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South Africa: Free State High Court, Bloemfontein
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2013
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[2013] ZAFSHC 91
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ABSA Bank Ltd v Ntema (4045/12) [2013] ZAFSHC 91 (6 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4045/12
In the matter between:-
ABSA BANK LIMITED
.................................................................
Plaintiff
Registration number:
86/04794/06
and
M.S. NTEMA
............................................................................
Defendant
Identity Number:
_____________________________________________________
JUDGMENT
BY:
JORDAAN, J
_____________________________________________________
DELIVERED
ON:
6 JUNE 2013
_____________________________________________________
[1] Defendant seeks leave
to appeal against summary judgment granted in favour of the plaintiff
ordering delivery of a certain motor
vehicle to plaintiff and costs.
[2] The parties were
requested to file heads of argument so that the matter can be
disposed of in chambers and invited to object
to the procedure if
they disagree with that. Both parties filed heads of argument and did
not object to the procedure.
[3] It is argued that the
court erred in finding that the plaintiff’s claim is based on
the
rei vindicatio
and not on the basis of a claim for payment
of money, which claim has become prescribed. It is argued that the
claim for the return
of the vehicle is consequential to the claim
based on the liability to pay the outstanding amount in terms of the
agreement and,
since that claim has become prescribed, the return of
the vehicle cannot be ordered since, by prescription of the claim for
payment
in terms of the agreement, the claim as to ownership also
became prescribed and ownership passed to the present applicant,
defendant.
[4] It is clear from the
particulars of claim that the plaintiff relied on an instalment sale
agreement for its claim for return
of the vehicle, alleging that it
retained ownership until payment was made in terms of the agreement.
The actual relief claimed
was delivery of the vehicle and permission
to approach the court later for damages. The question is whether
there are reasonable
prospects that a court of appeal might come to
another conclusion. In this regard the same arguments are advanced in
favour of
the defendant, which has been dealt with in the judgment
granting summary judgment.
[5] I am convinced that
the arguments on behalf of the defendant are fallacious and show a
lack of differentiation between a personal
right and a real right
based on ownership of the vehicle. The ownership of the vehicle did
not vest in the plaintiff because of
the agreement, but plaintiff was
the owner before the agreement was concluded and remained the owner
until payment has been made.
Extinctive prescription only leads to
the result that the plaintiff cannot recover the purchase price, but
that does not mean that
the purchase price has been paid, which is
the condition on which ownership would have been transferred to the
defendant. The argument
seems to engage the principles of fictitious
fulfilling of a condition and equates that with the extinction of a
claim by a prescription.
It is clearly wrong and totally fallacious.
[6] I am convinced that
there are no prospects of success on appeal.
[7] In the result leave
to appeal is refused and the application dismissed with costs.
_______________
A.F. JORDAAN, J
On behalf of plaintiff:
Adv P.J. Heymans
Instructed by:
E G Cooper Majiedt
Attorneys
BLOEMFONTEIN
On behalf of defendant:
Mr M.J. Ponoane
Instructed by:
Ponoane Attorneys
BLOEMFONTEIN
/spieterse