Cape Town - A bank has failed to prove that a client, who defaulted on the repayment of a loan taken to buy a car, wilfully disobeyed a court order to return the vehicle after she failed to keep up with repayments - following the disappearance of the car from a dealership.
Acting Judge Phillipa van Zyl of the Western Cape High Court dismissed the civil application by Nedbank with costs and ruled that the woman, Carmen-Leigh Campbell, was the unfortunate victim of a third party dispute.
The matter goes back to August 2019 when Nedbank and Campbell concluded a written credit agreement under the National Credit Act (NCA) under which the bank financed Campbell’s purchase of a 2018 Hyundai Tucson.
When Campbell failed to keep up with the payments Nedbank obtained a default judgment against her for the return of the vehicle in September 2021 and that was when things began to unravel.
In March 2022, after four failed attempts to attach the vehicle which could not be found, the Sheriff was again instructed to serve a notice on Campbell and it was then that she told the Sheriff that neither she nor her husband knew who was in possession of the car.
Meanwhile, what had happened was that Campbell had given the vehicle back to the dealership, Sullivan’s Auto, shortly after purchasing it, as it required mechanical repairs.
She said that despite repeatedly seeking information on the progress of the repairs, she was assured that she would get the vehicle back and that the dealership would keep Nedbank updated on the issue.
She said she eventually became frustrated about not having the car and stopped making payments to Nedbank on her understanding that Nedbank and the dealership knew where the vehicle was, and that she would proceed with her repayments as soon as she got the car back.
Eventually, in February this year, Campbell was told by the dealership sales rep, Robyn Smith, that the car had been confiscated as “security” by a third party, Isaac Njembe, who would not release it until a dispute between him and the dealership had been resolved. It then emerged that the dealership had a long-standing business relationship with Njembe.
Under this deal, Njembe would deliver cars for sale to the dealership which would then pay Njembe whatever amounts they had agreed upon. Campbell’s car formed part of one of those agreements.
Smith told Campbell that when she returned the vehicle to the dealership for repairs, they contacted Njembe to collect the vehicle and attend to the mechanical faults.
While the vehicle was in Njembe’s possession, disputes arose regarding payments and that was when Njembe told Smith that he would not be returning Campbell’s car to the dealership until such time as he had been paid. The dispute between Njembe and the dealership is the subject of a complaint lodged at Parow police station.
In the judgment Judge van Zyl had to decide whether Campbell had been wilful in her non-compliance with the court order.
She said Nedbank was quite correct that there was a valid and enforceable judgment against Campbell.
However, she said: “I cannot, however, on the papers before me find that the respondent was in wilful and mala fide (bad faith) default. I can also not find that the respondent (Campbell) displays a clear intent to defraud or mislead the applicant (Nedbank).”
She said: “There does not seem to be much more that the respondent can say in the peculiar position in which she finds herself.
“I do not think that her version falls to be rejected on the papers. The respondent was the unfortunate victim of a third party dispute. The application is dismissed, with costs.”
mwangi.githahu@inl.co.za