Standard Bank of South Africa Limited v Troskie Consultants (Pty) Ltd and Another (2023/012036) [2025] ZAGPJHC 504 (26 May 2025)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
NO:
2023/012036
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. No
26
May 2025
In
the matter between:
THE
STANDARD BANK OF SOUTH
AFRICA
LIMITED
APPLICANT
and
TROSKIE
CONSULTANTS ( PTY) LTD
FIRST
RESPONDENT
CONRAD
TROSKIE
SECOND RESPONDENT
This order is made an
Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and
is submitted electronically
to the Parties/their legal representatives by email. The Order
is further uploaded to the electronic
file of this matter on
Caselines by the Judge his/her secretary. The date of this
Order is deemed to be 26 May 2025..
JUDGMENT
ENGELBRECHT,
AJ
Introduction
[1]
This is an application to confirm the cancellation of the agreements
entered into between the Applicant and the First
Respondent and for
the return of seven assets financed through instalment agreements
with the Applicant.
[2]
The Respondents opposed the matter as they allege that the Applicant
caused the non-compliance with these agreements,
as a result of the
omission of information about their VAT numbers and addresses on
these agreements resulting in the rejection
of VAT claims from SARS,
affecting the cash flow of the First Respondent, and resulting in a
loss of income for the First Respondent.
In this application, relief
is only requested against the First Respondent. The Second Respondent
deposed to the Answering Affidavit
and applied for condonation for
the late filing of their Answering Affidavit in their answer. The
Applicant did not oppose
this in their replying affidavit, and
condonation was granted for the late filing of the Answering
Affidavit.
[3]
The issues to determine in terms of the Practice Note filed by the
Applicant
[3.1] Whether
the Applicant is responsible for the First Respondent’s breach
of various instalment sale agreements.
[3.2 If
so, whether the Applicant’s alleged conduct made it impossible
for the First Respondent to perform
its obligations under the
instalment sale agreement.
[3.3] If so,
whether such impossibility is subject and relative as opposed to
objective and absolute.
FACTUAL
MATRIX
[4]
The First Respondent and the Applicant entered into seven different
instalment agreements. At the outset, the Applicant
indicates that
Part B of the First and Third instalment contract cannot be found and
stated that they would not have entered into
such a contract without
these documents. The Applicant would then rely on the standard terms
and conditions applicable to instalment
sale facilities, which the
First Respondent did not oppose..
[4.1] First
Agreement was entered into on 7 February 2020 at 8[…] H[…]
Street, M[…] for the sale
of a 2015 Audi TT 2.0 TFSI Coupe S
Tronic for an amount of R 362 425,00 with interest levied at
1,19% above prime being 9,75%
per annum over a period of 72 months
payable in instalments of R 7 026,07 commencing on 1 April 2020
with final payment on
1 March 2026.
[4.2] Second
Agreement was entered into on 27 October 2020 at 8[…] H[…]
Street, M[…] for the sale
of a 2020 Hino 500 Series 500 1326 4
x 2 TIP for an amount of R 932 008,54 with interest levied at 1%
above prime being 7%
per annum over a period of 48 months payable in
6 instalments of R 41 714,37 commencing on 1 December 2020 and
41 equal monthly
instalments of R 19 728,87 commencing in 1 June
2021 with final payment on 1 November 2024.
[4.3] Third
Agreement was entered into on 24 November 2020 in Mosselbay for
the sale of a 2020 Case 570 ST 4 x 4 Loader for an amount of R
961 608,00 with interest levied at 0,7% above prime being 7% per
annum over a period of 47
months payable in instalments of R
23 582,22 commencing on 22 January 2021 with final payment on 22
December 2024.
[4.4] Fourth
Agreement was entered into on 12 December 2020 at 8[…] H[…]
Street, M[…] for the sale
of a 2020 Hino 300 614 SWB F/C
C/C for an amount of R 550 169, 66 with interest levied at 1,95%
above prime being 7%
per annum over a period of 48 months payable in
instalments of R 13 875,78 commencing on 8 February 2021 with
final payment
on 8 January 2025.
