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[2013] ZAGPPHC 296
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Commcarco Investments (Pty) Ltd v Mercedes-Benz Financial Services South Africa (Pty) Ltd (52455/2012) [2013] ZAGPPHC 296 (17 October 2013)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no: 52455/2012
DATE:17/10/2013
In
the matter between:
COMMCARCO
INVESTMENTS (PTY)
LTD
...............................................................
APPLICANT
AND
MERCEDES-BENZ
FINANCIAL SERVICES
SOUTH
AFRICA (PTY)
LTD
.....................................................................................
RESPONDENT
IN
RE:
MERCEDES-BENZ
FINANCIAL
SERVICES
............................................................
APPLICANT
SOUTH
AFRICA (PTY) LTD
AND
COMMCARCO
INVESTMENTS (PTY)
LTD
...........................................................
.RESPONDENT
JUDGMENT
BAQWA
J
[1]
This is a judgment in case number 52455/12 in which the parties and
issues are similar to those involved in case number 52454/12
which
also serves before me today. The main difference between the two is
the merx or the item regarding which an instalment sale
was entered
into, being a Mercedes Benz Ml 270 CDI in case number 52455/2012 and
a Mercedes Benz SL 500 in case number 52354/2012.
[2]
It has been agreed between the parties that whilst the cases are
different in the manner explained above, argument by counsel
will be
presented at the same time with regard to both cases, mutotis
mutandis.
[3]
On that basis therefore even though written judgment is handed down
in case number 52455/2012 I will merely give an order in
case number
52454/2012 for completeness sake and for the record.
[4]
This is an application for rescission of an order granted by this
court on 16 October 2012 for the return of a Mercedes Benz
ML 270 CDI
motor vehicle.
[5]
The order granted to respondent is in the form of an interlocutory
order pending finalisation of a claim respondent is pursuing
for
cancellation of the agreement between respondent and the applicant.
[6]
This application has been brought in terms of Rule 42 (1) (a) of the
Uniform Rules of Court and not in terms of Rule 31 (2)
(b) as is
usually the case in applications of this nature. The basis of the
application is that it was erroneously sought and erroneously
granted.
[7]
It is common cause that an instalment sale agreement was entered into
between applicant and the respondent in terms of which
the vehicle
mentioned above was sold to the applicant subject to certain terms
and conditions.
[8]
One of those conditions was that applicant would pay respondent the
instalments specified in the Schedule forming part of the
agreement
and at the times stipulated therein.
[9]
It was also part of the agreement that ownership of the vehicle would
vest in the respondent and would only pass to the applicant
once all
the amounts due or arising from the agreement had been paid in full.
[10]
A further term of the agreement was that should applicant default in
the amounts payable under the agreement, respondent would
be entitled
to cancel the agreement and obtain return of the vehicle.
[11]
Respondent alleges that applicant has breached the agreement in that
it defaulted in payment of the instalment envisaged in
the agreement
and that as at 15 February 2009 applicant was in arrears in the
amount of R31,156.51.
[12]
According to a certificate of balance produced by the respondent, as
at 26 March 2012 applicant was indebted to respondent
in the sum of
R393.699.80.
[13]
Respondent instituted action against applicant for vindicatory relief
for the return of the vehicle and termination of the
agreement.
Applicant is defending the action by filing a plea on 8 April 2010.
[14]
On 5 September 2012 respondent brought an application for interim
relief by way of immediate delivery of the vehicle to respondent
for
safe keeping pending the finalisation of the action referred to
above.
[15]
The repossession application was served on applicant's chosen
domicilium on 17 September 2012 and set down for hearing in this
court on 16 October 2012 where the relief sought was granted. This is
the order that applicant seeks to rescind in terms of Rule
42 (1)
(a).
[16]
In limine, respondent challenged applicant's locus standi by alleging
that the founding affidavit is deposed to by one Glen
David Criek who
is not duly authorised to depose to the founding affidavit. There is
no resolution attached by applicant authorising
him to bring the
rescission application or to depose to the founding affidavit on its
behalf.
[17]
The point raised in limine has however not been pursued by the
respondent and the application has been argued on the merits.
