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[2014] ZAGPJHC 213
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Loffel v Prinsloo (15838/12) [2014] ZAGPJHC 213 (25 April 2014)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
15838/12
DATE: 25
APRIL 2014
In the matter
between:
LOFFEL,
RICHARD
PATRICK
...............................................................
Plaintiff
And
PRINSLOO,
THEUNS FREDRICH
JACOB
.........................................
Defendant
J U D G
M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] On 5 May 2012 the plaintiff in this matter, in his capacity then
as the applicant in Motion Proceedings, claimed from the
defendant,
in his capacity as the respondent, relief in the following terms:
1.1 That the defendant and/or anybody who is in
possession of the applicant/plaintiff’s motor vehicle referred
to hereunder
and who has obtained possession thereof through the
defendant/respondent be ordered immediately to return to the
applicant/ plaintiff
the said motor vehicle, being a Mercedes Benz
motor vehicle, 2007 model 320 CDI, registration number VLP …
GP, chassis number
WD………. and engine number
6………… (“
The
motor vehicle
”).
Alternatively
That the Sheriff of the above court be authorised and directed to
attach and remove the motor vehicle from whomever he may find
it and
to hand same over to the applicant/plaintiff.
1.2
That
an order that the respondent/defendant pay the costs of the
application in the event of the latter opposing the application
be
made.
1.3
For
further and/or alternative relief.
[2] When the matter served before my brother Horn J on 21 September
2012 both parties agreed to a Draft Order being recorded and
made an
order of court in the following terms:
“
Having
heard Counsel for the applicant and the respondent, the following
order is made:-
1.
The
application stands as a simple summons and the applicant is to file a
declaration within 20 days;
2.
The
respondent is to file a plea within 20 days from receipt of the
declaration;
3.
The
costs are reserved for determination by the trial Court.
BY ORDER
REGISTRAR
”
[3] The plaintiff/applicant (hereinafter referred to as “
the
plaintiff
”) duly filed and served his declaration on 27
September 2012. Therein the plaintiff prayed for an order that:
“
1.
The defendant and/or anybody who is in possession of the plaintiff’s
motor vehicle and who has obtained possession thereof
through the
defendant be ordered immediately to return the plaintiff’s
motor vehicle being Mercedes Benz motor vehicle
2007 model 320
CDI, Registration No. VLP……., Chassis No WDB………..
and engine number 6……………
(…)
to the plaintiff,
alternatively
the
Sheriff of the above Honourable Court is hereby authorised and
directed to attach and remove the plaintiff’s motor vehicle
from same and hand it over to the plaintiff.
Alternatively
to
paragraph 1 –
2.
In
the event of the court finding that the defendant is no longer in
possession of the plaintiff’s motor vehicle, judgment
is sought
against the defendant as follows:
2.1
Payment
of the sum of R279 952,00;
2.2
Interest
on the sum of R279 952,00 calculated at the rate of 15,5% per annum
from the date of service of this Declaration on the
defendant to date
of payment.
3.
Costs
of suit, which costs are to include the costs occasioned in the
motion proceedings which preceded the issue of the Declaration.
4.
Further and/or alternative relief.
”
[4] The respondent/defendant (hereinafter referred to as “
the
defendant
”) pleaded to the Declaration and subsequently
filed an Amended Plea on 4 March 2014. For the sake of clarity,
since
the defendant is representing himself and drew up the plea
himself, it is my considered view and finding that in order not to
derogate
or detract from the intent and meaning of the plea, same
should be reproduced verbatim insofar and where it is material. It
reads
as follows:
“
3. Disagree. The plaintiff
entered into a sale agreement on 8 April 2010 between the plaintiff
and Spin City Auto (Annexure
A), whereby Spin City Auto would sell
the vehicle on the plaintiff’s behalf. Spin City Auto then made
a payment to the plaintiff
of R140 000, the plaintiff deposited the
cheque on 8 May 2010 (Annexure B). This enabled Spin Auto to put the
vehicle in their
name on 14 May 2010 and sell in to Aucor, in order
to pay the remaining money to the plaintiff (Annexure C). The
plaintiff
then requested further payments for the vehicle, whereby
another cheque of R113 000 was given to the plaintiff by Spin City
Auto
and the plaintiff was told to only bank the cheque at a later
stage as Spin City Auto was still awaiting funds from the sale, from
the auction at Aucor. The defendant bought the vehicle on 19
June 2010 from Aucor (Annexure D). Aucor then first put the
vehicle
in their name on 22 June and paid the proceeds over to Spin City
Auto, the vehicle was then registered in the defendant’s
name
as ‘owner’ and Wesbank as ‘title holder’ on
24 June (Annexure C). This process is a logical process
for
auctioning. The plaintiff then deposited the second cheque for
R113 000 on 21 September 2010, only to find that the cheque
could not
be honoured (Annexure E). The plaintiff then went to Spin City Auto,
but found out that they have since liquidated, as
they could no
longer meet their financial commitments. The plaintiff was very upset
about this and first tried to claim for theft
from his insurance at
Alexander Forbes Insurance, but with no success as it was seen as a
civil matter between the plaintiff and
Spin City Auto. Failing
at this, the plaintiff is now trying to recover his loses, by
approaching the defendant in an attempt
to deprive the defendant of
the defendant’s vehicle, using some of the R140 000 for his
legal endeavours. The defendant
is in possession of the
registration papers for the vehicle showing him as owner and Wesbank
as title holder (Annexure F).
3b. The defendant wish the court to grant him
ESTOPPEL in this matter, as he had no dealing in any shape or form
with Mr Loffel
at any time. Mr Loffel had a contractual agreement
between himself and Spin City Auto, to which he should hold Spin City
Auto accountable.
My dealing was ONLY with Aucor, to which I
paid the full purchase price of R279,952 and financed this amount
through Wesbank.
4.
Disagree.
5.
5.1
Disagree.
