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[2011] ZAWCHC 7
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Mercedes-Benz Financial Services South Africa (Pty) Ltd v Coetzee (10321/2010) [2011] ZAWCHC 7 (22 February 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE NO: 10321/2010
In the matter between:
MERCEDES-BENZ
FINANCIAL SERVICES SOUTH AFRICA (PTY) LTD
Applicant
and
DIRK ARNO COETZEE
Respondent
______________________________________________________________
JUDGMENT: 22 FEBRUARY 2011
______________________________________________________________
KATZ AJ
In this interlocutory application, the Applicant, Mercedes-Benz
Financial Services South Africa (Pty) Ltd (
“Mercedes-Benz”
),
seeks an order against the Respondent, Dirk Arno Coetzee (
“Mr
Coetzee”
), to the effect that a 2007 Mercedes Benz C280
Elegance (
“the Mercedes”
) be delivered to it
within a short period of time
“for safe keeping pending the
finalisation of an action to be instituted”
.
Mercedes Benz seeks an interim attachment of the Mercedes.
The question of what effect, if any, the provisions of the National
Credit Act 34 of 2005 (“the NCA”) have on the
law
relating to the interim attachment of goods pending the outcome of
vindicatory or quasi-vindicatory proceedings has recently
been
discussed in
SA Taxi Securitisation (Pty) Ltd v Chesane
.
1
Chesane
accepted that at common law the interim attachment of
goods
pendente lite
is well established.
2
There is no indication in the NCA that the common law position
regarding interim orders has been altered in any way. The purpose
of an interim attachment order is to protect the owner of the goods
against deterioration and damage pending the finalisation
of the
main proceedings between the parties. An interim attachment order
is not to enforce remedies or obligations under the
credit
agreement, and the remedy is not integral to the debt enforcement
process under the NCA.
3
Bearing in mind that applications for interim attachment orders are
not directly affected by the provisions of the NCA, the usual
rules
applying to interim applications govern.
Thus for Mercedes Benz to succeed in this application for an interim
attachment order, it needs to demonstrate that the balance
of
convenience favours the granting of interim relief; that it has a
right which it seeks to enforce which is clear or, if it
is not
clear, is
prima facie
clear although 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; and that it has no
other satisfactory remedy.
The procedural history to this matter is unfortunate and
Mercedes-Benz may have to accept some responsibility in respect of
the procedural mishaps. I do not deal separately or in detail with
these missteps.
During the hearing,
Mr J Louw
instructed by Ms Venter of
Ballsillies Strauss Daly Attorneys appeared on behalf of
Mercedes-Benz, whilst
Mr Kulenkampff
, an experienced attorney
of this Court appeared on behalf of Mr Coetzee.
Both Mr Louw and Mr Kulenkampff argued with vigour and acquitted
themselves with a measure of competence during the proceedings.
I
thank both of them for their thorough research and spirited argument
on issues which sometimes appeared simpler than they
in fact were.
Indeed, during the argument, a number of issues were raised by both
parties and by me which appeared to have substance,
but in fact did
not.
The parties entered into a contract on 12 November 2007 in terms of
which Mercedes-Benz, expressly referred to as the owner,
sold the
Mercedes to Mr Coetzee as the buyer (
“the contract”
).
4
The contract included provisions as to the circumstances in which a
party to the contract was entitled to cancel the contract
and also
that Mercedes-Benz would retain ownership of the Mercedes until such
time as the full amount was paid by Mr Coetzee.
Mr Coetzee came into possession of the Mercedes some time prior to
the entering into of the contract. Malmesbury Motors had
delivered
the Mercedes to Mr Coetzee earlier than the date of the contract and
as a consequence, Mr Kulenkampff argued that Mercedes-Benz
had not
demonstrated that, as a matter of law, they were the owners of the
Mercedes.
Due to the manner in which the matter has been pleaded, I do not
need to deal with Mr Kulenkampff’s point on ownership
because
I must find that Mercedes-Benz is the owner of the Mercedes. I deal
with that issue below.
