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[2011] ZAGPJHC 25
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Hollard Insurance Company Limited v Wagenaar, Paul t/a Racedesigns (36661/2010) [2011] ZAGPJHC 25 (7 April 2011)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
REPORTABLE
CASE NO
:
36661/2010
DATE:
07/04/2011
In the matter between:
THE
HOLLARD INSURANCE COMPANY LIMITED
..........................
Applicant
and
WAGENAAR,
PAUL t/a RACEDESIGNS
.......................................
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] In the Notice of Motion the
applicant seeks relief as set out in Part A, and Part B thereof. In
Part A, the applicant seeks
an order for the return to it of certain
motorcycles held by the respondent subject to a determination of the
respondent’s
claim to a lien in respect thereof. In the event
of a finding that the respondent indeed has a lien over the
motorcycles, the
respondent be ordered to accept security as
determined by the Court in lieu of its detention of the motorcycles.
The relief sought
under Part B is twofold. The first, that the
respondent renders an account to the applicant as to his dealings in
regard to the
motorcycles owned by the applicant. The second leg of
the relief is that the respondent be ordered to a debatement of such
account
to be rendered by the respondent to the applicant in respect
of applicant’s wrecks as listed in Annexure “Z” to
the Notice of Motion.
[2] The application is strenuously opposed by the respondent on
grounds set out later in this judgment.
[3] Some background is
necessary. The papers are rather bulky. A brief overview will
suffice. The applicant is an insurance company,
and in the context of
this case, it was in the business of short-term insurance specific to
insurance of motorcycles. The applicant
was the underwriter of
certain policies of insurance issued on its behalf by an insurance
intermediary called Apex Underwriting
Managers (Pty) Ltd (“
Apex
”)
to the erstwhile owners or
bona
fide
possessors (“
the
insured
”) of the
motorcycles listed in Annexure “Z” to the Notice of
Motion. Apex was appointed as insurance intermediary
in terms of the
provisions of
section 48(2)
of the
Short-term Insurance Act No. 53 of
1998
. These provisions require the appointment of an intermediary on
behalf of an insurer such as the applicant, to be made in terms
of a
written agreement with provisions as prescribed therein. In the
present matter, the relevant agreement forms part of the papers
as
Annexure “RA1” to the replying affidavit. The mandate of
Apex, as intermediary, was generally to administer, manage
and
underwrite in the name of the applicant, certain motorcycle insurance
policies underwritten by the applicant on the terms and
conditions
contained in the agreement between Apex and the applicant.
[4] The duties of Apex in terms
of the mandate are provided for in,
inter
alia
, clause 5.7.2 of
the agreement, as follows:
“
5.7.2
Apex shall:
receive, process and pay valid claims and external claims
costs subject to the provisions of clause 5.7.2.2 and 5.7.2.3;
not reject any claim or pay any ex-gratia payment without the
prior written approval of Hollard;
observe the utmost good faith towards insureds and Hollard in
the handling of or otherwise dealing with claims, failure of
which shall be considered to be a material breach of this
agreement;
when called upon to do so by Hollard, render to Hollard on
demand such assistance as Hollard may reasonably require with
respect of the handling, processing or investigation of claims;
notify Hollard in writing within one (1) working day of the
service on Apex of any legal processes relating to the Policies
and/or Hollard, or Apex receiving official notification of
impending legal action against them, the cost of such process
to
be paid from the Hollard/Apex Claims Account;
not complete or sign any claim form on behalf of an insured
save where the insured is unable to do so and/or the next of kin
cannot be located to do so in which event Apex shall act as agent
of the insured and not of Hollard;
handle recoveries and salvage arising out of Policies and
claims, liaising with Hollard’s Group Legal Division where
necessary, regarding inter alia, reports, the composition of a
panel of attorneys, loss adjusters, and surveyors;
insert into the System relevant details of all claims as soon
as possible after Apex receives notice of a claim from or on
behalf of an Insured, whether verbally or in writing, together
with estimates, where available, of Hollard’s potential
liability under such claim. When an estimate is not available
Apex shall allocate a realistic estimate to the claim intimated
in terms of guidelines agreed from time to time by the parties;
alter the claims status and data as appropriate from ‘claims
reported’ to ‘claims outstanding’ and then
to
‘claims paid’ and reflect such claims onto the System
on an ongoing basis.
