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South Africa Judgment

Eastern Cape High Court, Makhanda

Volkswagen Financial Services SA (Pty) Ltd v Nceba Giwu N.O (3792/2023) [2024] ZAECMKHC 5 (18 January 2024)

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Professional case brief

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Source document

01

Holding and result

The court found that the defendant did not provide written notice to terminate the agreement as required by both the contract and Section 127 of the National Credit Act. The voluntary surrender or repossession of the motor vehicle did not, in itself, constitute termination of the agreement. The plaintiff, being in possession of the vehicle, is entitled to cancellation of the agreement and confirmation of the return of the vehicle. The defence raised by the defendant was not supported by the contract or statutory provisions. Accordingly, summary judgment was granted in favour of the plaintiff for cancellation of the agreement, confirmation of the return of the vehicle, and costs.

Court disposition

Summary judgment granted in favour of the plaintiff.

Orders

  • The agreement in respect of the motor vehicle is cancelled.
  • The return of the 2015 Volkswagen Polo GP 1.4 Trendline Tip motor vehicle with specified Chassis and Engine Numbers is confirmed.
  • The defendant is ordered to pay the costs of suit.

02

Material facts

Parties

Volkswagen Financial Services SA (Pty) Ltd

Plaintiff Counsel: K.L. Watt

Nceba Giwu N.O.

Defendant Counsel: Z.A. Mqokozo

03

Procedural history

  1. Posture

    Summary Judgment / Final Determination

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiff argued that the instalment sale agreement was breached due to non-payment following the death of the purchaser, and that the motor vehicle was either surrendered or repossessed. The plaintiff is in possession of the vehicle but cannot sell it without a court order confirming its return and cancellation of the agreement. The plaintiff sought summary judgment for cancellation, confirmation of return, and costs.
Respondent
The defendant, as executor of the deceased's estate, contended that the motor vehicle was voluntarily handed over to the plaintiff and is no longer in the defendant's possession. The defendant argued that the agreement was terminated upon repossession and that the plaintiff failed to comply with clause 11 of the agreement and Section 127 of the National Credit Act, which require written notice for voluntary surrender and cancellation.

05

Court’s reasoning

  1. 01

    Section 127 of the National Credit Act, Act 34 of 2005

    A contract for the sale of goods may be cancelled by the credit provider if the consumer defaults and the agreement is not terminated by written notice as required.

  2. 02

    Instalment Sale Agreement, Clause 11

    Clause 11 of the instalment agreement requires written notice from the consumer to terminate the agreement and surrender the goods.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the defendant did not provide written notice to terminate the agreement as required by both the contract and Section 127 of the National Credit Act. The voluntary surrender or repossession of the motor vehicle did not, in itself, constitute termination of the agreement. The plaintiff, being in possession of the vehicle, is entitled to cancellation of the agreement and confirmation of the return of the vehicle. The defence raised by the defendant was not supported by the contract or statutory provisions. Accordingly, summary judgment was granted in favour of the plaintiff for cancellation of the agreement, confirmation of the return of the vehicle, and costs.

Obiter and limits

  • The absence of a contractual clause providing for automatic termination upon repossession means that written notice remains a prerequisite for cancellation.
  • The court need not amend the summary judgment application to reflect confirmation of return, as alternative relief is already sought.

Court disposition

Summary judgment granted in favour of the plaintiff.

  • The agreement in respect of the motor vehicle is cancelled.
  • The return of the 2015 Volkswagen Polo GP 1.4 Trendline Tip motor vehicle with specified Chassis and Engine Numbers is confirmed.
  • The defendant is ordered to pay the costs of suit.

Source and reliance status

Eastern Cape High Court, Makhanda

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Judgment text

The complete available source text.

Source document

Eastern Cape High Court, Makhanda

Judgment

[2024] ZAECMKHC 5

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE DIVISION, MAKHANDA)

CASE NUMBER.: 3792/2023

In the matter between:

VOLKSWAGEN FINANCIAL SERVICES SA (PTY) LTD Plaintiff And

NCEBA GIWU N.O. Defendant

JUDGMENT

Beshe J

[1] In October 2023 plaintiff issued summons against the defendant seeking the following:

(a) Cancellation of an agreement in respect of a specified motor vehicle.

