A former senior government official who purchased a vehicle through a scheme financed by Wesbank is taking his legal tussle with the bank to the highest court in the land to find relief in a case he alleges was fraudulent from the date of the initial transaction in November 2004.
Twenty-years later, Mzukisi Lubabalo Ndara is adamant the dealer principal at the dealership, Jaen Van Aardt, misrepresented the facts and sold him a dud.
Ndara says the 2004 Nissan X-Trail 2.2 D Manual he took delivery of was priced at R270 000 but he was fraudulently charged R297 990 – the value of a “Nissan X-Trail 2.5 Petrol A/T, brand new”.
His preferred model, for which he traded in his 2003 Nissan Almera, was a used car.
Eventually, the purchase price came to R333 000 after the dealership had inflated the figure, adding extras Ndara says he did not agree to: “They were never fitted onto the car.”
“Finance charges totalling R15 000 were added. I was paying an instalment of R8 000 per month. That’s all fraud,” Ndara declares.
He is now suing for R50 million. “Initially,” according to an affidavit deposed by the three respondents – Weir Investments, Wesbank and Van Aardt, “he’d wanted payment by the respondents, jointly and severally, of the sum of R10 000 000.00 as and for damages arising from pain and suffering, stress and trauma, past and future medical expenses, loss of income and pension benefits”.
Ndara says his two decades-long battle with Wesbank has exacted a huge toll on his life, including being fired from his government job and his wife taking her own life.
The vehicle at the centre of the row has been parked at a site in Mthatha, Ndara says.
The case has had a long ‘shelf life’ in the courts. The High Court in Makhanda, delivered judgement on March 5, 2015 in terms of which the applicant claim was dismissed on the basis that it was prescribed.
Ndara counters thus: “Does Wesbank realise that by pleading prescription they concur with me that they are responsible for the fraud and are simply arguing that it cannot be addressed because three years has elapsed? As I understand it, for the Prescription to begin to run, there must first be a resolution to the fundamental dispute which, in this case, has hitherto not been entertained by any court of law.”
He has other parties. “They have not presented any alternative version. They have not provided evidence.”
He says the offer to purchase document was not shown to him.
“I did not have sight of that document, nor did I sign it. That is a misrepresentation. In a transaction of this nature, there must be a meeting of minds.”
He wants the court to annul this instalment sale agreement entered into in November 2004 and a refund of all instalments paid on the car, plus insurance premiums.
Each time the case was struck off the roll, Ndara took it back to court for re-enrolment.
On December 24, 2020 the Supreme Court of Appeal dismissed his application for leave to appeal.
In August 2024, he took the matter to the Constitutional Court, where his application for condonation was denied.
“Without a hearing,” Ndara contests.
The matter is now back at the apex court. “They have not proved me wrong.”
He said regarding the status of the case: “Remember our Application for Leave to Appeal was filed on January 31, 2024. The court issued an order without a hearing on August 29, 2024 dismissing our allocation on the basis that there were no reasonable prospects of success.
“Subsequently on October 04, 2024 we filed an Application for Rescission of that order on the basis that my Section 34 and 39(2) rights in the Bill of Rights were violated. So this matter is currently pending before the Constitutional Court,” Ndara said.
Efforts to reach Van Aardt were fruitless.
Based on privacy legislation and banker-client confidentiality, WesBank is not able to disclose details of Ndara’s agreement.
The Star