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South Africa Judgment

South Gauteng High Court, Johannesburg

ABSA Bank Limited v Mavundza (2022-050518) [2024] ZAGPJHC 79 (30 January 2024)

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01

Holding and result

The court found that the section 129 notice was properly sent to the respondent's chosen domicilium address, with proof of posting and tracking. The respondent's claim of a change of address was unsupported by evidence, as the document provided was dated months after the notice was sent and did not constitute a communication from the respondent. The Magistrate's Court order, which discharged the rule nisi and declared the respondent's possession of the vehicle unlawful, binds the respondent and precludes her defence that she was tricked into releasing the vehicle. The respondent admitted possession, the applicant's ownership, and the arrears. No valid defence was presented, and the agreement provided for punitive costs. The application for return of the vehicle was granted.

Court disposition

Application granted; respondent ordered to return the vehicle and pay punitive costs.

Orders

  • The respondent and/or any other party in possession of the 2018 Quantum Minibus Kombi 2.5D bearing VIN number A[…] must return the vehicle to the applicant forthwith.
  • If such person fails or refuses, the applicant may approach the sheriff or SAPS to enforce the order.
  • The respondent is to pay the applicant's costs on the attorney and client scale.

02

Material facts

Parties

ABSA Bank Limited

Applicant Counsel: Adv N Alli

Sevengwani Ana Mavundza

Respondent Counsel: Adv R Masipa

03

Procedural history

  1. Posture

    Civil Application / Final Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the respondent entered into a written credit agreement for the purchase of a vehicle and chose a domicilium address. After falling into arrears, the applicant sent a section 129 notice to the chosen address, with proof of posting and tracking. The applicant asserts that the respondent failed to rectify the breach, and the agreement was lawfully terminated. The applicant further argues that the respondent's claim of a change of address is unsupported and that possession of the vehicle is unlawful following the Magistrate's Court order. The applicant seeks return of the vehicle and punitive costs as provided for in the agreement.
Respondent
The respondent denies receiving the section 129 notice and claims to have informed the applicant of a change of address prior to the notice being sent. The respondent alleges that she was misled by the applicant's agents into signing a notice of termination and that her son signed the document. She contends that she was spoliated of the vehicle and obtained a temporary order for its return from the Magistrate's Court, which was later discharged. The respondent initially raised a jurisdictional point but abandoned it.

05

Court’s reasoning

  1. 01

    National Credit Act 34 of 2005

    A section 129 notice must be sent to the address chosen by the debtor as domicilium; actual receipt is not required if the notice is properly dispatched.

  2. 02

    Magistrate's Court Order, Mamelodi, 3 August 2022

    A party is bound by a court order unless and until it is set aside; defences inconsistent with the order are not available.

  3. 03

    Credit Agreement between ABSA Bank Limited and Sevengwani Ana Mavundza

    Punitive costs may be awarded where provided for in the agreement and litigation ensues.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the section 129 notice was properly sent to the respondent's chosen domicilium address, with proof of posting and tracking. The respondent's claim of a change of address was unsupported by evidence, as the document provided was dated months after the notice was sent and did not constitute a communication from the respondent. The Magistrate's Court order, which discharged the rule nisi and declared the respondent's possession of the vehicle unlawful, binds the respondent and precludes her defence that she was tricked into releasing the vehicle. The respondent admitted possession, the applicant's ownership, and the arrears. No valid defence was presented, and the agreement provided for punitive costs. The application for return of the vehicle was granted.

Obiter and limits

  • Even if the respondent did not receive the section 129 notice, failure to collect it from the post office does not invalidate proper dispatch.
  • The respondent's allegation of spoliation was not supported by the facts and was resolved by the Magistrate's Court order.

Court disposition

Application granted; respondent ordered to return the vehicle and pay punitive costs.