[4.5] Fifth
Agreement was entered into on 31 May 2021 at 8[…] H[…]
Street, M[…] for the sale of
a 2021 Case JXT75 4 WD for an
amount of R 421 554,50 with interest levied at 2,7% above prime
being 7% per annum over a period
of 60 months payable in 6
instalments of R 18 705,39 commencing on 22 July 2021 and 53
equal monthly instalments of R 7 745,10
commencing in 22 January
2022 with final payment on 22 June 2026.
[4.6] Sixth
Agreement was entered into on 12 August 2021 at 8[…] H[…]
Street, M[…] for the sale
of a 2021 Polaris Ranger 570 EFI for
an amount of R 191 070,00 with interest levied at 3,2% above prime
being 7% per annum over
a period of 36 months payable in 36
equal monthly instalments of R 6 362,45 commencing in 10 October
2021 with final
payment on 10 September 2024.
[4.7] Seventh
Agreement was entered into on 18 September 2021 at 8[…] H[…]
Street, M[…] for the
sale of a 2021 Case CX220 DLC Tracked
Excavator for an amount of R 1 688 525,00 with interest levied
at 1,61% above prime
being 7% per annum over a period of 48 months
payable in 6 instalments of R 84 148,83 commencing on 2 November
2021 and 29
equal monthly instalments of R 46 796,86 commencing
in 2 May 2022 with final payment on 2 October 2024.
[4.8] The
Second Respondent bound himself as guarantor as follows:
[4.8.1] First Agreement
7 February 2020
[4.8.2] Third Agreement
24 November 2020
and unconditionally
guarantee and a certificate under the hand of any manager of the
Applicant would be sufficient proof and correctness
of the Second
Respondent’s indebtedness for the purposes of summary judgement
or provisional sentence. This application is
for relief only against
the First Respondent.
[4.9] As at
21 April 2022 the First Respondent was in arrears with regard to the
First to Seventh Agreements as follows:
[4.9.1] First Agreement
R 20 084,77
[4.9.2] Second Agreement
R 21 089,27
[4.9.3] Third Agreement
R 48 460,52
[4.9.4] Fourth Agreement
R 42 846,41
[4.9.5] Fifth Agreement
R 37 800,86
[4.9.6] Sixth Agreement
R 19 707,35
[4.9.7] Seventh
Agreement
R 255 112,57
[4.10] Notice of
default was provided to the First Respondent on 21 April 2022, but
the First Respondent failed to remedy
the breaches, and on 19 May
2022, letters for the cancellation of the agreements were sent.
[4.11] As a result
of the cancellation of the agreements, the First Respondent was
indebted to the Applicant as follows
as at 23 September 2022: ]
[4.11.1] First
Agreement R 359 8913,32 plus interest at
10,94%
[4.11.2] Second
Agreement R 746 943,57 plus interest at 10,75%
[4.11.3] Third
Agreement R 929 765,49 plus interest at 10,45%.
[4.11.4] Fourth
Agreement R 553 390,75 plus interest at 10,94%
[4.11.5] Fifth
Agreement R 486 166,20 plus interest at 12,45%
[4.11.6] Sixth
Agreement R 227 062,48 plus interest at 12,95%
[4.11.7] Seventh
Agreement R 1 849 628,19 plus interest at 11,36%.
APPLICANT’S
CASE
[5]
The Applicant only asks for relief against the First Respondent in
this part of the application, and the Second Respondent
is only cited
as the guarantor. In terms of the agreements, the Applicant
retains ownership of the assets. When the assets
are repossessed and
sold, and there is a shortfall, the Applicant requests to be allowed
to approach the court again to pay the
difference, where an order
would be requested against both First and Second Respondents.
[5.1] The
First Respondent have failed to remedy the breaches in full, and
therefore, the First Respondent is obliged
to return the assets to
the Applicant’s care. As the assets are in the First Respondent’s
possession, the Applicant cannot protect
the value of these assets,
which will ultimately increase the financial exposure of the First
Respondent.
