ABSA Bank Limited v Mavundza (2022-050518) [2024] ZAGPJHC 79 (30 January 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 79 | Noteup | LawCite sino index ## ABSA Bank Limited v Mavundza (2022-050518) [2024] ZAGPJHC 79 (30 January 2024) ABSA Bank Limited v Mavundza (2022-050518) [2024] ZAGPJHC 79 (30 January 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_79.html sino date 30 January 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2022-050518 In the matter between: ABSA BANK LIMITED                                                                 Applicant and SEVENGWANI ANA MAVUNDZA                                               Respondent JUDGMENT WRIGHT J 1. On 23 November 2018, the applicant bank sold a vehicle to the respondent, Ms Mavundza under a written credit agreement. The bank now seeks return of the vehicle under the rei vindicatio. 2. In the agreement, Ms Mavundza chose as domicilium, 1[…] B[…] P[…], Alexandra. 3. Ms Mavundza fell into arrears. On 14 March 2022, the bank sent a letter under section 129 of the National Credit Act, 34 of 2005 to the domicilium address.  In the letter it is stated that the account has been in arrears for more than twenty days, that Ms Mavundza has ten business days to rectify the breach and that if the letter is not complied with, the credit agreement will be automatically cancelled. 4. This letter is annexed to the founding affidavit as is proof of posting in the form of a registered postal slip and proof of tracking in the form of a track and trace report showing that the letter was received by the relevant post office. 5. Ms Mavundza denies receiving the letter. She may well not have but that could only be due to a failure to collect it. 6. Ms Mavundza says that she had informed the bank of change of address sometime before the bank sent the section 129 letter. She refers in her answering affidavit to an annex to it but there is none. Upon enquiry by the bank’s attorney, Ms Mavundza’s attorney sent the annex. This document is a bank printout dated 10 August 2022, some five months after the section 129 letter was sent. It lists a physical address for Ms Mavundza of “ N[…] Street House number 25[…] “ in Mamelodi, different to the chosen domicilium. This document is by no means a communication from Ms Mavundza at all. In my view, the allegation by Ms Mavundza that she informed the bank of change of address is incorrect. 7. Attached to the founding affidavit is a Notice of Termination dated 30 May 2022 and signed, according to the bank by Ms Mavundza. Ms Mvundza says that she was spoliated of the vehicle on that day when bank agents arrived at her house in Limpopo. She says that the notice was signed by her son. She says that she was misled by the agents into believing that the notice merely confirmed that the vehicle had been “ inspected and taken in the condition that it was, and further that I have removed every item that belongs to me “. The bank’s agents took the vehicle. 8. Ms Mavundza approached the Magistrate’s Court in Mamelodi and on 29 June 2022 obtained a temporary order in the form of a rule nisi for the return of the vehicle to her. On 3 August 2022, after the bank had been heard, the Magistrate discharged the rule nisi with punitive costs. The effect of the Magistrate’s Order was to declare Ms Mavundza’s possession of the vehicle unlawful. 9. Ms Mavundza is bound by the order of the Magistrate. Her defence that she was tricked into releasing the vehicle is not open to her. 10. Ms Mavundza admits possession of the vehicle, that the bank is the owner and that she is still in arrears. A point of lack of jurisdiction raised by Ms Mavundza was sensibly abandoned. 11. In my view, there is no defence to the application. 12. The agreement provided for punitive costs in the event of litigation by the bank. ORDER 1. The respondent and/or any other party that may be in possession of the motor vehicle 2018 Quantum Minibus Kombi 2.5D bearing VIN number A[…] is to return the vehicle to the applicant forthwith. 2. In the event that such person fails or refuses to do so, the applicant may approach the sheriff or the SAPS to give effect to this order. 3. The respondent is to pay the applicant’s costs on the attorney and client scale. _______________ GC Wright Judge of the High Court Gauteng Division, Johannesburg HEARD                      :      30 January 2024 DELIVERED             :      30 January 2024 APPEARANCES    : APPLICANT              Adv N Alli Instructed by             Jay Mothobi Inc anthony@jay.co.za 011 268 3500 RESPONDENT        Adv R Masipa Instructed by             Cedrick Thoka Attorneys 081 206 5459 cedrickthokainc@gmail.com sino noindex make_database footer start