About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 20
|
|
McBride v Jooste and Another (2014/03228) [2015] ZAGPJHC 20 (6 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION: JOHANNESBURG
CASE
NUMBER: 2014/03228
DATE:
06 FEBRUARY 2015
In
the matter between
PATRICK
McBRIDE
.........................................................................................................
APPLICANT
And
TOBI
JOOSTE
...................................................................................................
FIRST
RESPONDENT
NEDBANK
LIMITED
..................................................................................
SECOND
RESPONDENT
JUDGMENT
ZULU
AJ:
INTRODUCTION
1.
In this matter, Patrick McBride (“the
Applicant”) seeks an order for the return of a Porsche Cayenne
(“the Porsche”),
which he purchased from the Second
Respondent by way of a credit instalment agreement. The relief sought
by the Applicant in the
notice of motion is couched in the following
terms:
1.
That the First Respondent deliver to
the Applicant the motor vehicle namely Porsche Cayenne Triptronic
with natis registration number
S.........., vehicle identification
number W........... and engine number: C............., (‘the
Porsche”) alternatively,
should the First Respondent fail to do
so, that the Deputy Sheriff of this court attach and cease (sic) from
the Respondent or
from whoever’s possession it may be found and
hand over same to the Applicant.
2.
The First Respondent opposed the
relief sought by the Applicant and also launched a
counter-application in which he sought the following
relief:
2.1
That a declaratory do hereby issue
that the First Respondent be declared to be the lawful and bone fide
possessor of the Porsche
with registration number C...............
(engine number: C.................).
2.2
That the Applicant be directed to
discharge all or any obligation towards the second Respondent herein
and in terms of Applicant’s
contractual (sic) obligations may
be applicable in respect of the motor vehicle.
2.3
That upon the discharge of the
Applicant’s obligations, obligations towards the second
Respondent that the Applicant shall
take such steps necessary to
provide the transfer and registration of ownership of the motor
vehicle into the name of the first
Respondent and to provide such
documents to the first Respondent as proof thereof.”
2.
The matter came before Levin AJ on 12
August 2014 and he determined that a factual dispute existed which
warranted the hearing of
the oral evidence of the following
witnesses:
2.1
Mr Patrick McBride
2.2
Mr Tobi Jooste.
2.3
Mrs L Watson.
2.4
Mr Eddy Rust
3.
In terms of the order of Levin AJ, the
evidence of the aforementioned witnesses would be in relation to the
terms and conditions
under which the First Respondent came to be in
possession of the Porsche.
ISSUES FOR
DETERMINATION
4.
The legal issue for determination is
whether the Porsche which forms the subject of the dispute between
the parties was, on the
facts of this case, indeed donated by the
Applicant to the First Respondent. The issue relating to the
ownership of the motor vehicle
is not in dispute. It is common cause
between parties that the Porsche was owned by Nedbank and that the
Applicant was required
in terms of the credit instalment agreement to
comply with his obligations of paying the monthly instalments to the
Second Respondent.
EVIDENCE
5.
The evidence of the parties was placed
before court by way of affidavits deposed to by the Applicant and the
First Respondent, as
well oral evidence pursuant to the order of
Levin AJ.
6.
The gist of the Applicant’s evidence
was the following:
6.1
He met the First Respondent through a
mutual friend in or around September 2012;
6.2
In or about May 2013 he and the First
Respondent entered into an intimate relationship;
6.3
During the subsistence of their
relationship the Applicant spoiled the First Respondent with gifts,
including a diamond ring which
was valued at approximately R200 000.
By buying this expensive gift for the First Respondent, the Applicant
testified that
he was attempting to cement the intimate relationship
which he had formed with the First Respondent;
6.4
The Applicant also pampered the First
Respondent with a lot of gifts which included trips to Greece, Paris
and Thailand. During
these trips, the Applicant testified that he
shared the same bed with the First Respondent. This is significant in
the light of
the First Respondent’s denial that he had an
intimate relationship with the Applicant;
6.5
The Applicant also testified that he also
decided to purchase a motor vehicle for use by the First Respondent.
This vehicle was
to be used by the First Respondent for as long as
their relationship existed. The vehicle in question is the Porsche.
