SAFLII Note: Certain personal/private details of parties or witnesses hav e been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 105/2015
Of interest
In the matter between:
ABSA BANK LIMITED APPLICANT / PLAINTIFF
and
MOSULI CONSTRUCTION
AND OTHER SERVICES CC RESPONDENT / DEFENDANT
JUDGMENT
Rugunanan J
[1] This is an application for the interim attachment of an Isuzu motor vehicle 1
(the vehicle) pending the outcome of a vindicatory action and a claim for damages
(the action). The causa in the action is occasioned by an alleged breach of an
instalment sale agreement (the agreement), the subject of which is the vehicle. It is
alleged that the agreement is not subject to the provisions of the National Credit Act
34 of 2005 2 (the Act). That being the case, the vehicle is not ‘property that is the
subject of a credit agreement’ and accordingly the provisions of s 131 of the Act are
inapplicable. The purpose of seeking interim vindicatory relief or quasi -vindicatory
relief3 is to protect the vehicle against the risk of damage and deterioration in value,
and for the applicant to preserve it in safekeeping until the action is finalised.
[2] In opposing the application the respondent filed a notice in terms of uniform
rule 6(5) (d)(iii) contending: (a) that the return or repossession of the vehicle is lis
pendens the action; and (b) that the applicant did not give written notice before
resorting to legal proceedings. Following delivery of the notice neither of the parties
applied to the registrar to allocate a date for the hearing of the matter 4. In the course
of events, beyond prescribed time frames, the respondent filed an opposing affidavit
and the applicant filed its replying affidavit. The latter was preceded by a
supplementary affidavit confirming the principal relief claimed in the applicant’s
amended notice of motion and clarifying that orders previously sought in the initial
notice of moti on, inter alia that the vehicle be marketed and sold, will no longer be
pursued with. The circumstances occasioning the procedural context in which the
matter evolved in this manner and the condonation sought by the respondent for the
late filing of its opposing affidav it are not material to the determination of the issues
and are not addressed in this judgment.
and are not addressed in this judgment.
[3] It is enough to say that the opposing affidavit does not engage with the
allegations in applicant’s founding affidavit. In effect, the following material facts r ead
1 More fully described in the instalment sale agreement between the parties as a 2012 Isuzu KB300D -
TEQ LX E/CAB P/U S/C with engine number 4[…] and chassis number A[…].
2 See SA Taxi Securitisation (Pty) Ltd v Chesane 2010 (6) SA 557 (GSJ) paras 6 to 10 regarding the
position under the common law and the National Credit Act pertaining to the interim attachment of
goods.
3 For the distinction between vindicatory and quasi -vindicatory actions see Van Loggerenberg,
Erasmus Superior Court Practice at D6-21 [Service 15, 2020].
4 In accordance with rule 6(5)(f)(ii) or (iii).
together with the chronology below are common cause, alternatively, they are not
seriously and unambiguously disputed: (a) the applicant and the respondent entered
into an instalment sale agreement regarding the vehicle; (b) the applicant is the
owner of the vehicle; (c) the vehicle was delivered to the respondent and it remains
in the respondent’s possession; (d) the vehicle is a depreciating asset for which the
respondent has provided no tangible proof of insurance and it depreciates by use;
(e) the respondent refused and refuses to return the vehicle; and (f) the make and
model of the vehicle is identifiable by its engine and chassis numbers. During
argument the respondent did not persist with the issues raised in its rule 6(5) (d)(iii)
notice, adoptin g instead a discrete approach pinpointed at the timing of the
application and the contention that the applicant did not establish a well -grounded
apprehension of irreparable harm.5
[4] The chronology of events pertinent to the matter are set out somewhat in
abbreviated terms as follows:
4.1 12 January 2012 – instalment sale agreement concluded between the
parties;
4.2 18 January 2015 – summons issued;
4.3 17 June 2015 – judgment by default entered against the respondent for
return of the vehicle and payment of arrears amount;
4.4 18 August 2015 – default judgment order rescinded;
4.5 2 December 2015 – notice of exception to particulars of claim;
4.6 14 January 2016 – delivery of amended particulars of claim;
4.7 9 June 2021 – rule 35(3) notice directing respondent to produce proof
of comprehensive insurance cover on vehicle;
4.8 3 December 2021 – respondent’s affidavit in response to rule 35(3)
notice;
4.9 6 March 2023 – application for interim relief launched by applicant.
