Nilsen v Vodacom Services Provider Company (Pty) Ltd and Another (60/06/01) [2008] ZAGPHC 18 (29 January 2008)

Nilsen v Vodacom Services Provider Company (Pty) Ltd and Another (60/06/01) [2008] ZAGPHC 18 (29 January 2008)

The court found that the applicant failed to establish a clear right to the relief sought. The suspension of services by the first respondent was for one day only and did not constitute a material breach justifying cancellation of the contract. The difficulties with the handset fell under the manufacturer's warranty and not the main contract. The applicant continued to use the services after purported cancellation, thereby keeping the contract alive. The agreement entitled the first respondent to inform third parties of any breach without the need to first obtain judgment. The applicant did not demonstrate any right to require the respondent to issue summons before blacklisting her name....

Citation
[2008] ZAGPHC 18
Parties
Applicant: Nadia Nilsen; Respondent: Vodacom Services Provider Company (Pty) Ltd; Respondent: Steriling Debt Recoveries (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 January 2008
Case Number
6460/06
Procedural Posture
Urgent Application / Final Order Sought in Motion Proceedings; Application to Strike Out Paragraphs in Replying Affidavit
Outcome
Application dismissed with costs; application to strike out granted with costs.
Judges
Mavundla
Legal Topics
Contract Termination, Credit Blacklisting, Final Interdict, Motion Proceedings, Onus of Proof
Commercial and Corporate Civil Procedure Contract Termination Credit Blacklisting Final Interdict Motion Proceedings Onus of Proof

Case Brief

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Parties

Nadia Nilsen

Applicant

Vodacom Services Provider Company (Pty) Ltd

Respondent

Steriling Debt Recoveries (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Order Sought in Motion Proceedings; Application to Strike Out Paragraphs in Replying Affidavit

Legal Issues

  1. 1 Whether the applicant was entitled to cancel the contract with the first respondent due to breach.
  2. 2 Whether the first respondent was entitled to blacklist the applicant with ITC without first obtaining judgment.
  3. 3 Whether the applicant established a clear right to the relief sought.

Ratio Decidendi

The court found that the applicant failed to establish a clear right to the relief sought. The suspension of services by the first respondent was for one day only and did not constitute a material breach justifying cancellation of the contract. The difficulties with the handset fell under the manufacturer's warranty and not the main contract. The applicant continued to use the services after purported cancellation, thereby keeping the contract alive. The agreement entitled the first respondent to inform third parties of any breach without the need to first obtain judgment. The applicant did not demonstrate any right to require the respondent to issue summons before blacklisting her name....

Court Disposition

Application dismissed with costs; application to strike out granted with costs.

Orders

  • The application by the first respondent to strike out is granted with costs.
  • The main application is dismissed with costs.