He stated
that he understood that he could not donate the Porsche to
the First Respondent as the motor vehicle was owned by the Second
Respondent;
6.6
The Applicant also referred to the credit
instalment agreement which he had entered into with the Second
Respondent. He referred
to clause 7.1 of the credit instalment
agreement which provides as follows:
“
OWNERSHIP
7.1
Ownership in the goods shall remain
vested in the Bank until the client has paid all amounts due in terms
of this agreement.”
7.
The Applicant emphasised that the motor
vehicle was for the First Respondent’s use only
for as long as the
relationship between them existed;
8.
He emphatically denied that the Porsche
was an unconditional donation by him to the First Respondent. He
stated that he understood
that he could not donate the Porsche to the
First Respondent, as it (“the Porsche”) was owned by the
Second Respondent
and that he had no title to donate the vehicle to
the First Respondent.
9.
The First Respondent testified and also
called two other witnesses, namely Mrs Watson and Mr E Rust.
10.
The First Respondent’s evidence was
the following:
10.1
He stated that he is a professional singer,
TV presenter and writer;
10.2
He agreed that he met the Applicant
through a mutual friend;
10.3
He denied that he entered into a physical
or intimate relationship with the Applicant;
10.4
He stated that he received the Porsche from
the Applicant as a birthday gift. However the gift was received a
couple of months earlier,
as the Applicant was advised by the
dealership (“Porsche South Africa”) that there was a
vehicle in stock which was
ready for delivery;
10.5
He stated that he understood and accepted
that the Porsche was financed by the Second Respondent through a
credit instalment agreement
with the Applicant; the Porsche was given
to him as a gift by the Applicant as a way of helping him to advance
his career;
10.6
He admitted that he accompanied the
Applicant on various overseas trips for holidays;
10.7
He owned a Land Rover 4x4 motor vehicle
which was fully paid for. After accepting the motor vehicle from the
Applicant, he sold
the Land Rover and took the proceeds for his
personal use;
10.8
He also referred to statements made by Mrs
L Watson and Eddy Rust, which according to him supported the
allegation that the Porsche
was given to him by the Applicant as a
gift.
11.
Mrs L Watson submitted a statement which was annexed to the First
Respondent’s answering affidavit. This statement does
not
appear to be commissioned. Before court, she testified that out of
concern about the relationship which the Applicant was having
with
the First Respondent, she decided to call a meeting with the
Applicant to clarify her concerns.
12.
In a meeting which she had with the Applicant, the Applicant
confirmed to her that he was giving the Porsche to
the
First Respondent as a gift. She also stated that certain of the
information contained in her statement came from the First
Respondent.
13.
Eddy Rust testified that he was the First Respondent’s friend.
He testified that at the Applicant’s birthday party,
he (the
Applicant) stated before a number of people that he wanted to buy a
motor vehicle for the First Respondent. He further
testified about an
incident which occurred in Thailand which apparently led to the
breakdown of the relationship between the Applicant
and the First
Respondent. The facts relating thereto are not relevant for a
determination of the issues which are before Court.
EVALUATION
OF THE MERITS
14.
A donation may be defined as an agreement which has been induced by
pure (or disinterested) benevolence or sheer liberality
whereby a
person under no legal obligation undertakes to give something to
another person called the “donee” with the
intention of
enriching the donee in return for which the donor receives no
consideration nor expects any future advantage.
[1]
15.
It is important to note that in a contract of donation the gift is
made with the intention that it should forthwith become the
property
of the recipient and that it would not be returned to the donor under
any circumstances. In my mind this presupposes that
the person making
the donation must have some title to the property which he intends to
donate, which title will give him the right
or power to dispose of
the property.
16.
It is common cause between the parties that the First Respondent was
in possession of the Porsche, being physically handed to
him by the
Applicant at the time of its purchase. It is further not in dispute
that the dealership and representatives of the Second
Respondent were
aware that the Porsche was going to be used by the First Respondent.
I therefore accept for purposes of argument
the First Respondent
exercised the right of possession over the Porsche. The question is
whether this right of possession was exercised
by the First
Respondent in consequence of the donation of the Porsche to him by
the Applicant.
17.
There was never any suggestion that the Second Respondent had agreed
to part with its rights of ownership of the Porsche. In
my mind, this
fact should dispose of the argument that the Porsche was donated to
the First Respondent. The Porsche was simply
not capable of being the
subject of the alleged donation by the Applicant to the First
Respondent, as the Applicant did not have
any right or authority to
donate the Porsche to the First Respondent. I agree with the
submission made by the Applicant’s
Counsel that the legal
principle of
nemo plus iuris ad alium transferre potest quam ipse
haberet
, entailing that the Applicant could not transfer more
rights than he had on the Porsche.