Ownership of the vehicle passed to the defendant on 24
th
of June 2010 (Annexure F&H), after he purchased the vehicle at
Aucor on 19
th
June 2010 (Annexure D).
5.2
No
consent required to sell a vehicle where defendant is reflected as
owner and vehicle is paid in full.
5.3
Disagree.
The value of the plaintiff’s vehicle was R121,000 on 1 July
2013. It would since then have depreciated further.
6.
The defendant is not in possession of the vehicle. The
defendant sold the vehicle, which is further proof that he was
the
rightful owner at the time.
”
THE
PARTIES
[5]
The plaintiff is an adult male person residing at 158 Derry Drive,
Northriding, Johannesburg.
[6] The defendant is also an employee of Alexander Forbes Insurance
Company, which company underwrote the motor vehicle in issue
here to
which the plaintiff claims ownership.
ISSUE(S)
TO BE DECIDED
[7]
What is to be decided here is whether or not the plaintiff was the
owner of the motor vehicle; whether or not as at the time
he issued
letters of demand and/or issued proceedings against the defendant,
the latter was in possession of the motor vehicle
in issue; what the
totality of surrounding circumstances are regarding this motor
vehicle; and whether or not the plaintiff is
entitled to the motor
vehicle’s return to him or payment of its monetary value.
INCIDENCE
OF
ONUS
TO LEAD EVIDENCE FIRST
[8]
In the light of the defendant’s plea, it was agreed and was
common cause that the defendant had to be the first to lead
evidence. However, the defendant pleaded with the plaintiff
through the court that the plaintiff lead evidence first so as
to
allow him the opportunity to observe how evidence was led in court.
The plaintiff agreed to do so and it was so ordered,
the
understanding being that the
onus
still rested with the defendant.
HISTORY
AND FACTUAL MATRIX OF CASE
[9] The historical overview of issues surrounding this motor vehicle
are inherent or contained in the evidence led in court by
both
parties as well as in the particulars of claim insofar as the
plaintiff is concerned and the plea as amended insofar as the
defendant is concerned.
PLAINTIFF’S
VERSION
[10] It was the plaintiff’s case that he purchased the
Mercedes Benz sedan in issue here (the “
motor vehicle
”)
from Mercedes Benz Sandton on 15 January 2008 and financed the deal
through Nedbank. The registration certificate
of the motor
vehicle reflected Nedbank as the title holder and himself as the
owner.
[11]
He paid off the financing debt to Nedbank in two instalments.
[12] After the motor vehicle was paid off and during January 2010
before April he decided to sell the motor vehicle. To
that end,
he placed advertisements for its sale in the Auto Mail as well as in
Junk Mail, both being publications through which
people offer their
properties to the general populace and/or public for sale.
[13] He received offers for the motor vehicle, one of which was from
a Dr Denzel Chetty (“
Chetty
”), an employee of Spin
City Auto, a car dealership situated at Corner Main and Bond Streets,
Randburg. Chetty told him (plaintiff)
that he saw the advert in
respect of this motor vehicle and that he had a buyer who was
interested in purchasing it directly from
him (plaintiff). According
to the plaintiff, Chetty was adamant, clear and unambiguous that Spin
City Auto did not intend purchasing
the motor vehicle on behalf of
the buyer but were merely acting as introducers of the buyer to the
plaintiff in return for an introduction
or finder’s fee from
the prospective buyer: The plaintiff and the buyer were to
negotiate terms between themselves.
The plaintiff had driven to the
Spin City Auto business premises when he talked to Chetty who asked
him to leave the motor vehicle
for the buyer to see.
[14] He drove there the second time and this time found the manager
of the place, a Mr Ryan Edelstein (“
Edelstein
”).
[15] Incidentally, as the evidence revealed, Edelstein was the
spouse to the sole director and shareholder of the company or close
corporation (Spin City Auto or a company controlling Spin City Auto),
Tauny or Toni Edelstein.
[16] Edelstein asked the plaintiff to complete and sign a document
titled “
Consignment Note
” as confirmation that he
left his motor vehicle there and so that the motor vehicle could also
be covered by insurance of
the business while there. The plaintiff
complied. He inserted as a reserve price for the motor vehicle
the amount of R300
000,00. He also amended clause 1 of 5 under
the heading, “
NOTES
” at the bottom of the document
from reading –
“
1. Payment for vehicle sold on your
behalf will be paid to you 14 days after delivery of the vehicle.
”
by drawing a line through it and writing by his hand the following in
its stead:
“
Transfer on payment
.”
[17] The plaintiff was adamant that this document was neither a deed
of sale nor authority or mandate to Spin City Auto to sell
his motor
vehicle. He further stated that at no stage was he called upon to
approve any sale or sign transfer of ownership of the
motor vehicle
from him to Spin City Auto or any other instance. Equally, he
testified that he approached the title holder,
Nedbank, to find out
if they ever signed any change of ownership documents in respect of
this motor vehicle to Spin City Auto or
any other instance, and the
latter (Nedbank) told him that they never did.
[18] A day or two after leaving the motor vehicle at Spin City Auto
he went back there and the motor vehicle was not at the premises.
Upon enquiry he was told by Edelstein that the prospective buyer
liked the car and had taken it to some specialised agent to have
it
checked. He went home. The following day he went to Spin City
Auto again and his car was still not there. On enquiry
Edelstein this time round told him the prospective buyer insisted
that the car be taken to an authorised Mercedes Benz dealer for
a
complete or full service before he can conclude the deal for it. That
Spin City Auto had indeed taken it to a Mercedes Benz dealership
for
that service.
[19]
The day after that when he arrived at Spin City Auto and his car was
still not there, he was told that the prospective buyer
was still
raising a bank finance for the deal.
[20] He visited this dealership on several more occasions and each
time a new story was related to him as to why his motor vehicle
was
not at the premises. He was unhappy with this state of affairs and
demanded that Edelstein return his motor vehicle to him.
