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[2015] ZAKZDHC 46
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Mercedes Benz Financial Services South Africa (Pty) Ltd v Season Star Trading 121 CC (3073/2015) [2015] ZAKZDHC 46 (25 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO.: 3073/2015
In
the matter between:
MERCEDES
BENZ FINANCIAL SERVICES
SOUTH
AFRICA (PTY)
LTD
...............................................................................................
Excipient
and
SEASON
STAR TRADING 121
CC
.................................................................................
Respondent
JUDGMENT
Heard:
30
th
April 2015
Delivered:
25
th
May 2015
JEFFREY
AJ:
[1]
The excipient is the defendant in an action
instituted against it by the respondent. Four exceptions have
been taken to the
respondent’s particulars of claim on various
grounds
that no cause of action has been disclosed.
[2]
The principal legal issue that arises in this matter is
whether or not a properly cancelled agreement can be revived, not by
consent
between the parties, but solely as a result of one party’s
withdrawal of an action instituted by it after such cancellation
for
relief based on breach of that agreement.
[3]
After the excipient had withdrawn its
action against the respondent, the respondent instituted an action
against the excipient.
It pleaded in its particulars of claim,
which are now excepted to, that in 2008 the parties concluded a
written instalment sale
agreement in respect of a motor vehicle.
Thereafter, in 2011, the excipient obtained default judgment against
the respondent
for
inter alia
confirmation of the termination of the
agreement, return of the vehicle and ancillary relief. The
respondent pleaded that,
in ignorance of the default judgment being
granted, on 16 March 2011 it ‘surrendered’ the vehicle to
the excipient
‘under duress’; in June 2011 the respondent
became aware of the default judgment; in September 2011 an order
rescinding
this judgment was obtained; and in October 2011 the
respondent delivered its plea. In April 2013 the excipient
withdrew its
action against the respondent and tendered to pay the
latter’s costs. The circumstances leading to the
withdrawal of
the action were not pleaded.
[4]
The respondent then instituted an action
against the excipient based on the instalment sale agreement claiming
specific performance,
return of the motor vehicle and various other
relief. Pivotal to all these claims is the requirement that the
agreement must
still be extant. The respondent has pleaded that this
is the position because:
16.1
The effect of the withdrawal (of the of the excipient’s action)
… has the result that
inter alia
the (instalment) agreement is in force.
16.2
The parties are therefore obliged to perform under the agreement.
[5]
The excipient’s first exception is
that this pleading is bad in law and, consequently, the particulars
of claim lack averments
necessary to sustain the respondent’s
action.
[6]
It is not specifically pleaded by the
respondent that the summons in the withdrawn action contained
reference to the excipient’s
cancellation of the agreement.
But it probably did because the court’s default judgment order
- that was pleaded -
included a declaratory order confirming the
termination of the agreement. The respondent did not
plead that the excipient
had not properly cancelled the agreement;
or, if it had, that the cancellation was invalid for some reason; or
that parties had
agreed to the agreement being revived. The
respondent simply pleaded as I have set out above that the
excipient’s
withdrawal of the action had the result that the
agreement was in force.
[7]
That is a misconception. The
withdrawal of the action did not revive the agreement because, while
the cancellation of an agreement
may be a unilateral act - and it
usually is in instances following a breach - the withdrawal of a
cancellation and the revival
of the agreement is consensual.
That is settled law. And as Maya JA said in
Sewpersadh v
Dookie
2009 (6) SA 611
(SCA) 616D-F at para [16] (with reference
to
Desai v Mohamed
1976 (2) SA 709
(N) 712H-713D;
United
Bioscope Cafes Ltd v Moseley Buildings Ltd
1924 AD 60
at 67-68;
Neethling v Klopper en Andere
1967 (4) SA 459
(A) 466C-467D):
“An agreement to revive requires 'a fresh meeting and
concurrence of the minds' of the parties to restore
the
status quo
ante
.”
[8]
The mere withdrawal of the action
cannot unilaterally revive an agreement. As Botha J said,
correctly with respect, in
Absa Bank Ltd v Cooper NO
2001
(4) SA 876
(T) 882B: “The … withdrawal of the action
could not undo the contents and effect of the notices of cancellation
contained
in the summonses.”
[9]
All the relief sought by the respondent in
the particulars of claim is predicated on the instalment sale
agreement being extant.
All the remaining exceptions relate to
that relief. It follows that the determination of the
first exception is decisive
of the remaining exceptions.
[10]
For these reasons I am of the view that the
first and the remaining exceptions were all well taken and should be
upheld. I
make the following order:
1.
The exceptions are upheld with costs.
2.
The respondent is given leave to amend the particulars of claim
within 10 days of the date of this order.
__________________
JEFFREY
AJ
Appearances:
Counsel
for the excipient: Mr M C Tucker
Excipient’s
attorneys: Strauss Daly Inc.
Ref.
Ms V Naidu
MER
/ DD1071
Tel.
031
570 5600
Counsel
for the Respondent : Mr T E Seery
Respondent’s
attorneys: M P Lutge Inc.
Ref.
M P Lutge
PR/S6463
Tel.
031 303 7122
Date
of hearing: 30 April 2015
Date
of judgment : 26 May 2015