Botes t/a JHLS Botes Vervoer v Standard Bank of South Africa Limited (M85/15) [2015] ZANWHC 72 (30 October 2015)

Botes t/a JHLS Botes Vervoer v Standard Bank of South Africa Limited (M85/15) [2015] ZANWHC 72 (30 October 2015)

The court found that the issue of whether a further section 129 notice is required after a debtor defaults, is served with a section 129 notice, enters into a restructuring agreement, and then defaults again, is a matter of importance and not settled in law. Given the reasonable possibility that another court may reach a different conclusion, leave to appeal should be granted to the Supreme Court of Appeal. The order confirming cancellation of the installment sale agreements and authorizing repossession of the vehicles is amended to exclude agreement 'E', clarifying the scope of the order.

Citation
[2015] ZANWHC 72
Parties
Applicant: Johannes Hendrikus Lambertus Stepahus Botes t/a JHLS Botes Vervoer; Respondent: The Standard Bank of South Africa Limited
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 October 2015
Case Number
M85/15
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Confirming Cancellation of Installment Sale Agreements.
Outcome
Leave to appeal granted to the Supreme Court of Appeal against the whole judgment delivered on 3 September 2015. Paragraph 1 of the previous order is amended to exclude agreement 'E'. Costs of the application for leave to appeal are costs in the appeal.
Judges
A A Landman
Legal Topics
Leave to Appeal, Section 129 Notice, Installment Sale Agreements, Restructuring Agreement, Default and Cancellation
Civil Procedure Banking and Finance Leave to Appeal Section 129 Notice Installment Sale Agreements Restructuring Agreement Default and Cancellation

Case Brief

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Parties

Johannes Hendrikus Lambertus Stepahus Botes t/a JHLS Botes Vervoer

Applicant

The Standard Bank of South Africa Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Confirming Cancellation of Installment Sale Agreements.

Legal Issues

  1. 1 Whether a debtor who defaulted on installment sale agreements and was served with a section 129 notice, entered into a restructuring agreement, and defaulted again, is entitled to a further section 129 notice before cancellation of the agreement.
  2. 2 Whether another court may reasonably reach a different conclusion regarding the necessity of a further section 129 notice after a restructuring agreement and subsequent default.

Ratio Decidendi

The court found that the issue of whether a further section 129 notice is required after a debtor defaults, is served with a section 129 notice, enters into a restructuring agreement, and then defaults again, is a matter of importance and not settled in law. Given the reasonable possibility that another court may reach a different conclusion, leave to appeal should be granted to the Supreme Court of Appeal. The order confirming cancellation of the installment sale agreements and authorizing repossession of the vehicles is amended to exclude agreement 'E', clarifying the scope of the order.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal against the whole judgment delivered on 3 September 2015. Paragraph 1 of the previous order is amended to exclude agreement 'E'. Costs of the application for leave to appeal are costs in the appeal.

Orders

  • Paragraph 1 of the order granted on 27 September 2015 is amended by deleting 'B-J' and replacing it with 'B to D and F to J'.
  • The respondent (J H L S Botes t/a JHLS Botes Vervoer) is granted leave to appeal to the Supreme Court of Appeal against the whole of the judgment delivered on 3 September 2015.