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2012
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[2012] ZAGPPHC 156
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Standard Bank of South Africa v Prospect 1037 (Pty) Ltd (72392/11) [2012] ZAGPPHC 156 (8 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 72392/11
DATE:08/08/2012
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA
…...................................................................A
Applicant
and
PROSPECT
1037 (PROPRIETARY)
LIMITED
...............................................................
Respondent
JUDGMENT
[1]
The applicant in this matter moves for an order for the delivery and
restored possession to the applicant of a certain motor
vehicle ("the
truck"), the particulars of which appear in prayer 1 of
applicant's notice of motion. It should be noted
that the application
initially pertained to a second truck also but that the applicant is
not persisting in claiming delivery and
possession of the
second-mentioned truck. The applicant furthermore moves for a costs
order in its favour (on a scale as between
attorney and client).
[2]
The applicant alleges that on or about 10 April 2007 a written
instalment agreement (attached to the papers as annexure "A")
was entered into between the parties, and in terms of which the said
truck was sold by applicant to respondent. The further particulars
pertaining to the sale are not relevant to the current application.
According to the applicant the parties had entered into 14
separate
written instalment sale agreements of which the one currently under
consideration, is one. Applicant furthermore alleges
that respondent
fell in arrears and that despite demand, respondent failed to remedy
the breach of the agreement. On 22 September
2011 and subsequent to
demand to which it did not react, applicant alleges that the
agreement was cancelled by way of a letter
from its attorneys. The
letter of demand dated 6 September 2011 inter alia alleges that "you
have failed to effect payments
in terms of the agreement" (par3)
and "...on your default we may do any of the following without
prejudicing any of our
rights: ...cancel this agreement, take
possession of the goods and claim from you damages as well as the
outstanding balance less
the market value of the goods as at the date
of cancellation. If the goods are not recovered, their value will be
deemed to be
nil."
[3]
Respondent raised a number of defences against the applicant's
claims. Before dealing with those, it is firstly necessary to
point
out that there seems to be uncertainty regarding whether the
particular truck still exists. In this regard respondent alleges
the
following in its answering affidavit: the particular vehicle
experienced serious engine trouble during 2011 and had to be taken
apart: the engine was stripped and parts were used for other
vehicles: the applicant was duly advised of this state of affairs:
during January 2012 the applicant appointed an appraiser to evaluate
the extent of the damage and the appraiser did inspect the
truck
during 19 January 2012 at the premises of the respondent; the
respondent still awaits the outcome of such valuation: consequently
it is a matter of impossibility to deliver and restore possession of
the truck to the applicant as the vehicle "is at present
in bits
and pieces with full knowledge of the applicant". (Answering
affidavit, par. 32.5 to 32.11).
[4]
In its replying affidavit the applicant denies having been informed
by applicant of "these developments", but admits
that the
vehicle had been appraised by an appraiser sent by it to respondent's
premises with that purpose in mind. Paragraph 24
of applicant's
replying affidavit reads as follows: " Ad paragraph 32.8: This
is correct. It is interesting to note that there
was indeed a truck
to inspect and that the applicant is entitled to recover possession
of same. The appraiser was approached to
value the truck. No one at
applicant was made aware of the extent of the damage." The
applicant's remark that it was "interesting"
to note that
there was a truck to inspect seems to be no more than an inference
drawn by the applicant: nowhere does it attempt
to substantiate this
inference. From the contents of the next paragraph it is evident that
a copy of the valuation does exist.
However, no such document has
been attached to the papers and the respondent is informed that it
may be provided with a copy of
the valuation at its request.
