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[2011] ZAGPJHC 251
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Absa Bank Limited v Mykatrade 361 CC t/a CMC Boksburg (46917/2010) [2011] ZAGPJHC 251 (9 December 2011)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 46917/2010
DATE:
09 DECEMBER 2011
In
the matter between
ABSA
BANK
LIMITED
...........................................................................................................
Applicant
And
MYKATRADE
361 CC t/a CMC
BOKSBURG
..................................................................
Respondent
JUDGMENT
EF
Dippenaar AJ
[1]
This is an application for an order in
terms of which the Applicant seeks an order that the Respondent be
directed to forthwith
deliver certain documents relating to five
motor vehicles to the Applicant. Both parties claim ownership
in and to the said
vehicles.
[2]
It is common cause between the parties that
the Applicant is currently in possession of the aforesaid motor
vehicles, having obtained
possession of them pursuant to an Order
granted by the Eastern Cape High Court, Grahamstown in it its favour
under Case Number
2789/2009, provisionally on 16 July 2009 and
finally on 13 August 2009. The respondent in that application was CMC
East London
Distributors CC.
[3]
The Respondent, who was not a party to
those proceedings, has instituted rescission proceedings against that
Order relating to the
motor vehicles here in question. It contends
that appropriately, these proceedings should have been consolidated
and moved to the
Eastern Cape High Court to be determined with the
rescission application. I have no detail of the nature and extent of
the papers
in that application and have not been favoured with those
papers. There is however no formal application for such relief before
me and I need not determine this issue.
[4]
The present application before me relates
to obtaining certain eNatis documents relating to vehicles which are
currently in possession
of the Applicant, pursuant to the aforesaid
Court Order. The parties are undoubtedly aware of the risks involved
of selling the
vehicles before the proceedings in the Eastern Cape
High Court have been determined, and I need not dwell on this issue.
[5]
The Applicant contends that it is the owner
of the said vehicles and is accordingly entitled to the said
documents.
[6]
The Applicant in the alternative seeks a
referral of the matter to the hearing of oral evidence in the event
that there is a
bona fide
and genuine dispute of fact on the papers. The Applicant however
primarily contends that no genuine dispute is raised by the
Respondent,
that the issue of ownership is a legal one and that it is
entitled to the relief sought.
[7]
The Respondent agrees that it is central to
the dispute which of the parties is the owner of the said five
vehicles and in turn
contends that it is the owner of the said
vehicles and that the application falls to be dismissed with costs.
[8]
The Respondent contents that to the
knowledge of the Applicant, there were serious factual disputes
regarding ownership of the vehicles
and that application proceedings
were inappropriately instituted. It contends that the application
should be dismissed on this
basis alone.
[9]
The Respondent has further challenged the
authority of the deponent to the Applicant’s affidavit, Crause,
to represent it
in the proceedings and contends that Applicant’s
attorney is not properly authorised. I am of the view that
there is
no merit in this point and am of the view that the
resolution attached by the Applicant to its replying affidavit is
sufficient
to provide the necessary authority. The resolution is
clear in its terms and requires no further comment.
[10]
The central issue which needs to be
determined is whether the question of ownership can be determined on
the papers in the present
proceedings and whether the Respondent
obtained ownership in and to the five vehicles or whether the
Applicant is the owner thereof.
[11]
There appears to be a number of factual
disputes on the papers, but the question is whether those disputes
impact on the issue of
ownership or whether the issue is capable of
determination on the papers as based on common cause and/or
undisputed facts.
[12]
Mindful
of the relevant principles enunciated,
inter
alia
,
in
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1]
,
I have considered the Respondent’s version carefully, together
with the admitted facts set out in the Applicant’s affidavits.
I am of the view that the matter can be decided on paper and that a
referral to trial would not be appropriate.
[13]
The Respondent’s version amounts to
the following:
[13.1]
The Respondent was registered as a close
corporation during 2009 and commenced trading on the 1
st
of March 2009, although no proof of such allegations are provided.
[13.2]
When it commenced trading, the Respondent
had no dealer code in order to secure finance for purchasers of
vehicles and CMC East
London, the Respondent in the Eastern Cape High
Court matter referred to above, agreed to allow the Respondent to use
its dealer
code.