[5.2] The
First Respondent is in breach of the First to Seventh Agreements.
These agreements were entered into between
February 2020 and
September 2021.
[5.3] The
Applicant also requests that if the sale of the assets does not
realise sufficient funds to liquidate the
indebtedness, the Applicant
be granted the right to claim damages on these papers, duly
supplemented.
[5.4] The
Applicant stated that the NCA does not apply to these transactions as
the asset value, or alternatively, the
annual turnover of the First
Respondent during the prescribed period, exceeded the threshold value
as determined by the Minister.
[5.5] In the
Replying Affidavit, the Applicant alleges that the defence of the
First Respondent is not sustainable as
no legal defence has been
placed before this court.
FIRST
RESPONDENT’S CASE
[6]
From the Answering Affidavit, it is clear that the essence of the
defence of the First Respondent is that the agreements
and the
documents incidental thereto, such as the invoices and statements
supplied by the Applicant after June 2021, were not compliant
with
SARS’s requirements under the relevant tax laws, which would
enable the First Respondent to reclaim VAT payable in these
instalment agreements. It is therefore alleged that the wrongful
conduct of the Applicant occasioned the breach by the First
Respondent.
[6.1] The
First Respondent indicates that the First Respondent renders risk
management services to the Consumer Goods
Council of South Africa,
the South African Police Services and the National Prosecuting
Authority. The Second Respondent also run
a commercial farm,
Skoongesig, which is used for seed production and Troskie Consultants
as a sole proprietor. According to the
First Respondent, the sole
proprietor is registered as a Vendor that is registered for “rental
of vehicles” which means that VAT may be claimed back on
all vehicles.
[6.2] The
First Respondent alleges that to make payments, the First Respondent
must have positive cash flow, and for
this, the First Respondent
heavily depends on VAT refunds from SARS. ( My Emphasis)
[6.3] In
entering into these finance agreements with the Applicant,
substantial payments for VAT were made. According
to these
agreements, VAT is payable within the first six months, which burdens
the First Respondent’s cash flow. However,
as a result of the
Applicant’s conduct, these VAT claims for refunds were rejected by
SARS, which materially and negatively affected
the First Respondent’s
cash flow to such an extent that the First Respondent was unable to
conduct its business and suffered a
loss of income.
[6.4] SARS
has strict requirements regarding the accuracy of the information
contained in the documentation to be submitted.
SARS will reject a
claim and does not provide a precise reason for such rejection.
[6.5] In June
2021, the First Respondent requested the Applicant to provide correct
VAT monthly statements for certain
financing agreements such as the
FAW Truck ( with the First Respondent’s VAT numbers indicated
thereon). First rejection
by SARS of VAT refund claims was received
in August 2021. When this was received, it was determined that the
rejection resulted
from no VAT information on the financing agreement
signed in 2020 – 2021. In some cases, wrong addresses were
reflected on
the agreements and bank statements.
[6.6] On 13
August 2021, the Applicant was again informed that they had provided
the wrong information on specific agreements
and apologised. On 18
August 2021, a settlement letter for the FAW Truck was requested to
be purchased by the sole proprietor.
It was determined that the
Applicant issued the exact contract numbers for two different
vehicles, and the VAT number was again
not on the agreement. The
incorrect address was reflected in the agreements, and the principal
debt and VAT input figures differed
from those in the financing
agreement. During the latter part of 2021, the Second Respondent
corresponded with the Applicant regularly
to be provided with updated
invoices and to include the VAT number on the bank statements.
[6.7] On 3
November 2021, the Second Respondent sent a lengthy email to the
Applicant explaining that their conduct
was why the Second
Respondent’s VAT claims were rejected and that they are
experiencing cash flow problems. This letter refers
to the sole
proprietor, Conrad Troskie t/a Troskie Consultants and that the
First Respondent was registered to move everything
over to the First
Respondent. In this letter, reference is made to the fact that the
VAT number was not included on some of the Vehicle Financing
Agreements and all the Bank statements of the First Respondent.
