About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 228
|
|
Absa Bank Ltd v Jakobo (2562/2013) [2013] ZAFSHC 228 (28 November 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 2562/2013
In
the matter between:
ABSA
BANK
LTD
..............................................................................................................
Applicant
and
TSHELISO
BERNARD
JAKOBO
.
.................................................................................
Respondent
JUDGMENT
BY
: SESELE, AJ
HEARD
ON:
31 OCTOBER 2013
DELIVERED
ON
: 28 NOVEMBER 2013
[1]
This is an application for summary judgment for cancellation of the
instalment sale agreement, return of the motor vehicle,
2008 Dodge
Caliber 2.0 CVT SXT A/T, with engine number 8[…], and chassis
number 1[…].
[2]
The instalment sale agreement between the parties was entered into on
11 July 2011.
[3]
The plaintiff alleges in the summons that the defendant is in breach
of the agreement in that the defendant failed to pay the
monthly
instalment and that the arrear amount as at 3 June 2013 was
R8 774,08.
[4]
The plaintiff launched this application in terms of Rule 32 after
delivery of the notice of intention to defend the action is
supported
by the affidavit of Renier Jansen Van Rensburg.
[5]
The defendant opposes the application on the following grounds:
5.1 The
plaintiff’s non-compliance with
section 129
of the
National
Credit Act 34 of 2005
;
5.2 That the
defendant has a
bona fide
defence in that the defendant paid
R11 000,00 in two instalments of R5 500,00 each on 1 June
2013 and 27 June 2013 respectively.
[6]
The plaintiff attaches “track and trace print-out to the
summons which confirmed that the notice in terms of
section 129
was
posted by registered mail at the Bloemfontein post office on 5 June
2013 and was delivered to the respondent on 7 June 2013.
The
tracking number on the registered mail corresponds to the tracking
number on the track and trace “print-out”.
[7]
It therefore follows that there is no merit in the defendant’s
contention that the plaintiff failed to comply with the
requirements
of
section 129
–
Sebola and
Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC) at paras [75] – [77].
[8]
The plaintiff alleges in the affidavit in support of this application
that the defendant was in arrears with payment of R2 961,13
as
at 16 August 2013. Furthermore, the plaintiff alleges that
defendant paid instalments in February 2013, March 2013, April
2013,
May 2013 and June 2013. The defendant did not pay in January
2013 and paid R360,00 only for July 2013 whereas the monthly
instalment is R5 219,02. The arrears as per the instalment
agreement statement issued on 10 August 2013 is R2 961,13.
A copy of statement is attached to the opposing affidavit marked
annexure “A”.
[9]
It is therefore patently clear, by his own admission in the form of
annexure “A”, that the defendant is indeed in
arrears
with R2 961,13. The plaintiff is therefore entitled to the
remedy in terms of
rule 32
–
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at page 11 paras [21] – [32].
[10]
The defendant does not disclose a
bona fide
defence which is
good in law –
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426A – D,
[11]
The payment the defendant made in June 2013 will not constitute a
defence even if the matter proceeds to trial because the
defendant
was in arrears on 16 August 2013. There is further no further
allegation that the instalments in terms of the agreement
are in fact
up to date –
Breytenbach v Fiat
SA (Edms) Bpk
1976 (2) SA 226
(T)
at 227G-H.
ORDER
[12]
I accordingly grant summary judgment and make the following order:
12.1 That the
agreement between the parties is cancelled.
12.2
That the defendant is ordered to return forthwith to the plaintiff,
certain 2008 Dodge, model Caliber 2.0 CVT SXT A/T, with
engine number
8[…] and chassis number 1[…], failing which the sheriff
is directed to authorise to attach the vehicle
whenever it may be
found and hand same to the plaintiff.
12.3
That the plaintiff is granted leave, on the same papers properly
supplemented, to prove its damages, if any.
12.4 Costs on party
and party scale.
___________________
L.
M. S. SESELE, AJ
On
behalf of the applicant: Adv. J. Els
Instructed by:
EG
Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of the respondent: Mr. M. J. Ponoane
Instructed by:
P.J.
Ponoane Attorneys
BLOEMFONTEIN