BMW Financial Services (South Africa) (Pty) Ltd v Dr MB Mulaudzi Inc

• Jurisdiction: South Africa
• Judge: Mogoeng JP
• Judgment Date: 02 November 2008
• Citation: 2009 (3) SA 348 (B)
• Docket Number: 25/2008
• Hearing Date: 03 November 2008
• Counsel: LW de Beer for the plaintiff. RJ de Beer for the defendant.
• Court: Bophuthatswana High Court

Mogoeng JP: A

Introduction

[1] This opposed application for summary judgment was argued before me on 17 April 2008. Having heard both counsel and having considered all the facts and legal principles relevant to the determination of the issue B before me, I granted the defendant leave to defend.

[2] I then asked the parties to inform me if they require reasons for judgment within a period of 14 days of the date of the order. A notice to this effect was duly sent to me and what follows are the reasons for the aforementioned order. C

Background

[3] The plaintiff is BMW Financial Services (South Africa) (Pty) Ltd, a private company with limited liability, duly registered in terms of the company laws of the Republic of South Africa. It does business by providing finance for the purchase of, inter alia, motor vehicles. D

[4] The defendant is Dr MB Mulaudzi Inc, a company duly registered and incorporated in terms of the company laws of the Republic of South Africa.

[5] On 29 December 2005, and at Rustenburg, the parties entered into E a written lease agreement in terms of which the plaintiff leased a Porsche Cayene Turbo Tiptron motor vehicle. The material terms of the agreement were, inter alia, that, commencing on 12 February 2006, the defendant would pay the plaintiff rental in the amount of R24 860,77 per month over a period of 59 months. Failure to pay this rental punctually, or any other breach of the agreement, would entitle the plaintiff to cancel F the agreement.

[6] The plaintiff delivered the vehicle to the defendant on or about 29 December 2005 as agreed. Regular and prompt payments were made until sometime in August 2007, when the defendant fell in arrears in the amount of R8110,84. G

[7] As a result of the above shortfall, the plaintiff wrote a letter dated 10 August 2007 to the defendant, reminding it of the shortfall, its duty to respond to the plaintiff's demand for payment within 10 business days of receipt of the letter and that legal action would be instituted against the defendant to enforce the provisions of the agreement, if the defendant H would still be in default after 20 business days. This letter is said to be a notice in terms of s 129(1) of the National Credit Act 34 of 2005.

[8] The defendant did not respond as was required of it. However, on 12 September 2007 it deposited an amount of R28 205,23 into the plaintiff's account. The same amount was again paid into the plaintiff's I account on 12 October 2007.

[9] A letter dated 7 November 2007 was subsequently sent by the plaintiff to the defendant. It essentially stated: (a) the defendant had failed to make payment of the instalments as agreed upon in terms of the agreement; (b) it failed to respond to the plaintiff's letter dated J

Mogoeng JP

A 10 August 2007, alternatively, has rejected the plaintiff's proposals contained in the abovementioned notice; and (c) that the plaintiff has elected to cancel the aforementioned agreement.

[10] On 11 January 2008 the plaintiff then issued summons against the...