Edelstein and Spin City Auto continued spinning stories and twisting
versions. Sometime during July or August 2010, when
he insisted
he was not leaving without his car, Edelstein told him that he
(Edelstein or Spin City Auto) would make an interim
payment of R140
000,00 to him and that the balance of the reserve price he wanted
would be paid to him a day or two later. He (plaintiff)
was
pacified. He deposited the cheque on 5 August 2010 and the bank
honoured it.
[21] A day after depositing the R140 000,00 cheque he (plaintiff)
visited Spin City Auto again to collect the balance of R160
000,00.
This time round Edelstein told him that the bank had withdrawn or
suspended approval of the finance for the deal as they
wanted to see
the original registration papers of this motor vehicle. He
handed them to him (Edelstein) and pointed it out
to him that the
papers still reflected Nedbank as the title holder and himself as
owner, and that before any transfer of the ownership
of this motor
vehicle could be effected to any new buyer, Nedbank had to sign and
transfer ownership thereof to him (plaintiff)
as owner. Mr
Edelstein assured him that the financing institution merely wanted to
see those registration papers to satisfy
itself that everything was
in order. As an indication of his earnestness and sincerity as well
as eagerness to see the deal go
through, Edelstein handed to him a
post-dated cheque in the amount of R113 000,00.
[22] On the day the cheque was to be banked, Edelstein contacted him
and asked him not to deposit it as he was still clearing
some
problems that could cause it to be dishonoured. He complied.
When days passed without hearing anything from Spin
City Auto he
visited the dealership again. He found Edelstein in the company of
his father. He demanded the return of his
car. Edelstein
(snr) stepped in and assured the plaintiff that he will personally
ensure that his balance was ready and available
by the following
Monday. He agreed to return that Monday.
[23] He went there on the agreed upon date and found the dealership
open for business but none of the Edelsteins were there.
His
car was also not there. He also found other car owners who were
unhappy with what was happening. Those whose cars were
still at
the premises were taking them away.
[24] He then deposited the cheque for R113 000,00 on 20 September
2010 but it was dishonoured by the bank on 21 September 2010.
[25] He then reported a theft to his insurance brokers, Alexander
Forbes. The latter advised him not to report the matter
to the
police and leave that to them to advise when it was appropriate to do
so after they had investigated his claim.
[26] On the day he found a group of irate car owners at Spin City
Auto, one of the complaining owners impounded all the paperwork,
documents and books of the business. As he had mislaid his copy
of the “
Consignment Note
”, he requested that owner
to check same for him among the documents and provide him with same.
Indeed, after a while
that owner faxed him a copy of the “
Consignment
Note
”, which presently forms part of the papers in this
action.
[27] Alexander Forbes conducted investigations and discovered that
the plaintiff’s motor vehicle had been fraudulently transferred
into the names of Spin City Auto and ultimately into those of the
defendant, both transactions taking place on the same day, being
19
April 2010. From documents produced only at court by the
defendant, which he stated in court he obtained during August
2012,
the following scenario unfolded:
27.1
According
to the document marked by the court as Exhibit “A1” being
an extract from eNatis, Mercedes Benz Financial
Services acquired
this motor vehicle and registered it as owner and title holder on 6
December 2006.
27.2
On
10 January 2007 the plaintiff purchased the motor vehicle from
Mercedes Benz Financial Services, financing the deal through Nedbank.
On this date the motor vehicle was registered as follows:
Nedbank was title holder and the plaintiff was the owner.
27.3
On
14 May 2010 Spin City Auto registered the motor vehicle in its names,
both as owner and title holder.
27.4
On
22 June 2010 Aucor (Sandton) (Pty) Ltd had the vehicle registered in
its names, both as owner and title holder.
27.5
The
motor vehicle was then registered into the names of the defendant as
“
owner
”
thereof. The details relating to the title holder have been erased
with a tippex from the document.
[28] From the above, it is clear that when the Edelsteins told the
plaintiff as early as during July/August 2010 that certain
things
were being done to satisfy a prospective buyer of this motor vehicle
or upgrade its security gadgets as well as when they
gave the
plaintiff the first cheque for R140 000,00, they knew all along that
they had some-how contrived to fraudulently have
the car registered
into their names – both as owners and title holders. They
also knew that they had sold it to Aucor
(Sandton) (Pty) Ltd or at
the least allowed it to be registered in the names of Aucor –
both as owners and title holders
– as by or on 23 June 2010.
[29] According to Exhibit “A2” also produced by the
defendant in the middle of the trial, Spin City Auto generated
a
payment invoice in favour of an entity going by the names, Blue Chip
Motor Enterprises CC for the amount of R280 000,00. That
was on 19
April 2010. The object of the deal here is the self-same motor
vehicle the plaintiff left with Spin City Auto.
[30] Exhibit “A4” is a tax invoice generated by Blue
Chip Motor Enterprises CC for the same amount and relating to
this
motor vehicle. Blue Chip Motor Enterprises CC was
requisitioning payment from its resources to pay Aucor Midrand the
amount of R340 000,00, which was in respect of two vehicles it (Blue
Chip) bought on an action conducted by Aucor at its Midrand
premises:
R280 000,00 in respect of the Mercedes Benz motor vehicle in issue
here and R60 000,00 in respect of a 2007 Proton LDV
with registration
letters and numbers BKF……... It is also dated 19 April
2010.
[31] Exhibit “A5” is a requisition or demand for payment
by Aucor auctioneers directed at Blue Chip Motor Enterprises
for the
amount of R340 000,00 representing bids Blue Chip Motor Enterprises
made at the auction. This document is dated 21 April
2010. R280
000,00 of the amount is the value of the purchase of the Mercedes
Benz motor vehicle belonging to the plaintiff.
[32] Exhibit “A6” is confirmation that Blue Chip Motor
Enterprises CC paid Aucor the amount of R340 000,00 on 22 April
2010.
[33] According to the plaintiff as he continued his testimony,
Alexander Forbes repudiated his claim because he breached a term
of
their contract of insurance which outlawed dealings with motor
dealers in respect of the Mercedes Benz.