[13.3]
The Respondent alleges that an agreement
was concluded with CMC East London, but a paucity of detail regarding
thereto is provided
by the Respondent. It further alleges that it was
agreed that CMC East London would purchase new vehicles from CCE
Holdings and
the Respondent would pay CCE Holdings for such
vehicles. In order to obtain finance for its customer, it would
utilise the
services of CMC East London. CCE Holdings would
thereafter deliver the vehicles to the Respondent at Boksburg and
payment would
be made to CMC East London.
[13.4]
It bears mentioning that the vehicles had
been found by the Applicant in East London in the possession of CMC
East London. I return
to the issue of delivery later.
[13.5]
Once the Respondent sold the vehicles, CMC
East London would complete the necessary documentation and utilise
its dealer code to
secure finance for the Respondent’s customer
and would retain any commission paid.
[13.6]
The Applicant would then pay CMC East
London for the vehicles in terms of a written floorplan agreement
concluded between it and
CMC East London and the latter would pay
such amount to the Respondent less the commission.
[13.7]
The Respondent further alleges that during
April 2009, it purchased three vehicles from CCE Holdings and paid
for those vehicles
whereafter the Respondent took delivery of the
vehicles. CMC East London arranged finance for the payment of the
vehicles and retained
the commission, but failed to pay the purchase
price to the Respondent upon receipt thereof.
[13.8]
During April / May 2009, the Respondent
demanded payment of the aforesaid amount. As CMC East London could
not pay, it offered to
pay its indebtedness to the Respondent by
delivery of five other motor vehicles (being the vehicles here in
issue) to the value
of the amount owed to the Respondent by CMC East
London.
[13.9]
The Respondent contends that it was then
arranged that CMC East London would obtain the eNatis documents from
CCE Holdings in order
to enable the Respondent to register the
vehicles as dealer stock at its premises in Boksburg.
[13.10]
It contends that CMC East London did so and
thereafter handed the eNatis documents to the Respondent. The
Respondent then
entered the vehicles in its register as “dealer
stock”, without the vehicles being on its floor.
[13.11]
The Respondent contends that it is the
owner of the said vehicles as delivery of the import certificates and
eNatis documents had
been given to it and it had registered the
vehicles in its name. It further contends that CCE Holdings delivered
the vehicles to
CMC East London on behalf of the Respondent.
[13.12]
It does however not appear to me from the
papers that CCE Holdings was aware that delivery of the vehicles was
to be made, not to
CMC, but to the Respondent, nor is such an
averment made by the Respondent. This too is important in the context
of delivery.
[14]
The contention of ownership is the only
defence raised by the Respondent to the relief sought. It must
accordingly be determined
whether the Respondent has proved that it
is the true and lawful owner of the five vehicles.
[15]
The Applicant’s version on the other
hand, is the following:
[15.1]
It purchased the vehicles from CCE Holdings
on behalf of CMC East London in terms of a written floorplan
agreement, which is to
be read with a written agency agreement, both
having been concluded between the Applicant and CMC East London.
[15.2]
In terms of the aforesaid agreements,
ownership of the vehicles vested in the Applicant until payment was
received in full in respect
of all five vehicles.
[15.3]
Delivery of the vehicles to the Applicant
took place by delivery to CMC East London.
[15.4]
At the time when CCE Holdings delivered the
vehicles to CMC East London, it had the intention of transferring
ownership to the Applicant
and CMC East London held the vehicles as
agent for and on behalf of the Applicant who became the owner
thereof.
[15.5]
The Applicant paid the full purchase price
of the vehicles to CCE Holdings.
[15.6]
The Applicant accepted delivery of the
vehicles with the intention of becoming owner thereof and became
owner of the said vehicles.
[15.7]
The floorplan agreement concluded between
it and CMC East London was thereafter cancelled after which the
Eastern Cape High Court
granted an Order whereby CMC East London was
ordered to return the vehicles to the Applicant, which Order was
executed.
[16]
In summary the Applicant contends that:
[16.1]
A valid agreement had been concluded
between the Applicant and CCE Holdings.
[16.2]
Valid delivery of the vehicles took place
to CMC East London on behalf of the Applicant and the Applicant
inspected the vehicles
in order to ensure that the vehicles were at
the premises of CMC East London.
[16.3]
CCE Holdings at all times intended to
transfer ownership to the Applicant and not to CMC East London or to
the Respondent and the
Applicant at all times intended to acquire
ownership and accept delivery.