[5] Apex was paid an
underwriting management fee for the services it provided to the
applicant in terms of its mandate calculated
on the basis set forth
in clause 7.1 of the agreement being a percentage of the total
premiums paid in terms of the policies per
annum. In terms of the
insurance policies the insured owners of the motorcycles were
indemnified,
inter
alia
, against loss
arising from damage to or destruction of the motorcycles.
[6] In the founding affidavit,
Mr G E Young, principal of the applicant, then acting managing
director of Apex, states that the
applicant is a 70% shareholder in
Apex. Further that in the event of a claim lodged by an insured, the
applicant has several options.
Should the applicant declare that the
motorcycle in question is a total loss, the applicant shall be
entitled to dispose of the
damaged motorcycle in a manner which it
considers reasonable and retain the proceeds of such disposal. In the
event of the applicant
establishing that the cost of settlement of
any claim or loss or damage to the motorcycle is more or equivalent
to the insured
value or market value, the applicant has the option to
declare that the motorcycle is uneconomical to repair, and regard the
motorcycle
as a total loss.
[7] In or during July 2007, the
applicant states that the respondent and the applicant, duly
represented by Apex, who in turn,
was duly represented by a Mr Renier
Terry Terblanche (“
Mr
Terblance
”),
entered into an oral agreement (“
the
deal
”). The
material terms of the deal were,
inter
alia
, that:
The respondent would pay the
applicant 40% for the salvage (“
the
40% salvage value
”)
of motorcycles, insured by the applicant, which were declared a
total loss (“
the
wrecks
”). The
respondent, a motorcycle mechanic, trading as Race Designs, would
rebuild the wrecks and sell same on behalf
of the applicant, (via
Apex) to third party purchasers. Upon the sale of the wrecks, and
receipt of the applicable purchase
consideration, the respondent
would pay Apex, who in turn, would account to the applicant as
follows:
The 40% salvage value;
Half of the profit obtained through the sale of a rebuilt wreck
after deduction of;
The 40% salvage value;
The respondent’s labour
and ancillary cost incurred in rebuilding the wrecks, (“
the
respondent’s obligation to account
”).
[8] Between July 2007 to July
2010, the applicant says a total of approximately 90 motorcycles
insured by it (through Apex) on
behalf of insured owners were damaged
variously in collisions. The damage resulted in the declaration of
total loss in respect
of such motorcycles under the insurance policy.
These damaged motorcycles were given to the respondent to handle in
terms of the
deal. At the time of the launching of the present
application, the applicant reasonably ascertained that there were
still about
40 wrecks at the respondent’s premises, at
Boksburg. These wrecks are listed in Annexure “X” to the
founding
papers (“
the
relevant wrecks
”).
The applicant duly settled the insured parties’ total loss,
whilst the insured parties’ objects of risk (i.e.
the
motorcycles which were involved in the collisions and which were
declared a total loss) were still in existence. At the time
of the
settlement of the total loss, (“
the
settled loss
”),
the relevant wrecks were in the respondent’s possession.
Furthermore, at the time of the settled loss, the applicant
contends
that ownership of the relevant wrecks transferred to it, and the
respondent accordingly held same on behalf of the applicant
and no
longer on behalf of the insured persons. In the alternative, the
applicant argues that, upon settlement of the total loss,
it obtained
a right to salvage. In or about 13 July 2010, the respondent
cancelled the deal by providing notice to Mr Terblanche
and Apex, as
indicated below.
[9] To all the above, as well as
the oral deal, the respondent, although admitting that the
motorcycles were delivered to him,
puts a completely slanted version
on how he gained the possession. In short, the respondent contends
that in the first half of
July 2007, he was approached by Mr
Terblanche with a proposition that the two of them enter into
business, which entailed that:
The respondent would assess motorcycles which were involved in
collisions for Mr Terblanche to determine if such motorcycles
were
capable of being economically repaired;
If such motorcycles were assessed as uneconomical to repair, the
respondent would salvage and proceed to repair the motorcycles;
and
would sell the rebuilt salvaged motorcycles for the benefit of
himself and Mr Terblanche.
