Nedbank Limited v Matemane (20072/2014) [2016] ZAGPPHC 662 (29 July 2016)

Nedbank Limited v Matemane (20072/2014) [2016] ZAGPPHC 662 (29 July 2016)

The court found that the defendant breached the Instalment Sale Agreement by losing possession and control of the vehicle when it was impounded by SAPS and by failing to inform the plaintiff of this fact, as required by clause 5.4 of the agreement. Although the plaintiff's conduct in cancelling the debit order without warning was criticized, the breach by the defendant entitled the plaintiff to cancel the agreement. The defendant failed to make payments towards the arrears even after being given opportunities, including after the criminal charges were withdrawn and after receiving a section 129 notice. The defendant's counterclaim was dismissed as it was unsupported by evidence and...

Citation
[2016] ZAGPPHC 662
Parties
Plaintiff: Nedbank Limited; Defendant: Matemane, Nikwane Vincent
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 July 2016
Case Number
20072/2014
Procedural Posture
Civil Trial / Judgment
Outcome
Plaintiff's claim granted; defendant's counterclaim dismissed with costs.
Judges
AC Sasson
Legal Topics
Instalment Sale Agreement, Breach of Contract, National Credit Act, Repossession, Damages, Counterclaim Dismissal
Commercial and Corporate Civil Procedure Instalment Sale Agreement Breach of Contract National Credit Act Repossession Damages Counterclaim Dismissal

Case Brief

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Parties

Nedbank Limited

Plaintiff

Matemane, Nikwane Vincent

Defendant

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether the defendant breached the Instalment Sale Agreement by failing to maintain possession and control of the vehicle and failing to inform the plaintiff of its impoundment.
  2. 2 Whether the plaintiff was entitled to cancel the agreement and claim damages under the National Credit Act.
  3. 3 Whether the defendant's counterclaim for return and restoration of the vehicle and reconstruction of the agreement had merit.

Ratio Decidendi

The court found that the defendant breached the Instalment Sale Agreement by losing possession and control of the vehicle when it was impounded by SAPS and by failing to inform the plaintiff of this fact, as required by clause 5.4 of the agreement. Although the plaintiff's conduct in cancelling the debit order without warning was criticized, the breach by the defendant entitled the plaintiff to cancel the agreement. The defendant failed to make payments towards the arrears even after being given opportunities, including after the criminal charges were withdrawn and after receiving a section 129 notice. The defendant's counterclaim was dismissed as it was unsupported by evidence and...

Court Disposition

Plaintiff's claim granted; defendant's counterclaim dismissed with costs.

Orders

  • The Instalment Sale Agreement concluded on 5 December 2012 between the plaintiff and the defendant is cancelled.
  • The plaintiff is entitled to sell the vehicle identified as a New Hyundai Mighty HD72 F/C CC (Engine number: D4DBC514535 and KMFGA17BRCC205594) in terms of section 127(2) of the National Credit Act.