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
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO: 2021/0031
In the matter between: -
SA TAXI DEVELOPMENT FINANCE (PTY) LIMITED Applicant
and
JOHNSON, TREVOR COLLIN R espondent
JUDGMENT
ALLEN AJ
INTRODUCTION
[1] This is an opposed interlocutory application for the interim attachment of a
vehicle pending the outcome of a trial for the return of a vehicle and costs.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
SIGNATURE DATE: 24/022025
[2] The applicant issued a summons against the respondent which action is
defended by respondent . Applicant continued with an application for summary
judgment which was dismissed on 28 July 2023 for, amongst other, applicant not
filing a supplementary affidavit after respondent’s amendments to his plea. Applicant
hereafter continued with this application.
[3] In the answering affidavit , paragraph 72, r espondent undertook to file heads of
argument which was not filed at the time of hearing t his application. The parties also
did not file a joint practice note as is required i n Practice Directive 1 of 2024.
[4] Applicant filed a “proposed joint practice note ” in which the common cause
facts are stated as well as the issues. Respondent did not file a separate practice note or t ake issue with the proposed j oint practice note.
[5] On the date of hearing there was no appearance for respondent. No
withdrawal as attorneys of record was filed. I was advised by applicant’s counsel that she made contact with the correspondent attorneys who advised they have no
instructions to appear in this matter. Counsel contacted Mr. Naude from the
instructing attorney’s offices in Potchefstroom and she was advised he is out of town.
Respondent himself was also not present.
[6] The application was heard in respondent’s absence. Applicant moved for an
amendment of the vehicle’s description to correct typographical errors. The amendment was granted.
BACKGROUND
[7] On 25 May 2016 the parties concluded a written lease agreement in terms
whereof the applicant sold to the r espondent a 2016 Toyota Quantum Sesfikile 16
Seater -Petrol to be used as a taxi. The applicant remains the owner of the vehicle
until paid in full . The vehicle was delivered to the r espondent after conclusion and
the respondent remains in possession thereof.
[8] I n the answering affidavit respondent questions applicant ’s calculations of the
outstanding balance and simply denied the amounts alleged by a pplicant in the
particular s of claim. No evidence was proffered, albeit that this application is for the
return of the vehicle only.
[9] R espondent also take issue whether he “was present ” in Midrand when the
agreement was concluded. It is the respondent ’s case that he was not present in
Midrand when the agreement was concluded whilst the wording of paragraph 5 of
the particulars of claim did not expressly mention t hat respondent was present .
[10] R espondent also t ake issue with the court’s jurisdiction and applicant’s locus
standi .
DISCUSSION
[11] I t is common cause that the respondent chose the vehicle from the dealer and
entered into an agreement with a pplicant and that a pplicant retains the rights of
ownership of the vehicle until the finance is paid in full.
[12] Applicant ’s case is that r espondent has not paid up the full finance amount , is
in arrears and the r espondent did not submit any proof to the contrary . It is further
applicant’s case that due to non- payment , applicant cancelled the agreement which
is undisputed.
[13] Respondent's case is that interim relief cannot be granted since the court
does not have jurisdiction to hear this matter , the applicant has no locus standi to
bring this application and the balance of convenience favours respondent.
[14] It is undisputed that r espondent is not paying for the vehicle he is using on a
daily basis as a taxi and thereby generating income. Respondent's case is that the
applicant is “ the author of its own problems ”. Respondent did not submit any proof
that the vehicle is not in ar rears but, instead, relies on jurisdiction and locus standi to
prevent the return of the vehicle p endente lite.
[15] Annexure “FA2” to a pplicant ’s founding affidavit refers to r espondent ’s last
payment in the amount of R 13 500.00 on 27 July 2021. On 16 August 2023 the
respondent ’s total amount outstanding was R 457 284.21. Respondent in the
answering affidavit did not answer t hereto . The last payment date and outstanding
balance remain undisputed.
[16] To succeed, the requirements for the grant of an interim interdict has to be
established by applicant : The right which it seeks to enforce is clear or, if not clear, is
prima facie, though open to some doubt . If the right is only prima facie established
there is a well -grounded apprehension of irreparable harm if the interim relief is not
granted. T he balance of convenience favours the granting of interim relief and that
the applicant has no other satisfactory remedy.
[17] In the matter of SA Taxi Securitisation (Pty) Ltd v Chesane (26382/2009)
[2010] ZAGPJHC 30; 2010 (6) SA 557 (GSJ) (1 April 2010) Boruchowitz,J stated the
following: “[13] It is settled law (at least in this Division) that it is a prerequisite for the
grant of an interim attachment order that any agreement under which the respondent
has the right to possess the vehicles first be cancelled. See Steyns Foundry (Pty)
Ltd v Peacock
1; First Consolidated Leasing and Finance Corporation Ltd v N M
Plant Hire (Pty) Ltd2. In the present matter the applicant has purported to cancel the
agreements of lease and is accordingly not precluded from claiming interim recovery of the vehicles”.
[18] Cancellation is not disputed by r espondent . The respondent only challenges
the court's jurisdiction, a pplicant's ownership and balance of convenience.
[19] Even should the respondent be successful at the trial in demonstrating that
applicant did not have locus standi to litigate , notwithstanding the fact that a pplicant
paid for the vehicle, then and in that event the probabilities are that the court hearing the matter will not allow the r espondent to retain possession of the vehicle, operate it
for profit as a taxi and not make any payment therefore to the a pplicant.
