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[2018] ZAGPJHC 134
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Mmore v Makhetha (A3080/17) [2018] ZAGPJHC 134 (26 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3080/17
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
……………………
..
………………………...
DATE
SIGNATURE
In
the matter between:
MOTHUSI
CLOUDINE
MMORE
APPELLANT
And
LETELE
MAKHETHA
RESPONDENT
J
U D G M E N T
KEIGHTLEY,
J
:
INTRODUCTION
[1]
The appellant was the plaintiff in the
court
a quo
,
being the Johannesburg Magistrate’s Court. She instituted
an action against the respondent for the return of a Renault
Megane
motor vehicle (“the motor vehicle” or “the Megane”)
in the possession of the respondent. Her
cause of action was
the
rei vindicatio
,
based on her alleged ownership of the motor vehicle. Appellant
averred in her particulars of claim that the parties had
entered into
a verbal agreement in terms of which she had loaned the motor vehicle
to the respondent for a week. Contrary
to this agreement, the
appellant claimed that the respondent had failed to return the
vehicle to her on expiry of this period.
[2]
It was common cause on the pleadings that
the motor vehicle was registered in the appellant’s name.
It was further common
cause that the respondent was in possession of
the vehicle when the action was instituted. However, in his
plea, the respondent
denied that the appellant was the
de
facto
owner of the vehicle. He
averred, on the contrary, that he had bought and paid for the
vehicle. The nub of the respondent’s
defence was that the
appellant, not being the owner of the vehicle, was not entitled to
exercise the rights of an owner under the
rei
vindicatio
and to demand that he return
the vehicle to her possession.
[3]
The critical issue for determination by the
court
a quo
was whether the appellant had established that she was the owner of
the motor vehicle. The court found that she had failed
to
satisfy her onus in this regard, and found in favour of the
respondent. Being dissatisfied with this outcome, the appellant
instituted the appeal before us.
THE
EVIDENCE BEFORE THE COURT
A QUO
[4]
It was common cause between the parties
that they had been involved in a romantic relationship from 2005 to
2011. This was
at a time when the respondent already had a life
partner who did not know that he was involved in another relationship
with the
appellant. It was also common cause that the original
source of the money used to purchase the motor vehicle was an amount
of approximately R42 000 that the respondent transferred into the
appellant’s bank account. This money came from the respondent’s
inheritance from his parents. The nature of this payment was in
dispute. The appellant’s version was that it
was a gift.
This was disputed by the respondent for the reasons I will set out
shortly. It should be noted that in
her evidence the appellant
referred to the amount as being R40 000. In my view, nothing
turns on whether it was R40 000 or
R42 000.
[5]
The appellant’s version was that she
used this money to purchase a Jetta motor vehicle. Her nephew
assisted her with
this purchase. The Jetta was subsequently
sold. The appellant conceded that the respondent had arranged
for the sale
of the Jetta. On the appellant’s version,
the respondent thereafter alerted her to the fact that the Megane was
for
sale at an auction. After that she gave him a cheque drawn
on her bank account (being the same account into which the original
R40 000 from the respondent had been deposited), the respondent
proceeded to the auction and purchased the Megane, which was
subsequently
registered in the appellant’s name. It was common
cause that the proceeds from the sale of the Jetta (which had been
funded
by the original deposit of R40 000 or R42 000 into the
appellant’s account by the respondent) ultimately were used to
purchase
the Megane, which is the subject matter of this appeal.
[6]
The appellant’s claim of ownership
was based in her particulars of claim on the plain assertion that she
was the registered
owner of the motor vehicle. It is trite that
in terms of our law, registration of a motor vehicle in a person’s
name
is not sufficient to establish ownership. In terms of our
abstract system of transfer of ownership, it is necessary to
interrogate
the real agreement between all the parties involved in
the transaction to determine who acquired legal ownership of the
object
in question. The question is whether there was an
agreement between them that there would be a legal acquisition of
ownership.
Registration in the name of a particular party may
be a relevant factor in this inquiry, but, if challenged, it must be
weighed
against all other relevant evidence in order to determine who
actually acquired ownership in the eyes of the law. It may be
that, on the facts, despite registration in a person’s name,
there was no intention that he or she will
de
facto
and
de
lege
become owner of the vehicle in
question.
[7]
In amplification of her case, the appellant
testified that she had intended to become owner when she registered
the vehicle in her
name. She confirmed that the respondent had
initially given her an amount of R40 000, which she claimed was
simply in the
nature of a gift. In other words, she testified
that the respondent had not expected the money to be repaid.
She had
used this money to buy the Jetta, and then used the proceeds
of the sale of the Jetta to purchase the motor vehicle. Her
nephew had physically bought the Jetta on her behalf, as he had
experience in the business of buying and selling used cars.
In
answer to the question from her attorney: “
Then
to buy the Megane you instructed the defendant to act as your agent?
”
she responded affirmatively. She was also asked whether, “
this,
if I can call ‘business’ that you had, was the defendant
a part of that business agreement, or business dealings?
”
she responded in the negative. I should add that this was the
only reference by the appellant in her evidence in chief
to the
purchase of the vehicles being part of a business venture. As I
indicate shortly, she only amplified her version in
this regard under
re-examination.