[16.4]
The Applicant obtained delivery, by
delivery of the vehicles to CMC East London and eventually obtained
physical delivery of the
vehicles subsequent to an Order granted by
the Eastern Cape High Court.
[17]
These facts are not strenuously contested
by the Respondent, other than contending that pursuant to the
cancellation of the floorplan
agreement, the Applicant could no
longer retain ownership of the vehicles. I do not agree with this
argument as once ownership
was obtained, it was retained until at
least another real agreement was concluded and the Applicant formed
the intention to transfer
ownership to another party. It is
common cause that this never occurred.
[18]
The Applicant relies on its ownership of
the said vehicles for the current relief sought. The Respondent
relies on its ownership
of the vehicles for its right to defeat the
Applicant’s claim and to retain the eNatis documents. Insofar
as the issue of
an onus is relevant, I shall consider the matter on
the basis that the Applicant must prove its entitlement to relief.
Even if
I am wrong on this issue and the onus is ultimately on the
Respondent, for purposes of considering this application, I have gone
from the premise that the Respondent at least has a duty to adduce
evidence in support of its contentions so that its version can
be
considered in accordance with the principles in
Plascon-Evans,
supra
.
[19]
This matter further requires an analysis of
the relevant principles applicable to the transfer of moveable
corporeal things.
[20]
The Respondent relies upon derivative
acquisition of ownership:
[20.1]
by CMC East London from CCE Holdings; and
[20.2]
thereafter by CMC East London on behalf of
the Respondent.
[21]
For derivative acquisition of ownership of
a movable, such as a vehicle, delivery of the vehicle to the acquiree
is required. Delivery
can take place either through actual delivery
or fictitious delivery, such as
constitutum
possessorium, attornment, tradition brevi manu
or through delivery to an agent.
[22]
For
the passing of ownership by delivery, there must be compliance with,
inter
alia,
the
following requirements
[2]
:
[22.1]
The transferor must be capable of
transferring ownership. In accordance with the
maxim
nemo iuris ad alium transfere potest quam ipse haberet,
a
non-owner cannot transfer ownership;
[22.2]
At
the moment of the passing of ownership, the transferor must have the
intention of transferring ownership and the transferee must
have the
intention of accepting ownership (the so called “real
agreement” between the parties)
[3]
;
[22.3]
Delivery must take place in a form which
the law allows;
[22.4]
The purchase price must be paid,
alternatively credit or security must be extended for such payment.
[23]
If the Respondent’s version is
evaluated against these principles; the Respondent did not and could
not have had the intention
of acquiring ownership of the five
vehicles here in issue, which were delivered to CMC East London by
CCE Holdings as, on it’s
own version, the vehicles were
originally delivered by CCE Holdings to CMC East London, not as
delivery to the Respondent, but
as delivery to CMC East London
itself.
[24]
Moreover, the Respondent contends that as
CMC East London could not pay for the three other vehicles referred
to in the answering
affidavit it, in exchange, supplied the five
vehicles here in issue to the Respondent.
[25]
It is not the Respondent’s case that
these vehicles had originally been delivered to CMC East London on
its behalf, but by
necessary inference that the vehicles were
delivered to CMC East London on some other basis.
[26]
On its own version, and at the time when
ownership is alleged to have passed from CCE Holdings to CMC East
London, the Respondent
could not have had the intention of acquiring
ownership of the vehicles here in issue from CCE Holdings. It
is not contended
that the Respondent had such intention.
[27]
Moreover, at the time when ownership is
alleged to have been transferred from CMC East London to the
Respondent, CMC East London
had not acquired ownership of the
vehicles and was therefore incapable of transferring ownership to the
Respondent based on the
nemo plus iuris
rule referred to above.
[28]
It is undisputed that the five exchanged
vehicles, being the vehicles here in issue, were entered onto the
floorplan agreement concluded
between the Applicant and CMC East
London and formed part of CMC East London’s dealer stock. By
virtue of the provisions
of the floorplan agreement as read with the
agency agreement concluded between the Applicant and CMC East London,
ownership of
those vehicles at the time vested in the Applicant.
