the matter between:
NEDBANK
LIMITED
T/A
MFC
APPLICANT
AND
ABIOS
KHOELE
RESPONDENT
ID
NUMBER: (…............)
JUDGMENT
MAKUME
J
[1]
This is an application for summary judgment in which the
applicant seeks the following:
(a)
Confirmation of cancellation of the agreement;
(b)
Return of a 2006 BUELL XB9SX CITY X bearing engine umber
KX026200373
and chassis number 5MZKX02RX63200373;
(c)
Costs on a scale as between party and party.
[2]
It is common cause that on or about 13th November 2013 and at
Pretoria Applicant and the Respondent entered into a written
Instalment sale agreement in terms of which the Applicant funded the
Respondent to enable the Respondent to purchase the motorcycle
mentioned in 1(b) above from a Harley Davidson Dealership in
Pretoria.
[3]
The Respondent took delivery of the motorcycle on the 15th November
2013 and returned it on the 18th November 2013 after it
had exhibited
some material defects.
[4]
On the 4th December 2013 the Respondent addressed a letter to the
Harley Davidson Dealership cancelling the agreement. He made
no
payment and has been without the motorcycle since the 18th December
2013.
[5]
In resisting summary judgment the Respondent raises the
following:
5.1
Firstly that he was sold a defective motorcycle by the Dealership
that he returned it to them and cancelled the agreement.
5.2
Secondly he says that according to him he correctly cancelled the
agreement when he informed Harley Davidson.
[6]
I am satisfied that the Respondent has in his affidavit resisting
summary judgment raised a bona fide defence in compliance
with Rule
32 (3) (b).
[7]
Accordingly Imake the following order:
(i)
The Applicationummary judgment is refused.
(ii)
The Defendant is granted leave to defend.
(iii)
Costs of the application shall be costs in the action.
Dated
at Pretoria on the 21st day of August 2015.
_____________________
MAKUME
M. A.
(JUDGE
OF THE HIGH COURT)
Date
of hearing:
7 August 2015
Date
of Judgments:
21 August 2015
Counsel
for Plaintiff:
Adv K A WILSON
Instructed
by:
S ROUX INCOPORATED
Office Block No 2
Monument Park
Pretoria
Tel: 012 460 0666
Ref: MrF
ERASMUS/HE0189/15
Counsel
for Defendants: Adv
Instituted
by: HENK
KLOPPERS ATTORNEYS
202 De Langenhoven Street
Constantia Park
Pretoria
Tel: (012) 993 4534
Ref: HJ KLOPPERS K4/ l 5