IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

and

JUDGMENT

GAUNTLETT, AJ

The applicant is a registered credit provider under the National Credit Act, 34 of 2005 (The NCA"), and the lessor of the taxi vehide to the respondent. The respondent is a taxi operator, who operates two other taxis which evidently do not fall within the ambit of this application.

I accordingly conclude that thfs court has the power at common Jaw to grant, in appropriate cases, an order to secure the interim custody of disputed goods in a credit transaction under the NCA. The question however relates as to what those "appropriate circumstances" are. I say this because it was indicated in the course of argument that what may be said in this ruling may have a wider application, but I in turn would stress that this ruling is confined to its own facts. It relates to an application for an interim interdict brought on express grounds of the preservation of disputed goods in a NCA transaction, and is not intended to devise a Magna Carta in respect of all matters of this nature.

In his affidavit in the summary judgment proceedings, which were incorporated by reference in the founding affidavit in the matter before me, the respondent ascribed to the Chairman of his Taxi Association the directive that he {the respondent) should alter his existing bank debit authorisation in favour of the applicant to one in favour of Rich Rewards. In his answering affidavit in this application, however, the respondent ascribed the initiative to the applicant itself. Strikingly (and inconsistently with his identification of the applicant's Ms Faizel Miller for other purposes) he does not identify in his affidavit the applicant's supposed representative in this respect.

His new version - that it was at the instance of the applicant that the diversion of payments took place from the applicant to Rich Rewards - lacks any documentary corroboration. It is strenuously denied by the respondent. It is also in my view inherently improbable that the applicant, with its arduous system of contracting individually with individual owners, should, without evident commercial benefit, wish to substitute an unsecured system of conduit payment through an association of taxi drivers. Even were these ordinary motion proceedings, and the test applicable in interlocutory proceedings did not apply, I would not hesitate to reject the shifting explanation in this regard as inherently contradictory, inconsistent and beyond credence.

I also do not accept that there is in any event any credence in the assertion by the respondent that he has "religiously" and "diligently" paid first the applicant and thereafter Rich Rewards the monthly rentafs. His own bank records reflect the converse. The attempt to explain this by the suggestion that Rich Rewards was paid in cash is not only not what the respondents affidavit says, but is inconsistent with a number of instances in his bank records when he purported to pay Rich Rewards by cheque. It is also inconsistent with his use of a bank debit order from the outset. The lack of proof of the alleged cash payments thus made "diligently" to Rich Rewards is a further inconsistent fact; his attempt to blame this on a seizure by the police of receipts stumbles on lack of the usual inventory of what the police allegedly took, which might be expected to have been handed to the respondent upon the seizure, and, yet more importantly, any recorded effort to obtain photocopies from the police, and, most of all perhaps, provision by him of proof of receipts from after the time of the police seizure. Finally, and perhaps most unbelievably, there is the respondent's contention that notwithstanding his discovery of what he contends was a fraud on him by Rich Rewards, he stoutly continued, and evidently continues, to make payment to it under the lease.

In short, I do not accept the contention that the applicant directed the respondent to pay Rich Rewards and not it. I do not accept that the respondent has paid either the applicant or Rich Rewards. I also do not understand the basis of the contention that proof of payment to Rich Rewards would amount in any way to an discharge of the obligation under the lease to the applicant, unless it were apparent on the papers that it could reasonably be believed that Rich Rewards was acting in fact, and not according to some alleged perception of the respondent himself, as a designated payee for the applicant.

I accordingly conclude that the applicant has established what is in fact a very strong right to cancellation and restoration of the vehicte in the pending action.

"In the present case it is quite clear under what arrangement the respondent has possession of this truck: It is under a hire purchase agreement, and he can onty be deprived of that possession if it is proved that he committed a default entitling the applicant to reclaim it.

While, as I have indicated, it may not be so that the pessimism of the parties regarding the ceierity of trial actions in the Cape is fully justified on any test a considerable period will elapse. This at best will be a period of many months, certainly not the matter of three to four weeks which exercised the minds of the court in the BMW decision. The applicant has addressed this aspect squarely in its papers, and demonstrated that the residual value of the vehicle following the elapse of this period of time, will be greatly reduced if the vehicle remains in daily use, It seems to me that there is no basis to contend that it is incumbent upon an applicant in these circumstances to establish a greater use beyond that which is contemplated by the agreement. On the facts of the present case, the use of a private vehicle is not an issue; what is established is that by all probability, the vehicle will be put to great use understandably given its function and that this will operate, regard being had to the anticipated period, materially to the diminution of its value.

I accordingly consider that the requirement of irreparable harm has been sufficiently established.

As regards the balance of convenience and aspects touching upon the applicant, it is of course not implicitly merely to be accepted that because it is a corporate entity which makes money through entering into credit transaction, that inconvenience to it in the proper sense is to be disregarded in the course of weighing up the various factors. As I have indicated, what is in issue in this matter is a taxi, a piece of working machinery to be maximally used. It is a matter of notoriety that great mileages are clocked up and considerable wear and tear endured by such vehicles, more particularly as I have already indicated, when the period at issue is a considerable one.

Conversely the applicant was willing to do so, under security and with an undertaking that the taxi would not be used pending the determination of the main proceedings. It seems to me that this regime in the present case will best preserve the vehicle.

The order I accordingly make is as follows:

Pending the final outcome of the action instituted by the applicant against the respondent:

1.1 The respondent is directed to deliver the vehicle into the possession of the sheriff, who shall deliver it to the applicant, who shall, in turn, at its own expense
(a)	Transport it to garaged premises situated at 17 Bompas Avenue, Dunkeld, Johannesburg;
(b)	Retain the vehicle at such garaged premises under security pending the outcome of the action instituted by the applicant against the respondent, and who shall not use the vehicle, or permit that it be used during the said period.
1.2 in the event of the respondent failing to comply with the contents of paragraph 1.1 above within five days of service of this order on his attorneys, authorising and directing the sheriff to take the vehicle into his possession from wherever he may find it and to return the vehicle to the applicant as aforesaid.

2. Directing that the respondent pay the costs of this application, including the costs of two counsel, and including such costs as may have been reserved. This order must be replicated identifying the different vehicles as between the three applications.