Springs Car Wholesalers (Pty) Ltd v F & H Motors CC

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Van Rhyn J
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3259 (FB)
• Hearing Date: 17 August 2023
• Docket Number: 1713/2023
• Court: Free State Division, Bloemfontein

Van Rhyn J:

[1]

The applicant, Springs Car Wholesalers (PTY) Ltd t/a No Finance Cars which conducts business as, inter alia, a car rental business seeks the following order:

“1.

Pending the determination of Part B of this application and within 24 hours of the granting of this order, the Respondent is ordered to hand over the Applicant’s vehicle being a 2014 Nissan Hardbody NP300 with VIN Number ADNAPGD22ZR062724, Engine Number YD 25535924T and with

2023 JDR 3259 p2

Van Rhyn J

registration number CY83WCGP (“the vehicle”) to the deputy Sheriff who is authorised and directed to deliver the vehicle to the applicant for safekeeping:

2.

That the Applicant’s attorneys of record continue to hold an amount of R17 739.28 as security for the Respondent’s alleged claim of R17 739.28, subject to the Respondent issuing a Summons against the Applicant for the aforementioned sum within 20 business days of the date of the order in this Part A or the handing over of the vehicle to the Applicant, whichever is the sooner;

3.

That in the event of opposition of this Part A, the opposing Respondent be ordered to pay the costs of the application, and in the event of no opposition, the costs of the hearing of Part A of this Notice of Motion shall stand over for determination by the Court which hears the application for final relief in terms of Part B of the Notice of Motion.”

[2]

The respondent is F & H Motors CC, a close corporation with its principal place of business at East End, Bloemfontein where it conducts business as a motor vehicle workshop. On 8 August 2020 the applicant entered into a rental agreement with a certain Mr R D Mmolaoa (“Mr Mmolaoa”) in terms of which the applicant leased the vehicle to Mr. Mmolaoa for a period of 54 months. Mr Mmolaoa took delivery of the vehicle during August 2020, but subsequently failed to pay the rental, in the amount of R 5 950.00 per month, for several months.

[3]

During September 2022 the applicant discovered that the vehicle had suffered a mechanical breakdown during May 2022 and that Mr Mmolaoa had the vehicle towed by the respondent for repairs at its workshop. It is common cause that the vehicle is still in the possession of the respondent. The Applicant contends that it is the owner of the vehicle.

[4]

Subsequent to repairing the vehicle, the respondent invoiced Mr Mmolaoa in the amount of R17 739.28 as per Annexure “D” to the founding affidavit. The applicant was not a party to the agreement between the respondent and Mr Mmolaoa regarding the repairs to the vehicle and remains unwilling to make payment of the invoice submitted by the respondent for the repairs. The applicant alleges that the vehicle is valued at R100 600.00 being the current retail value. The applicant contends that it is losing potential revenue as a result of the respondent’s refusal to release the vehicle.

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Van Rhyn J

[5]

In its answering affidavit the respondent, raised 5 points in limine apart from its defence. These 5 points in limine can concisely be summarised as the following:

5.1.

The deponent to the founding affidavit’s authority to litigate on behalf of the applicant;

5.2.

The foreseeability of a dispute of fact and failure to follow the action procedure;

5.3.

Ownership of the vehicle by the applicant;

5.4.

Non-joinder of Mr Mmolaoa;

5.5.

The issue of the correct forum for the hearing of this matter, taking cognisance of the value of the vehicle and the repair costs as per the respondent’s invoice, all being within the Magistrates’ Court jurisdiction.

[6]

At the commencement of the hearing before me, Mr Roux, counsel on behalf of the respondent, indicated that the non-joinder of Mr Mmolaoa remains a contentious issue on the ground that the respondent will lose its retention of the vehicle in respect of its claim against Mr Mmolaoa. The security proposed by the applicant will only serve as security in respect of the respondent’s claim against the applicant and not as security in respect of the respondent’s claim against Mr Mmolaoa with whom it contracted regarding the repairs to the vehicle.

[7]

The respondent furthermore remains adamant that the applicant should have approached the Magistrates’ Court for relief and in the event of the applicant having any substantial success in this application, it would only be entitled to costs on the appropriate Magistrates’ Court scale.

[8]

Subsequent to issuing this application, but prior to the filing of the respondent’s answering affidavit, the respondent served a notice in terms of the provisions of Rule 35(12). A copy of the authorisation granted to the deponent to the applicant’s founding affidavit, to depose to the affidavit and to bring the application, was requested. The applicant provided a resolution of the directors of the applicant company, which to my mind disposes of the first point in limine. The applicant furthermore appended the Certificate of Registration in respect of the...