[6.7.1] In this letter,
the Applicant was accused of being the main reason why the refund was
reviewed and audited and not refunded
by SARS.
[6.7.2] After amended
finance agreements were received, the same was provided to SARS, but
again rejected as the Applicant had to
issue VAT invoices. Again,
various correspondents were sent by the Second Respondent, indicating
the various problems so experienced,
all based on the Applicant’s
lack of co-operation. The cashflow problem was again stated in an
email dated 15 November 2021, in
which the Second Respondent
indicated that their cashflow problem resulted from the Applicant’s
conduct.
[6.8] The
First Respondent alleged that it was deprived of these funds for 18
months, which had a detrimental impact
on the cashflow of the First
Respondent, for which the Applicant is to be blamed. This resulted in
the default in payment to the
Applicant, which the Respondents
alleged the Applicant ought to have known that the First Respondent
depended on the correct information
in these agreements.
[6.9] The
First Respondent alleged that the Applicant has a duty of care in its
dealings with the First Respondent to
ensure that correct information
was provided. Therefore, the Applicant is not entitled to terminate
these agreements.
[6.10] The First
Respondent alleged that the Applicant breached the terms of the
agreement, and therefore, their breach of
the agreement must be
excused, and that there was no valid cancellation of the agreement.
[6.11] The First
Respondent also alleged that there is a dispute of fact, that the
claim for damages cannot be dealt with
in application proceedings,
and the Applicant should have instituted an action.
[6.12] I was also
referred to a similar application which was brought by the Applicant
against the Second Respondent under
case number 2023- 083113
concerning different assets financing.
ANALYSIS
[7]
In the Answering Affidavit, the First Respondent mentions the alleged
dispute of fact, as the First Respondent alleges
that the defence
against the application raised a dispute of fact.
[7.1] In the
matter of Plascon Evans Paints Ltd v Van Riebeeck Paints ( Pty)
Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), Corbett JA set out the test to be
considered when determining applications on papers where it might
appear that there is a material
dispute of fact.
“It is correct
that where in proceedings on notice of motion disputes of fact arose
on the affidavits, a final order, whether it
be an interdict or some
other form of relief, may be granted if those facts averred by the
applicant which have been admitted by
the respondent, together with
the facts alleged by the respondent, justify such an order. The power
of the court to give such relief
on the papers before it is, however,
not confined to such a situation. In certain instances, the denial by
the respondent of a
fact alleged by the applicant may not be such as
to raise a real, genuine or bona fide dispute of fact. If the court
is satisfied
as to the inherent credibility of the applicant’s actual
averment, it may proceed on the basis of the correctness thereof and
include
this fact among those upon which it determines whether the
applicant is entitled to the final relief which he seeks. Moreover,
there may be exceptions to this general rule, as for example, where
the allegations or denials of the respondent are so far-fetched
or
clearly untenable that the Court is justified in rejecting them
merely on the papers.
[7.2] In
Bester NO and others v Mirror Trading International (Pty ) Ltd
t/a MTI( In Liquidation) and others 2024 (1) SA 112 ( WCC )
it is stated in par [71] that “ A real and bona fide dispute
of fact can exists only where the court is satisfied that the party
who purports to raise the dispute
has, in his or her affidavit,
seriously and unambiguously addressed the fact said to be disputed.
……….[73] A respondent, in addition cannot
merely allege conclusions as facts, a respondent must produce
admissible evidence in support of
such facts, In motion proceedings,
the affidavits constitute not only the evidence, but also the
pleadings. A party, in motion
proceedings, is consequently expected
to allege the required facts and in addition, to support such facts
by adducing admissible
evidence.
[7.3] It is
undisputed that the Applicant and the First Respondent entered into
seven financing agreements and that
the First Respondent defaulted in
payment thereof.
[7.4] In
Schmidt v Dwyer 1959(3) SA 896 van Wyk J stated at 899A
“The primary object of a deed of sale is to record the terms
of a contract between the parties and it follows that any statement
in such document prima facie constitutes a term of the contract
unless it appears from itself or other inadmissible evidence that
the
parties did not so intend.
