REPUBLIC OF NAMIBIA

CASE NO.: A 206/08

IN THE HIGH COURT OF COURT OF
NAMIBIA

In
the matter between:

ASCO-CAR-HIRE CC
APPLICANT

and

GABRIEL
SOLER COPETE
RESPONDENT

CORAM: VAN
NIEKERK, J

Heard on: 25 July 2008

Delivered
on: 1
August 2008

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JUDGMENT

VAN NIEKERK, J: 1 In
this matter which was called in the motion court on 25 July 2008, I
heard argument on the merits and postponed the matter for one week to
deliver judgment.

2 While
preparing same, I noticed that the heading of the Notice of Motion
mentions applicant as being Asco-Car-Hire CC. However, in the
heading of the supporting affidavit, applicant is cited as being
Value Car Rental CC. In the affidavit itself, deposed to by Mr Guido
Dirk Gonschorek, it is alleged that the applicant is Value Car Rental
CC. The relief sought is based on a contract between Value Car
Rental CC and the respondent. On the papers it is not clear how
Asco-Car-Hire CC is involved in the matter, although some of the
invoices attached to the papers are either issued by it or to it by
third parties. Apart from this problem, I have come to the
conclusion that the application should not be granted for the
following reasons.

[3] The
application is ex
parte
and for the attachment of funds in the amount of N$37 100 held in
Value Car Rental's First National Bank account ad fundandem
jurisdictionem,
alternatively ad
confirmandam jurisdictionem
pending an action, for the institution of which leave is also sought
in the papers.

4 In
the supporting affidavit Gonschorek states that Value Car Rental
entered into a car rental agreement with respondent, a peregrinus
of
this Court, being a resident and citizen of Spain. In terms of the
agreement the respondent would be held responsible for the full
damage caused to the vehicle in certain circumstances giving rise to
an inference of negligence on his part and also in certain
circumstances in which he is deemed to be negligent. In terms of
the agreement the respondent gave his irrevocable consent to Value
Car Rental to debit his credit card for any amount necessary to pay
for damages to the vehicle resulting from his negligence. On 17 May
2207 the respondent was involved in an accident in circumstances that
indicate that respondent was driving negligently. The vehicle was
damaged beyond repair. The damages caused amount to N$194 995.61.
Further costs relating to towing in and transporting the vehicle from
the scene of the accident to Windhoek amount to N$4 830 and N$5 280
respectively. Value Car Rental’s claim in the intended action
is for the sum of these three amounts in damages.

5 Pursuant
to the terms of the agreement, Value Car Rental debited respondent's
credit card on ten occasions over the period 20 - 22 May 2007 for the
total amount of N$37 100, which, in Gonschorek’s words “was
the maximum amount that the Applicant was eventually able to debit.”
The money was not applied to the repair of the vehicle, but was
deposited into Value Car Rental’s call account held at First
National Bank “until such time as the Respondent pays the
Applicant the balance of the amount required to repair the vehicle or
replace such.” The allegation is further made that the
deponent knows of no other property belonging to the respondent in
Namibia other than the N$37 100.00 held in the aforementioned bank
account and therefore it is sought to attach these funds.

[6] I
asked Ms van
der Westhuizen,
who appeared for applicant, to address me on the issue of whether the
funds are capable of attachment. The matter stood down for her to
prepare her submissions. She referred me to the cases of Mercantile
Bank of India v Davis
1947 (2) SA 723 (CPD) and Axaros
(East
London)
v Contara
Lines Ltd
1979 (1) SA 1027 (ECD). The first case is authority for the
proposition that property which has been pledged may be attached ad
fundandam
jurisdictionem.
In the second case it was held that amounts due by way of debts by
certain respondents to the first respondent could be attached to
found jurisdiction in relation to the latter. I did not find these
cases helpful in order to come to a decision whether the funds held
in Value Car Rental’s bank account were indeed those of the
respondent. It is trite that the property sought to be attached must
be that of the
peregrinus.

7 By
applicant debiting the respondent’s credit card, it seems to
me, that the respondent was divested of any interest he had in the
amounts debited and of ownership in the funds. The fact that the
money was not used for repairs or a replacement is neither here nor
there. The applicant acted in terms of the agreement and was
compensated for the damages suffered to the extent of the amount
debited. I am therefore not persuaded that the funds held in Value
Car Rental’s call account are funds which are the property of
the respondent.

[8]
As a result the application is refused.

__________________________

VAN NIEKERK, J

APPEARANCE FOR THE PARTIES

For
applicant: Adv
van der Westhuizen

Instr. by Koep & Partners