Zondo v Moyo (2021/6022) [2021] ZAGPPHC 852 (2 December 2021)

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

GAUTENG DIVISION, PRETORIA

CASE NO: 2021/6022

REPORTABLE:

NO

OF INTEREST TO OTHE JUDGES: NO

REVISED: NO

In the matter between:

MUKELWE

NHLAKANIPHO

ZONDO

Applicant

and

SMANGELE

IMMACULATE

MOYO

Respondent

JUDGMENT

MOKOSE J

[1] The applicant seeks an order of cancellation of an oral agreement and the return of a motor vehicle, the subject of this application. The applicant concluded an oral agreement with the respondent for the sale of his motor vehicle bearing registration numbers [....], being a Ford Focus ("the vehicle").

[2] The facts are briefly that on or about 6 October 2017 the applicant, the owner of the vehicle in question, concluded a verbal agreement with the respondent wherein it was agreed that the respondent shall take over the possession and use of the vehicle and would be responsible for the monthly instalments due to Nedbank Limited ("Nedbank")

until the whole amount due to Nedbank had been paid in full. On the payment of the final amount, the respondent would take transfer of the vehicle.

[3] The applicant contends that the respondent failed to make all the payments during the period from October 2017 to December 2020. During some months, the respondent paid only a portion of the amount due. As a result, Nedbank filed an action in this Court under Case number 4964/2020 in which the arrears were claimed as well as the return of the vehicle. Upon receipt of the summons, the applicant contends that he paid the arrears due to Nedbank in the sum of R35 035,72. As a result of the respondent's breach, he has elected to cancel the agreement and claim damages and the return of the vehicle.

[4] The respondent in her affidavit opposing the application, denies that the applicant is the lawful owner of the vehicle. She further takes note of the applicant's averments and submits that she intends to continue paying the agreed instalments. The respondent notes certain points in limine which I will deal with later in this judgment.

[5] The respondent filed a supplementary affidavit and approached the court to allow such affidavit. This was opposed by the applicant. The court ruled that such supplementary affidavit filed by the respondent is disallowed as it dealt with matter already dealt with in the affidavit opposing the application.

[6] The first point in limine is that this court has no jurisdiction to hear the matter and that the Magistrate's Court is the appropriate court to hear the matter. The respondent avers that the reason why this court does not have the jurisdiction to hear the matter is that the value of the vehicle is less than R400 000. The applicant has claimed the return of the vehicle whose value is less than R400 000 and damages in the sum of R71 500.

[7] In the matter of Standard Bank of SA Limited and Others v Thobejane and Others and The Standard Bank of SA Limited v Gqirana NO and Another[1] the court held that a court has no power to refuse to hear a matter within its jurisdiction. It held that a court must entertain matters within its territorial jurisdictions that fall within the jurisdiction of a Magistrates' Court if brought before it as it has concurrent jurisdiction with the Magistrates' Court.

[8] I agree with the applicant who contends that this Court has jurisdiction to hear this matter.

Accordingly, the point in limine falls to be dismissed.

[9] The respondent raises a further point in limine that the founding affidavit of the applicant has not been properly commissioned as it has been initialled by the deponent only and not by the commissioner of oaths. Accordingly, the court is obliged to dismiss the matter with punitive costs.

[10] A court has a discretion to accept or reject an affidavit which does not comply with the regulations. In exercising its discretion, the court must have regard to whether there has been substantial compliance with the regulations.

[11] I am satisfied that there has been substantial compliance with the regulations. As such, the second point in limine stands to fall.

[12] The issue in this matter is whether the applicant is entitled to an order cancelling the agreement, claiming damages and the return of the vehicle.

[13] It is notable from the papers that the respondent has failed to challenge the allegations of the applicant in his founding affidavit. No supporting documents nor proof of payment have been attached to the opposing affidavit. The respondent merely denies the allegations as set out in the founding affidavit and attempts to make out her case in the heads of argument. Furthermore, she proposes payment of the outstanding amount until the full amount owing to Nedbank has been paid.

[14] Counsel for the applicant made submissions that the court should award costs in its favour on a punitive scale being the scale as between attorney and client due to the conduct of the respondent and her failure to set out her defence in the matter.

[15] The normal rule pertaining to an award of costs is that costs should follow the result. The court may, in certain circumstances award punitive costs to show its displeasure for the way the litigation was conducted. I am in agreement with the applicant that the court should award costs on a scale as between attorney and client to show displeasure to the respondent for the way in which the matter was conducted. No challenge was put up to the applicant's version at all.

[16] In view of the fact that the respondent failed to challenge the applicant's contentions, I of the view that the following order be granted:

(i) the respondent's failure to effect payment in accordance with the verbal agreement concluded by the parties constitutes a breach of the agreement;

(ii) the verbal agreement concluded by the parties in respect of motor vehicle bearing registration numbers [....]being a Ford Focus is hereby terminated as a result of the breach of the agreement;

(iii) the respondent is ordered to return the vehicle to the applicant with immediate effect, failing which the Sheriff of the High Court is authorised to take the necessary steps to return the vehicle to the applicant;

(iv) the respondent is ordered to pay the monthly instalments paid by the applicant to Nedbank Limited in the sum of R71500,00;

(v) the respondent is ordered to pay to the applicant the amounts outstanding in respect of the applicant's indebtedness to Nedbank Limited;

(vi) the respondent is ordered to pay the applicant's cost of this application on a scale as between attorney and client.

Judge of the High Court of South Africa

Gauteng Division, Pretoria

For the Applicant:

Adv Mukwevho

On instructions of

Shapiro & Ledwaba Inc

For the Respondent:

Mr Koko

On instructions of

Koko Attorneys

Date of Hearing: 18 October 2021

Date of Judgement: 2 December 2021

[1] [2021] ZASCA 92 (dated 25 June 2021)