[7.5] In
terms of these financial agreements, the Applicant sells to the First
Respondent certain assets at a specified
price, and the terms for
repayment are stipulated. As a result, an obligation is created for
the provision of the assets by the
Applicant and the payment for such
assets by the First Respondent as stated in paragraph 11.4 of the
finance agreement.
[7.6] When
the Vehicle Financing Agreements were entered into, the First
Respondent was aware of the fact that he was
registered for “rental
of vehicles” and therefore eligible to claim VAT refunds on
all vehicles. Such information was in the sole knowledge of the First
Respondent.
Thus, the First Respondent had the obligation to bring
this fact to the attention of the Applicant and to ensure that its
VAT number
and correct addresses are included on these agreements.
7.7]
According to the allegations by the First Respondent, it seems that
reference is made to two third parties
( SARS and the refund of VAT
payments and the interrelation with Troskie Consultants) which the
court needs to consider in this
matter. Neither of these parties is
before this court. The Vehicle Financing Agreements do not contain
any terms concerning the
payment in terms of these agreements through
VAT returns by the First Respondent, that compliance to the First
Respondent’s
obligations in terms of these agreements are
dependent on such VAT reclaims and the exact manner on how the
obligations to pay
towards these agreements are interrelated with
Troskie Consultants. Paragraph 23.16 of Part B of the financing
agreement signed
by both parties reads as follows:
This agreement
constitutes the entire agreement between the parties in relation to
the subject matter thereof. The terms of this
Agreement are separate
from the other. Neither Party shall be bound by any express, tacit,
or implied term, representation, warranty,
promise or the like not
recorded herein.”
[7.9] The
contract excludes reference and reliance on any alleged implied term.
Under the declarations made by the customer
in paragraphs 1.14 and
1.15 the First Respondent accepted that
“1.14 This
Agreement was completed in full at the time when we signed it. 1.15
We are aware that we must not accept this Agreement unless
we
understand our rights and obligations and the risks and costs of the
obligation.
[7.10] This alone
confirms that when the First Respondent entered into the Vehicle
Financing Agreements with the Applicant,
the First Respondent had to
ensure that all information was included in these agreements to
ensure that the VAT refund claims could
be submitted to SARS. In
terms of the Value Added Tax Act, No 89 of 1991, the First
Respondent, as the purchasing vendor, has to
ensure that he complies
with the requirements set out in the Act.
[7.11] It is a trite
principle of our law that parties are to observe and perform in terms
of their agreements and should only be
allowed to deviate from such a
contract if it can be demonstrated that the contract is tainted with
fraud, is unreasonable, or
is against public policy.
[7.12] In Mohabed’s
Leisure Holdings ( Pty) Ltd v Southern Sun Hotek Interests (Pty) Ltd
( 183/17) [2017] ZASCA 176 (17 December 2017) the
Supreme Court of Appeal reaffirmed the principle of the privity and
sanctity of the contract and stated as follows at
paragraph 23:
“23.
The privity and sanctity of contract entails that contractual
obligations must be honoured when the parties
have entered into the
contractual agreement freely and voluntarily, The notion of the
privity and sanctity of contracts goes hand
in hand with the freedom
to contract, taking into consideration the requirements of a valid
contract, freedom to contract denotes
that parties are free to enter
into contracts and decide on the terms of the contract.
[7.13]
In the Constitutional Court in Beadica 231 and others v
Trustees for the Time being of Oregon Trust and others CCT 109/19
[2020]ZACC13 the following was stated in paragraph 84:
“Moreover,
contractual relations are the bedrock of economic activity, and our
economic development is dependent, to a large extent,
on the
willingness of parties to enter into contractual relationships. If
parties are confident that the contracts that they enter
into will be
upheld, then they will be incentivised to contract with other parties
for their mutual gain. Without this confidence,
the very motivation
for social coordination is dismissed. It is indeed crucial to
economic development that individuals should
be able to trust that
all contracting parties will be bound by obligations willingly
assumed.
