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[2021] ZAWCHC 213
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Jacobs v Mostert (16942/2021) [2021] ZAWCHC 213 (25 October 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number: 16942/2021
Before: The
Hon. Mr Acting Justice Montzinger
Hearing: 11,
15 October 2021
Judgment: 25 October 2021
In the matter between:
SEAN JACOBS
Applicant
and
ANDRE NICO MOSTERT
Respondent
JUDGMENT
(DELIVERED BY E-MAIL ON MONDAY
25 OCTOBER 2021)
MONTZINGER
AJ:
[1]
Mr Jacobs approached this Court urgently, seeking an order compelling
Mr Mostert to
return a Powerstar Beifang Benchi truck, and to pay the
cost of the proceedings.
[2]
This Court finds that the matter was urgent. Mr Jacobs is
entitled to an order
compelling the return of the truck and the costs
of the proceedings. An order in these terms appears at the end
of this judgment.
The
dispute between the parties:
[3]
On 1 July 2020 Messrs Jacobs and Mostert concluded a written lease
agreement.
The agreement provided that commencing on 1
August 2020 Mr Mostert would lease the truck from Mr Jacobs at a
monthly rental amount
of R35 000.00. The truck was
described and identified between the parties as a Powerstar Beifang
Benchi Truck with VIN
and registration numbers LBZF56GA9AA04581 and
[….], respectively.
[4]
On 27 February 2021 the parties substituted the lease agreement with
a written sale
agreement. In terms of the sale agreement Mr
Jacobs sold the same truck to Mr Mostert in the amount of
R450 000.00.
The purchase price would be paid in 9 monthly
instalments of R50 000.00, of which the first was payable on 7
March 2021.
Importantly, clause 2.1 of the sale agreement
recorded that Mr Jacobs will remain the owner of the truck until such
time that the
full purchase price has been paid.
[5]
Mr Mostert failed to adhere to his payment obligations and on 6 May
2021 Mr Jacobs
took repossession of the truck. His actions were
however immediately reversed when the Magistrate’s Court
ordered him
to return the truck to Mr Mostert (by way of spoliation),
which he did.
[6]
Mr Mostert’s non-payment persisted and on 20 August 2021 Mr
Jacobs demanded
payment of the arrears failing which the sale
agreement will be cancelled. This threat fell on deaf ears and
on 23 September
2021 Mr Jacobs cancelled the sale agreement.
Upon cancellation Mr Mostert was requested to return the truck,
failing which
he was informed a court would be approached to compel
him to do so.
[7]
Mr Mostert refused and on 4 October 2021 Mr Jacobs issued an urgent
application out
of this Court seeking an order to compel the return
of the vehicle. The Court was requested to dispense and condone
non-compliance
with the rules that regulates service and form.
Secondly, to issue and order and compel Mr Mostert to return the
truck and
if there is non-compliance with the Court’s order to
authorise the Sheriff to attach the truck and return it to Mr Jacobs.
[8]
The matter was set down for hearing on 11 October 2021. On this
day Mr Mostert
filed an affidavit only challenging the urgency with
which Mr Jacobs approached the court. The Court prima facie
regarded
the matter as urgent and provided Mr Mostert an opportunity
to file an affidavit addressing the merits. After the exchange
of further affidavits, the matter was argued on 13 October 2021.
[9]
The issues for decision were: (a) whether the matter was urgent, (b)
if urgent, whether
Mr Jacobs has made out a case for the return of
his vehicle.
Urgency:
[10]
Generally two requirements are necessary to establish urgency.
Firstly, the circumstances
that renders the matter urgent must be set
out in the founding affidavit. Secondly an applicant must
explain why the same
or similar relief, being sought on an urgent
basis, could not be granted by a court at a later stage
[1]
.
[11]
Mr Jacobs terminated the sale agreement on 23 September 2021.
The cancellation letter gave
Mr Mostert 48 hours to return the
truck. He failed to do so. On 4 October 2021 proceedings
were issued in this Court
and on the same day Mr Mostert was
personally served with the court process. He thus had seven
calendar days’ notice
of the application.
