SA Taxi Finance Solutions (Pty) Ltd v Kubheka and Another (45332/2012) [2013] ZAGPPHC 439 (5 December 2013)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

CASE NO: 45332/2012

DATE: 26 NOVEMBER 20T2

In the matter between

SA TAXI FINANCE SOLUTIONS (PTY) LTD.........................................APPLICANT

and

KUBHEKA JABULANE JOHANNESBURG............................FIRST RESPONDENT

ERNA SCOTT N.O. ..................................................... ..... .SECOND RESPONDENT

JUDGMENT

MOGOTSI AJ:

Introduction

[1] The matter comes before this court by way of interlocutory application for the interim attachment of a motor vehicle for safekeeping pending finalisation of a trial.

[2] An application for summary judgment claiming the same relief against the respondent under the same case number has been postponed sine die. An application for debt review under the National Credit Act 34 of 2005 (the NCA) was dismissed in the Magistrate Court and an appeal is pending.

[3] The applicant is a registered credit provider under the NCA and has leased the vehicle 2010 CAM NYATHI BAW 2.21 HIGH ROOF with engine number SF491QE 080 364 248A, Chassis no LP BMB DDE 08 W 007 157 hereinafter referred as the vehicle to the first respondent. The respondent’s domicilium citandi at excutandi is 5 S…….

[4] The second respondent is Erna Scott, a registered debt counsellor who brought an application in the Magistrate Court to re-arrange the first respondent debt obligation in terms of the National Credit Act.

[5] In terms of the lease agreement the applicant is the owner of the vehicle which respondent uses as a taxi. The sum due by the first respondent in terms of the lease agreement over the period July 2012 (the date first respondent’s application for debt review) to May 2013 was R82 892.59. The shortfall is R60 956.76 and is increasing. Applicant has cancelled the lease agreement as the owner of the vehicle he claims a right to be in possessing of the vehicle and he alleges a well-founded apprehension of irreparable harm in that the only security that applicant has for the substantial sums owed is being diminished in value daily and will in the future not retain sufficient value to discharge the sums owed by the respondent.

[6] A further term of the agreement is that should applicant default in the amounts payable under the agreement, respondent would be entitled to cancel the agreement and obtain return of the vehicle. Applicant contents that he has no control over the manner in which the first respondent drives or operate the vehicle.

[7] Applicant contents that the balance of convenience favours him in granting of the interim vindicatory relief sought and in case he succeeds in his action he will store the vehicle at its own expense in secure garaged premises in Turffontein pending the outcome of the action.

[8] Applicant believes that noting of the appeal by the second respondent is not to the benefit of the first respondent and that the latter is merely employing dilatory tactics to frustrate the applicant’s claim for the return of the vehicle.

[9] The respondent alleged lis alibi pendens which he later conceded to be none existent as there is one case number it is just that there is a typographical error which mistakenly reflected that there could be two case numbers.

[10] In this defence the respondent states that there is no Rule of this Court or legislation on which this application is based. Why should applicant be allowed part of the order in the main case through interlocutory application where the liability of the respondent has not yet been proved, the respondent has not yet even had the opportunity to place his case before the trial Court.

[11] The respondent further contents that the effect of the relief sought will deprive him his rights in terms of section 34 of the Constitution Act 108 of 1996. The vehicle is used as a taxi and if removed the respondent will be without income and this in effect will bring the respondent down to his knees.

The Law

[12] The question is whether and to what extend the applicant’s right to obtain the relief sought is provided for by the NCA.

[13] Section 129 (3) (b), 129 (4) (a) and 130 (2) (a) (ii) make express reference to attachment orders but it is not clear whether these include orders for the interim attachment of goods pending the outcome of vindicatory or quasi vindicatory proceedings.

[14] Where the provisions of a statute cannot be ascertained there is a presumption against an alteration in the common law. Such a statute must be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law. Pretoria v van Wyk 1973 (2) SA 779 (A) at 784.

[15] The NCA places emphases on a debt enforcement in chapter 6. Section 123 (2) provides that if a consumer is in default under a credit agreement, the credit provider may take the steps set out in part C of Chapter 6 “to enforce and terminate” the agreement. Section 129 (1) and 130 (1) (ii) prescribe the procedures that must be followed before a credit provider can take legal proceedings “to enforce” a credit agreement.