[5] In mentioning the agreement between the parties, it was an express condition
that ownership of the vehicle remains vested with the applicant and will not pass to
that ownership of the vehicle remains vested with the applicant and will not pass to
5 As for the other issue, lis pendens , this was not at all addressed in argument nor was the court
invited to deal therewith in this judgment.
the respondent until such time that the cost of the vehicle, which amounted to
R441 148.80, was fully paid up in mo nthly instalments of R7 352.48 over a term of
five years ending 10 February 2017.
[6] At the time of issue of summons the respondent was in arrears with its
monthly instalments in the sum of R158 483.81. As at the date of the institution of
this application the amount escalated to R341 100.45. In the pending action, and as
a defence to non-payment, the respondent disputes the authenticity of the signatures
to the agreement, including some of its terms.
[7] Apart from the instalment obligations the agreement obliged the respondent to
keep the vehicle licensed and comprehensively insured. In response to the
applicant’s rule 35(3) notice in the action the respondent (duly represented by its
sole member) declared under oath inter alia that the vehicle ‘was’ uninsured, a nd
that proof of insurance and licensing ‘was’ unavailable. It is indicated in the
respondent’s heads of argument that the vehicle is comprehensively insured. That,
however, does not constitute evidence given under oath. 6 Heads of argument are
merely persuasive comment by the parties with regard to questions of fact or law and
offer no substitute for affidavits.
[8] According to the particulars of claim the cancellation of the agreement by
reason of the respondent’s default on its payment obligations was conve yed to the
respondent. The cancellation is reiterated in the applicant’s founding affidavit.
Alternatively, it is asserted that the agreement terminated by effluxion of time on 10
February 2017. It is nowhere gainsaid by the respondent in its opposing pape rs that
the agreement was cancelled or otherwise terminated by effluxion of time but this is
obliquely raised in its heads of argument. The issue is moot. Put otherwise, the
respondent’s contention that there can be no repossession without cancellation is
unsustainable.7
unsustainable.7
6 Maboho T and Others v Minister of Home Affairs (833/2007, 1128/2007) [2011] ZALMPHC 4 (28
November 2011) para 13.
7 The legal position is that once an agreement is cancelled an applicant is not precluded from claiming
recovery of goods – see SA Taxi Securitisation (Pty) Ltd v Chesane ibid fn 2 para 13.
[9] Allowing for the fact that the agreement is no longer in existence the applicant
is not precluded from obtaining an order for the interim attachment of the vehicle
provided it establishes the requisites for the grant of an interim attachm ent, namely:
(a) a clear right or, if not, a prima facie right though open to some doubt; (b) a well-
grounded apprehension of irreparable harm (only in the event a prima facie right is
established); (c) the balance of convenience favours the granting of in terim relief;
and (d) the applicant has no other satisfactory remedy.8
[10] In what follows hereafter the requisites are discussed but not necessarily in
the order in which they have been formulated.
[11] It is undisputed that the respondent has defaulted on its instalment obligations
and that applicant is the owner of the vehicle and remains as such until the
respondent pays the final instalment. The respondent has not shown otherwise.
Inherent in the nature of the remedy invoked by the applicant is that possessi on of
the thing should be restored to the owner and it follows that no other person may
withhold it from the owner unless they are vested with some right enforceable
against the owner (such as a right of retention or a contractual right). 9 I am of the
persuasion that the applicant has established a clear right.
[12] In a claim for vindicatory or quasi -vindicatory relief the apprehension of
irreparable harm need not be established if the applicant establishes a clear right 10.
The apprehension is presumed until the contrary is shown11.
[13] In argument the respondent placed significant store on the judgment in
Firstrand Bank Limited v Sesimani 12 (‘Sesimani’) regarding the timing of this
application and the applicant’s apprehension of harm. It argued with reference to t he
historical chronology set out earlier that the applicant’s inordinate delay in launching
this application warranted its dismissal. Sesimani is distinguishable from the present
this application warranted its dismissal. Sesimani is distinguishable from the present
factual setting. The respondent in that matter adduced evidence in rebuttal o f the
8 SA Taxi Securitisation (Pty) Ltd v Chesane supra para 11.
9 Silberberg and Schoeman, The Law of Property, LexisNexis 5th ed at page 243.
10 See Van Loggerenberg, Erasmus Superior Court Practice Juta at D6-19 [Service 18, 2022] and the
cases referred to in footnote 10 thereto.
11 Stern and Ruskin NO v Appleson 1951 (3) SA 800 (W) at 813C.
12 Firstrand Bank Limited v Sesimani 2022 JDR 2010 (GP) para 19.
presumption. The evidence indicated that the respondent took measures to mitigate
the deterioration in the value of a BMW motor vehicle by maintaining payments on a
comprehensive insurance cover, a service/maintenance plan to cover mechanical
breakdowns, and a subscription to a vehicle tracking service. This attracted censure
for the applicant’s protestation of irreparable harm when weighed against its seven -
month delay in launching its application for interim relief and resulted in the dismissal
of the application.