[12]
While the notice of the hearing seems short, the founding affidavit
consisted of a mere six and
half pages, with minimum annexures.
Mr Mostert filed an answering affidavit consisting of also six pages
only attacking urgency.
No attempt to address the merits of the
matter was made.
[13]
When it comes to determining whether a matter is urgent, the type of
remedy at stake also influences
a court’s discretion whether to
condone non-compliance with its rules. Our law recognises
various proceedings that
have an element of inherent urgency to
them. These include amongst others: spoliation applications
[2]
,
matters involving minor children
[3]
,
insolvency proceedings and contempt of court applications
[4]
.
[14]
That inherent urgency underlies a claim for the return of property (a
vindication claim) is inferred
from the importance our law attributes
to this remedy. Firstly, in a claim for vindication our law
factually presume that
the owner will suffer harm if an interdict is
not granted
[5]
.
Secondly, the judgment of
Chetty
v Naidoo
[6]
has confirmed that ‘
it
is inherent in the nature of ownership that possession of the res
should normally be with the owner.
[15]
This Court is of the view that our law supports an approach that in
respect of a claim where
a litigant pursues vindication then the
proceedings always have an element of inherent urgency to it.
Particularly in circumstances
where the applicant complies with the
legal requirements for a right of vindication and the respondent
offers defences that does
not defeat the heart of the vindication
claim.
[16]
A vast number of authorities seem to support an approach that a court
should always endeavour
to restore possession to the owner as soon as
possible. This does not mean that a party can simply rely on
vindication and
be absolved from complying with the general accepted
principles of urgency. Especially
,
where the remedy of vindication involves evictions
[7]
or where there are other statutory prescripts laid down before
vindication can be pursued.
[17]
In this matter Mr Jacobs has cogently explained the reasons for the
urgency. He is the
owner and wishes to be in lawful possession
of the truck. He is suffering financial losses due to not being
able to utilise
the vehicle in order to mitigate the substantial
losses he incurred as a result of Mr Mostert’s breach of the
sale agreement.
Mr Jacobs is concerned that the vehicle is
being used every day and since the sale agreement is cancelled, he
has no knowledge
how the vehicle is being stored, used or maintained.
[18]
These facts in support of urgency are on point with various
judgments
[8]
where the court pointed out that a motor vehicle, particularly one
traversing rough rural roads, depreciates rapidly, and if the
vehicle
is eventually returned to the owner, it is entitled to have it
returned in the condition in which it was at the date he
sought to
enforce his claim for delivery.
[19]
It is thus apparent that Mr Jacobs cannot obtain relief at a later
stage that will put him in
a similar situation as he is in October
2021. Each day the truck remains in the possession of Mr
Mostert the risk of losing
the value of the asset is imminent and
real. Also, he is not pursuing damages but rather the return of
the vehicle.
[20]
This Court is of the view that as soon as the sale agreement was
lawfully cancelled Mr Jacobs
was entitled to return of the truck.
Since the terms of the sale agreement make it clear that he remains
the owner, and by
implication on cancellation the risk of the vehicle
return to him, he had no other option but to approach a court
urgently to protect
his right. The trigger event for the
urgency is thus the failure by Mr Mostert to rectify his breach.
[21]
Mr Jacobs therefore launched the application as soon as possible
after the 23
rd
of September 2021. Although this
Court is aware that there are events prior to 23 September 2021, what
obligated the urgency
is the fact that the risk burden shifted after
23 September 2021 and Mr Jacobs was thus perfectly entitled to
approach the court
in the manner that he did.
The law: Rei Vindicatio:
[22]
The owner of a thing has a right to possess, use, enjoy,
destroy and to alienate it. If any of these things are in any
way
infringed he has appropriate legal remedies like in this case a
rei vindicatio.
In the South African law context, the
rei vindicatio
action's importance is clearly articulated and
flows from the judgment of
Chetty v Naidoo
.
[23]
In order for an owner to succeed he must proof that: (a) he is the
owner of the truck;
(b) that the other party was in possession
of the truck at the time of the commencement of the application; and
(c) that the
item in question is still in existence and clearly
identifiable
[9]
.