[7.14] From a
proper reading of these contracts, reciprocal obligations were agreed
upon where the Applicant is to provide
the assets and financing to
obtain the same and the First Respondent is to ensure payment in
terms of the Vehicle Financing Agreements.
When the First Respondent
signed these documents between 2020 and 2021, it was obliged to
ensure that all necessary information,
including its VAT registration
numbers ( if that was needed) and addresses, was correctly included
in these agreements.
[7.14] On the
letters attached as Annexures to the First Respondent’s
Answering Affidavit, reference is made to:
[7.14.1]
Certain contracts and not all,
[7.14.2]
The address which is stated in handwriting on these agreements are
referred
to on Annexure AA17, was only updated in November 2021,
as that address on the agreements was not the SARS registered
address, at the First Respondent’s request and the remainder
of
the issues referred to the Sole Proprietor, which is not a party to
the Vehicle Financing Agreements.
[7.15] A further
argument is then about the principle that an impecunious debtor will
be excused from payment if the debtor
can show the causal connection
between that impecuniosity and some wrongful act of omission by the
creditor. Both parties then
rely on Academy of Learning v
Hancock 2001 (1) SA 8941 ( C ), where it summarised the
position and referred to three broad categories:
(a)
where the wrongful conduct of the creditor made performance by the
debtor impossible. In order to succeed with this defence, the
debtor
must prove that his/her performance became objectively and not merely
subjectively impossible.
(b)
where the creditor’s wrongful conduct can be ascribed to a
deliberate intention on his or
her part to prevent performance by the
debtor. This is the type of situation which is analogous to fictional
fulfilment of a condition.
(c)
where the creditor’s conduct complained of by the debtor in
itself constituted the breach
of an express or an implied term of the
agreement. This is the type of situation where the creditor expressly
or impliedly binds
himself/herself to carry out the necessary
preliminaries which rest upon him or do nothing of his own motion to
put an end to that
state of circumstances under which alone the
arrangement can be operative,
[7.15.1]
From the attached Vehicle Financing Agreements, it is shown that the
First
Respondent signed the document stating that all information was
correct and provided correctly. The wrong addresses and the fact
that
the VAT number did not reflect on the agreement can therefore not be
a wrongful act of omission by the Applicant as the VAT
number and the
correct address was in the knowledge of the First Respondent..
[7.15.2]
At most, they should have amended the agreements quicker after it was
requested,
and if it caused a loss by the First Respondent as
alleged, that would or could result in a claim by the First
Respondent against
the Applicant. I cannot find that the Applicant’s
conduct impacted the obligation of payment towards these Vehicle
Financing Agreements
by the First Respondent.
[7.15.3]
I am of the view that the fact that the VAT number and the addresses
were
either not included on the agreements or incorrect, as
included on the agreements, did not make the performance by the First
Respondent objectively impossible, but subjective and self-created.
These conditions did not create any obligation that such payments
must first be obtained before payments in terms of the agreements
being made. Even if this argument can be accepted, it is in direct
contradiction to the fact that payments were made from February 2020
until March 2022.
[7.16] An argument
provided by the First Respondent is that the Applicant had a duty of
care to ensure that all information
about such VAT returns, which can
be used to reclaim VAT payments, is correct. For a refund claim, the
VAT vendor must ensure that
all information is accurate to allow such
a claim from the outset. These contracts also place a duty on the
First Respondent to
ensure its information is correct, as such
information on the VAT number or the addresses would not be in the
Applicant’s knowledge.
[7.17] The first
time that the issue of VAT was queried was in June 2021, which the
Applicant addressed, and the first time
that the VAT claims were
rejected was in August 2021. The first time the addresses were
requested to be amended was in November
2021, where the First to
Fifth Agreements were already entered into in February 2020, and
payments towards these agreements were
made.
[7.18] The total
arrears in April 2022 were R 445 101,75. On the March 2022 bank
statement attached to the Replying Affidavit
as provided to the
Applicant as a result of a Rule 35(1) notice, it is shown that
various deposits from SARS to the amount of R
687 981,54 were
made to this account. Instead of paying towards such arrears, an
amount of R 685,000.00 was then transferred
to another account, and
no payment was made towards the arrears.
