Mafunzwaini v FFS Finance South Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Duvenhage AJ
• Judgment Date: 27 October 2005
• Docket Number: 392/2005
• Hearing Date: 27 October 2005
• Court: Venda Provincial Division

Duvenhage AJ:

1.

On 27 October 2005 Applicant brought an urgent application against 1st and 2nd Respondent. The relief claimed by Applicant is in essence a mandament of spolie, with various supplementary orders. It is not necessary to set out all terms of the orders claimed by Applicant.

2006 JDR 0415 p2

Duvenhage AJ

2.

I dismissed the application with costs for the reason that it was not urgent.

3.

At the outset it must be said that there was also no substance in the merits of the application. I shall return to this issue.

4.

The essence of the application can be summarized as follows. Applicant avers that on the 20th of August 2001 he purchased a 2001 Land Rover Freelander 1.8 5D (the vehicle). Applicant avers that the aforesaid vehicle was delivered to him and possessed by him until the 25th of October 2005 on which date 2nd Respondent, who is the sheriff of Thohoyandou, "... intentionally and unlawfully dispossess the said vehicle from the Applicant".

5.

Applicant further avers that "Respondents" deprived "Plaintiff" of his possession by refusing to hand over or deliver the vehicle back to "Plaintiff". Applicant also believes that Respondent (without stating which Respondent) is using the vehicle, causing harm to Applicant. (It is not necessary to set out the alleged harm.) It is further averred that the application is brought ex parte because "... in that should not be given the First Respondent may be tempted to sell the vehicle ...". There appears to be words missing in the aforesaid phrase. The founding affidavit fails to set out on what basis 1st Respondent became liable.

2006 JDR 0415 p3

Duvenhage AJ

6.

On noticing who the Respondents are, one immediately realizes that this is a case where Applicant could have bought a motor vehicle in terms of a credit agreement entered into with 1st Respondent, that Applicant failed to fulfill his obligations in terms of the agreement and that judgment was obtained against Applicant and as result thereof. 2nd Respondent (the sheriff) attached the vehicle and was in the process of handing it back to 1st Respondent when Applicant brought his application.

7.

During argument Mr Mathoho confirmed that Applicant bought the vehicle and he failed to pay an instalment. The reason was that Applicant had to pay for an airbag of the vehicle and the Applicant did not have money to pay the instalment. It was also said during argument that the sheriff acted unlawful...