[10] The respondent further
states that at that stage, he was aware that Mr Terblanche was
associated with Apex, and he believed
that Mr Terblanche was the
owner of Apex. He only discovered in July 2010 that Mr Terblanche
was only a 30% shareholder in Apex
and that the applicant held 70% of
the shares in Apex. He was, however, aware that Mr Terblanche had
business dealings with the
applicant. He was informed by Mr
Terblanche that Apex would acquire all the salvaged motorcycles from
the applicant in return
for payment to the applicant of a salvage
cost. The respondent says that the terms of the business arrangement
between him and
Mr Terblanche entailed,
inter
alia
, that he assessed
the motorcycles, Mr Terblanche would consider his assessment, and
would advise the applicant on whether the motorcycle
should be
written off. The motorcycles that were uneconomical to repair were,
on the advice of Mr Terblanche, registered into
the respondent’s
personal name or the name of Race Designs, namely his trade name.
The monies forming the profit made from
the rebuilt written off
motorcycles was deposited into the bank account of either Apex or the
applicant.
[11] The respondent states that
on termination of the business arrangement between him and Mr
Terblanche in July 2010, Mr Terblanche
attempted to remove from his
premises, all the salvaged motorcycles. However, on the advice of
his attorney, the respondent exercised
his lien over the motorcycles
as he has a counterclaim for,
inter
alia
, damages against
Mr Terblanche and/or Apex. In short, the respondent denies that he
was ever a party to an agreement, written or
otherwise, with the
applicant. He also disputes that the applicant is the owner of any
of the motorcycles in his possession. In
the final analysis, the
respondent raised certain points
in
limine
, namely that
the applicant has no
locus
standi
to launch the
present application; that the applicant has no cause of action
against him; and that there are substantial and
material disputes of
fact which cannot be resolved on affidavit.
[12] In the replying affidavit
the applicant, not only denies vehemently the contentions of the
respondent, but also proffers evidence
which misplaces completely the
version of the respondent in various respects. Significantly, is the
assertion that the alleged
business agreement entered into between
the respondent and Mr Terblanche, at that stage Apex’s managing
director, could not
have happened as Mr Terblanche would have
breached his fiduciary duties to Apex. The applicant entered into an
underwriter management
agreement with Apex, and not with Mr
Terblanche. In this regard, the applicant attaches to the replying
affidavit a copy of the
intermediary agreement between the applicant
and Apex. Further that, the respondent, on his own volition, concedes
that Mr Terblanche
was the
alter
ego
of Apex, and that
the respondent’s own version clearly contradicts his allegation
that the business proposal was between
the respondent and Mr
Terblanche in his personal capacity. In addition, that the
respondent’s concession that salvaged motorcycles
would first
have to be acquired from the applicant against payment of the salvage
costs:
it corroborates the fact that the respondent was well aware that,
at least prior to payment to the applicant of the salvage
costs,
such salvaged motorcycles were the property of the applicant; and
that until salvage costs were
paid to the applicant, such salvaged motorcycles remained the
property of the applicant. Further
that he was fully aware that
the motorcycles delivered to him were originally insured by the
applicant, and therefore the respondent
never became the owner of
any of the relevant wrecks.
[13] The applicant continues to
raise various issues and allegations, which in the view I take in the
matter, need not be fully
set out. These include that the banking
accounts of the intermediary agreement was the property of the
applicant; that the respondent
made various payments into the
applicant’s Claims Bank Account in respect of amounts due by
the respondent to the applicant
in regard to the salvage amounts;
the nature of the lien relied upon by the respondent; that the
respondent was acutely aware
of the applicant’s involvement and
role as underwriter; the internal audit carried out by the
applicant’s team at the
respondent’s premises on 22
October 2009; the documentary proof provided by the applicant
comprising schedules of insurance
and proof of payment to the insured
client; and/or the relevant finance house; and that the relevant
wrecks never became the property
of Apex, nor did Apex have a right
to salvage of the relevant wrecks at any stage. It was never the
business of Apex to purchase
wrecks for resale by it as contended by
the respondent. All of these allegations by the applicant, supported
by documentary proof,
were necessary, cast serious doubts on the
version of the respondent.
