Louis Podbielski Case Law Reports

CHEQUE PAYMENTS REVERSED FOR CAR SALE
Absa Bank Limited v Mansoor [2021] ZAKZPHC 92

Mr Mansoor purchased a BMW on an instalment sale basis with Absa, but later decided to sell the vehicle. Mr Essa responded to his Gumtree advert and agreed to buy it for R679,000. The Absa call centre later advised Mr Mansoor that two EFT payments had been made into the vehicle account. In another phone call, the call centre said that the account had been closed and that a letter to that effect had been emailed to him in which it was also confirmed that the AVAF account had been settled in full. He was advised that it was safe to release the vehicle to Mr Essa.
It transpired that the payments by Mr Essa had been made by way of two cheques and were reversed. Absa seeks summary judgment against Mr Mansoor for the reversed payments of Mr Essa.
Mossop AJ discusses Mr Mansoor’s defence of estoppel based on the misrepresentations made to him that the account had been paid and closed and that it was safe to release the vehicle [8]-[9]; and Absa’s contention that a defence of estoppel is not available to the defendant, relying on the case of Absa v Wolmarans.
The application for summary judgment is refused and the defendant is given leave to defend the action.

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RETURN OF DEPOSIT FOR IMMOVABLE PROPERTY
Royal Energy Management Services v Carse NO [2021] ZAWCHC 241

Royal Energy agreed to purchase immovable property for R17 million and movable property at R1 million, from the executor of a deceased estate. Royal Energy paid R9 million as deposit and R1 million for the movable property, but could not obtain a bank guarantee for the balance. Royal Energy requested repayment of the R10 million on the basis that the suspensive conditions could not be fulfilled. The respondent replied that the relevant paragraph was a term of the agreement and not a suspensive condition. And further that Royal Energy was in breach of the agreement and the deposit accordingly does not have to be returned.

Wille J discusses the correspondence between the attorneys; the common law and the general rule that the failure of an agreement obliges parties to restore each other to the position they were in immediately prior to the conclusion of the agreement; the law of depositum; the National Credit Act; and whether the text is a “term” or a “condition”.

The respondent is ordered to repay the R9 million and the R1 million.

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BUSINESS LEASE AND COVID LOCKDOWN – VIS MAJOR?
Bymyam Trust v The Butcher Shop and Grill [2021] 11877-2020 (WCC)

The Bymyam Trust leased premises to The Butcher Shop for use as a restaurant, butchery, deli and wine shop. The hard lockdown of covid affected the restaurant and then further regulations imposed a seating capacity of 50 %. The Butcher Shop did not fulfil its obligations in terms of the lease and the trust sought a considerable sum in arrears from it. The Butcher Shop contended that it was entitled to a remission of the rental, because the regulations constituted a vis major or casus fortuitus.
Pangarker AJ discusses the base rental of R286,144; the contentions by the tenant that the legislative prohibitions made performance of its obligations impossible and that it was excused from contractual liability for as long as such regulations persisted; the separate corporate identities of the tenant and an entity trading from the premises called Apoldo; the applications to strike out; piercing the corporate veil; from [87] vis major, casus fortuitus and rental remission; * note the points highlighted in para [94]; the lack of proof of “beneficial occupation”; and rental remission by a sub-lessee.
The respondent is ordered to make payment of R2,703,191 representing all amounts due in terms of the lease agreement, and costs on the scale of attorney and client.
The applications to strike out are dismissed. And the counter-application is dismissed.

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