Moreriane v Trans-Oranje Finansierings - en Ontwikkelingskorporasie Bpk

• Jurisdiction: South Africa
• Judge: Trollip J and Clayden J
• Judgment Date: 11 December 1964
• Court: Transvaal Provincial Division
• Hearing Date: 26 November 1964
• Citation: 1965 (1) SA 767 (T)

A Trollip, J.:

The facts are set out in the judgment of CLAYDEN, J.

According to the record the respondent admitted that the hire-purchase agreement was cancelled and judgment was obained on 28th June, 1962, by the respondent for delivery of the motor car and it in fact repossessed it. Earlier in the evidence adduced for the respondent one of its employees, Swanepoel, testified that the court's order was for 'teruggawe van die motorkar en betaling van skadevergoeding van R851.42 met koste'.

I am not satisfied that in those proceedings the respondent cancelled the hire-purchase agreement under the common law and recovered the whole C R851.42 as damages, as Mr. Selvan contended for the appellant. I think that it is more likely that it was terminated in terms of clause 12 thereof, and that the amount of R851.42 which Swanepoel or the court's order refers to as 'damages' actually represented arrear instalments and agreed damages for future instalments in terms of that clause.

D Clause 12, in so far as it is relevant, reads:

'The purchaser agrees that should he, during the continuance of this agreement -

(a)

make default in the punctual payment of any instalment, or part thereof . . .

then the owner shall be entitled to payment forthwith of the full balance of the purchase price or alternatively forthwith to terminate the agreement, re-take possession of the said vehicle and recover from E the purchaser all instalments in arrear, and in addition to recover from the purchaser damages for . . . any loss suffered by the owner on re-sale of the goods which loss the purchaser agrees shall be the balance owing under this agreement . . .'

Apart from the fact that the wording of the clause might, on the principle expression unius est exclusio alterius, exclude any common law F right of cancelling and recovering damages for a breach for failure to pay any instalments, it is difficult to see why the respondent should have wanted to proceed under the common law instead of clause 12 when the latter afforded it all the relief that it needed. The allegations in the respondent's claim and further particulars seem to aver that it G proceeded under clause 12 and not the common law. However, I need not decide that that was the course followed by the respondent; I shall assume in its favour that it did proceed under clause 12 and recovered judgment for R851.42 for arrear instalments and damages in terms of that clause.

In terms of the guarantee the appellant bound himself with Nkosi 'for H the due payment of the above amount', that is, the sum of £729 7s. in the particular instalments and on the dates specified in the preamble. The language to that effect is clear and unambiguous. By 28th June, 1962, Nkosi should have paid 18 instalments of R60 each, or R1,080 in all, leaving R378.70 to be paid in future instalments. The respondent, by the action it then took, terminated with effect from that date all liability on Nkosi's part to pay any of those future instalments, and thereby released appellant from liability therefor too. That termination, however, as clause 12 shows, did not nullify Nkosi's

Trollip J

liability for any instalments in arrear at that date and it therefore did not affect appellant's liability therefor. (See Schoeman v Moller, 1951 (1) SA 456 (O) at p. 469 D - H; Chatterton v MacLean, (1951) 1 All E.R. 761).

A On the above assumption, therefore, respondent could have recovered from the appellant any instalment in arrear as at 28th June, 1962, but not any damages for which it got judgment in terms of clause 12.

It is appropriate here to deal with Mr. Muller's main argument on behalf B of the respondent. He contended that on a true construction of the guarantee either with or without the aid of the circumstances surrounding its conclusion, it related to and covered all Nkosi's obligations under the hire-purchase agreement, including his liability for damages under clause 12. That is, however, untenable. If it were correct it would also mean, for example, that if the respondent during ...