[14] I deal with some of the
legal principles applicable to this matter. As correctly argued by
counsel for the applicant, reference
to
Ivamy:
General Principles of Insurance Law
,
5ed, p 473, under the heading Rights (of subrogation) over the
subject-matter, is instructive:
“
Where,
notwithstanding the happening of a total loss, there is a sufficient
amount of salvage which possesses some value, the assured
cannot
claim both to receive from the insurers a full indemnity for his loss
and to retain the salvage, since he would thus be
more than fully
indemnified. It is his duty, therefore, on receiving payment in
full, to hand over to the insurers the salvage.
The title of the
insurers thereupon relates back to the date when the loss took place,
e.g. the date of the fire in the case of
fire insurance, and they
become to all intents and purposes owners of the salvage as from that
date and are, therefore, entitled
to take to themselves any advantage
to be derived from such ownership.
”
Indeed, the well-known decision
of the House of Lords in
Simpson
and Company and Others v Thomson (Thomson, Burrell and Others)
(1877) 3 App. Cas 279 (HL), by way of the speech of Lord Blackburn
enunciates the application of the principle in the context of
marine
insurance, as follows (at p 292 of the report):
“
My
Lord, I do not doubt at all that where the owners of an insured ship
have claimed or been paid as for a total loss, the property
in what
remains of the ship, and all rights incident to the property, are
transferred to the underwriters as from the time of the
disaster in
respect of which the total loss is claimed for and paid.
”
[15] The English law of
Insurance continues to have a major influence on South African
Insurance Law. For example, in
Trust
Bank Bpk v President Versekeringsmaatskappy Bpk
1998 (1) SA 546
(W), in the context of allegations by the insurer of
non-disclosure by the insured, at p 552 of the judgment, Van Zyl J
said:
“
Dit
beteken egter nie, soos ek die geleerde Regter se uitspraak verstaan,
dat die Engelse versekeringsreg eweneens as bron van die
Suid-Afrikaanse versekeringsreg omvergewerp word nie. Waar dit reeds
oor ‘n lang termyn as vrugbare regsbron alhier ingeburger
geraak het, soos op soveel ander gebiede van die handelsreg, sal dit
bly voortbestaan solank as wat die gemeenskapsopvatting
dit nodig ag.
”
[16] In
The
Modern Law of Insurance
,
2
nd
ed, the learned author Prof McGee, at p 542 para 40.38 states:
“
Where
the insurer pays for a total loss, either of the whole, or in the
case of goods of any apportionable part, of the subject-matter
insured, he thereupon becomes entitled to take over the interest of
the assured in whatever way remain of the subject-matter so
paid for,
and he is thereby subrogated to all the rights and remedies of the
assured in and in respect of that subject-matter as
from the time of
the casualty causing the loss.
”
Once more, in the South African
context, in Gordon and Getz,
The
South African Law of Insurance
,
4
th
ed, at p 252, the learned author states:
“
The
insurer, paying or pre-instating as on a total loss, is entitled to
surrender of the thing insured or what remains thereof,
by way of
salvage.
”
(See also footnote 41 on p 252 and pp 257-258.)
[17] In General Principles of
Insurance Law, November 2002, MFB Reynecke
et
al
, at p 291, para
404, the learned author states:
“
The
insurer’s right to salvage is concerned with those instances
where the insurer has paid the insured for a total loss but
where the
object of risk, or part of it, is still in existence. Where an
insurer has paid the insured for a total loss, it is,
depending on
the circumstances of the total loss, entitled as against the insured
to the remains of the object of risk or to the
recovered object as a
whole. This right is referred to as the insurer’s right to
salvage.
”
(See also
Amler’s
Precedents of Pleadings
,
6
th
ed p 201.)
[18] Based on the above legal
principles, and in the context of the present matter, it is clear
that the applicant became the owner
of the salvaged motorcycles once
it paid out the insured persons concerned. It was insured through
the intermediary, Apex. The
evidence is overwhelming in this regard.
The applicant has plainly succeeded to the title of the previous
owners/possessors of
the motorcycles in consequence of its position
as insurer in respect of the non-marine insurance. As argued,
correctly in my view,
by counsel for the applicant, the vesting in
the applicant of its salvage rights to the motorcycles follows
ineluctably from the
facts and circumstances of this matter, and have
not been effectively challenged by the respondent. The bald, and
unsubstantiated
assertions of the respondent to the contrary, and
that he was not aware of the involvement of the applicant when he
dealt with
Mr Terblanche, are without merit at all. There are
apparently some 40 motorcycles held by the respondent at his premises
in relation
to which the applicant has exercised its rights of
salvage. Indeed, there is more incredible in the version of the
respondent
on other aspects of this matter as shown below.