[7.19] The bank
statements are referred to in the Applicant’s heads and were
referred to in argument by the Applicant,
but not addressed in
argument by the First Respondent. I therefore accept that there was
payment made from SARS to the First Respondent
as shown on these bank
statements, which is directly in contradiction with the argument that
the incorrect VAT information had
a knock-on effect on VAT claims by
the First Respondent in the interrelated business of the First
Respondent and Second Respondent,
and therefore, payments were
rejected and the arrears could not be paid.
[7.20] In May 2022,
after the First Respondent received these payments, the First
Respondent’s attorneys of record sent
a letter indicating that
the First Respondent are to make payment in full arrears and
therefore agreed to the arrears payable.
Again, this contradicts the
claim that the First Respondent could not make the necessary
payments.
[8]
The Applicant requests an order to allow the matter to be brought
back to this court on the same papers, duly supplemented
for payment
of the difference between the balance outstanding and the market
value of the assets to be returned, together with
damages the
Applicant may have suffered. It is trite that when the bank
repossesses the assets, the same is to be sold, and the
First
Respondent would remain liable for the difference between such sale
price and the outstanding amount in terms of the sales
agreement. If
there are disputes between the parties about the damages, whichever
might be claimed, the matter can be referred
to oral evidence if
necessary.
[9]
After considering all the relevant principles applicable to the
dispute of fact, I am satisfied that the Applicant has
shown on a
balance of probabilities that they are entitled to the relief claimed
for the cancellation of the sales agreements and
the return of the
assets.
COSTS
[10]
The general principle is that the successful party is entitled to its
costs. No reason has been advanced and I cannot
find any reason why
the general principle cannot be followed. In the Notice of Motion,
costs are requested on the Attorney Client
Scale but in the
Applicant’s heads it is Party and Party scale on Scale B and during
argument it was confirmed on Party and Pary
scale B or C.
ORDER
[11]
Therefore, the following order is made.
[11.1] Condonation
is granted for the late filing of the Answering Affidavit of the
First Respondent.
[11.2] The
cancellation of the agreements entered into between the Applicant and
the First Respondent attached to the Applicant’s
founding affidavit
is hereby confirmed.
[11.3] The sheriff
of the above Honourable Court or his lawful deputy is authorised,
directed and empowered to attach, seize
and hand over to the
Applicant:
[11.3.1] a 2015
Audi TT 2.0 TFSI Coupe S Tronic with Chassis number T[…] and
engine number C[…].
[11.3.2] a 2020
Hino 55 Series 1326 4 x 2 TIP with chassis number A[…] and
engine number J[…].
[11.3.3] A 2020
Case 570 ST 4 x 4 Loader with chassis number N[…] and engine
number 2[…].
[11.3.4] A 2020
Hino 300 614 SWB f/c C/C with chassis number A[…] and
engine number N[…].
[11.3.5] A 2021
Case JXT75 4WD with cahssis number A[…] and engine number
3[…].
[11.3.6] A 2021
Polaris Ranger 570 EFI with chassis number 3[…] and engine
number R[…].
[11.3.7] A 2021
Case CX220 DLC Tracked Excavator with chassis number N[…] and
engine number 1[…].
[11.4] The
Applicant is granted leave to approach the Honourable Court on papers
duly supplemented for payment of the difference
between the balance
outstanding and market value obtained from a sale of the assets
together with any damages the Applicant may
have suffered.
[11.5] The First
Respondent is ordered to pay the costs of the Application on a Party
and Party Scale B, including the
costs of Counsel.
ENGELBRECHT
T
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Delivered:
This judgment and order were prepared and
authored by the Judge whose name is reflected and is handed down
electronically by circulation
to Parties / their legal
representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The
date of the order is deemed to be
the 26 May 2025.
Appearances:
For
the Applicant:
Advocate De Oliviera
For
the Respondent: Advocate A
Coertze
Date
of Hearing:
03 March 2025
Date
of Judgment:
26 May 2025
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