[34] During his cross-examination of the plaintiff the defendant
regurgitated the terms of his amended plea. He repeated
ad nauseum
that he bought the motor vehicle at an Aucor auction at Midrand on 19
June 2010 for R279 952,00.
[35] The plaintiff closed his case without calling further
witnesses.
DEFENDANT’S
VERSION
[36] He too was a single witness. He did not call witnesses to
corroborate him also.
[37] According to him, he bid for and won the bid for the motor
vehicle in issue here at the auction conducted by Aucor Auctioneers
at their Midrand premises. He paid R279 952,00 for it through
Wesbank. As such he was the owner of the papers thereof and Wesbank
was the title holder. He drove it for three (3) years until it
became too expensive to maintain as it needed several important
parts
to be replaced, and at too high an amount. He decided to sell it.
[38] At the time he sold the motor vehicle, this case was already
underway. He stated that despite this vindicatory action
which
started as motion proceedings had already started, he still decided
to sell the motor vehicle as he believed he was the rightful
owner
thereof with full entitlement to dispose of it, pending legal
proceedings relating to it notwithstanding. He sold it
for R121
000,00 but refused to disclose the buyer as –
“…
I
did not want to lose credibility with the purchasers who are also
dealers in motor vehicles. Plaintiff could easily have
gone to
them and told them the motorcar they purchased from me was a stolen
motor vehicle …
”
[39] At this stage when he was still testifying in chief, he
insisted that the market value of the motor vehicle was R81 000,00.
He explained the difference between this amount and the R121 000,00
he received as follows: the dealers tweaked the interest
rate
he was to pay for the vehicle he was purchasing as a replacement for
the Mercedes Benz and added the amount thereat arrived
(R40 000,00)
to the R81 000,00 market value to make the R121 000,00 they paid over
to him.
[40] During cross-examination by counsel for the plaintiff the
defendant totally deviated from his plea. He agreed with
suggestions to him that the plaintiff was the victim of a massive and
well orchestrated fraud by several instances. Yet he still
insisted
that he should not be made part or party to those shenanigans.
It was at this stage that he produced the documents
I alluded and
referred to as Exhibits “A1” to “A6” above.
[41] For the record, the defendant –
41.1
Conceded
that the market value of the motor vehicle was R121 000,00 as on the
date he disposed of it, being 1 July 2013. This
was confirmed
by a document from SARS which he brought to the fore only at this
stage confirming the date of the sale of the motor
vehicle.
41.2
When
pressed for details of the person or instance he disposed the motor
vehicle to, he produced a document which this Court market
Exhibit
“B” and confirmed that he sold it to Westland Motors of
497 Jan Smuts Avenue, Blairgowrie, Johannesburg, which
evidence the
document corroborated.
41.3
He
confirmed paragraph 5 of his plea and amended plea (which are almost
identical save for a few insignificant aspects) that he
was still in
possession of the motor vehicle in issue here at least before the
date on which he disposed of it on 1 July 2013,
being 13 August
2012. He confirmed also that he sold this motor vehicle well
knowing that there was a vindicatory action
ongoing relating to it
alternatively
,
payment of its market value as by that date. He also formally
confirmed receiving the letters of demand that preceded the
launching
of the initial motion proceedings on 26 April 2012. He also
conceded that as the insurance company employee, especially
being
employed by the insurance company that underwrote the insurance cover
for this motor vehicle, it was easy for him to check
and/or determine
its status.
41.4
He
could not gainsay the plaintiff’s evidence insofar as it
concerned Spin City Auto.
41.5
He
testified that Aucor told him that they bought the motor vehicle from
Spin City Auto and also made payment therefor to them.
This evidence
is incorrect as it contradicts the clear proof contained in document
Exhibit 5 produced by himself, which depicts
that Aucor bought the
motor vehicle from Blue Chip Motor Enterprises CC for R280 000,00.
[42] The above are but a few of the many or numerous instances where
the defendant materially deviated from his own plea.
ANALYSIS
[43] The issue of ownership of a motor vehicle is dependent on those
procedures that are specifically laid down in the Road Traffic
Act
and Regulations. According to the plaintiff, in order to change
the ownership of the motor vehicle in issue here, one
had of
necessity or invariably had to have it changed from the title
holdership of Nedbank into his names as owner, making him
owner and
title holder first and he would be the instance that would have
transferred ownership to Spin City Auto by physically
participating
in that process. According to the defendant, anybody can change
ownership of a motor vehicle, even bypassing the
participation of the
registered owner if or any time he/she has the original registration
papers in his/her possession. He stated
that as somebody who
regularly purchased motor vehicles at public auctions, he would
witness that being done or even personally
have had it so done.
[44] The defendant’s viewpoint on this aspect in my view is
not only wrong but also unlawful or illegal. An owner
of a
vehicle as reflected in the registration papers is not a mere
figure-head. He is an active actor who cannot be bypassed
when
that vehicle’s ownership is changed. It is so that the change
of ownership from title holder to the owner as well as
from owner to
a third party may take place on the same day or simultaneously.
It may so happen that an owner would have paid
off the amount owing
to the title holder but had not yet demanded that the latter amend or
cause to be amended, the registration
papers to reflect him as both
title holder and owner. However, whenever that vehicle is to be
transferred into the names
of a third party, there must definitely be
a transfer, first from the title holder to the owner, who in turn
would transfer such
vehicle to the new owner and/or title holder, as
the case may be. To act otherwise would be contrary to the traffic
laws, rules
and regulations and consequently unlawful or illegal.
Such a transfer against the law, regulations or rules will be of no
force or effect
vis-à-vis
the bypassed owner.