[18]
From the outset counsel for the applicant conceded that he could not
pursue the application in terms of rule 42 (1) (a) of
The Uniform
Rules of Court and as
encapsulated
in his Notice of Motion. He has argued for alternative relief in
terms of the Common Law.
[19]
Mr Van der Merwe, for the applicant submits that applicant's reason
for not opposing the interlocutory application for the
return of the
vehicle is because service of the relevant documents was effected on
the domicilium address from which the applicant
had moved some five
years earlier. Applicant therefore had no knowledge of the
application and was accordingly not in wilful default.
Whilst he
concedes the failure of applicant and its attorneys to notify the
respondent of the changed address he submits that in
the context of
this application that omission ought to be viewed in conjunction with
applicant's bona fide defence to the interlocutory
application.
[20]
He submits that having regard to the requirements for an interim
interdict, respondent did not make out a case regarding "irreparable
harm" and in any event not to the extent required in the case of
BMW Financial Services SA (Pty) Ltd v Rathebe
2002 (2) SA 368
(W).
[21]
Applicant does not deny that he entered into an instalment sale
agreement with the respondent. That being the case applicant
is bound
by the terms and conditions of the agreement. As already stated one
of the terms is that responded retains ownership of
the vehicle until
the instalments are paid in full.
[22]
It stands without reason therefore that ex contractu respondent would
be entitled to pursue a vindicatory claim in the event
of applicant
defaulting on payments. By the same token, respondent possesses ex
contractu not only a prima facie right but a clear
right which
entitles it to the interlocutory order which applicant now seeks to
rescind.
[23]
It is common cause that the vehicle is presently in applicant's
possession and that applicant last paid the requisite instalment
17
December 2008. Miss Maritz, for the respondent submits and I accept
that the vehicle is a movable asset that depreciates on
a daily basis
whilst in use by the applicant. Should anything happen to the
vehicle, respondent could suffer irreparable harm.
[24]
It is however also correct as submitted by counsel for the respondent
that whilst the respondent would ordinarily be required
to prove a
prima facie right, a well grounded apprehension of irreparable harm
if the interim relief is not granted, a balance
of convenience in
favour of the granting of the interim relief and the absence of any
other satisfactory remedy, the present case
falls to be decided as
one of two exceptions to the rule.
[25]
These exceptions were articulated in the case of:
Fedsure Life Insurance v Worldwide
African Investment Holdings (Pty) Ltd
2003 (3) SA 268
(W) at 278.
[25.1]
In that case it was held that there are two exceptions to the rule
that an interlocutory interdict must show the requisites
outlined
above. Such exceptions are interdicts pending vindicatory actions and
interdicts pending possessory actions.
[25.2]
The present case falls under the aforesaid exception in that the
application by respondent was for interlocutory relief pending
the
adjudication of the vindicatory action referred to above.
[26]
The Fedsure Life decision is a full bench decision of this division
in which it was decided that an applicant for an interdict
pending a
vindicatory action to recover
what
he alleges is his own property need not show that he will suffer
irreparable loss if the interdict is not granted.
[27]
Further, an applicant under these circumstances need not show that he
has no other satisfactory remedy as a person who is entitled
to
vindicate property in the hands of another cannot be forced by the
action of that person to accept merely the value of the property,
see
Cowen and Hammand v Campbell
1906 TH 191.
[28]
In the circumstances the "absence of irreparable harm"
defence of the applicant on which it bases the application
for
rescission cannot stand.
[29]
In the result an order is granted in the following terms:
[29.1]
The application for rescission is dismissed.
[29.2]
Applicant is ordered to pay respondent's costs on an attorney and
client scale.
S.A.M.
BAQWA
FOR
THE APPLICANT: ADV: H A VAN DER MERWE
INSTRUCTED
BY: SENEKAL SIMMONDS
11
450 3084
FOR
THE RESPONDENT ADV: S MARITZ
INSTRUCTED
BY STRAUSS DALY ATTORNEYS
12
348 1683
DATE
OF HEARING: 16 OCTOBER 2013
DATE
OF JUDGMENT: 17 OCTOBER 2013