IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO:38294/2019
In the matter between:
SUPERDRIVE INVESTMENTS LIMITED (RF) Applicant
and
EDDIE BONGANI UBISI Respondent
The matter was heard in open court. The judgment is handed down electronically by
circulation to the parties’ legal representatives by email . The date for hand -down is
deemed to be 27 May 2025.
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J U D G M E N T
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Mazibuko J
[1] This interlocutory application seeks an interim attachment of a motor vehicle,
described as a 2012 BMW […, sport, engine number …, chassis number …]
(‘the BMW’), pending the finalisation of the trial proceedings, which are due to
commence in August 2026. The application is opposed.
(1) Reportable : No
(2) Of nterest to other Judges : No
(3) R evised : No
Date: 27 May 2026 Signatur
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[2] It was common cause, or at least not seriously disputed, that in July 2014 the
parties entered into a written instalment sale agreement (‘the agreement’),
under which the applicant financed the respondent's purchase of the BMW. The
BMW was delivered to the respondent and remains in the respondent’s
possession. It is a depreciating asset, and the respond ent has provided no
proof of insurance. The respondent has refused to return the BMW when
requested by the applicant.
[3] The applicant commenced proceedings in June 2019 , seeking, among other
things, the cancellation of the agreement, the return of the BMW, and the
postponement of judgment for damages and interest pending the return of the
BMW. The action was defended. In September 2019, the respondent
successfully resisted the application for summary judgment, thereby enabling
him to defend the matter.
[4] The applicant alleged that the final residual instalment of R144 285.42 was due
on or before 1 August 2020. An outstanding amount of R515 805.87 is due,
owing and payable by the respondent. Further, the agreement had lapsed by
operation of law when the residual instalment became due and payable.
[5] In support of its application, the applicant argued that it was entitled to the return
of the BMW, as it is its only security. Its value might deteriorate, given the risk
of its daily use, the respondent’s failure to disclose its location, and whether it
was comprehensively insured. Further, if it were damaged, the applicant would
suffer direct loss and irreparable harm.
[6] Although the rest of the opposing affidavit did not necessarily engage with the
allegations in the applicant’s founding affidavit, the respondent opposed the
application on the basis that the applicant relied on disputed facts already
raised in the pending trial proceedings set down for hearing in August 2026.
That action concerns the same BMW and seeks the same relief, except that the
That action concerns the same BMW and seeks the same relief, except that the
relief sought now is interim in nature; therefore, granting the interim attachment
would be seen as predetermining the outcome of the pending trial proceedings.
He disputed the outstanding amount of R515 805.87, in that the applicant failed
to raise irreparable harm in June 2020, when the part ies held a pre -trial
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conference, and instead elected to raise it a few months before the trial of the
issues central to the cancellation of the agreement and the return of the BMW,
which already existed.
[7] The issue is whether the applicant has made out a case for interim relief in
respect of the attachment and safekeeping of the BMW pending the finalisation
of the trial proceedings.
[8] Regarding the agreement governing the relationship between the parties, the
applicant’s counsel referred the court to SA Taxi Securitisation (Pty) Ltd v
Chesane, where it was held that a prerequisite to the grant of an interim
attachment order is the cancellation of any agreement under which the
respondent has the right to possess the vehicles. Such cancellation could be
communicated to the respondent in the particulars of claim served on them.
Further, as the agreement appears to have been validly terminated, the
applicant is not precluded from obtaining an order for the interim attachment of
the vehicles.
[9] I agree with the applicant’s counsel that, once an agreement is cancelled, an
applicant is not precluded from recovering goods. 1 In casu, the applicant has
purported to cancel the agreement in its particulars of claim in the pending
action, which is due to be heard in August 2026. However, the inquiry ought not
end here.
[10] For an applicant to succeed in obtaining an interim attachment order, they must
meet all the requirements for an interim interdict. An interim interdict pending
an action is an extraordinary remedy within the court's discretion. The applicant
bears the onus of proving that they have a prima facie right, a well-grounded
apprehension of irreparable harm if the relief is not granted, that the balance of
convenience favours the granting of an interim order , and the absence of
another satisfactory remedy.2
1 SA Taxi Securitisation (Pty) Ltd v Chesane, (26382/2009) [2010] ZAGPJHC 30; 2010 (6) SA 557(GSJ)
(1 April 2010), paras 13, 23.