[19] I deal briefly with the
respondent’s contention that there are disputes of fact which
cannot be resolved on affidavit.
The approach of the Courts in
matters of this nature has been set out in various decided cases,
notably,
Stellenbosch
Farmer’s Winery Limited v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C), and
Wightman
t/a J W Construction v Headfour (Pty) Limited
and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA). It is unnecessary to repeat the trite
principles, but it suffices to apply same to the facts of this matter
briefly. The
exercise will show undoubtedly that there are no such
disputes of fact as alleged by the respondent. The respondent
viciously denies
ever having been a party to any agreement with the
applicant. This, in spite of the content of paragraph 2 of the
letter by the
respondent’s attorney, Annexure “FA6”,
where the fact of the applicant’s privity to the agreement is
plainly
admitted. However, the relief sought by the applicant in
terms of Part A of the Notice of Motion, as stated at the
commencement
of this judgment, plainly does not depend on the
question whether the applicant was a party to the agreement or not.
On the respondent’s
own version as to the terms of the
agreement he had with Mr Terblanche and/or Apex, there was always due
recognition of the rights
of the applicant in the motorcycles in any
event. The applicant’s salvage rights are in no way affected
by the agreement
alleged by the respondent. On the contrary, these
rights are acknowledged therein. The respondent himself cancelled the
alleged
agreement and as far back as July 2010.
[20] I have already dealt with
the applicant’s ownership of the wrecks. The respondent’s
version, once more, is a bare
denial of such ownership. The nature of
the relief sought by the applicant is final in form. The applicant’s
entitlement
to the relief, as correctly argued by its counsel, must
accordingly be adjudicated by reference to the facts as stated by the
respondent
together with the admitted facts in applicant’s
affidavit. Where it is clear that facts, although not formally
admitted,
cannot be denied, they must be regarded as admitted. This
well-known rule was qualified in an even well-known
dictum
by Corbett JA in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. In addition, in my view, the
approach set out in
Soffiantini
v Mould
1956 (4) SA
150
(E) is pertinently applicable to all the bald and large
unsubstantiated allegations of the respondent. At p 154G-H of that
judgment,
Price JP, said:
“
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits.
”
[21] Looked at very closely, the
respondent’s version plainly reveals that the alleged disputes
of fact are neither real,
genuine or
bona
fide
, as envisaged in
Wightman t/a J W
Construction v Headfour (Pty) Ltd and Another (supra)
371 (SCA) at para [13]. There are numerous examples on the papers
which so characterise the version of the respondent. In the
heads of
argument, the applicant rather eloquently sets out such examples. It
is unnecessary to repeat such for present purposes.
The upshot is
that the version of the respondent on the alleged disputes of fact
qualifies to be rejected merely on the papers.
This conclusion
naturally impacts on the other alleged disputes which are clearly
also not real, genuine or
bona
fide
.
[22] The allegations contained
in paras 14 to 19 of the founding affidavit, as dealt with earlier in
this judgment, are plainly
crucial to the relief sought. The
respondent’s response thereto has also been sketched
extensively above. What is of particular
significance in the
respondent’s response to the crucial allegations as displayed
in para 27 of his answering affidavit,
which reads as follows:
“
Save
to admit that the motorcycles were delivered to me in terms of my
arrangement with Terblanche, the remainder of the allegations
is
[sic]
denied and the Applicant is put to the proof thereof.
”
Flowing therefrom, counsel for
the applicant argued, correctly in my view, that the manner in which
the respondent deals with applicant’s
pointed allegations is
wholly inadequate. This, having regard to the trite procedure that a
party to motion proceedings is bound
to deal clearly and
unambiguously with every material allegation of fact. Once more, the
conclusion that the respondent’s
denial of the allegations in
this regard can hardly be labelled as raising a real, genuine, and
bona fide
dispute of fact. There are indeed numerous other shortcomings in the
version of the respondent, which can be identified randomly.
For
example, in para 16 of the answering affidavit, the respondent simply
disputes that the applicant is the owner of any of the
motorcycles in
his possession. This tactic is a complete reversal of his version.