[45] The defendant’s evidence points to him having acquired or
received Exhibits “A1” to “A6” in
August
2012. That is long before he pleaded to the plaintiff’s
declaration on 24 October 2012 and served and filed
his amended plea
on 5 March 2014. Consequently, the defendant was obliged to
have factored in the contents of these exhibits
into his plea and/or
amended plea. He did not do so. I find that by his conduct in
this regard the defendant actually misled
the court about the true
position. Why he did so is not clear. I also find that by so
deviating from his plea or pleadings
during the trial materially
vitiated the defendant’s case. He has thus not succeeded
in warding off the plaintiff’s
claim.
[46] The defendant in his plea, further distorts the plaintiff’s
story or sequence of events by weaving a story of how the
plaintiff
deliberately asked Spin City Auto to act as the actual sellers of his
motor vehicle and there and then handing over to
them the vehicle,
its keys and its registration papers. There is nothing further from
the truth as the defendant himself conceded
under cross-examination.
He also conceded muddling up how and when the R140 000,00 and R113
000,00 cheques were handed over to
the plaintiff. It was to be
expected. He was not there when all that happened. It was also the
reason why he could not shake
the plaintiff’s evidence on the
aspect.
[47] Primarily the plaintiff’s claim is based on the
rei
vindicatio
remedy, i.e. the return of his Mercedes Benz motor
vehicle from the defendant. If the motor vehicle had been
disposed of or
lost one way or another, the alternative claim is for
its monetary value. It is a principle of our law and not in dispute
between
the parties that such monetary value should be fixed as at
the date of alienation or loss of that vehicle.
[48] The defendant in his closing address made a rather strange
request or submission: he stated that in the event of this
Court finding against him, especially on the aspect that he should
recompense the plaintiff the value of his motor vehicle, he
should
first be allowed the opportunity to find and deliver the motor
vehicle to the plaintiff as he knows how it can be done.
[49] The above is worrisome. How will the defendant be in a
position to put the plaintiff in possession of his motor vehicle
again in the light of his conduct and attitude from the time letters
of demand were served on him of denying knowledge of where
the
vehicle is and even refusing to disclose the instance to whom he sold
it. It is my considered view that the defendant
is not entirely
candid with this court: one would be wont to believe that he
knows all the time where this motor vehicle
is. The above hunch may
be supported by his deliberate and conscious disposal thereof when he
knew it was the object of these court
proceedings.
[50]
The owner of a thing has the right to possess it, to use it and
enjoy it; to destroy it
[1]
and to alienate it.
[2]
If any of these rights are in any way infringed he has appropriate
legal remedies, like in this case, the
rei
vindicatio
.
[51]
If and when an owner of property is deprived of his possession
thereof, he may, by the
rei
vindicatio
or reclaim, recover the possession from any person in whose
possession the thing is found.
[3]
To succeed with a
rei
vindicatio
or vindicatory action the claimant need merely prove two facts,
namely,
(a)
that
he is the owner of the thing, and
(b)
that
the thing is in the possession of the defendant.
[4]
[52]
It does not make any difference whether the possessor is
bona
fide
or
mala
fide
.
The owner of a 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.
[5]
In the case of land the absolute owner may eject any person in
possession and/or interdict him and others from further trespassing
on it or even claim damages for loss or destruction caused by
trespassers.
[6]
[53]
Where movable property, as in this case, the motor vehicle, the
owner has been unlawfully deprived of it in some other way,
and it
has been alienated in such circumstances that the owner cannot
vindicate the property, he may claim the value thereof from
the
culprit or from any other person who parted with the possession
thereof
with knowledge of the
owner’s claim
(my
emphasis).
[7]
[54]
However, an owner will not have a claim against a
bona
fide
purchaser of his property
who has
resold it in good faith
[8]
(my
emphasis). This in my considered view and finding would not be
applicable to a possessor who purchased the property in
good faith
but then proceeded to dispose of it when legal proceedings are
already under way to reclaim such property. The
disposition
would not be
bona
fide
.
[55] The defendant has submitted and argued that the plaintiff
should be estopped from reclaiming possession of the motor vehicle
from him or any other
bona fide
possessor as his conduct
points to him having acted in such a manner that a reasonable person
would believe he allowed Spin City
Auto to sell it to any buyer. This
is contained in his plea and he persisted herewith in the closing
address.
[56] It deserves mention that the defendant conceded that his
argument in favour of estoppel did not hold water when under
cross-examination.
However, it is my view that the proper legal
position in relation to estoppel under these circumstances should be
re-stated.
[57]
The legal position is: where the owner of movable or immovable
property
[9]
entrusts the possession of it to another person in such circumstances
that his conduct amounts to a representation that the custodian
is
the owner of the thing or that he has power to alienate it, and the
custodian sells or delivers the thing to a
bona
fide
purchaser who relies on the representation, the true owner if his
conduct was negligent, is estopped by his conduct from disputing
the
title of the innocent holder, and he consequently cannot vindicate
the thing.
[10]
The justification for such estoppel will be that the original owner
was negligent.
[11]
The
onus
of proof of such negligence is on the innocent holder and it is
normally a difficult task to achieve. In
Johaardien
v Stanley Porter (Paarl) (Pty) Ltd
[12]
the court held among others that the owner may “
possibly
”
be estopped where his conduct has not been proved negligent but where
“
compelling
considerations of fairness within the broad concept of the exceptio
doli
”
exist.
[58] The plaintiff in this action does not fall under the category
of owners who acted negligently. His case has consistently
been that
he never authorised Spin City Auto to act as his selling agent for
his motor vehicle. His conduct of returning
now and again to
Spin City Auto’s business premises to demand return of his
motor vehicle cannot by any stretch of the imagination
be said to
have created the impression in the mind of reasonable persons that he
has allowed or authorised Spin City Auto to act
as it did with his
motor vehicle. There is evidence that at the time Spin City Auto gave
the plaintiff the R140 000,00 cheque and
assured him that the
prospective buyer was still organising finance or checking the
vehicle for defects or installing security
cameras to it, they knew
that they had already forged documents to have the car’s
ownership changed into their names. The
defendant acknowledged this
evidence and agreed that it was the case. As such, it cannot be
said that the plaintiff entrusted
his car to Spin City Auto in such
circumstances that his conduct amounted to a representation that Spin
City Auto was the owner
thereof or that they had been granted the
power or authority to have it registered into their names, let alone
alienate it by selling
it.