[29]
CCE Holdings and/or CMC East London did not
and could not have had the intention of transferring ownership of the
vehicles to the
Respondent at the time when the vehicles were
delivered to CMC East London as those vehicles were not earmarked for
the Respondent,
but for CMC East London under the floorplan agreement
and on behalf of the Applicant.
[30]
In addition, the Respondent does not
contend for, nor could it have had the intention of acquiring
ownership of the vehicles at
the time when CCE Holdings delivered the
vehicles to CMC East London.
[31]
The factual disputes which the Respondent
raise are not aimed at these issues and in my view, these issues can
be determined on
the relevant legal principles.
[32]
In order for the Respondent to successfully
defeat the application and rely on its ownership of the said vehicles
here in issue,
it must,
inter alia
,
prove that CCE Holdings delivered the said vehicles to CMC East
London with the intention of transferring ownership to the
Respondent.
This element is lacking in the Respondent’s case.
[33]
In addition, it must show that CMC East
London became the owner of the said vehicles; as if it never became
the owner of the vehicles,
CMC East London could not transfer
ownership of the vehicles to any other party.
[34]
It is not contended that the Applicant ever
intended to transfer ownership of the vehicles to the Respondent
under circumstances
where the Applicant contends that it at all
material times was the owner of the vehicles.
[35]
It is further not disputed that the said
vehicles had been delivered to CMC East London and that CCE Holdings
had been paid for
the vehicles by the Applicant.
[36]
The Respondent’s reliance on its
possession of the eNatis documents to support its allegation of
ownership appears misplaced
as it, on its own version, obtained
delivery of the eNatis documentation from CMC East London, which was
never the owner thereof.
Moreover, on the Respondent’s own
version, the purpose of obtaining the eNatis documents from CMC East
London was to enable
it to register the vehicles as dealer stock at
its premises and not to obtain transfer of ownership of the vehicles
to it.
[37]
It is not disputed that the vehicles here
in issue, which were given to the Respondent in exchange for the
amount allegedly owing
by CMC East London to the Respondent, were
expressly included on the floorplan agreement concluded between the
Applicant and CMC
East London.
[38]
The Respondent cannot contend that the
delivery of the eNatis documents to it pertaining to the said
vehicles, supports its allegations
of ownership to the said vehicles,
as:
[38.1]
the
mere fact that a vehicle is registered in the name of a person on an
eNatis document does not prove that he is the true owner
thereof as
such registration may have come about as a result of fraud;
[4]
and
[38.2]
the Respondent does not contend that it
enquired as to whether the vehicles were subject to a floorplan
agreement concluded with
the Applicant or any other financial
institutions, in circumstances where it, on its own version, must
have known of the existence
of such a floorplan.
[39]
The Respondent’s knowledge of the
floorplan agreement and the true facts would also put pay to a
successful reliance on the
estoppel raised by the Respondent on its
papers. In my view and in applying the relevant test on the
evidence presented,
the Applicant is entitled to its relief.
[40]
I accordingly make the following order:
[40.1]
The Respondent is ordered to forthwith
deliver to the Applicant the original eNatis documents, together with
duly signed Notification
of Change of Ownership forms (NCO95) of each
of the vehicles referred to in the schedule attached to the founding
papers;
[40.2]
In the event of the Respondent failing to
comply with the Order in [40.1] hereto forthwith, the Sheriff of the
High Court is authorised
and directed to enter upon the Respondent’s
premises, to attach such documents and to deliver same to the
Applicant’s
attorneys of record;
[40.3]
In the event of the Respondent failing to
comply with the Order in [40.1] hereto forthwith, the Sheriff of the
High Court is authorised
and directed to sign such documents on
behalf of the Respondent;
[40.4]
The Respondent is directed to pay the costs
of this application.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date of
hearing : 22 September 2011
Date of
judgement : 9 December 2011
For Applicant
: Adv GH Meyer
:Jay Mothobi
Inc
For Respondent
: Adv M Basslian, SC
:Saders
Attorneys
[1]
1984
(3) SA 623A
[2]
ABSA
Bank Ltd v Jordasche Auto CC
,
2003 (1) SA 401
SCA para 16.
[3]
Trustbank
v Western Bank
,
1978 (4) SA 281
A pp301H-302A; See also
Info
Plus v Schelke and Another
,
1998 (3) SA 814
SCA.
[4]
Akojee
v Sibanyoni
,
1976 (3) SA 440
(W)