Asked by the Customer on 18-01-2016 14:45:21
Question posted in the General Law category relating to Gauteng

My daughters car, which she is still paying off, had the engine cease. Her husbands mother then suggested that they have her boyfriend fix the car for them, and that they would pay as the repairs progessed. the boyfriend has apparently now repaired the car to the tune of RR20k and refuses to give the car back to my daughter and son in law before payment is made. No contracts were signed. My son in law needs a car in order to generate an income to pay for the repairs - for a while he was using my car to visit clients - he does waterproofing and works for himself (a one man band). Unfortunately for him, I needed my car back, he has been unable to bring an income into the home because he has no transport. he told his mother and her boyfriend this, but they still refule to give him my daughters car back. My daughter and her husband have tried to get the car refinanced but the bank would have only done that had the car been taken to a authorised mechanic and if they were still paying car insurance. What recourse do they have? Is is legal for this crowd to withhold their property because of payment?

Really need help. this young family have 5 small children, 3 of which are baby triplet boys.....

Further information relating to Question:

My son is law has said he will be able to pay for the repair, but really needs the car in order to generate an income - the car is how he earns a living, without it they will simply not be able to survive.

Posted by Att. Patrick on 18-01-2016 18:11:43

Hi there Cathy thank you for your question,

The fact that no contracts were signed does not make any difference in this case. There is obviously a verbal agreement between the two of them. i.e. He does the repairs. Your daughter pays for them. The only difference is that if this ever goes to court you will need to prove what the agreement was. If you had a contract in writing, the agreement is written on paper - easier to prove!

Also unfortunately, a worker (like a mechanic) has a legal right to retain the motor vehicle (it's called a lien) until payment is received in full for his account, or if sufficient payments are put into place that he will accept (e.g. instalments).

This means that LEGALLY he can keep the car (but he can't use it) until the account has been paid. Even if the police get involved, he can keep the vehicle. This is obviously NOT ideal, but it is the law. Also, it is a civil matter, and not a criminal matter - that's why the police won't get involved.

So YES, it is legal that they retain the car until payment is made. What your daughter can do is to make a part payment, and then sign an IOU note or an acknowledgement of debt whereby she agrees to pay XXX each month until the amount is settled in full. That's probably the best way to go about it, as the acknowledgement of debt will give the mechanic some assurance that he will eventually be paid.

Otherwise, your daughter will need to get a loan to pay for the repairs, and then earn money to pay the loan back.

I know that this is NOT what you want to hear, but you can Google more on a "lien" or a "right of retention" for more information and even case law. 

This "lien" is as old as Roman times, so it is unfortunately a long standing part of South African Law. Sorry.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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I would like to know if this rule applies even though the car forms part of how my son in law generates an income in order to survive - should this have some legal considerations in this case? My son in law feel because there is such bad blood between son and mother and this backyard mechanic boyfriend, and because they don't want to help him in actually making the money so that he can pay for the car, that my daughter should cease paying off the car and have it repossessed - if they do this will there be repercussions legally ? my daughter and son in law cannot afford to take out any loans, they live with me (all seven of them) and I provide a roof and food for them - they don't have any assets. I still find it so hard that a mother who knows her son has 5 small little children (3 of which are naturally conceived triplets), can be so mean....

Posted by Att. Patrick on 19-01-2016 13:01:12

Hi again, 

Unfortunately yes, the law does apply as I have set out even though the vehicle is used by your son in law as part of his business. 

If your daughter stops paying the instalment for her car, she must be aware that the bank might reposesses it, and then sell it to cover their costs. The bank will then be able to sue your daughter if there is any short fall on the financing. E.g. If she owes R20,000 on the vehicle, but the bank only sells it for R15,000 then the bank will sue her for the R5,000 still owing, plus legal fees.  Plus, the bank will need to pay the mechanic for the work done, as his lien over the vehicle also applies to the bank. 

My advice is that you try negotiate a cheaper price for the repairs, and time to make payments.