Firstrand Bank Limited t/a Wesbank v Abandoned Solutions SA (Proprietary) Limited (2019/31586) [2020] ZAGPJHC 124 (8 May 2020)
The applicant established ownership of the vehicle, which was not substantively disputed by the respondent. The respondent's claim to a lien was speculative and unsupported by evidence. The applicant's tender of a guarantee as substitute security was adequate, covering the full amount of the respondent's claim and...
Source-derived case information.
- Citation
- [2020] ZAGPJHC 124
- Parties
- Applicant: Firstrand Bank Limited t/a Wesbank; Respondent: Abandoned Solutions SA (Proprietary) Limited
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2019/31586
- Procedural Posture
- Urgent Application / Application for Delivery of Motor Vehicle and Substitute Security
- Outcome
- Application granted; applicant entitled to delivery of the vehicle upon furnishing substitute security.
- Judges
- C G Lamont
- Legal Topics
- Lien, Instalment Sale Agreement, Right of Retention, Substitute Security, Ownership Dispute
Source-derived case record
Summary, issues, holding and outcome
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Parties
Firstrand Bank Limited t/a Wesbank
Applicant
Abandoned Solutions SA (Proprietary) Limited
Respondent
Procedural Posture
Urgent Application / Application for Delivery of Motor Vehicle and Substitute Security
Legal Issues
- 1 Whether the applicant is the owner of the motor vehicle in question.
- 2 Whether the respondent is entitled to retain the vehicle based on a lien.
- 3 Whether the applicant's tender of substitute security is adequate to secure release of the vehicle.
Ratio Decidendi
The applicant established ownership of the vehicle, which was not substantively disputed by the respondent. The respondent's claim to a lien was speculative and unsupported by evidence. The applicant's tender of a guarantee as substitute security was adequate, covering the full amount of the respondent's claim and further storage costs. In accordance with established legal principles, the applicant is entitled to delivery of the vehicle upon furnishing substitute security. No special order as to costs is warranted; ordinary costs on the party and party scale apply.
Court Disposition
Application granted; applicant entitled to delivery of the vehicle upon furnishing substitute security.
Orders
- The applicant is entitled to delivery of the motor vehicle upon furnishing the guarantee annexed to the draft order.
- The respondent shall release the vehicle to the applicant upon receipt of the substitute security.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2019/31586
In the matter between:
FIRSTRAND BANK LIMITED t/a WESBANK Applicant
And
ABANDONED SOLUTIONS SA (PROPRIETARY) LIMITED Respondent
J U D G M E N T
LAMONT, J:
[1] The applicant brought an application against the respondent seeking delivery of a motor vehicle in respect of which the respondent claimed it had a lien and for other relief. The applicant tendered a guarantee as substitute security.
[2] The respondent is in possession of a vehicle owned by the applicant and claims a right to retain it on the basis that it is exercising a lien. The applicant sold the vehicle to its customer in terms of an Instalment Sale Agreement. The customer commenced business rescue proceedings in consequence of which the applicant cancelled the Instalment Sale Agreement. The applicant relied on a term within the agreement reserving ownership to it notwithstanding delivery to its customer. The business rescue practitioner of the customer accepted that the applicant was the owner and consented to the applicant retaking the vehicle and exercising rights of ownership in respect thereof.
[3] The respondent faintly disputed the applicant’s rights of ownership based on speculation. It gave no evidence to gainsay what the applicant set out. In my view, the papers establish that the applicant is the owner of the vehicle in question.
[4] The applicant looked for the vehicle, as its customer was not in possession thereof. It found the vehicle in the possession of the respondent. It is unclear how the respondent came into possession of the vehicle. However, the respondent appears to have obtained possession from a repair shop and claims to have rights pursuant to a lien transferred to it by the repair shop. The applicant denies the validity of the respondent’s claim. However, notwithstanding the denial, for the purposes of the proceedings, it accepted the obligation to deliver substitute security to the respondent as against delivery of the vehicle to it.
[5] The owner of property subject to a right of retention by another is entitled to furnish adequate security for payment of the debt and as against the furnishing of that security to release of the security held.
[6] See for example Spitz v Kesting 1923 (W) LD 45; Hochmetals Africa (Proprietary) Limited v Otavi Mining Co. (Proprietary) Limited 1968 (1) SA 571 (A) at 582 C – F; Pheiffer v Van Wyk and Others 2015 (5) SA 464 SCA at 20 and 21; Myers v Gearbox Centre (Proprietary) Limited 1977 (4) SA 11 (W) at 15 A.
[7] The guarantee furnished by the applicant, guarantees the full amount of the respondent’s claim, including further storage costs as per judgment being granted.
[8] It is my view that the substitute security tendered is adequate and that the applicant is entitled to delivery of the vehicle.
[9] As far as, costs are concerned it does not appear to me that a special order is warranted and ordinary costs on the party and party scale shall be of application.
[10] I accordingly make an order in terms of the draft incorporating the guarantee annexed hereto.
__________________________________________
C G LAMONT
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR APPLICANT: Adv. W.G.H. Pretorius
APPLICANT’S ATTORNEYS: Rossouws Lesie Inc
COUNSEL FOR THE RESPONDENT: Att. M. Fehler
RESPONDENT’S ATTORNEYS: M. Fehler Attorneys
DATE OF HEARING: 4 May 2020
DATE OF JUDGMENT: May 2020