  • The respondent and/or any other party in possession of the 2018 Quantum Minibus Kombi 2.5D bearing VIN number A[…] must return the vehicle to the applicant forthwith.
  • If such person fails or refuses, the applicant may approach the sheriff or SAPS to enforce the order.
  • The respondent is to pay the applicant's costs on the attorney and client scale.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2024] ZAGPJHC 79

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

JOHANNESBURG

CASE NO: 2022-050518

In the matter between:

ABSA

BANK LIMITED

Applicant

and

SEVENGWANI

ANA MAVUNDZA

Respondent

JUDGMENT

WRIGHT J

1. On 23 November 2018, the applicant bank sold a vehicle to the respondent, Ms Mavundza under a written credit agreement. The bank now seeks return of the vehicle under the rei vindicatio.

2. In the agreement, Ms Mavundza chose as domicilium, 1[…] B[…] P[…], Alexandra.

3. Ms Mavundza fell into arrears. On 14 March 2022, the bank sent a letter under section 129 of the National Credit Act, 34 of 2005 to the domicilium address. In the letter it is stated that the account has been in arrears for more than twenty days, that Ms Mavundza has ten business days to rectify the breach and that if the letter is not complied with, the credit agreement will be automatically cancelled.

4. This letter is annexed to the founding affidavit as is proof of posting in the form of a registered postal slip and proof of tracking in the form of a track and trace report showing that the letter was received by the relevant post office.

5. Ms Mavundza denies receiving the letter. She may well not have but that could only be due to a failure to collect it.

6. Ms Mavundza says that she had informed the bank of change of address sometime before the bank sent the section 129 letter. She refers in her answering affidavit to an annex to it but there is none. Upon enquiry by the bank’s attorney, Ms

Mavundza’s attorney sent the annex. This document is a bank printout dated 10 August 2022, some five months after the section 129 letter was sent. It lists a physical address for Ms Mavundza of “ N[…] Street House number 25[…]“ in Mamelodi, different to the chosen domicilium. This document is by no means a communication from Ms Mavundza at all. In my view, the allegation by Ms Mavundza that she informed the bank of change of address is incorrect.

7. Attached to the founding affidavit is a Notice of Termination dated 30 May 2022 and signed, according to the bank by Ms Mavundza. Ms Mvundza says that she was spoliated of the vehicle on that day when bank agents arrived at her house in Limpopo. She says that the notice was signed by her son. She says that she was misled by the agents into believing that the notice merely confirmed that

the vehicle had been “ inspected and taken in the condition that it was, and further that I have removed every item that belongs to me “. The bank’s agents took the vehicle.

8. Ms Mavundza approached the Magistrate’s Court in Mamelodi and on 29 June 2022 obtained a temporary order in the form of a rule nisi for the return of the vehicle to her. On 3 August 2022, after the bank had been heard, the Magistrate discharged the rule nisi with punitive costs. The effect of the Magistrate’s Order was to declare Ms Mavundza’s possession of the vehicle

unlawful.

9. Ms Mavundza is bound by the order of the Magistrate. Her defence that she was tricked into releasing the vehicle is not open to her.

10. Ms Mavundza admits possession of the vehicle, that the bank is the owner and that she is still in arrears. A point of lack of jurisdiction raised by Ms Mavundza was sensibly abandoned.

11. In my view, there is no defence to the application.

12. The agreement provided for punitive costs in the event of litigation by the bank.

ORDER

1. The respondent and/or any other party that may be in possession of the motor vehicle 2018 Quantum Minibus Kombi 2.5D bearing VIN number A[…] is to return the vehicle to the applicant forthwith.

2. In the event that such person fails or refuses to do so, the applicant may approach the sheriff or the SAPS to give effect to this order.

3. The respondent is to pay the applicant’s costs on the attorney and client scale.

___

GC Wright

Judge of the High Court

Gauteng Division, Johannesburg

HEARD

: 30 January 2024

DELIVERED : 30 January 2024

APPEARANCES :

APPLICANT Adv N Alli

Instructed by Jay Mothobi Inc

anthony@jay.co.za

011 268 3500

RESPONDENT Adv R Masipa

Instructed by Cedrick Thoka Attorneys

081 206 5459

cedrickthokainc@gmail.com

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

National Credit Act 34 of 2005

Legislation

Legislation referenced in the available case record.

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