On 21 July 2010, barely a week after the respondent,
on his own
version, had cancelled the alleged business arrangement with Mr
Terblanche, his attorneys addressed a letter to Apex,
for the
attention of Mr Terblanche. The letter is Annexure “FA2”
to the founding affidavit. There are two visible
and remarkable
paragraphs in the letter. In para 2.1 of the letter, the
relationship between the respondent and Mr Terblanche
is described as
being a “
verbal
salvage-contract relationship
”,
and in para 3.3 of the same letter, the assurance is given that the
respondent will complete the repairs to the motorcycles
in terms of
the relationship described in the paragraph above, “
to
the satisfaction of Hollard Insurance Company
”.
The latter, of course, refers to the applicant. From this, it can
reasonably be inferred that, the respondent, as an active
participant
in the insurance salvage industry, was at all material times well
aware of the meaning of salvage. It can also be
so inferred that at
all material times respondent was well aware that the rights to
salvage in relation to the motorcycles reposed
in the applicant.
[24] It is also noteworthy, as
pointed out on behalf of the applicant during argument, that in none
of the respondent’s correspondence
addressed to the applicant,
does the respondent pertinently dispute the applicant’s
ownership of the wrecks as contended
for by the applicant. Nor does
the respondent dispute the applicant’s entitlement to the
return thereof, save for the respondent’s
alleged lien, which
issue I deal with later below. The respondent also makes no
allegation at all that the salvage costs for the
wrecks in his
possession were paid for by either the respondent, or Mr Terblanche
or Apex , in order to allow ownership to pass
from the applicant to
Apex or Mr Terblanche. The applicant’s right to the
motorcycles has been established overwhelmingly
and more than on a
balance of probabilities. In any event, the applicant’s rights
equate at least to those of a
bona
fide
possessor. This,
because the applicant succeeded to the position of the various
insured persons who, in turn, were either out
and out owners or
bona
fide
possessors of the
merx
subject to credit agreements. In either event, the applicant is
entitled to the return of the motorcycles.
[25] I deal with the respondent’s allegedly lien over the
wrecks. In para 10 of the answering affidavit, the respondent
describes the lien in the following terms:
“
I
exercised a lien on the motorcycles as I have a counter-claim for
inter alia damages against Terblanche and/or Apex. I am still
in the
process of quantifying my claim.
”
This ambiguous allegation does
not provide an adequate basis for the existence of a lien. In
relying on a lien, the respondent
must allege and prove,
inter
alia
, the actual
expenses and extent of the enrichment of the applicant. See, for
example,
Brooklyn House
Furnishers (Pty) Ltd v Knoutze and Sons
1970
(3) SA 264
(A). In
King’s
Hall Motor Co v Wickens and McNicol
1931 (N), 37, Hathorn AJ, at p 44 said:
“
In
Abelman v Weeber,
(1928) T.P.D., 398
, it was held that the person
claiming a salvage lien for useful expenses must prove the actual
amount expended. In my opinion
that is clearly the case also in
respect of a salvage lien for necessary, because there is no
difference in principle between the
two kinds of expenses. The
respondents did not prove that they were put to any expenses
whatever. They did not even attempt to
do so. The first essential,
therefore, is lacking.
”
[26] In the present matter, in
the absence of any other lien expressly identified and raised by the
respondent, he has no valid
grounds for retaining possession of the
wrecks. In the letter addressed by the respondent’s attorneys
on 21 July 2010, Annexure
“FA2”, referred to above, no
mention at all is made of an alleged ground for his lien. In any
event, it is not in
dispute that the wrecks sought to be returned to
the applicant, save for 3 of them, have not been worked on or
rebuilt, and accordingly
no lien can exist in respect thereof. See
in this regard
Lamontville
African Transport Co (Pty) Ltd v Mtshali
1953 (1) SA 90
(N), 93F-H. At best for the respondent, on a proper
construction of his rather problematic version, it would seem, as
argued on
behalf of the applicant, that he intends to refer to a
debtor creditor lien, which, not being real in nature, whilst
enforceable
against Apex or Mr Terblanche, is not so enforceable
against the applicant. On the objective facts, there is simply no
lien whatsoever
in existence.
