Gweba v Future Bank Ltd

• Jurisdiction: South Africa
• Judge: Maya, J
• Judgment Date: 27 September 2002
• Docket Number: 747/99
• Hearing Date: 27 September 2002
• Court: Transkei High Court

Maya J:

The plaintiff sues the defendant for damages in the sum of R3 548 602.50 for loss of profit arising form an alleged breach of an agreement by the defendant to pay a certain sum of money towards the purchase of a minibus taxi by the plaintiff and a further R100 000.00 for defamation character by wrongfully and maliciously suing him.

Until this hearing, the plaintiff represented himself for the most part. For that reason, I presume, the manner in which the plaintiff has conducted the matter has been unorthodox and not entirely in accordance with the Rules of Court. Be that as it may, the matter is at this stage, but one has had to sift through a quagmire to get the essence of the proceedings. It is, therefore, necessary to set out the background of the matter in some detail.

2002 JDR 0794 p2

Maya J

During May 1990 the parties entered into an instalment sale agreement in terms of which the defendant purchased a minibus for the plaintiff. The vehicle had been destroyed in a fire before the plaintiff paid the purchase price in full. The balance of the debt stood at R20 426.83 less a rebate in respect of pre-calculated finance charges in the sum of R10 925.21. The defendant then sued the plaintiff for the outstanding debt of R9 501.61 at the Lusikisiki district court.

The plaintiff instituted a claim in reconvention for payment of the said rebate in the sum of R10 925.21 on the basis that his insurer had settled the outstanding debt with the defendant in full. The counterclaim was successful and further confirmed by this court on appeal although the amount of the claim was reduced and judgment granted in the sum of R8 901.21.

The plaintiff claims that the rebate, which he intended to use as a deposit towards the purchase of another minibus taxi, should have been paid to him on 26 April 1993 when his insurers settled his debt with the defendant. He then contends that his loss of profit should be calculated from that date. He also alleges that the defendant wrongfully and maliciously sued him in the district court without reasonable and probable cause or reasonable belief that he owed it.

The defendant raised two special pleas to the plaintiff's claim. It was pleaded firstly that the plaintiff had previously successfully sued the defendant on the same alleged breach of contract by failure to pay him the rebate. It was thus argued that the matter is, by that reason, res judicata and it is impermissible for the plaintiff

2002 JDR 0794 p3

Maya J

to institute proceedings on the same cause of...