The Constitutional Court has confirmed the legal requirements for
this remedy
[10]
.
[24]
It does not make any difference whether the possessor is
bona
fide
or mala
fide.
The owner of the
movable property found in the possession of a third party may recover
it from any possessor without having to compensate
him. Even
from a possessor in good faith who gave value for it. See:
Goudini Chrome (Pty)
Ltd v MCC Contracts (Pty) Ltd
1993
(1) SA 77
(A)
[11]
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd
1993
(3) SA 930
(A).
[25]
If the person claiming vindication can prove all the requirements,
the onus then shifts to the
person claiming a right to retain the
vehicle to establish such right
[12]
.
Evaluation of the evidence:
[26]
Mr Jacob’s case is succinctly set out. He alleges that he
is the owner. The
vehicle was in the possession of Mr Mostert
when the application was launched and that remains to be the case.
The truck
is also clearly identifiable.
[27]
Mr Mostert’s defences essentially consists of the following:
(a)
He is entitled to withhold payment of
approximately five (5) months as set-off of for payments against
damages and losses he allegedly
incurred as the result of Mr Jacob’s
repossession of the vehicle during May 2021.
(b)
Since Mr Jacobs unlawfully cancelled the
sale agreement and in effect committed repudiation of the sale
agreement. He exercised
his election which he had in law and
decided to hold Mr Jacobs to the agreement.
[28]
There is no dispute that Mr Jacobs is the owner of the truck bearing
registration
[….] and vin number LBZF56GA9AA04581. The
registration paper of the vehicle confirms this. The fact that
ownership
is not in dispute and that the vehicle exist in the hands
of Mr Mostert means that he must advance a case why he should retain
the vehicle.
[29]
The defence of set-off is unsustainable. The principle of
set-off only applies
in a situation where there are reciprocal debts
between the same parties that are certain and due
[13]
.
On application of the legal principle of set off to the facts of this
matter a claim for damages which Mr Mostert assert
cannot be set-off
against the claim for the return of the truck. There is no
reciprocal debt between the parties of which
amounts are certain and
due.
[30]
The second defence that no right to cancel exists in the sale
agreement, is also
without merit. Since the sale agreement does
not contain a breach clause Mr Mostert seems to suggest that Mr
Jacobs in fact
committed a breach himself, by first sending the
breach and later the cancellation notices. The proposition is
thus that
Mr Jacob’s attempt at cancellation constitutes a
conclusion that he no longer wanted to be bound by the sale
agreement.
He therefore committed an act of repudiation.
[31]
However, it was only during argument that the repudiation defence was
identified
and relied on. This defence is not apparent from the
answering affidavit, wherein Mr Mostert only denied that a right of
cancellation has accrued to Mr Jacobs.
[32]
In any event, on review of the various correspondence addressed to Mr
Mostert it
is evident that he never responded to the allegations Mr
Jacobs expressed in the letters alleging a breach and an entitlement
to
cancellation and a return of the truck. Nowhere does he
respond and raise the issue that the cancellation has not accrued,
and that Mr Jacob’s conduct is akin to repudiation.
[33]
This failure by Mr Mostert to respond to the material allegations in
writing has
the result of a negative inference drawn by this Court.
In
McWilliams
v First Consolidated Holdings
[14]
the court said:
“…
I
accept that “quiescence is not necessarily acquiescence”
(see
Collen
v
Rietfontein
Engineering Works
1948 (1) SA 413 (A)
at p 422) and that a party’s failure to reply to a letter
asserting the existence
of an obligation owed by such party to the
writer does not always justify an inference that the assertion was
accepted as the truth.
But in general, when according to ordinary
commercial practice and human expectation firm repudiation of such an
assertion would
be the norm if it was not accepted as correct, such
party’s silence and inaction, unless satisfactorily explained,
may be
taken to constitute an admission by him of the truth of the
assertion, or at least will be an important factor telling against
him in the assessment of the probabilities and in the final
determination of the dispute. And an adverse inference will the more
readily be drawn when the unchallenged assertion had been preceded by
correspondence or negotiations between the parties relative
to the
subject-matter of the assertion.
