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[2013] ZAGPJHC 166
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Mthonti v In-Out Panelbeaters CC t/a Professional Panel Beaters (13/00731) [2013] ZAGPJHC 166 (1 July 2013)
REPUBLIC
OF SOUTH AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
(JOHANNESBURG)
CASE NO. 13/00731
In the matter between:
SETHABILE SAMUKELISIWE
MTHONTI
Applicant
and
IN-OUT PANELBEATERS
CC
T/A PROFESSIONAL
PANEL BEATERS
Respondent
JUDGMENT
WEINER
J:
BACKGROUND
[1]
The applicant is the registered owner of a
2011 BMW 320i automatic motor vehicle with registration number BJ 58
XS GP (“the
vehicle”). BMW Midrand (a division/associated
entity of BMW Financial Services) (“BMW”) is reflected as
the titleholder
of the vehicle ["BMW"]. BMW supports the
application.
[2]
The vehicle is insured by the applicant
with Virgin Money. This policy was underwritten by Dial Direct
Insurance Company Limited
(“Dial Direct”/ "the
insurance company"). Telesure Group Services (Pty) Limited
(“Telesure”)
administers the insurance policy on behalf
of Dial Direct.
[3]
On 4 July 2012, the applicant was involved
in a motor vehicle accident. The vehicle was damaged. The applicant
lodged a claim with
Dial Direct.
[4]
Approximately two weeks later, and while
the applicant was waiting for Dial Direct to process her claim, she
took the damaged vehicle
to the respondent
for the purposes of obtaining a
quotation for the cost of the repairs.
[5]
The applicant informed the respondent that
they should not commence with the repair, until she received the
quotation and same was
approved by Dial Direct. The vehicle was left
with the respondent.
[6]
The Applicant was then advised by Telesure
that Dial Direct would not authorise the respondent to do the repairs
because it is not
an approved BMW service agent/repairer.
[7]
During the first week of August 2012, the
applicant went to retrieve her vehicle from the respondent's
premises. She was told that
the repairs had already been effected.
[8]
The applicant was informed by the
Respondent's representatives that they would try and assist her by
contacting the insurance company
and seeking an assurance from them
that they would agree to pay for the costs of the repairs to the
vehicle. This would assist
the applicant in obtaining the return of
the vehicle.
[9]
Several attempts were made to settle the
impasse but to no avail. Dial Direct still refused to retrospectively
authorise the repairs
and the respondent continued to hold possession
of the vehicle.
[10]
The applicant appointed her present
attorneys of record ("Fluxmans") who, on 3 September 2012,
wrote to the respondent
and requested the return of the vehicle.
Fluxmans also asked the respondent whether it asserted a lien over
the vehicle and if
so, whether it would be willing to accept, as
substitute security, a guarantee from the insurance company. In such
event, an invoice
was required in order to enable the furnishing of a
guarantee.
[11]
On 11 September 2012, the respondent's
attorneys of record ["Bouwers'] replied. They advised that the
tendered guarantee would
be accepted by the respondent as substituted
security. They agreed to furnish an invoice setting out the costs of
the repair.
[12]
The invoice was not furnished. Accordingly,
on 28 September 2012, Fluxmans again requested it and demanded the
return of the vehicle
by the 2
nd
of October 2012.
[13]
On 2 October 2012, Bouwers wrote to
Fluxmans and, without providing an invoice, stated that the applicant
was fully aware of the
cost of repair.
[14]
Bouwers then, on 5 October 2012, suddenly
challenged Fluxmans’ authority to represent the applicant.
The applicant provided
the respondent with a power of attorney, and
this challenge appears to have been abandoned.
[15]
On 15 October 2012, Fluxmans again
requested the invoice. The Respondent still did not provide its
invoice. In an attempt to expedite
the matter, on 23 October 2012,
Fluxmans wrote to Bouwers enclosing a draft guarantee (which made
provision for a fixed amount
in view of the failure to furnish an
invoice). Fluxmans again asked whether the Respondent
would release the vehicle
against the issuing of the guarantee.
[16]
On 5 November 2012
,
Bouwers finally provided the respondent’s invoice (amounting to
R 62 000.01). The Respondent has not itemised its costs and
has
instead indicated “agreed repair order”. There is a
dispute of fact as to whether there was an agreement,
as alleged by
the respondent, and, in particular, whether one Friedland was the
applicant's agent. It is not necessary to resolve
such dispute in the
present proceedings as it is not relevant, at this stage, to the
question of whether the guarantee constitutes
adequate substituted
security.
[17]
On 15 November 2012
,
Fluxmans wrote to Bouwers enclosing a further guarantee from the
insurers. This guarantee now covered the full amount of the
Respondent’s
claim. Again the guarantee was tendered in
substitution for the Respondent’s alleged lien over the
vehicle.
[18]
In its answering affidavit, the Respondent raises the
following issues:
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
18.1.
it accepted the tender of a guarantee as
security but did so without considering the actual substance of the
tendered security;
thereafter, it decided to “revoke its
acceptance thereof”.
18.2.
the tendered guarantee is nothing but a
"meaningless piece of paper”;
18.3.
it alleges that one Friedland represented the Applicant in
agreeing to the payment of the Respondent's costs of repairs;
18.4.
it appears to contend that the balance of convenience is in
its favour (this matter does not however involve an interim intedict)
as the Applicant can use public transport as an alternative pending
the resolution of the dispute..