(1 April 2010), paras 13, 23.
2 Tau v Mashaba & Others 2020 (5) SA 135 (SCA), para 21.
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[11] With respect to a prima facie right, according to the agreement, ownership of
the BMW would remain vested in the applicant until the purchase price was
paid in full by monthly instalments over the term of the agreement. The issue of
arrears is in dispute and will be adjudicated at the hearing in August 2026.
However, I am satisfied that the applicant successfully established a prima facie
right to the relief sought.
[12] Concerning irreparable harm. In order for the court to grant an order to preserve
the status quo of the BMW , the applicant must show a well -founded
apprehension of irreparable harm.
[13] Temporary interdicts have an immediate and substantial effect; this depends
on whether the harm is serious, immediate, ongoing, and irreparable.
Reasonable apprehension of harm refers to the perpetuation of the alleged
offence that will cause irreparable harm to a protected right of the applicant
pending trial. The loss need not necessarily be financial. It may consist of an
irredeemable breach of the applicant’s rights.
[14] An interdict is not a remedy for past invasion of rights but concerns present or
future infringements. It is appropriate only where future harm is feared. Where
a wrongful act giving rise to the injury has already occurred, it must be of a
continuing nature, or there must be a reasonable apprehension that it will be
repeated.3 Harm must be threatened by an impending or imminent act.
[15] The respondent ha s had the BMW since 2014. The applicant instituted an
action in 2019 seeking the return of the motor vehicle. Depreciation and wear
and tear from daily use of the BMW have been ongoing. Therefore, the alleged
harm has already occurred since 2019 and continues to occur. In addition to
the instalment payments of the purchase price, the respondent was obliged to
keep the BMW comprehensively insured. The respondent did not provide proof
that the BMW was insured. It is unclear why the applicant raised the issue of
that the BMW was insured. It is unclear why the applicant raised the issue of
irreparable harm a few months before the hearing in the pending action.
3 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw, 2008 5 SA 339
(SCA) 346H para 20.
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[16] Although it is unlikely that the legislature in the National Credit Act 4 intended
that the consumer could retain the goods whilst not making payments for them,
an interim relief application does not constitute debt enforcement under the
National Credit Act; rather, it serves the purpose of safekeeping. Therefore, I
do not attac h much weight to the disputed facts regarding the issues to be
determined at trial, including the disputed arrears.
[17] The balance of convenience requirement for interim orders concerns the
exercise of judicial discretion, whereby the court must consider all the
requirements for interdictory relief. The court must also weigh the relative
prejudice to the applicant and the respondent in the alternative situations in
which the relief sought is granted or denied.5
[18] It is well-founded that the only security the applicant has for the disputed debt
is the BMW. At that stage, the BMW, which is the security for the alleged debt
owed, may have little or no value to discharge the debt owed to the applicant.
In my respectful view, though I accept that the BMW is depreciating due to daily
use or non -use, I am not persuaded that the applicant will suffer irreparable
harm if the interim relief sought is not granted a few months before the hearing
of the pending trial. Accordingly, the balance of convenience militates in favour
of dismissing the interim attachment application.
[19] Regarding the costs, though the respondent has been successful, he is not a
legal practitioner; I will not award costs in his favour.
[20] In the circumstances, the following order is made;
Order:
1. The application is dismissed.
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N G M MAZIBUKO
Judge of the High Court
4 Act 34 of 2005.
5 PS Booksellers (Pty) Ltd v Harrison 2008(3) SA 633 (C).
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Date of Hearing: 2 March 2026
Judgment delivered on: 27 May 2026
APPEARANCES:
For the Appellant: Adv S F Fisher-Klein
Attorneys for the Applicant: Velile Tinto & Associates Inc
For the Respondent: In person
Attorneys for the Respondent: None