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[2016] ZASCA 127
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Absa Technology Finance Solutions (Pty) Ltd v Fulela Trade and Invest 21 (Pty) Ltd t/a Caltex the Downs Service Station and Another (519/2015) [2016] ZASCA 127 (26 September 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
No: 519/2015
In
the matter between:
ABSA
TECHNOLOGY FINANCE SOLUTIONS (PTY)
LTD
APPELLANT
and
FULELA
TRADE AND INVEST 21 (PTY) LTD
t/a
CALTEX
THE DOWNS SERVICE STATION
FIRST RESPONDENT
PATRICIA
NONHLANHLA KHANYILE
SECOND RESPONDENT
Neutral
citation
:
Absa
Technology Finance Solutions v Fulela Trade and Invest
(519/2015)
[2016] ZASCA 127
(26
September 2016)
Coram
:
Lewis, Shongwe, Swain, Dambuza and Mocumie JJA
Heard
:
14 September 2016
Delivered:
26
September 2016
Summary:
Absolution
from the instance erroneously granted – no onus to prove
admitted issue – matter remitted to trial court.
Order
On
appeal from:
Gauteng
Local Division, Johannesburg
(Satchwell
J sitting as court of first instance).
1
The appeal is upheld with costs.
2
The order of absolution from the instance together with the costs
order are set aside.
3
The matter is remitted to the trial court.
4
The appellant is ordered to pay the respondent’s costs in
respect of the application to supplement the record, such costs
being
limited to those documents of relevance to the issues contained in
the respondent’s amended plea.
JUDGMENT
Swain
JA
(Lewis,
Shongwe, Dambuza and Mocumie JJA concurring):
[1]
The
hire of a generator by the first respondent, Fulela Trade and Invest
21 (Pty) Ltd, initially from the supplier, Easytech, and
thereafter
from the appellant, Absa Technology Finance Solutions (Pty) Ltd, in
terms of a Master Rental Agreement (MRA), gave rise
to a dispute
which forms the subject matter of this appeal.
[2]
The
appellant instituted action in the Gauteng Local Division,
Johannesburg against the first respondent, based upon an alleged
failure by the first respondent to pay rentals when due. A failure by
the second respondent, Dr Patricia Khanyile, in her capacity
as
surety and co-principal debtor with the first respondent, to make
payment of the rentals when called upon to do so, was also
relied
upon. The appellant sought payment of the amount of R296 422,94
in respect of the full amount outstanding, as well
as the return of
the generator and its retention by the appellant, pending payment by
the first and / or second respondent.
[3]
After
hearing the evidence of the parties, the trial court (Satchwell J)
stated that (paras 18 and 21):
‘
The
MRA was signed on 14
th
April 2008. However, neither the documentation nor the pleadings nor
the evidence of Maritz [who testified for the appellant] support
acquisition by ABSA of any rights to the generator prior to the
signing of the MRA. There is no evidence that ABSA was the owner
of
the generator and was entitled to conclude such an agreement on 14
th
April – which is the commencement date of the MRA.
.
. .
In
short, I am not satisfied that ABSA has shown that it was entitled to
conclude this MRA since it has not even attempted to show
any
intervening agreement with Easytech which entitled ABSA (instead of
Easytech) to hire out or rent the generator to defendants.’
Thereafter
it was concluded (para 27):
‘
Accordingly,
absent discharge of the onus by Plaintiff, I have decided to grant
absolution from the instance.’
[4]
The
trial court held it was accordingly unnecessary to deal with any of
the defences raised by the respondents. These defences included
an
allegation that the true nature of the MRA had been misrepresented to
the second respondent, she had signed the MRA under duress
and the
respondents were accordingly entitled to be released from their
obligations in terms of the MRA. In addition, it was alleged
that the
MRA had been cancelled, because the generator which had been
delivered was not in accordance with the respondents’
requirements. The present appeal is with the leave of the trial
court.
[5]
The
trial court recognised that its finding that the appellant did not
possess what it termed locus standi to conclude the MRA,
had not been
pleaded by the respondents. However, it decided that this issue was
fully canvassed at trial and was a point of law
which it was
entitled, and indeed obliged, to deal with and decide.