In saying so, I do not discount the fact that Mr Coetzee had taken
the ownership point previously in one of the earlier skirmishes
between the parties. However, the ownership point was not raised in
the affidavits, which govern my consideration of the application.
After the parties had entered into the contract during November
2007, in late 2008, Mercedes-Benz addressed a letter to Mr Coetzee
effectively complaining that he was in arrears with his instalment
payments and they requested him to comply with the terms of
the
contract.
Notwithstanding that situation, Mr Coetzee, so it seems, continues
to be heavily in arrears as far as payments to Mercedes-Benz
in
terms of the contract is concerned, but enjoys the possession of it.
The simple point is that as long ago as December 2008, Mr Coetzee
found himself in arrears, but has continued to drive a luxury
motor
vehicle.
The next step in the saga was that on 7 April 2009, Mercedes-Benz
issued summons under case number 7661/09 (
“the first
summons”
) against Mr Coetzee in this Court. In the
particulars of claim, Mercedes-Benz sought orders confirming the
termination of the
agreement return of the Mercedes and payment of
certain monies which it claimed were outstanding.
Importantly, for purposes of this application, is that which is
pleaded in paragraph 14 of Mercedes-Benz’s particulars
of
claim. It states:
“
Due to the Defendant’s breach of agreement the
Plaintiff terminated the agreement, alternatively the agreement is
terminated
herewith”
.
In response to the first summons, Mr Coetzee, through Mr
Kulenkampff, filed a plea on 21 September 2009.
In Mr Coetzee’s plea, he takes issue with almost everything he
can concerning the Plaintiff’s particulars of claim.
However,
it is important to note what is stated in paragraph 8.2 of his plea:
“
The Defendant admits that he has failed to pay certain
instalments in terms of the agreement and that the arrears on
14 March
2009 were in the sum of R49 364-56”
.
The first summons was withdrawn.
In January 2010, a letter dated 23 December 2009 was sent from
Mercedes-Benz to Mr Coetzee in which he effectively was put to
terms
that if he,
inter alia
, did not pay the arrears,
Mercedes-Benz would cancel the contract and seek return of the
Mercedes.
The difficulty that arose was that various divisions of the High
Court had made different pronouncements concerning certain
provisions of the NCA concerning the requirements for compliance
with section 129(1) read with section 130(1) of the NCA.
The debate concerned whether registered or ordinary mail was
required in respect of notices under the section.
The dispute between the different High Courts was resolved by the
SCA in
Roussouw and Another v Firstrand Bank Ltd t/a FNB Home
Loans (formerly FirstRand Bank of South Africa Ltd)
.
5
The next step in the saga was for Mercedes-Benz to issue a second
summons under case number 4604/10 (“the second summons”).
The second summons was issued during the first quarter of 2010.
On the basis of the second summons, Mercedes-Benz applied for
summary judgment and on 20 April 2010, Mr Coetzee filed an affidavit
in opposition to the application for summary judgment. Mr Coetzee
raised the point that notice in terms of section 129 of the
NCA had
not been complied with. The argument related to the distinction
between the notice being sent by registered mail as
opposed to by
ordinary mail.
In his opposition to summary judgment, he also took various points
including that Mercedes-Benz was not the owner of the Mercedes.
His
version was that Malmesbury Motors was the owner of the Mercedes.
He went on to state in his affidavit that in his view
the contract
was void. He said that the contract was void because he claimed
that the enforceability of the contract relied
upon by Mercedes-Benz
was predicated upon Mercedes-Benz being the owner of the Mercedes,
which he had claimed was untrue.
He also complained in his answering affidavit in the summary
judgment application about how various documents apparently sent
by
Mercedes-Benz had not arrived at his premises. Once again, one got
the distinct impression that if there was a point, good,
bad or
indifferent, to be taken, Mr Coetzee would have taken it.
