Scheltema Beleggings CC v Commercial Truck and Trailer Sales CC (35420/08) [2010] ZAGPPHC 28 (1 April 2010)

Scheltema Beleggings CC v Commercial Truck and Trailer Sales CC (35420/08) [2010] ZAGPPHC 28 (1 April 2010)

The court found that the notarial bond described the truck and trailer in sufficient detail to comply with section 1 of the Security by Means of Movable Property Act 57 of 1993, thereby creating a real right in favour of Engen Petroleum Limited. The sale of the truck and trailer was not in the ordinary course of business, as the seller intended to close down his business immediately after the sale. The plaintiff was entitled to recover the purchase price, less the VAT refund, and the repair costs, less VAT, as the seizure of the truck and trailer under a valid court order rendered the plaintiff without the property for which it had paid. The defendant's arguments regarding insufficient...

Citation
[2010] ZAGPPHC 28
Parties
Plaintiff: Scheltema Beleggings CC; Defendant: Commercial Truck & Trailer Sales CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 April 2010
Case Number
35420/08
Procedural Posture
Civil Trial / Judgment After Trial; Defendant Closed Case Without Leading Evidence
Outcome
Judgment granted in favour of the plaintiff for the purchase price and repair costs, less VAT, with interest and costs.
Judges
Legodi
Legal Topics
Special Notarial Bond, Security by Means of Movable Property Act, Ordinary Course of Business, Purchase Price Recovery, Damages for Loss of Property
Commercial and Corporate Land and Property Special Notarial Bond Security by Means of Movable Property Act Ordinary Course of Business Purchase Price Recovery Damages for Loss of Property

Case Brief

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Parties

Scheltema Beleggings CC

Plaintiff

Commercial Truck & Trailer Sales CC

Defendant

Procedural Posture

Civil Trial / Judgment After Trial; Defendant Closed Case Without Leading Evidence

Legal Issues

  1. 1 Whether the requirements of section 1 of the Security by Means of Movable Property Act 57 of 1993 were complied with in the registration of the notarial bond.
  2. 2 Whether goods subject to a notarial bond may be sold by the debtor without the mortgagee's consent.
  3. 3 What constitutes 'ordinary course of business' in the context of the sale of bonded goods.

Ratio Decidendi

The court found that the notarial bond described the truck and trailer in sufficient detail to comply with section 1 of the Security by Means of Movable Property Act 57 of 1993, thereby creating a real right in favour of Engen Petroleum Limited. The sale of the truck and trailer was not in the ordinary course of business, as the seller intended to close down his business immediately after the sale. The plaintiff was entitled to recover the purchase price, less the VAT refund, and the repair costs, less VAT, as the seizure of the truck and trailer under a valid court order rendered the plaintiff without the property for which it had paid. The defendant's arguments regarding insufficient...

Court Disposition

Judgment granted in favour of the plaintiff for the purchase price and repair costs, less VAT, with interest and costs.

Orders

  • The defendant is ordered to pay the plaintiff the sum of R110,000.
  • The defendant is ordered to pay the plaintiff the sum of R24,817.14.