BMW Financial Services SA (Pty) Ltd v Jacob (36863/2016) [2017] ZAGPJHC 371 (14 July 2017)

BMW Financial Services SA (Pty) Ltd v Jacob (36863/2016) [2017] ZAGPJHC 371 (14 July 2017)

The applicant complied with all statutory requirements under the National Credit Act by sending the s129 notice to the respondent's domicilium and allowing sufficient time for the respondent to remedy the default or seek debt counselling. The respondent failed to respond to the notice, did not file a substantive defence, and did not apply for condonation for late filing. The credit agreement contained a lex commissoria, entitling the applicant to cancel the agreement and repossess the vehicle. Proper service of the application was effected, and the respondent had no legal right to remain in possession of the vehicle after defaulting. The court was satisfied that the applicant was entitled...

Citation
[2017] ZAGPJHC 371
Parties
Applicant: BMW Financial Services SA (Pty) Ltd; Respondent: Manabile Madumetja Jacob
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 July 2017
Case Number
36863/2016
Procedural Posture
Civil Application / Unopposed Motion
Outcome
Application granted; order for return of vehicle and costs on attorney and client scale.
Judges
M Victor
Legal Topics
National Credit Act, Repossession of Goods, Service of Process, Lex Commissoria, Default and Arrears
Banking and Finance Civil Procedure National Credit Act Repossession of Goods Service of Process Lex Commissoria Default and Arrears

Case Brief

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Parties

BMW Financial Services SA (Pty) Ltd

Applicant

Manabile Madumetja Jacob

Respondent

Procedural Posture

Civil Application / Unopposed Motion

Legal Issues

  1. 1 Whether the applicant complied with the requirements of the National Credit Act before seeking repossession of the vehicle.
  2. 2 Whether proper service of the s129 notice and application was effected on the respondent.
  3. 3 Whether the applicant was entitled to cancellation of the credit agreement and repossession of the vehicle.

Ratio Decidendi

The applicant complied with all statutory requirements under the National Credit Act by sending the s129 notice to the respondent's domicilium and allowing sufficient time for the respondent to remedy the default or seek debt counselling. The respondent failed to respond to the notice, did not file a substantive defence, and did not apply for condonation for late filing. The credit agreement contained a lex commissoria, entitling the applicant to cancel the agreement and repossess the vehicle. Proper service of the application was effected, and the respondent had no legal right to remain in possession of the vehicle after defaulting. The court was satisfied that the applicant was entitled...

Court Disposition

Application granted; order for return of vehicle and costs on attorney and client scale.

Orders

  • The respondent is ordered to return the 2010 BMW Gran Tourismo 530d motor vehicle with engine number 0C221939 and chassis number 25647548 to the applicant.
  • The Sheriff is authorised to remove the vehicle from wherever it may be found and return it to the applicant if the respondent fails to do so.