Absa Bank Ltd and Another v Eksteen (81/10) [2011] ZASCA 40 (29 March 2011)

Absa Bank Ltd and Another v Eksteen (81/10) [2011] ZASCA 40 (29 March 2011)

The Supreme Court of Appeal held that the seller's implied warranty against eviction extends to dispossession by statutory authority, not only by the true owner. Section 68(6) of the National Road Traffic Act prohibited the buyer from possessing the vehicle due to tampered identification numbers, making the eviction unassailable. The seller, Absa Bank, was called upon to assist the buyer in resisting the seizure but failed to do so, thereby breaching its obligation to protect the buyer's possession. The buyer was not required to institute proceedings against the police, as statutory prohibition rendered such action futile. Both Absa Bank and Nedbank were held liable to repay the purchase...

Citation
[2011] ZASCA 40
Parties
Appellant: Absa Bank Limited; Appellant: Nedbank Limited; Respondent: Marius Eksteen
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 2011
Case Number
81/10
Procedural Posture
Civil Appeal / Appeal From High Court, Bloemfontein
Outcome
Both appeals are dismissed. The appellants are ordered to pay the costs of the respondent jointly and severally. No further costs order is made as between the appellants.
Judges
NAVSA, NUGENT, HEHER, CACHALIA, MALAN
Legal Topics
Warranty Against Eviction, Statutory Prohibition of Possession, Sale of Goods, Third Party Indemnification
Commercial and Corporate Civil Procedure Warranty Against Eviction Statutory Prohibition of Possession Sale of Goods Third Party Indemnification

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Absa Bank Limited

Appellant

Nedbank Limited

Appellant

Marius Eksteen

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Bloemfontein

Legal Issues

  1. 1 Whether the seller is liable to repay the purchase price when the buyer is dispossessed of the vehicle due to statutory prohibition against possession.
  2. 2 Whether the buyer was required to resist dispossession by instituting proceedings against the police.
  3. 3 Whether the seller's failure to assist the buyer in resisting eviction affects liability for repayment.

Ratio Decidendi

The Supreme Court of Appeal held that the seller's implied warranty against eviction extends to dispossession by statutory authority, not only by the true owner. Section 68(6) of the National Road Traffic Act prohibited the buyer from possessing the vehicle due to tampered identification numbers, making the eviction unassailable. The seller, Absa Bank, was called upon to assist the buyer in resisting the seizure but failed to do so, thereby breaching its obligation to protect the buyer's possession. The buyer was not required to institute proceedings against the police, as statutory prohibition rendered such action futile. Both Absa Bank and Nedbank were held liable to repay the purchase...

Court Disposition

Both appeals are dismissed. The appellants are ordered to pay the costs of the respondent jointly and severally. No further costs order is made as between the appellants.

Orders

  • Both appeals are dismissed.
  • The appellants are ordered to pay the costs of the respondent jointly and severally.