18.
If it is true that the Porsche was donated to the First Respondent,
he would have acquired the right of ownership. To an extent
that the
Applicant may have attempted to donate the Porsche to the First
Respondent, this purported donation would be legally void
as the
Applicant could not legally donate the Porsche to the First
Respondent as it did not belong to him. At best, the Applicant
could
and in fact did transfer possession of the Porsche to the First
Respondent and what he could have donated was the payment
of the
monthly instalments to the Second Respondent, on the Porsche. This,
however, does appear to be the case which is advanced
by the First
Respondent. I am satisfied that the Applicant has made out a
compelling case for the return of the Porsche as it was
not capable
of donation by the Applicant.
19.
Even if I am wrong on the finding that the Porsche was not capable
of being the subject of the alleged donation between the
Applicant
and the First Respondent, the Applicant should succeed on the
probabilities of this case. I have stated above that a
donation is a
contract and must comply with the formal requirements of a valid
contract. On the undisputed version of the Applicant
and the First
Respondent there was no meeting of the minds with regards to the
nature of the transaction they were entering into.
The Applicant
stated that he understood that he could never have donated the
Porsche, as it belonged to the Second Respondent.
The First
Respondent understood the transaction as a donation. This much is
evidenced by the attempt on the part of the First Respondent
to get
the Applicant to sign a document which stated that the Porsche was a
donation given by the Applicant to the First Respondent.
The
Applicant, on the evidence before Court, refused to sign the
document.
20.
In all civil proceedings, the existence of a contract of donation
must be proved on a preponderance of probability. The question
is
whether, in the circumstances, it is likely the alleged donor would
have agreed to part with property without receiving a
consideration.
[2]
21.
The First Respondent was not able to discharge the onus lying on him
to prove that there was a valid donation. In
Timoney
and King v King
[3]
Innes CJ stated the following:
“
The
general legal principle that a donation is not presumed and must be
proved by him who relies upon it.
”
[4]
22.
I was also not impressed with the evidence of the First Respondent
and his two witnesses. The evidence of the First Respondent
was so
improbable that no reasonable person would believe it. He tried hard
to persuade the court that there was no love relationship
between him
and the Applicant. I find this highly improbable and have no
hesitation to reject this evidence as a lie. I observed
that
demeanour of the witnesses. I was particularly impressed by the
evidence of the Applicant. He gave the court an honest account
of his
relationship with the First Respondent. I have no hesitation to
believe his evidence that he had a love relationship with
the First
Respondent. The First Respondent wanted the court to believe that he
followed the Applicant and travelled with him around
the world slept
with him on the same bed and without the existence of a relationship
between them. His version was that he was
only happy to accept the
gifts.
23.
I have no problem in rejecting the evidence of the First Respondent
and his witnesses, insofar as it contradicts the evidence
of the
Applicant. I accept that it was never the Applicant’s intention
to give the Porsche as a donation to the First Respondent.
It
is clear to me that the First Respondent colluded with both his
witnesses to present a skewed and false picture about the
relationship
which the Applicant had with the First Respondent. It is
not clear to me as to why the First Respondent and his witnesses went
out of their way to attempt to hide that he (the First Respondent)
had a love relationship with the Applicant. From the evidence
given
by the First Respondent, he thought that as a public persona, he
wasn’t sure whether his relationship with the Applicant
would
generate negative publicity for himself and his career. This may be
understandable, but there was no need for them to lie
or be deceptive
when the matter reached the Court.
THE
RECUSAL APPLICATION
24.
This matter was set down for hearingfrom 8 to 10 December 2014. A few
days before the matter was heard, I received an application
from the
First Respondent in terms whereof they sought that I should recuse
myself from hearing this matter. The First Respondent
alleged that in
an informal discussion which had taken place, I had expressed a view
that a relationship of three months was too
short for an expensive
gift to the First Respondent.
25.
What transpired is that as the matter was set down for the hearing of
oral evidence, I enquired from the Senior Judge whether
I should
proceed and hear the oral evidence from the parties. The Senior Judge
advised me that the matter should be removed from
the roll and I
should advise the parties to apply for a trial date. Both Counsel for
the Applicant and Respondent approached me
outside Court, and I
advised them of what had been communicated to me by the Senior Judge.