(b) The return of the said motor vehicle, described as a 2015 Volkswagen Polo GP 1.4 Trendline Tip motor vehicle with given Chassis and Engine Numbers.

(c) Costs of suit.

(d) Alternative relief.

It is common cause that the plaintiff had entered into an instalment agreement in respect of the said motor vehicle with one Amandla Dimanda. Mr Dimanda passed away on the 25 February 2022. The defendant is cited in his capacity as the appointed executor in respect of Mr Dimanda’s estate. The defendant holds a letter of authority in this regard issued by the Master on 23 June 2022.

[2] Defendant filed a notice of intention to defend the action. Duly filed a plea. Defendant pleaded that the motor vehicle was handed over to the plaintiff’s official upon deceased’s death. Defendant stated categorically that it was not in possession of the motor vehicle.

[3] Defendant having entered an appearance to defend, plaintiff applied for summary judgment in respect of which the same relief as prayed for in the summons is sought.

[4] In plaintiff’s affidavit in support of summary judgment, it is admitted that plaintiff is in possession of the motor vehicle but is unable to sell same without an order granting the delivery of the motor vehicle. It was argued on behalf of the plaintiff that should the court not be amenable to issue the order in this regard, it should issue an order confirming the return of the motor vehicle. To this end, an amendment of the summary judgment application was sought to reflect that what is sought is the confirmation of the return of the motor vehicle. In my view, this will not be necessary as the court is also asked to grant any alternative relief it may deem fit in the circumstances.

[5] It is common cause that defendant on behalf of deceased’s wife is unable to keep up with the payment of the instalment. That much is also clear from the correspondence exchanged between the parties, inter alia about the settlement amount. The defence raised by the defendant is that the motor vehicle was voluntarily returned to the plaintiff. There is no provision in the agreement that stipulates that the sale of the repossessed motor vehicle must be preceded by a court order. Regarding the order for the cancellation of the agreement, defendant contends that the agreement was terminated upon the repossession of the motor vehicle. I could not find any such clause in the contract to that effect.

[6] The reliance by defendant on the failure by the plaintiff to comply with clause 11 of the agreement is misplaced. This clause provides for the voluntary surrender of the goods to the plaintiff. Clause 11.1 provides that the defendant may terminate the agreement by giving the plaintiff a written notice and surrendering the goods to the plaintiff. The goods may have been surrendered or repossessed, but there is no evidence of a written notice by the defendant to terminate the agreement. The requirement for a written notice is also provided for by Section 127 of the National Credit Act, Act 34 of 2005. Both parties alluded to part of this provision. Everything else, including the provision by credit provider of the estimate value of the good and as well as any other prescribed information follow after the receipt by the credit provider of a notice of cancellation from the consumer. By parity of reason, until such time the agreement is cancelled by any of the parties, the requirement to have the goods appraised and subsequently sold does not become due.

[7] For these reasons, I am of the view that the plaintiff has made out a case for cancellation of the agreement as well as for an order confirming the return of the motor vehicle to the plaintiff.

[8] Accordingly, summary judgment is granted in favour of the plaintiff against the defendant for:

(a) The cancellation of the agreement in respect of the motor vehicle described in paragraph (b) below.

(b) Confirmation of the return of a 2015 Volkswagen Polo GP 1.4 Trendline Tip motor vehicle with given Chassis and Engine Numbers.

(c) Costs.

N G BESHE

JUDGE OF THE HIGH

COURT

APPEARANCES For the Plaintiff Adv: K.L. Watt Instructed by

MANILAL

BREWIS ATTORNEYS C/o

HUXTABLE ATTORNEYS 26 New Street

MAKHANDA Ref: 01M100062/87004844535 Tel.: 046 – 622 2692 For the defendant Adv: Z.A. Mqokozo Instructed by

NCEBA GIWU INC. C/o

YOKWANA ATTORNEYS 10 New Street

MAKHANDA Ref.: Ms L Bulube Tel.: 046 – 622 9928 Date Heard 16 January 2024 Date Reserved 16 January 2024 Date Delivered 18 January 2024

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

National Credit Act, Act 34 of 2005

Legislation

Legislation referenced in the available case record.

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