[14] Sesimani is of no assistance to the respondent in contending for dismissal of
the application due to delay where the respondent’s indifference in mitigating harm
or damage to the vehicle in its possession is blatant on the papers.
[15] In the co ntext of interlocutory interdicts, Van Loggerenberg 13 adopts the view
that the requisite that there be no other remedy is closely linked with that of
irreparable harm. The rationale is that if the harm envisaged will be irreparable if
allowed to continue, an interdict will be the only remedy. 14 Establishing a clear right,
as the applicant has done in this instance, does not require proof of irreparable harm
or loss if the interdict is not granted. Nor, as does the learned author point out, need
the applican t show that he has no other satisfactory remedy. 15 To my mind these
sentiments read persuasively.
[16] Turning to the balance of convenience. It is settled that the stronger the case
which the applicant makes out, the less need for such balance to favour the
applicant; and the weaker the prospects, the greater the need for the balance to
favour the applicant. Factored in this assessment is the question of prejudice to the
respective parties.16 The facts are clearly supportive of the applicant’s case. Whether
due to cancellation or passage of time, the agreement does not subsist. The
respondent, notwithstanding, avails itself of the possession and use of the
respondent, notwithstanding, avails itself of the possession and use of the
applicant’s vehicle without making payment. Flowing from the amount in arrears at
13 Van Loggerenberg ibid fn 10 at D6-21 [Service 15, 2020].
14 Van Loggerenberg ibid fn 10 at D6-21 [Service 15, 2020].
15 Van Loggerenberg ibid fn 10 at D6-21 [Service 15, 2020]; see also SA Taxi Securitisation (Pty) Ltd
v Chesane ibid fn 2 and cf. Absa Bank Ltd v Erasmus 2023 JDR 1228 (FB).
16 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383E-F.
the date of the institu tion of this application is the deduction that the respondent’s
default persisted for a protracted period.
[17] The substantial prejudice to the applicant is manifest when weighed against
the circumstance that the respondent does not contend for prejudice (and indeed, on
the undisputed facts, it cannot) while it uses the vehicle without reciprocity of
payment. At the launching of this application the vehicle was of eleven -year vintage
and by the time the matter was argued this figure had advanced by another two
years. Self -evidently, the vehicle depreciates and its continued utilisation over a
prolonged period will have the result that, should the applicant be successful in the
action, the vehicle may be of little or no worth by the time it is recovered. The risk
associated with the deterioration of the vehicle is ongoing and is occasioned by the
respondent’s non-disclosure or failure to provide proof of comprehensive insurance
cover and its failure to reciprocate in payment. For the reasons stated, I am satisfied
that the balance of convenience favours the applicant.
[18] I therefore make the following order:
1. The late delivery of the respondent’s opposing affidavit is condoned.
2. The respondent shall pay its own costs in the application for condonation.
3. The respondent is ordered to return a 2012 Isuzu KB300D -TEQ with
engine number 4[....] and chassis number A[....] (the vehicle) to the
applicant on an interim basis pending the outcome of the main action
between the parties.
4. In the alternative to the above par agraph, the respondent is ordered to
deliver the vehicle into the possession of the sheriff who shall deliver the
vehicle to the applicant.
5. Upon receipt of the vehicle the applicant shall at its own expense:
5.1 transport the vehicle to its garaged premise s at […] T[…] Road,
Boksburg;
5.2 retain the vehicle at such premises under security pending the
outcome of the action; and
5.3 not use the vehicle or permit that it be used.
6. In the event that the respondent or any other third party in whose
possession the v ehicle may be found fails to comply with the contents of
paragraphs 3 and 4 above within 5 (five) days of service of this order upon
the respondent, the sheriff be and is hereby authorised and directed to
take the vehicle into his/her possession from where ver he/she may find it
and return the vehicle to the applicant who shall thereafter act in
accordance with paragraph 5 above.
7. The costs of the application shall be costs in the main action.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: C Cordell , Instructed by Hack Stupel & Ross c/o
Wheeldon Rushmere & Cole Inc., Makhanda (Ref: SA/Farenchia; Te; 046 -622
7005).
For the Respondent: H Zilwa , Zilwa Attorneys, Makhanda (Ref: H Zilwa; Tel:
047 531 0356).
Date heard: 15 May 2025.
Date delivered: 29 July 2025.