[59] It is important that the conduct of the defendant be examined
after he became aware that the motor vehicle had had allegedly
bought
at an auction was being claimed in court papers served on him. Armed
with this knowledge the defendant went ahead and sold
the motor
vehicle on 1 July 2013. It thus cannot be said that he sold
this motor vehicle in good faith. When questioned
about this
conduct during cross-examination he was unrepentant about what he
did, claiming such as a right he acquired when he
purchased the motor
vehicle. As already stated hereinbefore, this attitude by the
defendant was in spite of him conceding
that his pleadings or pleas
were based on faulty evidence or foundations and that he has no way
of disputing or gainsaying the
plaintiff’s version of events.
[60]
In
Trust
Bank van Afrika Bpk v Western Bank Bpk en Andere NNO
[13]
the court found that ownership of a thing only passes where the owner
delivers it to another with the intention of transferring
ownership,
and the other takes the thing with the intention of acquiring
ownership. As Trengove AJA put it in that case
[14]
“
Volgens
ons reg gaan eiendomsreg op ‘n roerende saak op ‘n ander
oor waar die eienaar daarvan dit aan ‘n ander
lewer, met die
bedoeling om eiendomsreg aan hom oor te dra, en ‘n ander die
saak neem met die bedoeling om eiendomsreg daarvan
te verkry.
Die geldigheid van die eiendomsoordrag staan los van die geldigheid
van enige ander onderliggende kontrak.
”
[61]
In
Commissioner
of Customs and Excise v Randles Brothers & Hudson Ltd
,
[15]
Watermeyer JA held among others that –
“
Ownership
of movable property does not in our law pass by the making of a
contract. It passes when delivery of possession
is given
accompanied by an intention on the part of the transferor to transfer
ownership and on the part of the transferee to receive
it.
”
[62] At 398-399 of the same judgment the honourable judge of appeal
continued to state that –
“…
If
the parties desire to transfer ownership and contemplates that
ownership will pass as a result of the delivery, then they in
fact
have the necessary intention and the ownership passes by delivery …
”
[63] The above scenario did not occur or take place in this instance.
There was no such intention or the meeting of the minds between
the
plaintiff and Spin City Auto that ownership of the motor vehicle was
to pass over when the motor vehicle was left with Spin
City Auto. It
is also clear that Spin City Auto contrived through chicanery or
fraud to have the motor vehicle transferred into
its names. The
defendant also agreed that it was so.
[64]
In
Alderson
& Flitton (Tzaneen) (Pty) Ltd v E G Duffeys Spares (Pty) Ltd
[16]
it was held that when a plaintiff owner sues a defendant in an
actio
ad exhibendum
for payment of the value of the owner’s property which was
formerly in the defendant’s possession but which he is unable
to restore because of his having ceased to possess it, the general
principle to be applied is that the
onus
is on the plaintiff to allege and to prove at least that at the time
of the defendant’s loss of possession, he had knowledge
of the
plaintiff’s ownership or of his claim to ownership of the
property.
[65] The plaintiff herein has alleged and also proved that at the
time the defendant lost possession of the motor vehicle when
he sold
it on 1 July 2013, he (defendant) had knowledge of the plaintiff’s
claim to ownership of the motor vehicle.
[66] The question to be answered again is whether the defendant was
accentuated by some negligence or lack of sufficient knowledge
of
relevant facts and factors at the time he disposed of the motor
vehicle.
[67] The totality of evidence herein does not lend itself to such
interpretation.
[68]
In
Sadie
v Standard Bank
[17]
De Villiers CJ held among others that –
“…
the
deliberate sale and delivery of goods, with full knowledge of the
owner’s claim to his rights of ownership, cannot be
regarded as
an ordinary loss by negligence. It is a wrongful act, which the
person committing it cannot avail himself of
as a defence to an
action for the re-delivery of the goods, or, failing such delivery,
for the value (Digest 6.1.68; Voet 6.1.32)
…
”
[69] The totality of the evidence in this action points to the
defendant falling under the category of persons mentioned by De
Villiers CJ above. He sold the motor vehicle in issue here well
knowing that court proceedings for its return or payment
of its value
were well and truly under way.
[70]
The defendant argued that his situation is synonymous to that which
obtained in
Marobane
v Bateman
.
[18]
[71] In
Marobane v Bateman (supra)
the plaintiff had sued the
defendant for delivery of certain cattle belonging to her, or payment
of their value. The defendant
had acquired the cattle from the
plaintiff’s brother in settlement of grazing fees owed by the
brother to the defendant’s
principal and the defendant had then
sold the cattle for his own benefit.
[72]
It is my view and finding that the above case does not support the
defendant’s case. In fact it is totally against him
and is “
on
all fours
”
with the plaintiff’s case. As Solomon JA put it in that
case
[19]
“…
Now
it was found by the magistrate as a fact that the cattle were the
property of the plaintiff, and that they were removed without
her
knowledge or consent.
Prima
facie
,
therefore, the taking of the cattle would be a wrongful act, so that
the
onus
lies
upon the defendant to show that he is not liable in the action.
”
[73] The court thereat also found that the plaintiff’s cause
of action as formulated in her summons had been an alleged
“
wrongful
and unlawful removal of the cattle
”, presumably from the
farm where they had been kept. The evidence for the plaintiff had
been that the defendant had forcibly
removed the cattle, which part
of the evidence was rejected by the trial court. Solomon JA
nevertheless still found that the plaintiff’s
case as set forth
in her summons would still have been established if it appeared from
the defendant’s own evidence that
the removal had been wrongful
and unlawful. The reason for this finding was that there
existed at the time a statutory prohibition
against the acquisition
of cattle from a Coloured person, such as the plaintiff’s
brother was, without a particular certificate
having been obtained.