26.
Counsel for the Applicant, Mr Hattingh, enquired to what my views
were in the light of the fact that I was not going to hear
the
matter. I, in a jokingly manner, advised both Counsel that I did not
have any views on the matter but had spoken to my wife
who had
expressed a view “that a relationship of three months was too
short a period for Porsches to be involved”.
I did indicate to
both Counsel that I did not have any view on the matter.
27.
The recusal application was argued on 8 December 2014 and I dismissed
the application. During argument, Counsel for the First
Respondent,
Adv Swanepoel, conceded that he had no doubt that I would be
impartial, but expressed a view that his client harboured
a suspicion
that I was biased in favour of the Applicant. My view at the time was
that there was no merit to that application and
that application was
brought merely to try and delay the hearing of this matter.
28.
The First Respondent had failed to establish before me that
objectively, there were grounds for me to recuse myself. The issue
of
the duration of the alleged relationship between the Applicant and
the First Respondent was irrelevant for purposes of determining
the
issue which was whether the Applicant had donated the Porsche to the
First Respondent. The First Respondent’s Counsel
also conceded
that I had not expressed a personal view, which when objectively
viewed, would lead to a reasonable litigant to entertain
a suspicion
that I would be biased against him. There was no suggestion that the
First Respondent would not receive a fair trial
before me.
[5]
29.
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[6]
the
following was stated by the Court:
“
Section
165(2) of the Constitution requires Courts to apply the law
“impartially and without fear, favour or prejudice”
and
the oath of office prescribed by Schedule 2 of the Constitution
requires each Judge that he or she will uphold and protect
the
Constitution…and will administer justice to all persons alike
without fear, favour or prejudice, in accordance with
the
Constitution and the law
.”
30.
In paragraph 35 of the same judgment the following was stated by the
Court:
“
a
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which comes before Courts and other
tribunals.
This applies, of course to both criminal and civil cases
as well as to quasi-judicial administrative proceedings. Nothing is
more
likely to impair confidence in such proceedings, whether on the
part of litigants or the general public, than actual bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes.”
31.
In this case there was “no real likelihood of bias” or “a
reasonable suspicion or apprehension of bias”.
This is in light
of the concession by the First Respondent’s Counsel that he did
not believe that I would be impartial in
my adjudication of the
dispute between the parties.
32.
A Judge who is appointed to adjudicate disputes between litigants
must do so unless there is a “
real
likelihood of bias
” or a
“
reasonable suspicion or
apprehension of bias
.”
He or she cannot recuse himself or herself merely because there is an
application for recusal. If this were to happen it
would be a total
abdication of responsibilities entrusted on Judges by the
Constitution. The First Respondent did not persuade
me that there was
a proper case for me to recuse myself from hearing this matter. It
was for this reason that the application for
my recusal was
dismissed. As indicated above, the First Respondent waited until a
few days before the hearing was scheduled to
begin, to bring this
recusal application. I agree with the submission made by the
Applicant’s Counsel that this was a ploy
to delay the
finalisation of this matter.
ORDER
33.
In the result I make the following order:
1.
The First Respondent is directed to
forthwith deliver the Porsche to the Applicant, failing which the
Sheriff or his deputy is authorised
to seize it from the First
Respondent and have it delivered to the Applicant.
2.
The First Respondent’s counter
application is dismissed with costs.
3.
The First Respondent is ordered to pay the
costs of this application, which costs shall include the costs
incurred by the Applicant
in opposing the recusal application of 8
December 2014.
ZULU (M)
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 8 to 10 December 2014
Date
of Judgment: 06 February 2015
Appearances
For the
Applicant : Adv J J Hattingh
Instructed
by : Nothnagel Attorneys
For
the Respondents : Adv J H Swanepoel
Instructed
by : D F Oosthuizen
[1]
Lawsa
Vol 8 para 301.
[2]
See LAWSA Second edition para 3.15
[3]
1920
AD 133.
[4]
This
legal principle has over the years been applied in various other
cases.
See:
Avis v Verseput 1943 (AD) 331 at 337; Jordan v De Villiers
1991 (4)
SA 396
; Thornycroft v Vas 1957 (3) SA 754 (FC)
[5]
See Council of Review, South African Defense Force and Others v
Monnig and Others
1992 (3) SA 482
at 491 e-f
[6]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 29