Absa Bank Ltd v Ablaze Trading 216 CC (18507/09) [2011] ZAWCHC 59 (25 February 2011)

Absa Bank Ltd v Ablaze Trading 216 CC (18507/09) [2011] ZAWCHC 59 (25 February 2011)

The respondent breached the instalment sale agreements by failing to pay monthly instalments and by not keeping the truck and trailer at the stipulated premises. The obligation to pay instalments is ongoing, and each missed payment constitutes a fresh breach, entitling the applicant to cancel the agreements and seek repossession. The applicant validly cancelled the agreements in its application and invoked the contractual provisions for repossession. The respondent's argument that the applicant elected not to cancel is rejected, as the right to cancel arises with each new breach. The court exercises its discretion to grant specific performance, as impossibility of performance has not been...

Citation
[2011] ZAWCHC 59
Parties
Applicant: Absa Bank Limited; Respondent: Ablaze Trading 216 CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 February 2011
Case Number
18507/09
Procedural Posture
Civil Application / Final Relief Application
Outcome
Application granted. The applicant is entitled to repossession of the truck and trailer. The respondent is ordered to deliver the assets to the applicant, failing which the Sheriff is empowered to repossess and deliver them. The respondent is ordered to pay taxed costs on an attorney and client scale.
Judges
Louw
Legal Topics
Instalment Sale Agreement, Specific Performance, Contract Breach, Repossession of Goods
Commercial and Corporate Civil Procedure Instalment Sale Agreement Specific Performance Contract Breach Repossession of Goods

Case Brief

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Parties

Absa Bank Limited

Applicant

Ablaze Trading 216 CC

Respondent

Procedural Posture

Civil Application / Final Relief Application

Legal Issues

  1. 1 Whether the applicant is entitled to repossession of the truck and trailer under the instalment sale agreements.
  2. 2 Whether the applicant validly cancelled the agreements due to breach by the respondent.
  3. 3 Whether specific performance should be ordered given the respondent's alleged lack of possession of the assets.

Ratio Decidendi

The respondent breached the instalment sale agreements by failing to pay monthly instalments and by not keeping the truck and trailer at the stipulated premises. The obligation to pay instalments is ongoing, and each missed payment constitutes a fresh breach, entitling the applicant to cancel the agreements and seek repossession. The applicant validly cancelled the agreements in its application and invoked the contractual provisions for repossession. The respondent's argument that the applicant elected not to cancel is rejected, as the right to cancel arises with each new breach. The court exercises its discretion to grant specific performance, as impossibility of performance has not been...

Court Disposition

Application granted. The applicant is entitled to repossession of the truck and trailer. The respondent is ordered to deliver the assets to the applicant, failing which the Sheriff is empowered to repossess and deliver them. The respondent is ordered to pay taxed costs on an attorney and client scale.

Orders

  • The applicant is declared entitled to repossession of the 2002 SA Truck Trailer (Chassis Number: AHBDSB2FS2B100221, Serial Number: AHBDSB2FS) and the 2007 TATA NOVUS 5542 (Chassis Number: KL4V3TVF16K004424, Serial Number: DV15TIS601282CB).
  • The respondent is ordered to deliver and return the above assets to the applicant.