Asco-Car-Hire cc v Copete (Case No.: A 206/08 ) [2008] NAHC 110 (01 August 2008);

Group

Full judgment

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




















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