[5]
Although the respondent initially averred (in par32.6) that "the
aforesaid engine was stripped and parts were used for
other
vehicles", it was also stated that "...such vehicle is at
present in bits and pieces with full knowledge of the
applicant"
(par32.11). I regard it as reasonable and probable that, due to the
appraisal made by its appraiser, applicant
must be aware of the state
of the vehicle and with reference to respondent's allegation
regarding "bits and pieces",
must know whether the vehicle
still exists. However, applicant preferred not to attach the
appraiser's certificate which, on the
probabilities, should contain
these details. Indeed, applicant's remark in its replying affidavit
"that there was indeed a
truck to inspect" clearly amounts
to speculation on its part. If this was indeed the position, why was
the appraiser's certificate
and/or report and/or supporting affidavit
not attached to show that, on the probabilities, the truck indeed
still existed. However,
the way in which the applicant chose to deal
with this issue raises, on the probabilities, doubt whether the
vehicle still exists.
By exercising due care and diligence this
aspect could have been clarified by the applicant but it failed to do
so. It is trite
law that the court will not make an order which
cannot be given effect to. The fact of the matter is that applicant
has not succeeded
in convincing me of the very elementary requisite,
that is, that there indeed exists such a vehicle as the one that
applicant claims
delivery of.
[5]
In addition to the afore going, and should I be wrong in the
conclusions to which I have come, the following applies. I accept
(as
alleged by respondent) that the agreement pertaining to the vehicle
was concluded on 5 December 2006. The first payment was
due on 19
January 2007 with 24 instalments to be paid. Consequently,
respondent's obligation to make monthly instalments expired
on 19
December 2008. At the latter date the applicant was consequently
entitled to enforce its remedy to obtain the return of the
relevant
vehicle. Applicant's denial by way of a general denial in paragraph
20 of its replying affidavit, is clearly incorrect.
[6]
The application was issued on 21 December 2011 which is more than 3
years from the due date i.e. when applicant's remedy to
claim return
of the vehicle, became enforceable. Apart from a mere denial in the
replying affidavit (par21 thereof) that its claim
has become
prescribed, applicant did not deal with these allegations. It was,
however, contended on behalf of applicant that the
parties agreed in
February 2009 that respondent will make payment on all the relevant
instalment sale agreements in an amount of
R500 000.00 per month. One
such payment was made on 19 February 2009. With reference to section
14 of the Prescription Act, Act
68 of 1969, applicant argued that
prescription had been interrupted due to respondent's acknowledgment
of liability.
[7]
It is indeed correct that a payment in an amount of R500 000,00 was
made by respondent on 19 February 2009. The question, however,
is
whether such payment also pertained to the particular agreement and
the debt pursuant thereto. It should be noted that applicant,
in its
replying affidavit, "vigorously denied" the allegations
made by respondent in its answering affidavit that its
payment of
R500 000.00 per month would be allocated to all the relevant
instalment sale agreements. Although the respondent in
paragraph 23
refers to 12 such agreements that were entered into between applicant
and respondent, Mr van Ryneveld for the respondent
during argument
pointed out that there were in fact 14 such agreements. This is
evident from the amendment-documents attached to
respondent's
answering papers and marked "PP-6(a)" to "PP-6(h)",
which show that there were indeed 14 such
agreements and not only 12.
Accordingly (so the argument goes) applicant's e-mail dated 5 March
2009 and appearing as annexure
"PP-5" to the answering
papers, does not reflect the true position to the extent
that
it refers to the R500 000.00 payment "which should be split
equally between all 12 deals". The upshot simply is that
applicant has not shown that the said payment was also meant to
apply, or indeed applied, to the agreement currently under
consideration.
Consequently, applicant cannot rely on the provisions
of section 14 of the Prescription Act.
[8]
I agree with this argument raised by respondent. Consequently, it
follows that applicant's right to claim recovery of the vehicle
has
become prescribed.
[9]
Regarding costs it was argued on behalf of the applicant that it
would be entitled to its costs regarding its claim for the
recovery
of the second vehicle, which claim was not persisted with due to the
fact that the outstanding balance has meanwhile been
paid by
respondent. I do not agree. The fact of the matter simply is that
that part of the costs pertaining to the relief applicable
to the
second vehicle is negligible in the broader context of the matter. In
any event, and as applicant pursued its case against
respondent
regarding the first vehicle, such payment by respondent would have
made no or very little difference^the broader costs
picture.
In
the result I make the following order
The
application is dismissed with costs.