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South Africa Judgment

Consumer Affairs Court

Molamu v Riedewaan Gora t/a Auto Sales Warehouse (NW09/2017) [2018] ZACONAF 14 (12 June 2018)

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01

Holding and result

The court found that the defendant had entered into a contract of sale with the plaintiff and, following the return of the vehicle due to mechanical defects, failed to refund the deposit and repair costs. The defendant's signed acknowledgement of debt was accepted as evidence of liability. The court held that the acknowledgement of debt is enforceable and ordered the defendant to pay the outstanding amount in instalments, with the entire balance becoming due if any instalment is missed. Costs of enforcement were awarded to the plaintiff on the party and party scale applicable to magistrate's courts.

Court disposition

Judgment granted in favour of the plaintiff; defendant ordered to pay the acknowledged debt in instalments.

Orders

  • The acknowledgement of debt dated 28 May 2018 and signed by the defendant is attached and forms part of the judgment.
  • The defendant is ordered to pay R68,000.00 at the rate of R5,000.00 per month from 1 July 2018.
  • Subsequent payments of R5,000.00 per month must be made on or before the first day of each new month until the full balance is paid.
  • If any instalment is not paid on its due date, the whole balance becomes immediately due and payable.
  • The defendant is liable for the costs of enforcing this judgment in the case of non-compliance, on the party and party scale 'B' of the magistrate's courts tariff.

02

Material facts

Parties

Sarah Gabaake Molamu

Plaintiff Counsel: Mr. Letsogo

Riedewaan Gora t/a Auto Sales Warehouse

Defendant

Amounts and remedies

  • Deposit Paid by Plaintiff: ZAR 65,000
  • Total Acknowledged Debt: ZAR 68,000
  • Monthly Instalment: ZAR 5,000
  • Repair Costs Incurred by Plaintiff: ZAR 3,000

03

Procedural history

  1. Posture

    Civil Procedure / Final Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiff, represented by the Consumer Protector, argued that she purchased a motor vehicle from the defendant, paid a deposit, and incurred repair costs. After returning the vehicle due to persistent mechanical issues, the defendant failed to refund her deposit and repair expenses. The plaintiff relied on the signed acknowledgement of debt as the basis for her claim.
Respondent
The defendant was not present at the hearing but had signed an acknowledgement of debt, which was submitted as evidence. No further arguments were advanced on his behalf.

05

Court’s reasoning

  1. 01

    Common law; attached acknowledgement of debt

    A signed acknowledgement of debt constitutes a binding agreement and is enforceable as an order of court.

  2. 02

    Order of court

    Where a party fails to comply with payment terms under a judgment, the entire outstanding balance becomes immediately due and payable.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the defendant had entered into a contract of sale with the plaintiff and, following the return of the vehicle due to mechanical defects, failed to refund the deposit and repair costs. The defendant's signed acknowledgement of debt was accepted as evidence of liability. The court held that the acknowledgement of debt is enforceable and ordered the defendant to pay the outstanding amount in instalments, with the entire balance becoming due if any instalment is missed. Costs of enforcement were awarded to the plaintiff on the party and party scale applicable to magistrate's courts.

Obiter and limits

  • The court noted the importance of consumer protection in transactions involving motor vehicles and the need for traders to honour their contractual obligations.
  • The absence of the defendant at the hearing did not prejudice the plaintiff's case, given the signed acknowledgement of debt.

Court disposition

Judgment granted in favour of the plaintiff; defendant ordered to pay the acknowledged debt in instalments.

  • The acknowledgement of debt dated 28 May 2018 and signed by the defendant is attached and forms part of the judgment.
  • The defendant is ordered to pay R68,000.00 at the rate of R5,000.00 per month from 1 July 2018.
  • Subsequent payments of R5,000.00 per month must be made on or before the first day of each new month until the full balance is paid.
  • If any instalment is not paid on its due date, the whole balance becomes immediately due and payable.
  • The defendant is liable for the costs of enforcing this judgment in the case of non-compliance, on the party and party scale 'B' of the magistrate's courts tariff.

Source and reliance status

Consumer Affairs Court

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Judgment text

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Source document

Consumer Affairs Court

Judgment

[2018] ZACONAF 14

IN THE CONSUMER AFFAIRS COURT

FOR THE NORTH WEST PROVINCE

HELD AT MMABATHO

Case number: NW09/2017

In the matter between:-

SARAH

GABAAKE MOLAMU

PLAINTIFF

and

RIEDEWAAN GORA T/A AUTO SALES WAREHOUSE

DEFENDANT

ON 12 JUNE 2018

JUDGMENT

J.Nkomo (P. Hlahane and K.Kgomongwe concurring)

Introduction

[1] The plaintiff in this matter is Mrs. Sarah Gabaake Molamu. She is an adult female person who resides in Lichtenburg. The defendant on the other hand is Mr. Riedwaan Gora who trades as AutoSales Warehouse in Klerksdorp. The plaintiff reported allegations of an unfair business practice against the defendant. It is as a result of the report that summons was issued and served upon the defendant on 10 May 2018. The matter was scheduled for 12 June 2018.

[2] It seems that the plaintiff entered into a contract of sale in terms of which she purchased an Amandla CMC Minibus motor vehicle (registration number CKX 909 L) from the defendant for the amount of R 110 000.00 and on 11 July 2017. She seems to have paid a deposit of R 65 000.00. After taking delivery of the motor vehicle, it had a few mechanical issues which needed repairs and were done at the expense of the plaintiff. These were rounded off to R 3 000.000 by the parties. More problems seemed to have emerged which prompted the plaintiff to return the motor vehicle to the defendant in or around September 2017. She was never refunded her deposit of R 65 000.00 together with the costs of the repairs that she had effected. This is how she gets to report the case for investigation and eventual adjudication thereof by this court.

[3] On 12 June 2018 the plaintiff was in attendance and being represented by Mr. Letsogo who occupies the position of Consumer Protector. It was placed on record that the defendant having signed an acknowledgement of debt was not in attendance at the hearing. Mr. Letsogo requested that the acknowledgement of debt form the basis upon which an order is given by this court.

Order

[3] Having considered the submissions made by Mr. Letsogo on behalf of the plaintiff as well as having read the papers on record, the following order is hereby given:-

1. The acknowledgment of debt dated 28 May 2018 and as signed by the defendant is attached to this judgment and marked “X”.

2. The defendant is ordered to pay the amount of R 68 000.00 at the rate of R 5 000.00 per month from 1 July 2018.

3. The second and subsequent payments of R 5 000.00 per month must be made on or before the first day of each new month and until the whole balance owing is paid in full.

4. Where an installment or part thereof is not paid on its due date, the whole balance then owing will become due and payable immediately.

5. The defendant shall be liable for the costs of enforcing this judgment in the case of non-compliance therewith. Such costs shall be on the party and party scale “B” of the tariff of costs applicable to magistrate’s courts.

John Nkomo

Chairperson

FOR THE PLAINTIF: MR.LETSOGO

CONSUMER PROTECTOR’S OFFICE

NWDC BUILDING

MMABATHO

DEFENDANT:

RIEDWAAN GORA T/A AUTOSALES WAREHOUSE

JOE SLOVO ROAD

KLERKSDORP

NORTH WEST

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