[34]
This Court is of the view that the approach adopted in the
McWilliams
v First Consolidated Holdings
judgment
is applicable in this case. This Court has no doubt that Mr
Mostert’s silence and inaction after receipt of
the various
letters justify an inference adverse to him. The inference is
that there was no misunderstanding in the mind
of Mostert. He
was aware that Mr Jacobs is entitled to cancellation and that this
right has accrued by virtue of his non-payment
and breach of the sale
agreement.
[35]
The contention that no right of cancellation accrued just because the
sale agreement
does not contain a cancellation clause, is also
refuted by the law. The legal principles are well established
in authorities
like
Qatorian
Properties (Pty) Ltd v Maroun
[15]
that if there is a breach of a term of a contract which goes to the
root of the contract, the innocent party is entitled to cancel.
In this matter non-payment of the monthly instalment goes to the root
of the contact and entitled Mr Jacobs to cancel.
[36]
Mr Mostert’s defences to the relief fail. Mr Jacobs is
thus entitled
to the relief he seeks.
[37]
Regarding costs, this Court could find no justification to depart
from the ordinary
rule that the successful party is entitled to
costs.
Conclusion and order:
[38]
The following order is made:
1.
The non-compliance with the uniform rules
relating to form and service is condoned and the matter is heard as
one of urgency.
2.
The respondent must return to the applicant
a Powerstar Beifang Benchi Truck with VIN/Chassis number
LBZF56GA9AA045815 and bearing
vehicle registration number [….]
within 72 hours of the granting of this order.
3.
If the respondent fails to return the
vehicle described at 2 above and within the stipulated time the
Sheriff of this Honourable
Court is then authorised to attach the
vehicle and deliver it to the applicant.
4.
The respondent to pay the applicant’s
costs on a party and party scale.
A
MONTZINGER
Acting
Judge of the High Court
Appearances:
Applicant’s
counsel:
Adv S Khoza
Applicant’s
attorney:
C Small Attorneys
Respondent’s
counsel:
Adv D Claassens
Respondent’s
Attorney:
RH Heydenrych & Associates
[1]
Salt
v Smith
1991
(2) SA 186
(NmHC) at 187 A – B
[2]
Mans
v Loxton Municipality
1948(1) SA 966 (C) at page 976; see also
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
2007
(6) SA 511
(SCA) par 21
[3]
B
v B
[2007] ZAGPHC 306
;
2008
(4) SA 535
(W)
at 541 H
[4]
P
rotea
Holdings (Pty) Ltd v Wriwt and another
1978
(3) SA 865
(W), 868H869A;
Wright
v Saint Mary’s Hospital, Melmoth and another
1993
(2) SA 226
(D), 228EF.
[5]
Motor
Distributors (Pty) Ltd v Rossman & another
1980
(3) SA 1164 (D)
[6]
1974
(3) SA 12
(A) 208 - D
[7]
Especially
claims in terms of the Prevention of Illegal Eviction Act 19 of
1998; the Extension of Security of Tenure Act 62 of
1997 (where the
High Court has jurisdiction by agreement) or matters involving the
National Credit Act 34 of 2005
[8]
VSA
Motor Distributors (Pty) Ltd v Rossman
1980 (2) PH A 58 (NPD) relying on a finding in
Kempster
Sedgwick (Pty) Ltd v Rajah
1959 (1) SA 314 (D)
[9]
See:
Silberberg and Schoeman’s, The Law of Property, 5
th
Edition
at pages 243 and 244
[10]
Van
der Merwe and Another v Taylor NO
and
Others
2008 (1) SA 1 (CC)
[11]
at 82
[12]
Dreyer
and Another NNO v AXZA Industries (Pty)
Ltd
2006
(50 SA 548 (SCA)
[13]
Schierhout
v Union Government
1926
AD 286
at 289 – 290
[14]
[
1982]
1 All SA 245
(A) 250;
1982 (20 SA 1
(A) 10 D - H
[15]
[1973]
4 All SA 1
,
1973 (3) SA 779
(A) 784