Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Beck CJ, Goldin JA , Davies AJA
• Judgment Date: 22 February 1994
• Docket Number: 1711/92
• Court: Transkei Appellate Division
• Hearing Date: 22 February 1994
• Citation: 1995 (2) SA 65 (TkA)

Goldin JA:

This appeal concerns whether the instalment sale agreements between the parties are governed by the provisions of the Credit J Agreements Act 75 of 1980 (the Act) of the Republic of South Africa.

Goldin JA

A On 3 November 1992 respondent (as applicant) was granted a rule nisi as follows:

'2.1

declaring the instalment sale master agreement annexed to the applicant's founding affidavit marked annexure "C" and the instalment sale agreements annexed to the applicant's founding affidavit marked annexures "K", "M" and "O" to be cancelled;

2.2

B directing the respondent to deliver to the applicant certain six buses, the details of which appear hereunder (the list of buses are set out in the notice of motion);

2.3

failing the return of the buses to the applicant forthwith, the Sheriff or his deputy be authorised and directed to take possession of the buses wherever the same may be found and to C deliver same to the applicant.'

In an affidavit by a director of respondent, Mr Gross, it is alleged that, following the appellant's default in the payment of certain amounts due in terms of the agreements, the respondent had given appellant seven days' D notice in writing to remedy such breaches but appellant failed to do so. On 3 December 1992 respondent filed a supplementary affidavit by Mr Gross stating that the said buses 'were mechanically propelled road passenger vehicles designed to seat more than 15 persons'.

It is common cause, the appellant (as respondent) not having filed any affidavits, that the agreements between the parties were concluded within E the Republic of South Africa and that the rights of the parties are governed by the Act if the buses in question are goods to which the Act applies. A Government notice/*/ in terms of s 2 of the Act determines the application of the Act. Section 2 of that notice reads as follows:

'2. The provisions of the Act shall apply to any -

(1)

F transaction referred to in para (a) of the definition of "credit transaction" in s 1 of the Act, entered into in respect of any of the goods listed in annexure A hereto;

(2)

leasing transaction in respect of any of the goods listed in annexure A hereto; the duration of which exceeds six months from the date of the credit agreement concerned and the cash price of which does not exceed five hundred thousand rand.'

G The dispute is therefore whether in terms of annexure A to this notice the buses fall...