By saying that, I do not mean, and I must not be taken to mean, that
any litigant is not entitled to take every point that may
assist
him. On the contrary, some of the most apparently speculative
points have met with success in these Courts. However,
when one has
regard to the global picture facing Mr Coetzee, it cannot be ignored
that he bought a luxury motor vehicle in November
2007. The motor
vehicle was not merely functional, but was a luxury Mercedes C280
Elegance (an almost new demonstration model),
which is worth
hundreds of thousands of rands. It does seem unusual and untenable
as Mr Louw argued, for a person in those circumstances
to then
default on instalment payments as long ago as before December 2008
and yet, in February 2011, when this application was
argued, to
still be driving the luxury Mercedes whilst continuing to be heavily
in arrears.
The above arguments and debates notwithstanding, however, the second
summons was also withdrawn.
Mercedes-Benz averred in its founding papers in this interim
attachment application that the total amount outstanding as at 5
February 2010 was R409 538.82. That was not denied by Mr Coetzee.
Mercedes-Benz, although having sent the first summons purportedly
cancelling the agreement, sent a letter dated 23 December 2009
to Mr
Coetzee in January 2010 and again in April 2010. Some time before
10 May 2010, Mr Coetzee claimed, correctly it appears,
that he
responded to the letters which had been sent to him in terms of
section 129 read with section 130 of the NCA, by approaching
a debt
counsellor and applying for debt review in terms of section 86 of
the NCA.
The argument was that any purported cancellation could not have
taken place in terms of the agreement because the agreement itself
only allowed for cancellation by Mercedes-Benz if Mr Coetzee did not
react to an invitation to debt counselling or an alternative
dispute
resolution agent or the Consumer Court or the Ombudsman.
Mr Kulenkampff argued the letters sent threatening cancellation were
cynical because on Mercedes-Benz’s own version they
had
already cancelled the contract as long ago as April 2009 in the
first summons and to send the further letters in January
2010 and
April 2010 threatening cancellation in respect of a contract which
had already been cancelled was inappropriate and
should incur my
displeasure.
During argument, Mr Louw, correctly in my view, accepted that the
sending of the two further letters was unnecessary and nonsensical
if it was accepted that cancellation took place by way of the first
summons in April 2009. To my mind, the submission by Mr
Louw is
well made but ultimately, nothing turns on the point. Either as a
matter of law and fact the contract had been cancelled,
or it had
not. The fact that Mercedes-Benz sent letters which were
inappropriate, unnecessary and nonsensical does not take
the matter
further.
To the extent that it is suggested, as it is by Mr Coetzee, that
Mercedes-Benz has demonstrated inappropriate conduct, I may
deal
with that issue in any costs order that could flow from the
consequences of any decision that I make in this matter.
Be that as it may, on 21 May 2010, Mercedes-Benz approached this
Court on an urgent
ex parte
basis for a rule nisi in respect
of an interim attachment order. A rule was issued on 25 May 2010 on
an
ex parte
basis.
In the founding papers, not a word is mentioned why the application
was urgent and similarly, no averment was made as to why
the
application should be heard
ex parte.
For example, there is
no allegation that if service of the application were to have been
effected, that would have defeated its
object and purpose.
The application simply was not urgent, at least not extremely urgent
and there certainly was no basis made out for the application
to
have proceeded on an
ex parte
basis. Notwithstanding my
views on this issue, which it seems were shared by both Mr Louw and
Mr Kulenkampff, an
ex parte
order was granted.
Although the
ex parte
order was granted, as it turned out for
reasons which are not immediately apparent, the order was not put
into effect. More precisely,
the portion of the order obliging Mr
Coetzee to return the Mercedes for safe keeping to Mercedes-Benz
pending the return day
of the
rule nisi
was suspended.
It should also be mentioned that the order included a paragraph
which stated:
“
That the Applicant is ordered and directed to institute
action against the Respondent within 60 (sixty) days from date
hereof”
.
