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[2024] ZAGPJHC 937
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Transflow RF (Pty) Limited v Nonyembezi (2023/042622) [2024] ZAGPJHC 937 (18 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Numbers:
2023-042622
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: NO
In
the matter between:
TRANSFLOW (RF)
(PTY) LIMITED
Plaintiff
and
SITHOLE
MARIA NONYEMBEZI
Defendant
JUDGMENT
SENYATSI,
J
Introduction
[1] This
application concerns a judgment for confirmation of cancellation of
instalment sale agreement and the return of
the 2020 TOYOTA
QUANTUM/HIACE 2.5- D-4D SESFIKILE 16S with engine number 2[…]
and chassis number A[…] (“the
vehicle”) to the
Plaintiff forthwith.
Background
[2]
The applicant and respondent entered into a credit
agreement (“the agreement”) in Midrand in terms of which
the plaintiff
sold a vehicle to the defendant. I say so because
although the original agreement was concluded with Potpale Investment
(RF) Pty
Ltd (“Potpale”) and the respondent, but the
agreement was ceded to the applicant. For convenience sake, the
parties
will be referred to as in the summons.
[3] The agreement was for the
finance of the vehicle which after payment of the deposit as agreed
was delivered to the defendant
and used in a minibus taxi business.
The common facts are that the defendant has not been able to meet the
monthly repayment obligations.
At the time of issuing of the summons
the defendant was in arrears in the sum of R199 953.54 and the amount
remains due. Consequently,
summons was issued and served on the
defendant during May 2023 and defended by the defendant who filed her
plea.
[4]
The gist of her plea is a bare denial of the allegations in
the summons. She however, concedes that she informed one
of the
representatives of the plaintiff that she was not able to meet her
monthly repayment obligations.
The defendant states in her
defences that:
4.1. termination of the
agreement is not an order that can be sought in summary judgment
proceedings;
4.2. the plaintiff does not
have
locus standi
to seek a declarator that the agreement was
cancelled;
4.3. men from SA Taxi already
repossessed her vehicle on
30 November 2022 whilst
Qumbu in the Eastern Cape Province.
4.4. An order that the
agreement is cancelled is ancillary to the main claim for return of
the vehicle, in the same way that
an order for costs is not mentioned
as one of the forms of relief allowed under summary judgment but is
ancillary relief; and
4.5. the plaintiff has no
locus
standi
to institute the claim against her.
[5]
In its answer to the defendant’s opposing affidavit, the
plaintiff states that it did not send any men to collect
the vehicle
and that it could not have done so without an order from the court.
If the vehicle has been handed over to men unknown
to the defendant,
it is likely that the defendant was a victim of a scam. This is so,
so contends the plaintiff, because the tracking
device that was
fitted to the vehicle, was disabled on the same day.
[6]
There is no basis for contending that the plaintiff has no
locus standi
in
the litigation because its
locus
standi
is borne out by the
cession it concluded with Potpale when it bought the agreement. There
is also no basis set out by the defendant
that the termination of the
agreement cannot be sought as relief in summary judgments. Rule 32 of
the Uniform Rules of Court provides
as follows:
“
Summary judgment
(1) The
plaintiff may, after the defendant has delivered a plea, apply to
court for summary judgment on
each of such claims in the summons as
is only—
(a) on a liquid document;
(b) for a liquidated amount in money;
(c)
for delivery of specified
movable property (
my emphasis
)
; or
(d) for ejectment, together with any
claim for interest and costs.”
[7] Clause 25.1.1 of the
Standard Terms of the Agreement states that the defendant will be in
breach of the agreement if
she fails to make payment of the
instalment. I am satisfied that therefore that the defendant is in
breach of the agreement. In
terms of the agreement, the ownership of
the vehicle remained with the plaintiff until the full repayment of
the amount funded
for the acquisition of the vehicle.
[8] Having considered that
papers and the submissions by counsel, I am satisfied that the
plaintiff has made out a case in
terms of Rule 32 of the Uniform
Rules.
Order
[9
]
Having considered the papers and the submissions made, the
following order is issued:-
(a) the termination of the
agreement is confirmed;
(b)
the
defendant is ordered to return
the 2020 TOYOTA QUANTUM/HIACE
2.5- D-4D SESFIKILE 16S with engine number 2[…] and chassis
number A[…] (“the
vehicle”) to the Plaintiff
forthwith;
(c) the defendant is ordered to
pay the expenses incurred for the removal, evaluation and storage of
the vehicle and sale
of the vehicle; and
(d) the defendant is ordered to
pay the costs on the scale as between attorney and client.
ML
SENYATSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Delivered:
This Judgment was handed down electronically by circulation to the
parties/ their legal representatives by email and
by uploading to the
electronic file on Case Lines. The date for hand-down is deemed to be
18 September 2024.
Appearances:
For
the applicants: Adv R Stevenson
Instructed
by Marie-lou Bester Inc
For the first respondent: Adv R Bekker
Instructed
by Beneke Gantley Incorporated
Date
of Hearing: 14 February 2024
Date
of Judgment: 18 September 2024