[6]
In
this the trial court erred. The respondents in their plea admitted
that on 14 April 2008 the first respondent entered into the
MRA,
which was signed by the second respondent personally and on behalf of
the first respondent. The respondents then sought to
be released from
their obligations in terms of the MRA, on the basis of the defences
set out above. It was accordingly common cause
and no part of the
dispute between the parties, as defined by the pleadings, that the
appellant and the respondents had concluded
a binding lease agreement
in the form of the MRA. This was not a case where the respondents
failed to plead an inability on the
part of the appellant to conclude
the MRA, but one where the respondents admitted its conclusion with
the appellant. The trial
court was not entitled to find that the
appellant had failed to prove it was entitled to conclude the MRA,
when its conclusion
was common cause between the parties.
[7]
The
trial court also concluded that there was no evidence that the
appellant was the owner of the generator and therefore entitled
to
conclude the MRA. Clause 2 of the MRA, however, provides that
ownership of the goods vests in the appellant. Clause 4.4 stipulates
that the goods have been acquired by the ‘hirer’ (being
the appellant) at the ‘user’s’ request (being
the
first respondent) for the purposes of renting the goods to the first
respondent. It was therefore agreed between the parties
that the
appellant was the owner of the goods. In any event, property
belonging to a third party may lawfully be let to another.
The lessor
is only obliged to give the use and enjoyment of the property let to
the lessee, and once this obligation is fulfilled
the lessee is not
entitled to question the lessor’s lack of title.
[1]
The trial court consequently erred in concluding that the appellant
lacked locus standi to conclude the MRA, because it had not
proved it
was the owner of the generator.
[8]
It
is unfortunate that the parties have been subjected to the expense
and delay of these appeal proceedings, which will not result
in a
resolution of the dispute between them. It will be necessary for the
matter to be remitted to the trial court for determination
of the
issues between the parties. In the absence of any findings by the
trial court as to the merits or demerits of the witnesses
which it
had the advantage of seeing and hearing, this court is not in a
position to fairly and properly evaluate the evidence.
[9]
As
regards the costs of the appeal, there is no reason why the appellant
should not be entitled to its costs. Although the misdirection
by the
trial court was obvious, the appeal was opposed by the respondents.
The record placed before this court by the appellant
was however
incomplete and despite the respondents’ best endeavours was not
rectified by the appellant. This resulted in
the respondents applying
for the record to be supplemented, by the inclusion of a further
volume which was granted without opposition
by the appellant. In so
far as the costs of this application are concerned, the respondents
should be entitled to their costs,
but only in so far as the
documents they sought to introduce into the record, were of relevance
to the issues contained in their
amended plea. In addition, the
Taxing Master, in taxing the appellant’s costs of the appeal,
should have regard to the incomplete
state of the record filed by the
appellant.
[10]
Regrettably,
it is also necessary to comment upon the manner in which the trial
court dealt with counsel during the hearing. The
following extracts
from the record are illustrative:
‘
COURT
:
That is not what I asked. I do not think you and I speak the same
language. So, I tell you what, I am not going to ask you anymore
questions but it means you do not solve my problems. I will ask this
question once more. Okay, and if you do not understand, ask
your
attorney to translate, okay.’
and
‘
COURT
:
I am going to take the adjournment, because otherwise Mr Du Randt I
am going to be very rude to you. Think about it, perhaps ask
your
attorney, the word is manners, m-a-n-n-e-r-s. Do you actually finish
somebody’s sentence for them when they are speaking
and the
answer is no. So I am going to take an adjournment. You can think
about yourself.’
A
reading of these passages in context reveals that the remarks
directed at counsel were intemperate and unjustified. Although robust
questioning of counsel by a judicial officer may be justified,
gratuitous insults are not.
[11]
In
the result the following order is made:
1
The appeal is upheld with costs.
2
The order of absolution from the instance together with the costs
order are set aside.
3
The matter is remitted to the trial court.
4
The appellant is ordered to pay the respondent’s costs in
respect of the application to supplement the record, such costs
being
limited to those documents of relevance to the issues contained in
the respondent’s amended plea.
K G
B Swain
Judge
of Appeal
Appearances:
For
the Appellant:
F Bezuidenhout (with I Tshoma) (Heads of argument prepared by F
Bezuidenhout)
Instructed
by:
Jay
Mothobi Inc, Johannesburg
E G
Cooper Majiedt Inc, Bloemfontein
For the
Respondent:
W H Pocock
Instructed
by:
Fluxmans
Inc, Johannesburg
Lovius
Block, Bloemfontein
[1]
Hillock &
another v Hilsage Investments (Pty) Ltd
1975 (1) SA 508
(A) at 516E;
Boompret
Investments (Pty) Ltd & another v Paardekraal Concession Store
(Pty)
Ltd
1990 (1) SA 347
(A) at 351H-I.