Case No. 236/2000
Defendant/Respondent Mr. Dunseith
Applicant sold the respondent a second hand motor vehicle.
applicant came to court as a matter of urgency seeking the return of
the vehicle in terms of an order authorising him to attach and hold
it in safe custody pending the outcome of the application. The
application was granted ex parte and as a matter of urgency.
Respondent has replied thereto and set out various respects in which
he alleges the applicant's original application was incomplete or
irregular. According to the respondent a number of salient factors
omitted from the original application, should have been made known to
the court especially as the application was made ex parte. The
respondent also questions the urgency of the matter and failure of
the applicant to serve the papers.
is not necessary for me to rule on these matters now, suffice to say
that it would not be possible on these papers to come to any
conclusion on the contending allegations. There is however one
allegation which has been made by the respondent which determines the
outcome of the application as far as the merits are concerned.
respondent has alleged that he has elected to cancel the sale on the
grounds of breaches of contract he alleges have been committed by the
applicant. His remedy is then to claim damages.
he is correct or not becomes immaterial but having cancelled the
contract he is not entitled to retain the motor car. VROMOLIMNOS
(PTY) LTD AND ANOTHER v WEICHBOLD AND ANOTHER1 I therefore confirm
the order that the motor car be returned to the applicant. The
parties are free to take further action against each other as they
may be advised to recover whatever amounts each considers he is
entitled to claim from the other.
not think that an urgent application without notice was appropriate
in this matter and I will presently make no order as to costs which
may be claimed by either party in what ever litigation may follow. If
no action is taken either party may set this matter down for argument
as to costs.
1991 (2) SA 157 (C)