[16] The interim attachment of goods pending the outcome of vindicatory or quasi- vindicatory proceedings in common law is well-established Morrison v African Guarantee and Indemnity Co Ltd 1936 (1) Phm 35 T and Loader v de Beer 1947 (1) SA 87 (w). The purpose of such an order is to protect the leased goods against deterioration and damage and to keep them in safekeeping

until the case between the parties has been finalised see Taxi Securitisation (Pty) Ltd v HW Young Case no 10249/08 CPD; SA Taxi

Securitisation (Pty) Ltd v Chesane, Andries Rabohadi. Case no 26382/2009 and Absa bank Ltd v de Villiers 2009 (5) SA 40 (c) at paras [11] - [14] and [42],

[17] The respondent further dispute that the balance of convenience favours the grant of the interim relief sought. Further that respondent did not make out a case regarding “irreparable harm” see BMW financial services SA (Pty) Ltd v Rathebe 2002 (2) SA 368 (W).

[18] Respondent does not deny that he entered into an instalment sale agreement with the appellant. He also does not deny that he is bound by the terms and conditions of the agreement. Respondent does not deny that he is in arrears.

[19] To succeed in this application the applicant is required-*to establish and satisfy requirements for the grant of an interim interdict namely that:

(a) The right which it seeks to enforce is clear or, if not clear, is prima facie established, though open to some doubt

(b) That the balance of convenience favours the granting of interim relief

(c) That the applicant has no other remedy

(d) The element of irreparable harm is presumed, Steyn and Ruskin NOV Appelson 1951 (3) SA SLO (W) at 813 see also Fedsure Life Insurance v Worldwide African Investment Holdings (Pty) Ltd 2003 (3) SA 268 (w) at 278.

[20] The question of the balance of convenience must be placed in its proper perspective, the stronger the case made out by the applicant, the less balance of convenience in favour of the applicant there needs to be for interim relief to be granted, Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383 C-G.

[21] It is untenable that respondent be entitled to use the vehicle without effecting payments under the credit agreement Act. This is one case where right to section 34 of the constitution Act 108 of 1996 should be limited regrettably so as the respondent uses the vehicle as a taxi to generate income and the order may affect him negatively.

[22] It stands to reason that ex contractu applicant would be entitled to a vindicatory claim in the event the respondent is defaulting on payments. By the same taken applicant possess ex contractu not only a prima facie right which entitles it to interlocutory order. See Case no 52455/2012 Commerco Investments (Pty) Ltd and Mercedes-Benz Financial Services South Africa (Pty) Ltd dated 17/10/2013.

[23] Applicant has already cancelled the lease agreement.

[24] It is my well-considered view that the defences raised by the respondent cannot stand. At this stage the applicant only want an order for the return of his vehicle and costs. Consequently the following order is made.

First respondent is ordered to deliver into the possession of the sheriff:

1.1 2010 CAM NYATHI BAW 2.21 HIGH ROOF with engine number SF491QE080364248A and chassis number LP BMB DDE 08 W 007 157 (“the

vehicle”) who shall deliver the vehicle to the applicant who shall in turn, at its own expense:

1.1.1 transport the vehicle to garaged premises situated at cnr 8th……………..:

1.1.2 retain the vehicle at such garage premises under security pending the outcome of the action.

The applicant shall not use the vehicle or permit that it be used.

In the event of first respondent failing to comply with the contents of paragraph 1 above within five days of the service of this order first respondent’s attorneys, the sheriff is authorised and directed to take the vehicle into his possession from wherever he may find the vehicle and return the vehicle to the applicant as aforesaid.

Costs of the application in favour of the applicant.

D MOGOSTI

ACTING JUDGE OF THE HIGH COURT

Heard on:................................26 November 2013

For the Applicant:...................Adv. J Mollenze

Instructed by:..........................Marie-Lou Bester Inc

For the Respondent:................Adv. Z Schoeman

Instructed by:...........................Rontegen & Rontegen Inc

Date of Judgment:...................5 December 2013