[27] In view of the finding that
no lien of whatsoever nature exists, it is unnecessary to consider
the applicant’s offer
that the respondent be ordered to accept
security in lieu of its detention, of the motorcycles. However, I do
find it necessary
to consider the applicant’s other relief
sought. That is that the respondent be ordered to render an account
to the applicant
as to his dealings in regard to the motorcycles
belonging to the applicant, and a debatement of such account. I
proceed to do
so instantly.
[28] In
Amler’s
Precedence of Pleadings (supra)
at p 1, the learned authors state:
“
The
object of a claim for an account and debate is to enable the claimant
to establish whether the other party is indebted to the
claimant. The
typical claim is for delivery of an account, a debate thereof and
payment of the amount found to be due. A final
order cannot issue
before debatement. Brown v Yebba CC t/a Remax Tricolor
2009 (1) SA
521
(D).
”
Counsel for the applicant
referred the Court to a passage in
Doyle
and Another v Fleet Motors P.E. (Pty) Ltd
1971 (3) SA 760
(A) at p 762F, which reads:
“
The
plaintiff should aver –
his right to receive an
account, and the basis of such right, whether by contract or by
fiduciary relationship or otherwise.
”
He placed emphasis on the words,
“
or otherwise
”,
in the passage just quoted. Counsel for the applicant proceeded to
submit that the words emphasised suggest that there
is no
numerus
clausus
of grounds on
which to base an action for an account. It was therefore submitted
that the applicant is entitled to an account
from the respondent,
even upon an acceptance of the respondent’s version. I agree.
[29] Indeed the proven facts
show that the respondent was aware of the applicant’s rights in
the rights of salvage in the
motorcycles. He must therefore have been
aware that Apex dealt with him in a representative capacity, and not
as a principal.
If so accepted, the respondent is in possession of
the motorcycles with knowledge of the applicant’s rights in
relation thereto.
The applicant’s right to demand an account
from the respondent in relation to the respondent’s dealing
with the applicant’s
property becomes indisputable. In the
letter of 17 August 2010 addressed by the applicant to the
respondent, Annexure “FA5”
to the founding affidavit, the
applicant demanded,
inter
alia
, an accounting.
In response thereto, and in a letter addressed by the respondent’s
attorneys to the applicant on 19 August
2010, Annexure “FA6”
to the founding affidavit, the respondent indeed undertook to provide
an account by 27 August
2010. The undertaking was accepted by the
applicant, and is accordingly binding on the respondent. He is not at
liberty to simply
ignore it as now contended by the applicant.
[30] The attempt made by the
respondent subsequently to render such account proved hopelessly
inadequate. This is clear from the
subsequent letter addressed by
the respondent’s attorneys to the applicant’s attorneys,
Annexure “FA11”
on 6 September 2010, which stated,
inter
alia
, that:
“
My
client is still busy with these calculations.
”
As at the date of the hearing,
the respondent appeared to be no closer to a conclusion of his
calculations, and the accounting,
as promised, was still outstanding.
The argument advanced by the applicant that the respondent is
plainly using his possession
of the motorcycles as a means of holding
the applicant to ransom, has merit. He is yet to institute his
threatened action for
damages against Apex. The same may easily and
reasonably be said about his undertaking to render an account. In my
view, the applicant
has made out a case for an accounting. The
respondent’s argument that a claim for a statement and
debatement lies against
Apex and not the respondent, has no merit at
all.
[31] To sum up. On the
conspectus of the entire credible evidence, and save as indicated in
this judgment, the applicant has made
out a case on a balance of
probabilities for the relief claimed in the Notice of Motion.
[32] In the result the following order is made:
An order is granted in terms of prayer 1, in particular prayers 1.1,
1.1.1, 1.1.2 and 1.2 under Part A of the Notice of Motion
dated 13
September 2010.
The respondent is ordered to pay the costs of Part A of this
application.
An order is granted in terms of prayers 5, 6, 7 and 8 of the Notice
of Motion dated 13 September 2010.
The costs orders shall include
the costs consequent upon the employment of two counsel.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT W
VERMEULEN SC
ASSISTED BY H P VAN
NIEUWENHUIZEN
INSTRUCTED BY MARQUES SOARES
FONTES
ATTORNEYS
COUNSEL FOR THE RESPONDENT C
MCKELVEY
INSTRUCTED BY C COETZEE
ATTORNEYS
DATE OF HEARING 25 NOVEMBER
2010
DATE
OF JUDGMENT 7 APRIL 2010