The defendant had failed to discharge the
onus
of proving that
such a certificate had been obtained and the removal of the cattle
had accordingly been an illegal and criminal
act, with the further
result that the defendant could not rely upon it as justification for
his action, even although he had believed
that the cattle had
belonged to the plaintiff’s brother.
[74] As stated above, this case cannot assist the defendant.
[75] The issue to be investigated next is what the value of the
motor vehicle was at the time it was disposed of by the defendant.
[76]
This aspect was also dealt with in
Philip
Robinson Motors (Pty) Ltd v N M Dada (Pty) Ltd.
[20]
[77] The facts in the above case are as follows: The
appellant, a motor dealer, had sold a new car to one P on 23 January
1970 under a hire-purchase agreement. On 24 June 1970, P, while there
was still an unpaid balance and arrears in instalments, had,
without
the knowledge of the appellant, sold the car to the respondent,
another dealer. On 4 July 1970 the respondent had
sold the car
to one V without the appellant’s knowledge. On 26 October 1970
a director of appellant’s telephoned to
the respondent claiming
that the car be returned or that the balance owing be paid to the
appellant. On 30 October 1970 the director
and his attorney had a
meeting with two representatives of the respondent. The latter were
then informed that the appellant would
attach the car unless the
balance was paid, the hire-purchase agreement being exhibited to
them. On 5 November 1970, P having died
meanwhile, a director of
respondent and his attorney went to see his widow who assured them
that the car had been paid for and
produced a cheque for a
substantial amount. In point of fact there was still a
substantial balance outstanding and on 11
January 1971 appellant
cancelled the hire-purchase agreement on that ground, and became
entitled to possession of the car, at any
rate against P’s
estate. On 27 February 1971 V had traded the car back to the
respondent and bought another vehicle
from the respondent. On
17 June 1971 the respondent sold the car to another person, despite
the fact that the appellant’s
attorney had written to the
respondent’s attorney on 8 June 1971 asking for confirmation
that the car was still in possession
of the respondent, appellant
having involved itself in abortive proceedings in the meanwhile,
among others against P’s estate
before an executor had been
appointed. Also on 17 June 1971 the appellant issued summons
against the respondent for the return
of the car or, alternatively,
delictual damages in the sum of R3 000,00 on the ground that the
respondent, with full knowledge
of the appellant’s rights in
the car, had wrongfully and unlawfully disposed of or alienated it.
As the car was no
longer in the respondent’s possession, the
claim at the trial was for delictual damages. The respondent had
pleaded among
others, that the appellant was estopped from asserting
its ownership in that it had misled the respondent to its prejudice
into
believing that it was not pursuing its claim in regard to the
car. A Provincial Division of the High Court having held that the
appellant had failed to discharge the
onus
of proving that the
respondent had the requisite knowledge, and having ordered absolution
from the instance, in an appeal, the
Appellate Division held that if
the respondent had been
bona fide
, it would have been a simple
and reasonably prudent precaution, in view of all that had gone
before, to telephone the appellant
and ask whether the coast was
clear; the principle being that there should be honour among motor
dealers. The court further held
that, having regard among others, to
the respondent’s awareness of the appellant’s resolute
and persistent claim that
there was a balance outstanding, that there
was no validity in the respondent’s plea of estoppel: the
respondent had
acted
mala fide
in disposing of the car, which
conduct constituted a delict. The respondent’s delictual
conduct had deprived the appellant
of its vindicatory right.
The court further held that the time at which to measure the
delictual damages was the date of
the delict, i.e. the date on which
the car was unlawfully sold, and not, as in a vindicatory action,
when the date would be the
date of trial or judgment.
[78]
The facts of the above case are similar to the facts in our present
action. The defendant acted
mala
fide
by disposing of the motor vehicle when he fully and well knew that
the plaintiff is claiming it back, alternatively its value.
He
committed a delict which deprived the plaintiff of his vindicatory
rights.
[21]
[79] The time at which to measure delictual damages is ordinarily
the date of the delict. That is when the owner’s patrimony
is
reduced. In the present case the date is 01 July 2013, i.e. the date
on which the defendant wrongfully and unlawfully disposed
of or
alienated the plaintiff’s car to Westland Motors.
[80]
The quantum of damages is the value of the motor vehicle to the
plaintiff.
[22]
[81] As to the actual value of the motor vehicle as on the date it
was sold both the parties herein are agreed that it was worth
R121
000,00. If the defendant elects, as he alluded to in his closing
address, to tender the same vehicle back, justice would dictate
and
demand that the vehicle be valuated on the date of delivery.
Should the value thereof be below the agreed upon R121 000,00,
then
the defendant should be ordered to pay the difference between the
actual value thereof and the R121 000,00 it was worth on
01 July
2013. I am considering ordering that this be so in the light of
the fact that the defendant blatantly refused to
provide to the
plaintiff information as to the whereabouts of the motor vehicle
after he sold it to Westland Motors and then persisted
throughout the
trial with his acquiescence as to where it was. His one-liner at the
end of his closing argument that he should
be allowed the opportunity
to locate and bring back the car appears to have been an afterthought
or the last throes of a dying
horse.
[82] As a matter of law, ownership over this motor vehicle never
passed to the defendant and/or the other so-called “
purchasers
”
or “
owners
”. Subsequent registrations of the motor
vehicle into the names of others did not pass to or give them
ownership. The
requisite delivery accompanied by the required
intention was and is lacking or missing.
[83] I find that the plaintiff has made out a case for the main
claim of
rei vindicatio.
As to the alternative claim of
payment of the value of the motor vehicle as on the date of
alienation by the defendant to Westland
Motors, it is the finding of
this Court that merely on the evidence of the defendant on its own,
the alternative claim was proved.
When the plaintiff’s
version is factored in, the proof thereof becomes absolute.
[84] The plaintiff has also claimed payment of interest on the
amount payable should this Court so order. The principle here also
is
that interest is payable from the date of loss, which is 01 July
2013.
