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In re the summary judgment of:
NEDBANK Plaintiff
and
ILANGA AUTOMOTIVE (PTY) LTD
t/a CITROËN CENTURION First Defendant
LANGA, BHEKI SIBUSIZO Second Defendant
IYALOO, PRIVIN Third Defendant
JUDGMENT
LABUSCHAGNE J
[1] This is an application for leave to appeal against an order that I made granting
summary judgment in favour of Nedbank on 20 November 2021.
[2] Nedbank’s cause of action in the summary judgment proceedings was based
on a breach of a Master Sale and Representation Agreement (“MSA”)
concluded by Ilanga Automotive (Pty) Ltd, t/a Citroën Centurion and Nedbank.
[3] Clause 5.3 of the MSA obliged Citroën Centurion to procure that Nedbank be
registered as the title holder of a vehicle prior to Nedbank effecting payment
of the purchase price. In its plea, Citroën Centurion admitted that it had failed
to register Nedbank as the title holder of the ve hicle in issue . Based on that
admission summary judgment was granted.
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[4] In an application for leave to appeal the applicant for leave raises a new point,
namely that the admission was erroneously made without a mandate.
[5] The contention is made that as the admission had been made in an error, that
cause d the court to make a misdirection in making a finding that was not
consistent with the correct facts.
[6] The applicant for leave to appeal contends that an application will be made on
appeal to withdraw the admission.
[7] It is however expressly stated in the application for leave to appeal that C itroën
Centurion did in fact register the vehicle in the name of Nedbank as title holder
on 07 September 2016.
[8] That is however a date after Nedbank had already paid for the vehicle and in
itself constitutes confirmation of the breach of clause 5.3.
[9] A withdrawal of the admission is pointless in light of the admiitted facts. These
objective facts will not be affected by adducing further evidence on appeal as
it would not introduce a triable issue.
[10] Even if the admission were to be withdrawn, the date of the registration of the
vehicle establishes that Nedbank had been required to pay for a vehicle on a
date on which the vehicle was not registered in its name. The breach
consequently stands unaffected.