[19]
There is only one issue in this matter; namely whether the
applicant tendered adequate substituted security for the alleged
repair
lien.
THE LAW
[20]
It is trite that the object of a lien is to
secure payment of a lien holder's claim against the owner. The Court
may order the lien
be extinguished against the owner if the owner
furnishes adequate security.
[21]
The
Court has a discretion to be exercised equitably. As stated by ,
Tindall J (as he then was)
[1]
:
"
The weight of
authority seems to me to be in favour of the view that even where the
claim in respect of which the jus retentionis
is asserted is made in
good faith, the Court has the power to order delivery to the owner
against adequate security. Each case
will depend on its
particular facts and the Court, in exercising its discretion,
will have regard to what is equitable under
all the circumstances,
bearing in mind that the owner should not be left out of his property
unreasonably and on the other hand
should not be given possession if
his object is, after getting possession, to delay the claimant's
recovery of expenses.”
CONCLUSION
[24]
In casu
the
relevant facts upon which this Court’s discretion is based are
the following;
24.1.
the claim, upon which the lien is based,
seems improbable. It is highly unlikely that the
applicant, or the person who
purportedly acted on her behalf, gave
the go ahead for the respondent to execute the repairs at an agreed
cost, prior to the insurance
company approving same;
24.2.
The Applicant depends on the vehicle for
personal transport for work. The Respondent's suggestions that the
Applicant use non-private
methods as an alternative means of
transport, displays an arrogant and condescending attitude.
24.3.
Having agreed to the substituted security,
in the form of a guarantee from the Applicant's insurance company,
the respondent unjustifiably
revoked its acceptance thereof.
24.4.
The guarantee is tendered by a registered
and well known insurance company. The respondent does not contend
that the insurance company
will not make good on the guarantee should
it succeed in proving its claim.
[25]
The respondent’s counsel, somewhat
hesitantly argued that:
25.1.
The respondent has a vested right and the
applicant seeks an indulgence;
25.2.
The person “speaking” on behalf
of the guarantor is the general manager of Telesure and not Dial
Direct;
25.3.
A rule nisi issued should have to be served
on Dial Direct to protect the applicant’s vested right.
[26]
The respondent’s conduct in :
26.1.
Challenging Fluxman’s authority to
represent the applicant;
26.2.
failing to produce the quotation;
26.3.
reneging on its agreement to accept the
guarantee;
26.4.
referring to the guarantee as a
“meaningless piece of paper”;
26.5.
suggesting that the applicant use public
transport and;
26.6.
opposing the application;
demonstrates an
obstructive and contemptuous attitude, justifying a punitive costs
order.
[27]
In the result the following order is made:
The
Draft order Marked “X” is made an order of court
Weiner J
Date of hearing: 11
April 2013
Date of judgment: 01
July 2013
Counsel for
Applicant: Adv G.B Rome
Attorneys for
Applicant: Fluxmans Attorneys
Counsel for
Respondents: Adv H.P Van Nieuwenhuizen
Attorneys for
Respondent: Bouwer Cardona Inc.
“
X”
IN THE SOUTH GAUTBC
HIGH COURT .JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: 00731/13
Before tie Honourable
Madam Justice Weiner
On 11 April 2013
In the matter between:
SETHABILE SAMUKELISIWE
MTHONTI Applicant
and
IN-OUT PANELBEATERS CC
T/A PROFESSIONAL PANEL
BEATERS Respondent
ORDER
Having: read the papers
and heard counsel for the parties, the Court mates the following
order:
1. The respondent is
hereby ordered forthwith, upon service on it of the Guarantee
referred to in paragraph 3 below, to hand over
to the applicant a
2011 320(1) automatic BMW motor vehicle bearing registration number
BJ 58 XS GP (“the vehicle"))
2. In the event of the
respondent refusing or neglecting or felling to hand over the vehicle
to the applicant forthwith upon the
serf tee on it of the aid
guarantee, authorising the sheriff to obtain possession of the
vehicle wherever it may be found and to
thereafter hand the vehicle
to the applicant;
3. The above handover of
the vehicle to the applicant (alternatively, the sheriff) shall take
place forthwith after service the
applicant on tie respondent of the
guarantee of Dial Direct Insurance Company Limited (“Dial
Direct") in favour of the
respondent, duly signet as to any
manuscript amendments thereof by Dial Direct, and a copy of which
guarantee (together with the
said manuscript amendment(s) thereof) is
annexed to this order marked I;
4. Directing the
respondent to Institute its action (if any) for the
exists of repairs and
storage in respect of the vehicle, within a period thirty days, from
11 April 2013 failing which the Guarantee
shall lapse and be of no
further force or effect;
5. Directing the
applicant to serve a copy of this order on Dial Direct within seven
days of the date of this order;
6. The respondent is
directed to pay the costs of this application on the attorney and
client scale.
BY ORDER
Register, South Gauteng
High Court
[1]
Spitz
v Kesting
1923
WLD 45
at 49; and more recently
Standard
Bank Of South Africa Ltd v D Florentino Construction CC and Others
2008
(5) SA 534
(C) at 540H