[85] Despite the ostensible richness (unbelievability) of the
defendant’s request or say-so that he can trace and deliver
the
motor vehicle to the plaintiff, this Court is prepared to afford him
such an opportunity subject to strict deadlines.
ORDER
[86] Having heard counsel and the defendant in this matter and
having listened to evidence and after considering the matter, the
following order is made:
86.1
The
defendant is ordered to deliver back to the plaintiff on or before 26
May 2014 the plaintiff’s motor vehicle, namely,
Mercedes Benz
sedan, 2007 model, 320 CDI, Registration No VLP 713 GP or whatever
its new registration details would presently be,
Chassis No
WDB110222B086230 and Engine No 64292040310089;
86.2
Should
the defendant have failed, neglected or refused to so put the
plaintiff in possession of the above motor vehicle on or before
the
above stated date of 26 May 2014 this order shall fall away and be of
no more force and effect;
86.3
In
the further event of the prayer in 86.1 falling away and/or the
defendant not complying therewith within the stipulated period,
the
following orders hereunder shall take effect forthwith:
86.4
The
defendant shall be and is ordered to pay to the plaintiff the sum of
R121 000,00 (one hundred and twenty one thousand rand);
86.5
The
defendant shall be and is ordered to pay to the plaintiff interest on
the sum of R121 000,00 (one hundred and twenty one thousand
rand)
with effect from 02 July 2013 to date of payment at the rate of 15,5%
per annum;
86.6
The
defendant is ordered to pay the plaintiff’s costs, which costs
are to include the costs incurred in the application proceedings
and
which were previously reserved.
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE PLAINTIFF ADV A P BRUWER
INSTRUCTED
BY LE ROUX-WAGENAAR ATTORNEYS
c/o
CHAIRMAIN GIBBENS ATTORNEYS
MARBLE
TOWERS, JOHANNESBURG
TEL
NO: (011) 333 1050
FOR
THE DEFENDANT MR PRINSLOO (SELF)
8
VILLAGE-ON-AVON
ELM
AVENUE, CRAIGAVON
JOHANNESBURG
TEL
NO:
DATE
OF HEARING 16 APRIL 2014
DATE
OF JUDGMENT 25 APRIL 2014
[1]
Neebe
v Registrar of Mining Rights
1902 TS 65
at 81, 85 and 86;
Lazarus
v Wessels
1903 TS 499
at 504,
Dadoo
Ltd v Krugersdorp Municipality
1920 AD 530
at 537.
[2]
Van
der Linden
1.7.1;
Grotius
2.3.9;
Voet
6.1.1.
[3]
Vorster
v Hodgson
(1902) 19 SC 493
at 495.
[4]
Shimuadi
v Shinungu
1990 (3) SA 344
(SWA) at 347;
Akbar
v Patel
1974 (4) SA 104
(T) at 109;
Ontwikkelingsraad,
Oos Transvaal v Radebe and Others
1987 (1) SA 878
(T);
Jeena
v Minister of Lands
1955 (2) SA 380
(A);
Chetty
v Naidoo
1974 (3) SA 13 (A).
[5]
Mngadi
v Ntuli
1981 (3) SA 478
(D);
Wainwright
& Co v Trustee Assigned Estate’s Hassan Mahomed
(1908)
29 WLR 619
at 626-627.
[6]
Moller
v SAR&H
1969 (3) SA 374
(N) at 381;
Botha
v Minister of Lands
1965 (1) SA 728
(A) at 741;
Priel
Diamond Mining Co v Berlin Mission Society
(1909) BAC 391.
[7]
Atkinson
Oats Motors Ltd v Trust Bank of Africa Ltd
1977 (3) SA 188
(W);
Alderson
and Flitton (Tzaneen) (Pty) Ltd v E G Duffy Spares (Pty) Ltd
1975
(3) SA 41
(T) at 51;
Hall
& Sons Ltd v Kleinsmith
1963 (4) SA 320
(T) at 321;
Vulcan
Rubber Works (Pty) Ltd v SAR&H
1958 (3) SA 285
(A) at 289;
John
Bell & Co Ltd v Esselen
1954 (1) SA 147
(A) at 153;
Aspeling
NO v Joubert
1917 AD 167
at 171.
[8]
Westeel
Engineering (Pty) Ltd v Sydney Clow & Co Ltd
1968 (3) SA 458
(T) at 462;
Marobane
v Bateman
1918 AD 460
at 466;
Unimark
Distributors (Pty) Ltd v Erf 94 Silverstone (Pty) Ltd
1999 (2) SA 986 (T).
[9]
Michelsen
v Aaronson and Baikie
1914 TPD 158
;
Apostoliese
Geloofsending van SA (Maitland Gemeente) v Capes
1978 (4) SA 48
(C).
[10]
Barclays
Western Bank Ltd v Fourie
1979 (4) SA 157
(C) at 161;
Oakland
Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd
1976 (1) SA 441 (A).
[11]
Sonday
v Surrey Estate Modern Meat Market (Pty) Ltd
1983 (2) SA 521
(C);
Trust
Bank of Africa Ltd v Eksteen
1964 (3) SA 402
(A);
Penne
father v Gokul
1960
(4) SA 42
(N);
Grosvenor
Motors (Potchefstroom) Ltd v Douglas
1956 (3) SA 420
(A) at 427.
[12]
1970
(1) SA 394
(A) at 409.
[13]
1978
(4) SA 281
(AA).
[14]
At
301H to 302A-E.
[15]
1941
AA 369.
[16]
1975
(3) SA 41
(TPD).
[17]
7 SC
87
at 92-3.
[18]
1918
AD 460.
[19]
At
page 468.
[20]
1975
(2) SA 420 (AD).
[21]
Marobane
v Bateman (supra)
at 465;
John
Bell & Co Ltd v Esselen
1954 (1) SA 147
(AD) at 152.
[22]
Mlombo
v Fourie
1964 (3) SA 350
(T) at 358.