The owner received a claim for R237 000 for repairs and costs for storage allegedly against her consent.
A high court judgment has provided a woman with some relief from a nightmare experience, after facing a R237 000 claim for repairs and storage costs to get her car back.
Acting Judge LM du Plessis ordered respondents ATE Automotive Repairs and Abandoned Vehicle and Truck Solutions to make available and restore possession of a Hyundai TQ H1 vehicle to Carol Behane within 10 days of her order, free of any storage costs.
In a judgment handed down in the High Court in Johannesburg last week, Acting Judge du Plessis further ordered that should ATE and Abandoned Vehicle and Truck Solutions fail to comply with her order, the sheriff is authorised and directed to attach Behane’s vehicle wherever it is found and deliver it to Behane or her attorneys of record.
Trafficc (Pty) Ltd and VW Hatfield were also cited as respondents in the case but the matter in regard to them was postponed indefinitely by agreement between the parties.
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The background
Behane purchased the vehicle in December 2021, but it broke down shortly thereafter and was sent to various businesses for repairs.
In October 2022, the vehicle started losing power, and Behane took it to ATE’s workshop to be repaired, but was informed there was nothing wrong with it apart from a loose wire, which would cost R1 000 in labour costs to fix.
By 11 November 2022, the vehicle had broken down again. Behane had further dealings with Boss Auto and VW Hatfield – who presumably had repaired the car in the past.
In January 2023, she called ATE, informing them that the vehicle had broken down in December 2022, but Trafficc (the second respondent) refused to pay for the repairs, as ATE had previously repaired the vehicle and within the month thereafter the vehicle had broken down again.
ATE advised Behane to have the vehicle towed to their workshop where they would fix it, which she did. However, on 31 January 2023, ATE told her they would not fix it because it was not their fault the turbo broke, alleging the turbo had been contaminated by oil.
Behane in March 2023 lodged an application with the Motor Industry Ombudsman of South Africa (MIOSA), in an attempt to have Hatfield Volkswagen replace the vehicle, but the claim was rejected.
ATE emailed Behane on 29 June 2023 with a R17 261 quotation for the cost of repairs to her vehicle, with a note stating the vehicle “will be sent to legal storage by 7 July 2023.”
Behane informed ATE on 3 July 2023 that she had reported the matter to the National Consumer Commission, but would arrange to collect her vehicle.
This was admitted in the answering affidavit for ATE and Abandoned Vehicle and Truck Solutions.
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In storage
Behane was accompanied by members of the South African Police Service (SAPS) to ATE’s office prior to 7 July 2023 to collect her vehicle, but it had already been sent to storage without her consent.
Acting Judge du Plessis said these facts are admitted in the answering affidavit, deposed on behalf of ATE and Abandoned Vehicle and Truck Solutions by a Mr Rowell, a director of Abandoned Vehicle and Truck Solutions.
She was then contacted by someone from Abandoned Vehicle and Truck Solutions and sent a form to sign. She refused to sign it, as she had no contract with them and was unsure whether they actually had the vehicle. However, the person refused to disclose the firm’s address until Behane signed the form.
Behane said she then requested ATE to return her vehicle so she could collect it, but ATE refused to cooperate.
Du Plessis said Behane stated she would suffer irreparable harm if she was not granted relief, as she is still paying for the vehicle through vehicle finance and is adamant that she did not consent to the vehicle being sent to legal storage.
ATE and Abandoned Vehicle and Truck Solutions, in their answering affidavit, said the vehicle would not be released because Behane had failed to make payments as requested and to honour the enrichment lien held by Abandoned Vehicle and Truck Solutions, which had incurred costs on Behane’s behalf that were accumulating on a daily basis.
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Du Plessis said ATE and Abandoned Vehicle and Truck Solutions’ defence is a written cession agreement, purportedly entered into between them and signed on 14 July 2023.
She said Rowell further claimed Behane had correctly asserted the vehicle had been in ATE’s storage facility for six to seven months and accumulated storage fees daily, which she refused to pay upon demand.
But Du Plessis said aside from the fact that these statements by Rowell were hearsay evidence and of no evidentiary value, Behane stated she had received an email dated 29 June 2023 from ATE containing an invoice, which was not for storage fees, but for repairs.
Acting Judge du Plessis said further contentions by Rowell are not only hearsay but contradicted by the facts.
She said the cession of the claimed enrichment lien was only entered into on 14 July 2023, which Behane claimed was done as an afterthought.
“The court agrees,” she said.
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Du Plessis said up to the date prior to 7 July 2023, no agreement was entered into, either tacitly or expressly, between Behane and ATE in respect of storage fees.
She said an invoice dated 14 July 2023 indicates the customer’s name as “abandoned” and not Behane’s name, and is addressed to Abandoned Vehicle and Truck Solutions.
Du Plessis said it indicated it is for “debt seeded”, charges for “strip and quote” of R6 500 and “storage” of R4 000.
She said it is once again “an invoice prepared as an afterthought,” as submitted by Behane, and was never sent to her.
Du Plessis declared that the debt ceded by ATE to Abandoned Vehicle and Truck Solutions was R17 000.
Rowell claimed Abandoned Vehicle and Truck Solutions obtained all of ATE’s rights against Behane and towed the vehicle from ATE’’s premises as security for its claim against Behane,placing it in their storage facility at a daily fee, which as at 10 April 2024 amounted to R237 000.
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Du Plessis said the invoice issued by ATE on 14 July 2023 was not based on any agreement between Behane and ATE and was “also issued as an afterthought to provide a purported basis for the cession, although the claim ceded was R17 000 and not for the amount of the belated invoice”.
“It is therefore found, insofar the cession agreement exists, that it does not bind the applicant [Behane].
“A person exercising or claiming a lien is not entitled to storage costs merely for keeping the property on his premises. No value is added to the property by merely keeping it safe,” she said.
Costs were awarded against ATE and Abandoned Vehicle and Truck Solutions.
This article was republished from Moneyweb. Read the original here.
