Asked by Marina on 12-09-2023 13:49:36
Question posted in the General Law category relating to Gauteng

Good afternoon

I require legal advice please.

Four months ago I purchased a car on my name for my fiancee, as he is on TPN for unpaid debt. 

We have in the interim split up and I requested the car back as I do not trust that he will continue making the payments timeously, even though he has been paying them up until this point.  He has refused to pay the shortfall which I will now be owing after I sell the car, as it is still so new.

He returned the car to my attorney last week and when I collected car from my attorneys I noticed that the interior was in a very bad state of negligence.  There are several bad scratches to the interior and the boot, and I have an idea that he used the car to move his belonings to his new home.

I have asked him in a very civil letter to please compensate me for the damages, as I am already going to be losing on selling the car when it is still so new (the shortfall will be large) and now I will be getting even less for the car due to the damages.

He is ignoring my email and refuses to download the video whereby I am showing all the damages he incurred.

What do I do?  Should I lay a charge of malicious damage to property - even though I presume it is a gross negligence matter.  Or do I send a letter of demand?  Or do I have no legal recourse whatsoever?  

Posted by Att. Patrick on 12-09-2023 14:00:45

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Posted by Att. Patrick on 12-09-2023 14:06:08

I'm really sorry to hear about the issues that you're having with your ex and the car. It can't be nice to have to deal with. 

I do not think that you have grounds to lay criminal charges of malicious damage to property, because (like you say) it sounds to me as if the scratches occurred as a result of moving furniture around. Not the best plan or idea, but it sounds like negligence to me, and nothing more. 

You should definitely send him a letter of demand. In the letter, you should claim for your damages. Ideally, you should sell the car so as to work out exactly what the shortfall is - based on the price that you can sell the car for, and the outstanding finance. You would then sue him for the shortfall. 

However, what I would also advise is that you send him an initial letter (i) giving him the opportunity to buy the car from you for the full outstanding amount, (ii) alternatively, advising him of what you intend doing. In this way, he can't turn around (in 2 months) and say "but I could have bought the car from you". It would then be too late. 

So, first a letter giving him the opportunity to buy the car and explaining what you will do if he doesn't buy it. Then you should sell the car and settle the finance and work out your shortfall. Then, send a letter of demand for the shortfall amount. If he doesn't pay, then it would be to sue him in the magistrates court (or the small claims court if the amount is R20k or less) and get a judgment against him. 

Patrick thank you so much for your detailed response. I have already asked him to buy the car from me but he could not get finance (he is on the credit bureau) and I did not want to wait for him to 'try to sell the car for me' because I did not trust that he will make the payments going forward, especially since the insurance payment for last month bounced.

I will definately submit a letter of demand for the shortfall. I should have this amount by the end of next week. He will not pay as he is ignoring my mails so I will have to sue him in magistrates thereafter.

Would you be able to do the letter of demand for me, in your personal capacity as an attorney, or does SA Legal not work on that basis?

Much appreciated.
Marina

Posted by Att. Patrick on 13-09-2023 09:47:43

I would not let him "sell the car for you". That would be a BAD idea. However, if he finds somebody who is interested in buying the car, he can always give that person your number and that person can contact you directly. 

Unfortunately the services offered by this website (I'm just a consultant, working as a lawyer on the panel) does not allow us to draft letters of demand for you - as part of the website services. We can only give you advice online. 

I can't refer you to a specific lawyer, but I can direct you to https://www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!

Thank you Patrick. One last question, if the damages were R50 000, and I wanted to take him to small claims court instead of magistrates, would I be able to waiver the R30 000 and still sue him for the R20 000? Or do the actual damages amount HAVE TO be R20 000 or less?

Posted by Att. Patrick on 14-09-2023 20:55:29

You can waive any excess amount in order to limit your claim to R20k so as to bring it into the small claims court jurisdiction.