As it turned out, Mercedes-Benz did not institute action against Mr
Coetzee within sixty days, or to date.
The submission by Mr Louw as to why institution of the action has
not yet occurred was that the suspension of the order, in the
view
of Mercedes-Benz, was a good reason why it could not and should not
institute action until the finalisation of this interim
attachment
application.
Mr Kulenkampff argued, correctly in my view, that the order did not
prohibit or bar Mercedes-Benz from instituting action within
sixty
days, or at all and in his view, there was non-compliance with the
order by reason of the failure of Mercedes-Benz to institute
action
within sixty days. He submitted it may well have constituted
contempt of court for Mercedes-Benz to have not complied
with that
portion of the order.
My view is that there was nothing to prevent Mercedes-Benz from
instituting action and the fact that they may have misread or
misunderstood the order is only an issue which may affect any costs
order I may make. I do not accept Mr Louw’s argument
that
because the order had been suspended, Mercedes-Benz was not entitled
to institute action. I accept that Mercedes-Benz’s
attitude
in this regard was not
mala fide
, but merely a wrong
interpretation of the law and the order.
Because the order was suspended, a number of procedural issues flow
therefrom.
Mr Coetzee elected to bring an application under Rule 6(12)(c) for a
setting aside of the order granted
ex parte
. He argued that
because an order had been taken
ex parte
against him, he was
entitled to apply for it to be reconsidered. His argument was that
for various reasons, the order should
not have been granted and that
it should be set aside under Rule 6(12)(c). In the event, the Rule
6(12)(c) application became
academic because the order was not
executed. Mr Coetzee changed tracks and requested his Rule 6(12)(c)
affidavit to constitute
his opposing affidavit in the main interim
attachment order application.
During the hearing, I asked Mr Kulenkampff what would happen if I
concluded that Mr Coetzee’s Rule 6(12)(c) affidavit was
not
sufficient to meet the main application. His answer, appropriately
in my view, was that his client would have to
“live with
the consequences”
.
Accordingly, I was confronted with effectively two sets of papers
(viz Mercedes-Benz’s founding affidavit and Mr Coetzee’s
Rule 6(12)(c)
“answering affidavit”
) bearing in
mind Mercedes-Benz’s election not to file a
“replying
affidavit”
in response to Mr Coetzee’s Rule 6(12)(c)
“answering affidavit”
.
I am called upon to decide whether on the facts set out in the two
sets of affidavits, Mercedes-Benz is entitled to relief ordering
Mr
Coetzee to return the Mercedes to Mercedes-Benz for
safe keeping
pending the finalisation of an action to be instituted by
Mercedes-Benz.
The Rule 6(12)(c) answering affidavit and Mr Kulenkampff in oral
argument and in written heads of argument, raised a number of
issues
in opposition to the application.
It was not suggested that the balance of convenience favoured Mr
Coetzee. Indeed, no facts of any kind were put up by Mr Coetzee
why
he requires possession of the Mercedes. On the other hand, Mercedes
Benz averred that the return of the Mercedes
pendente lite
protects the asset (the Mercedes) from damage or depreciation.
It is suggested that the Mercedes could be damaged, lost, stolen
or
wrecked in a collision and that the prejudice it would suffer far
outweighs any prejudice Mr Coetzee would suffer were the
Mercedes to
be returned
pendente lite
.
Mr Coetzee simply failed in his pleading to respond to those
averments. He put up no evidence that, for example, he requires the
Mercedes for employment purposes or to transport minor children and
that he would suffer any prejudice whatsoever were the Mercedes
to be
returned to Mercedes Benz
pendente lite
. That the balance of
convenience weighs heavily, on the pleadings, in favour of return of
the vehicle
pendente lite
is an important factor in the
exercise of my discretion.
6
As oral argument developed, a number of defences raised by Mr
Kulenkampff effectively fell away, and the points I ultimately
had
to decide boiled down to three in total.
