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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023-133126
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA
LIMITED
Applicant
And
SIMANGA BRENDA CHILI
Respondent
___________________________________________________________________
__
JUDGMENT
PILLAY AJ
Introduction
1. This is an application for the return of a 2019 Porsche Macan motor vehicle with
engine number D […] and chassis number W[…] (“the vehicle”) which is owned
by the applicant and which it sold to the respondent under an instalment sale
agreement.
2. The applicant contends that the respondent breached that agreement and that,
as a result, it cancelled the agreement. It now seeks orders:
2.1. Confirming the cancellation of the agreement; and
2.2. Authorising the sheriff to attach, seize and hand the vehicle over
to the applicant.
3. The respondent raises two points in limine:
3.1. First, the vehicle is in the possession of SAPS and that, as a
result, the order sought by the applicant is not executable.
3.2. Second, the applicant has failed to comply with the National
Credit Act 34 of 2005 (NCA) in that she did not receive the
applicant’s notice in terms of section 129 of the NCA (section
129 notice) or the letter of cancellation.
4. Apart from these preliminary points, the respondent did not put up any
substantive opposition to the relief sought.
The facts
5. On 12 August 2019 the applicant and respondent concluded an instalment sale
agreement in terms of which the respondent purchased, by way of instalment
sale, the aforementioned Porsche Macan motor vehicle.
6. The conclusion and terms of the instalment sale agreement are not in dispute.
7. The applicant contends that the respondent breached the instalment sale
agreement by failing to pay the monthly instalments as and when they fell due.
8. As a result, the applicant elected to cancel the instalment sale agreement and to
seek repossession of the vehicle, which it did by way of a letter dated 4 January
2023.
9. Subsequent to this application being instituted, t he respondent asserted for the
first time that the vehicle is in the possession of the South African Police Service
(“SAPS”). She however asserts that she intends bringing an application to have
the vehicle returned to her given that all charges against her have been
withdrawn.
Issues to be determined
8. The issues to be determined include:
8.1. Whether the applicant properly cancelled the agreement; and
8.2. Whether the failure to join SAPS as a party means that the
application ought to be dismissed.
Cancellation of the agreement
9. The respondent raises the argument in her answering affidavit that she did not
receive notice of cancellation of the agreement. I note however that this issue
is not addressed in the heads of argument filed on behalf of the respondent.
10. In any event, the applicant has put up sufficient evidence that the section 129
notice of cancellation was transmitted by registered mail to the respondent’s
chosen domicilium address. In addition, it was emailed to the respondent at an
email address used by her for other communication.
11. I am accordingly satisfied that there was proper notice given of the cancellation
of the agreement.
The failure to join SAPS
12. The respondent alleges that the vehicle was taken into custody by SAPS as a
result of a criminal complaint lodged against her.
13. The applicant however contends that the respondent has failed to establish, as
a matter of fact that the vehicle is in the possession of SAPS. In this regard,
the applicant contends that:
13.1. The respondent has failed to produce any positive evidence that
the vehicle is in the possession of SAPS. Her bald allegation to
this effect is insufficient to raise a bona fide dispute of fact.
13.2. Despite the facts being peculiarly within her knowledge, the
respondent has failed to provide any information relating to the
circumstances under which the vehicle was taken into custody
by SAPS, if it in fact was taken into custody.
14. In any event, the applicant contends that even if this Court accepts that the
vehicle is in the possession of SAPS, this Court should utilize the mechanism
of a rule nisi as an alternative to a joinder of necessary parties . In this regard,
the applicant relied on the judgment of the Supreme Court of Appeal in
Insamcor1in which the SCA held that in certain instances it was appropriate to
grant a prior rule nisi as an alternative to joinder of all necessary parties.
15. Having considered the matter, it seems to me that on the papers, the
respondent has established that the vehicle is currently in the possession of
SAPS. While I agree that the respondent has failed to properly take the court
into her confidence on the detail s surrounding the circumstances under which
the vehicle was taken into the possession of SAPS, this does not detract from
the fact that there is nothing to gainsay her allegation that the vehicle is
currently in the possession of SAPS.
16. This is however not the end of the matter (as the respondent appears to
suggest). I have to consider whether it is appropriate to grant a prior rule nisi
as envisaged by the SCA in Insamcor affording SAPS an opportunity to
persuade this court why an order should not be made restoring the vehicle to
the applicant.
17. Having considered all the facts in this matter including:
17.1. The paucity of information pertaining to when and why SAPS
took possession of the vehicle;
17.2. The absence of an explanation for the continued detention of
the vehicle by SAPS given the respondent’s allegation that all
charges against her were withdrawn; and
17.3. The applicant’s right to the return of the vehicle.
I consider that it is in the interests of justice to issue the rule nisi requested in
the alternative by the applicant.
1 Insamcor (Pty) Ltd v Dorbyl Light & General Engineering (Pty) Ltd; Dorbyl Light & General
Engineering (Pty) Ltd v Insamcor (Pty) Ltd 2007 (4) SA 467 (SCA)
Costs
18. I note that in its notice of motion the applicant seeks a punitive costs order. In
terms of the agreement, the applicant is entitled to “collection costs” which is
defined in the a greement as the amount that may be charged in enforcing the
monetary obligations under the agreement, but excludes any d efault
administration charges.
19. This is not the equivalent of legal costs on a punitive scale. I accordingly find
that there is no contractual entitlement to punitive costs. Given that there are
no other compelling grounds on which the applicant sought for costs on a
punitive scale, it is appropriate that costs be awarded on a party and party
scale.
Order
20. I accordingly make the following order:
1. The cancellation of the agreement entered into between the applicant
and the respondent and attached to the applicant's founding affidavit
marked “FA3” is confirmed.
2. The National Commissioner of the South Africa Police Services, the
Provincial Commissioner of South African Police Services and the
Gauteng Provincial Head: Directorate for Priority Crime Investigation are
called upon to show cause on 22 September 2025 at 10:00 or so soon
thereafter as counsel may be heard, why the order in paragraph 3 below
should not be made final.
3. The sheriff of this Honourable Court or his/her lawful Deputy is
authorised, directed and empowered to attach, seize and hand over to
the applicant a 2019 Porsche Macan with engine number D […] and
chassis number
W[…];
4. The applicant is given leave to approach this Court on the same papers
duly supplemented for payment of the difference between the balance
outstanding and the market value of the aforesaid asset at the date of
cancellation together with any damages the applicant may have
suffered;
5. The respondent is ordered to pay the costs of this application on scale
B;
6. The orders in paragraphs 1, 4 and 5 above will be of immediate force
and effect notwithstanding the rule nisi in paragraph 2 above.
______________________
K PILLAY
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant:
Adv M De Oliveira instructed by
Jason Michael Smith Inc
Attorneys
For the Respondent: GW Mashele Attorneys
Hearing date: 21 July 2025
Judgment date:
9