K O Motors CC v Gilindoda and Three Similar Cases

• Jurisdiction: South Africa
• Citation: 1999 (4) SA 251 (E)

K O Motors CC v Gilindoda and Three Similar Cases
1999 (4) SA 251 (E)

1999 (4) SA p251

Citation	1999 (4) SA 251 (E)
Case No	594/99; 595/99; 596/99; 597/99
Court	Eastern Cape Division
Judge	Jansen J
Heard	May 20, 1999
Judgment	May 25, 1999
Counsel	A D Schoeman for the applicants.; T J M Paterson for the respondents.

Flynote : Sleutelwoorde

Credit agreement — Whether agreement subject to Credit Agreements Act 75 of 1980 — Instalment sale agreement in respect of G mechanically propelled road passenger vehicles designed to seat more than 15 persons — Paragraphs 9 and 10 of Annexure A to Government Notice R402 of 27 March 1992, as amended by Government Notice R989 of 27 March 1992, and issued in terms of s 2 of Act, applicable — Intention of Legislature clearly to exclude road passenger vehicles with seating capacity of more than 15 persons from provisions of Act — Vehicles in question not falling within purview of Act. H

Headnote : Kopnota

The issue in the present four applications before a Provincial Division was whether lease agreements entered into in respect of buses with a capacity of more than 15 persons fell within the ambit of the Credit Agreements Act 75 of 1980. It involved the I interpretation of paras 9 and 10 of Annexure A to Government Notice R402 of 27 February 1981, as amended by Government Notice R989 of 27 March 1992 (both issued in terms of s 2 of the Act). Regulation 2 stated that the provisions of the Act shall apply to any 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 J

1999 (4) SA p252

A hereto'. Thus the Court had to decide whether the vehicles were A 'goods listed in Annexure A'. The only two applicable paragraphs of Annexure A were paras 9 and 10. Paragraph 10 made provision for '(m)echanically propelled road passenger motor vehicles designed to seat not more than 15 persons' while para 9 made provision for 'mechanically propelled motor vehicles not subject to the provisions of item 10 including any commercial vehicle irrespective of whether such motor vehicle is subsequent to manufacture equipped, constructed or adapted for conveyance of persons'. The issue was thus whether vehicles in question, not being covered by para 10, were covered by B para 9. The Court referred to two conflicting decisions, viz Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA), in which it was held that vehicles with seating for more than 15 people did fall under para 9, and Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N), in which it was held that they did not. C

Held, that the intention of the Legislature was clearly to exclude road passenger vehicles with a seating capacity of more than 15 persons from the provisions of the Act and that the vehicles in question accordingly did not fall within the ambit of the Act. (At 255A-A/B and D.)

The Court accordingly granted the applications and made interim D orders directing the respondents to restore the vehicles in question to the applicant.

Cases Considered

Annotations

Reported cases

Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd E 1995 (2) SA 65 (TkA): criticised and not followed

Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N): followed

Oosthuizen and Another v Standard Credit Corporation Ltd 1993 (3) SA 891 (A): distinguished.

Statutes Considered

Statutes F

The Credit Agreements Act 75 of 1980, s 2(1): see Juta's Statutes of South Africa 1998 vol 2 at 1-605.

Case Information

Application for an order cancelling certain lease agreements and ancillary relief. The facts appear from the reasons for judgment. G

A D Schoeman for the applicants.

T J M Paterson for the respondents.

Cur adv vult.

Postea (May 25). H

Judgment

Jansen J:

It is convenient to deal with the four applications together since the main issue is common to each.

The applicant, a close corporation, entered into lease I agreements with the four respondents in terms of which the respondents individually leased from the applicant certain buses. It is common cause that all four buses subject to the lease agreements were used by the respondents individually to transport passengers and that the capacity of each of the buses is for more than 15 passengers.

It is the applicant's case that the respondents have breached the agreements in that they failed to pay the rentals as stipulated in the J

1999 (4) SA p253

Jansen J

agreements. As a result of these breaches the applicant cancelled the A agreements. The applicant alleges that as a result of the aforesaid it is entitled to the immediate return of the buses in terms of the provisions of the lease agreements. The respondents refuse to hand over the buses, despite having been requested to do so, which resulted in the applicant launching these applications.

The first question to be decided in all four matters is whether B the agreements entered into between the applicant and the respondents fall...