First, I must decide whether Mercedes-Benz on the facts were
entitled and in fact did cancel the agreement, secondly whether
Mercedes-Benz could be regarded as owners of the Mercedes. If both
those points fail, I am to consider in any event whether
I should
rule in favour of Mr Coetzee.
The third point is one which is an alternative to the first two.
The point is that in the
ex parte
urgent application,
Mercedes-Benz conducted themselves in a manner contrary to the
requirements of
uberrima fides
as set out in the matter of
Schlesinger v Schlesinger
.
7
Mr Kulenkampff argued, correctly in my view, that
ex parte
applications have to be decided on a one-sided version of events
and an applicant who approaches a court for relief on an
ex parte
application has a duty to disclose each and every fact and
circumstances which
might
influence the court in deciding to
grant and withhold the relief.
Mr Louw argued that Mr Coetzee was precluded from now raising the
Schlesinger
point because the Rule 6(12)(c) application was
no longer alive.
On this issue I disagree with Mr Louw and during argument, I put it
to him that if (hypothetically) a party behaved in an appalling
manner and it had become clear that it had purposefully and wilfully
misled a court in the most extreme and intense circumstances,
would
a court on the return day or a later date in the same application,
not have a discretion to come to the assistance of the
other party.
Mr Louw eventually accepted that even though the Rule 6(12)(c)
application was no longer alive, I nevertheless had
a discretion to
come to the assistance of Mr Coetzee on the
Schlesinger
principles.
Before turning to the substance of the cancellation and ownership
points, I find it necessary to comment on a submission made
by Mr
Kulenkampff during argument. This submission, which ultimately fell
away, related to statutory defences that Mr Coetzee
may have under
the NCA.
The argument, if I understood it correctly, was that because Mr
Coetzee was now subject to debt counselling and debt review under
the NCA, it would be inappropriate for this Court effectively to
involve itself in those processes by making an order for the
return
of the Mercedes and thereby interfere with the debt review process.
Mr Kulenkampff argued that Mr Coetzee was subject to this process
and I should respect that process. That was the philosophy
behind
the debt counselling and debt review relief processes set up by the
NCA. In developing his argument, Mr Kulenkampff commented
that Mr
Coetzee was
“a slave to Mercedes-Benz
”. As I
understood the argument, Mr Coetzee was forced to drive the Mercedes
in the circumstances prevailing because he
was now part of the debt
counselling/review process.
In considering this submission, I cannot help but take judicial
notice of the fact that many persons in this country are in reality,
effectively dependent on public transport which, in many instances,
may be regarded as partially or wholly dysfunctional. It
is
inappropriate for Mr Coetzee to consider himself a slave to
Mercedes-Benz. It is insensitive at best. What I highlight is
the
unfortunate attitude displayed by Mr Coetzee in this matter. He
cannot afford a Mercedes vehicle of the kind he drives,
yet does not
appreciate that if a person cannot afford to drive a luxury motor
vehicle, then that person cannot keep a luxury
motor vehicle. No
person has a right to a motor vehicle, let alone a luxury Mercedes
at that. There is no reason why that sentiment
ought not to apply
with equal force in an interim situation. A person cannot expect to
be entitled to enjoy driving a luxury
Mercedes while litigation with
a bank or finance house over the ownership and other issues in
relation to that vehicle is pending.
I turn now to the cancellation and ownership defences.
During argument, allegations flew back and forth on the question of
whether the points had been properly pleaded from both sides.
For
example, Mr Kulenkampff argued that it had never been pleaded that
cancellation had taken place. Mr Louw argued that the
issue of
ownership had not been pleaded by Mr Coetzee.
Whilst I find on the pleadings against Mr Coetzee on both points, I
would nevertheless say that there is much to be said for
the
arguments raised by Mr Louw in respect of both the cancellation and
ownership defences.