1 1965 (4) SA 549 (T)
2 1988 (4) SA 924 (W)
Jurisdiction
[20] Respondent’s “presence” in Midrand is self -created. I t was stated in the
particulars of claim that applicant was represented by a duly authorized
representative and the r espondent represented himself. I t is evident that r espondent
signed the quotation in Nigel wher eafter the a pplicant signed the quotation in
Midrand which became the lease agreement after acceptance.
[21] Respondent ’s address in Nigel and a pplicant ’s address in Midr and are both
addresses within the jurisdiction of this court. The respondent’s reliance on lack of
jurisdiction must fail.
Prima facie right
[22] I t is undisputed that respondent selected the vehicle from a dealership and
applicant paid for the vehicle to gain ownership and respondent possession.
Respondent did not prof er evidence to the contrary . Respondent did not disclose
who the true owner should be, alternatively did not take any steps to join an alleged
true owner of the vehicle. [23] It is undisputed that the parties contracted, had the intention to contract on
certain terms and conditions , the respondent took possession of the vehicle and
continued to make payments to applicant for a number of years towards the outstanding balance. The respondent ’s reliance on the a pplicant's lack of ownership
and therefore locus standi must fail.
[24] In my view a pplicant has established a clear right to cancellation and
restoration of the vehicle pending the outcome of the action.
Irreparable Harm
[25] The interim attachment of goods pending the outcome of vindicatory or quasi -
vindicatory proceedings is well established. See SA Taxi Securitisation (Pty) Ltd v
Yuong (10249/2008, 9559/2008, 8115/2008) [2008] ZAWCHC 292 (14 November
2008) as well as SA Taxi Finance Solutions (Pty) Ltd v Kubheka and Another
(45332/2012) [2013] ZAGPPHC 439 (5 December 2013) . In these cases the credit
provider was asking for the return and storage of the taxi pending the outcome of the
main action. The situation is essentially the same as in this case.
[26] The function and purpose of an interim interdict is to protect the leas ed goods
against deterioration and damage and to keep them in safekeeping until the case
between the parties has been finalized. Its purpose is not to enforce remedies or
obligations under the credit agreement and the remedy does not form part of the
debt enforcement process envisaged in the NCA. This was also discussed in the SA
Taxi Securitisation
3 matter.
Balance of Convenience
[27] Respondent relies on the fact that the taxi is his source of daily income and
lifeline and the depriving of the t axi will put him and his family's life in jeopardy.
[28] The applicant's claim is a vindic atory one wherein the element of irreparable
harm is presumed. It is self -evident that the vehicle is depreciating by daily use and
the respondent ’s continued utilization of the vehicle as a taxi over an extended
period will have the result that , should the applicant be successful in its action, the
vehicle that it recovers may be virtually worthless.
[29] It is untenable that the r espondent be entitled to utilize the vehicle as a taxi on
a daily basis without e ffecting any payment s under the agreement . The last payment
was made approximately 44 months ago. The a pplicant seeks to have the vehicle
stored in a place of safety to the extent that there will not be a meaningful reduction
in value pending the outcome of the action and possible return of the vehicle to the
respondent. The a pplicant bears the costs of the storage.
[30] It is a well settled principle that the stronger the case which the a pplicant
makes out, the least balance of convenience in favour of the a pplicant there needs to
3 (10249/2008, 9559/2008, 8115/2008) [2008] ZAWCHC 292 (14 November 2008)
be for interim relief to be granted. See Olympic Passenger Service (Pty) Ltd v
Ramlagan 1957 (2) SA 382 (D) . As the applicant has established a strong right to
cancellation and restoration of the vehicle in the pending action, less weight ought to
be placed on the question of balance of convenience. In my view the balance of
convenience favours the applicant for the reasons stated instead of allowing the
respondent to keep using it pendente lite .
Absence of any other satisfactory remedy
[31] Respondent in the answering affidavit merely alleged that a pplicant ’s
allegations “are rejected with contempt ”. Applicant has no other satisfactory remedy
than the interim relief it seeks. Applicant’s prospects of ultimate success are
stronger .
[32] In the circumstances the applicant has established the requirements for the
grant of the interim interdict sought.
ORDER
[33] In the result the following order is made:
[33.1] P ending the final outcome of the action instituted by the a pplicant
against the r espondent :
[33.1.1] The respondent is directed to deliver into the possession
of the Sheriff a 2016 Toyota Quantum Sesfikile 16 S eater -Petrol with
engine number 2[…] and chassis number A […]; and who shall deliver
the vehicle to the a pplicant who shall, in turn, at its own expense
transport the vehicle to a garaged premises situated at 1[…] – 1[…] th
Road, R […], M[…] and retain the vehicle at such garaged premises
under security pending the outcome of the action.
[33.2] The applicant shall not use the vehicle or permit that it be used
pending the outcome of the action.
[33.3] In the event of the respondent failing to comply with the contents of
paragraph 1 above within 5 days of the service of this order on the
respondent's attorneys, the Sheriff is authorized and directed to take the
vehicle into his possession from wherever he may find it and return the vehicle
to the a pplicant as aforesaid.
[33.4] The respondent is ordered to pay the cost s of this application.
ALLEN AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was prepared by Acting Judge Allen. It is handed down electronically
by circulation to the parties or their legal representatives by email, by uploading to
the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The dat e for hand- down is deemed to
be 24 February 2025.
HEARD ON: 20 February 2025
DECIDED ON: 24 February 2025
For the Plaintiff: Adv R Stevenson
Instructed by Marie -Lou Bester Inc
For the Defendant : No Appearance