On the ownership issue, it would be absurd, in my view, to suggest
that Mercedes-Benz was and is not the owner of the Mercedes
in the
circumstances. Mr Coetzee entered into a contract in which
Mercedes-Benz was described as the owner of the Mercedes and
there
was an express term that Mercedes-Benz would continue to be the
owner of the Mercedes until such time as Mr Coetzee has
paid his
last instalment.
During argument, Mr Kulenkampff suggested that Malmesbury Motors,
for reasons relating to the issue of possession and transfer
of
possession, were the owners.
There is no evidence that Mr Coetzee has attempted to offer any
money to Malmesbury Motors. Malmesbury Motors were not cited
as a
party in these proceedings by any of the parties. More
particularly, Mr Coetzee did not take a non-joinder point in respect
of Malmesbury Motors. If Mr Coetzee was serious about the
Malmesbury Motors’ point, which he has known about or
suggested
for almost two years, then surely he would have brought an
application for non-joinder, or indeed, served the papers on
Malmesbury
Motors. Indeed, in his own section 6(12)(c) application,
he elected to not cite Malmesbury Motors. The only conclusion one
can draw is that his denial of Mercedes-Benz’s ownership of
the Mercedes is cynical at best. If he was serious about the
ownership defence, he would, as he could easily do, cite, join or
serve Malmesbury Motors. Also, there is no suggestion that
Malmesbury Motors has been paid a cent.
I do not make a finding for purposes of the trial that Mercedes-Benz
is the owner and that Malmesbury Motors is not. All I need
to do at
this stage is make a
prima facie
ruling in respect of the
interim situation concerning the possession of the Mercedes. To
conclude on the ownership point, I am
satisfied for the purposes of
this application for an interim attachment order that Mercedes-Benz
is the owner of the Mercedes.
Turning to cancellation, Mr Louw accepted that if cancellation had
not been proved, then I would be precluded from making the
order he
seeks. His submission is that it is indeed necessary for
Mercedes-Benz to have cancelled the contract in order to obtain
an
order compelling Mr Coetzee to hand the Mercedes over for purpose of
safe keeping pending the finalisation of the action to
be
instituted.
8
Mr Louw argued that cancellation had in fact taken place for a
range of reasons. It should be noted that in the Rule 6(12)(c)
affidavit, Mr Coetzee did not aver that cancellation had not
occurred.
9
While there is much to be said for a number of his arguments, I
accept that at the very least the first summons, from which I
have
quoted above, caused the contract to be cancelled. The pleading was
unequivocal and Mercedes-Benz made its intention known
effectively
to Mr Coetzee that it was cancelling the contract. It did so in
terms of the contract.
I also agree with Mr Kulenkampff, with whom Mr Louw concurred, that
the further letters which I have referred to above should
not have
been written and they were inappropriate.
The remaining task is for me to deal with Mr Coetzee’s
“Schlesinger”
point.
Under
Schlesinger
, I have a discretion. To my mind, that
discretion must be exercised balancing the rights of the parties on
the one hand and
on the other, the harm to the rule of law if
unlawful conduct is not visited with an appropriate sanction.
Thus, if the conduct of Mercedes-Benz complained of by Mr Coetzee is
found to be egregious,
10
and the harm to Mr Coetzee would be substantial, then I ought to be
less inclined to come to the assistance of Mercedes-Benz.
And vice
versa.
On the facts, Mercedes-Benz’s conduct, whilst perhaps open to
some criticism, cannot by any stretch of the imagination
be regarded
as egregious. Perhaps it should have set out a fuller history of
the procedural issues arising in its founding affidavit
in the
ex
parte
application. If it had, the Judge hearing the
ex parte
application might, and I put it no higher, have required more
information from Mercedes-Benz or indeed have refused the
application.
The papers were drafted in a less than perfect manner.
I cannot find that Mercedes-Benz set out to deliberately mislead
the
Court.
In the circumstances, I do not find there is conduct to warrant me
applying the
Schlesinger
test against Mercedes-Benz.
At the hearing, Mr Louw handed up a draft order. I was not
satisfied with it and the Court’s Registrar thereafter
requested
the attorney to furnish details as to whom and where Mr
Coetzee is to deliver the Mercedes if I were to order its return.
She
did so, and I incorporate certain of those details into the
order.
Whilst there may be something to be said for not awarding costs in
Mercedes-Benz’ favour arising from the difficulties
alluded to
in this judgment, I am not persuaded on the evidence available that
Mercedes-Benz should forfeit its costs. On the
other hand, it may
well turn out at the trial that Mercedes-Benz should not be awarded
the costs of this application. It would
be unfortunate in those
circumstances if I had already awarded costs one way or another. I
have thus decided that costs of this
application are to be
determined by the trial court unless, for whatever reason,
Mercedes-Benz fails to institute action timeously.
Bearing in mind
the lengthy history of this matter, I have decided that the time
periods suggested by the parties are not appropriate,
and I impose a
stricter timetable, both on Mercedes-Benz and Mr Coetzee.
The following order is granted:
Mr Dirk Arno Coetzee or whoever may be in possession of the 2007
Mercedes Benz C280 Elegance A/T(W204) with engine number
27294730669410 and chassis number WDD2040542R002121 (
“the
Mercedes Benz”
) shall return it to Mercedes-Benz
Financial Services South Africa (Pty) Ltd at Aucor Auction Centre,
17 Dacres Avenue, Epping
by
10h00
on
Thursday 24 February
2011
for safe keeping pending the finalisation of the action to
be instituted as referred to paragraph 2 below.
Mercedes-Benz Financial Services South Africa (Pty) Ltd shall
institute an action against Mr Coetzee in respect of the Mercedes
Benz by no later than
Monday 14 March 2011
, failing which Mr
Coetzee shall be entitled to the immediate return of the Mercedes
Benz.
Costs are to stand over for later determination, unless an action
as contemplated by paragraph 2 above is not instituted by
Monday
14 March 2011
, in which event the costs of this
application are to be borne by Mercedes-Benz Financial Services
South Africa (Pty) Ltd.
BY ORDER:
KATZ AJ
1
2010 (6) SA 557
(GSJ).
2
Morrison v African Guarantee & Indemnity
Co Ltd
1936 (1) PH M35 (T);
Loader
v De Beer
1947 (1) SA 87
(W);
Van
Rhyn v Reef Developments A (Pty) Ltd
1973
(1) SA 488
(W) at 492.
3
Fourie J for the Full Bench in
ABSA
(Ltd) v De Villiers and Another
2009
(5) SA 40
(C) emphasised that his judgment dealt with a final order
authorising the attachment of the subject vehicle and not for relief
pendente lite
at paras [6] and [17].
4
The contract was an instalment sale agreement and
thus subject to the provisions of the NCA.
5
[2010] ZASCA 130
(30 September
2010), 2010 (6) SA
439
(SCA).
6
Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2) 832 (D) at 383C-G.
7
1979 (4) SA 342
(W), see also
Powell
N.O. and Others v Van der Merwe N.O. and Others
2005
(5) SA 622
(SCA), (per Southwood AJA) at paras [74] – [75] and
The National Director of Public
Prosecutions v Braun and Another
2007
(1) SACR 326
(C).
8
Steyn’s Foundry (Pty) Ltd v Peacock
1965
(4) SA 549
(T);
First Consolidated
Leasing and Finance Corporation Ltd v N M Plant Hire (Pty) Ltd
1988
(4) SA 924
(W).
9
Although Mr Coetzee did suggest that cancellation
had not taken place in his affidavit opposing summary judgment which
was annexed
to his Rule 6(12)(c) affidavit, he did not incorporate
by reference those averments contained in his summary judgment
affidavit.
10
Cf
Van der Merwe v
Taylor N.O. and Others
2008 (1) SA 1
(CC), the minority judgment of Mokgoro J, and particularly at
footnote 20 and paras [70] – [72].