[8]
Appellant’s attorney put the
respondent’s version to the appellant during her evidence in
chief, and the appellant denied
that version. She denied
that the reason that the vehicle had been registered in the
appellant’s name was so
that the respondent’s life
partner would not know about their affair and their dealings
involving the vehicles. She
also denied that the vehicle had
been purchased with the respondent’s money. She was
asked to comment on an SMS
that she had sent to the respondent.
In that SMS she had told the respondent to “
come
and get your car
” (meaning the
motor vehicle). She explained that this was at a time when they
were not getting on together, and she
had been trying to be
sarcastic. It was in response to the respondent demanding the
car from her. She gave the
response while she was angry.
[9]
Under cross-examination the issue of the
business of buying and selling cars was considered further. The
appellant denied
that she and the respondent had decided to go into
the business of buying and selling cars together while they were
involved in
their affair. She claimed that the respondent’s
role was limited to assisting her by taking the Jetta to the Free
State
to be sold, and by going to buy the motor vehicle at the
auction.
[10]
Under re-examination, the appellant
explained that her nephew, who had bought the Jetta, was in the
business of buying and selling
cars. She had told the
respondent about this, and he had offered to give her R40 000 to
start a business. However,
there was no agreement that she
would pay this money back to the respondent. She also stated
that the respondent had never
sought to share in the profits of her
business.
[11]
The respondent’s version was that he
and the appellant had decided to go into business together while they
were still involved
in their affair. As capital for the
business, he transferred an amount of some R42 000 into an account
opened specifically
for this purpose in the appellant’s name.
The arrangement between the parties was that they would share 50/50
in the
profits of the business. At first, they thought of
opening a second-hand clothing business, but this did not work out.
It was then that the appellant told the respondent about her nephew
who was in the business of buying and selling used cars.
They
decided to go into the same type of business. They would buy a
vehicle and use the proceeds to buy a new vehicle for
sale.
[12]
The Jetta was bought as part of the
business relationship between the parties, with the R42 000 being
used as the capital to purchase
it. The respondent did not want
his life partner to know about his business dealings with the
vehicle, and so the arrangement
between him and the appellant was
that it would be registered in her name. In this way, no
correspondence about the Jetta
would reach the respondent and his
life partner would be none the wiser. According to the
respondent, the same held true
with regard to the Megane that was
purchased later. At no stage was there any agreement that the
appellant would be the owner
of the vehicles. The business
relationship was a team effort, with the respondent being in a
position to dictate the terms
as he had provided the capital.
[13]
The respondent arranged with a friend of
his in the Kroonstad to sell the Jetta. The transaction was
successful, with the
proceeds being deposited in the bank account
held in the appellant’s name. According to the
respondent, shortly after
the Jetta was sold he sourced the Megane
motor vehicle at an auctioneer. They discussed it and decided
to purchase the vehicle.
The respondent attended at the auction
and bid for the vehicle. The bid was successful and he then
arranged with the respondent
to secure a bank guaranteed cheque from
the bank account to pay for it. The vehicle was released to him
on payment.
He drove it to the appellant’s residence as
she had secure parking for it in a garage. The respondent
phoned the same
friend in Kroonstad who had sold the Jetta for them
and arranged for him to try to sell the Megane. He and the
appellant
once again drove to Kroonstad to deliver the car to the
friend.
[14]
However, after some time without a sale,
they decided to bring the vehicle back to Johannesburg to try to sell
it here. The
respondent suggested that the appellant use the
vehicle as this would be a form of advertising it for sale.
Also, she had
an old mother who needed transport. This
arrangement lasted for about a year. There appears to have been
no progress
on the sale of the vehicle during this period.
[15]
It seems that the romantic relationship
between the parties soured during this time. The respondent
testified about various
disagreements between them regarding his
taking the vehicle back from the appellant. According to him,
the appellant refused
on the basis that she would only do so if he
repaid to her money she had spent on maintaining the vehicle and
repairing it.
The respondent’s attitude was that as the
appellant was the one using the vehicle it was only fair that she
should pay for
the maintenance required and for repairs relating to
damage to the vehicle. Eventually, the respondent used the
excuse of
his cousin’s funeral in Lesotho to obtain possession
of the vehicle. On his own version, this provided him with an
opportunity to take possession of the vehicle and to retain
possession. After making some excuses to the appellant about
why he had not returned the vehicle to her, he eventually told her
that he was not going to give the vehicle back, but was going
to give
it to his son.
[16]
This prompted the appellant to go to the
police. Both the appellant and the respondent testified about
this. It is not
necessary to go into the details, save to say
that it is common cause that the respondent gave a statement to the
police in March
2011 to the effect that the vehicle had been
purchased as part of their business arrangement. The respondent
outlined the
purchase of the Jetta with the money he had deposited
into the appellant’s bank account. He stated that he had
done
this as he did not want his wife to know about it. He also
asserted in the statement that the vehicle was only registered in the
appellant’s name but that it was not her vehicle. He also
referred to an SMS that she had sent to him saying: “
You
will get your car after 2h30 today …
”.
He indicated in his statement that this showed that the appellant
knew that the vehicle was his. It is common
cause that the
police declined to take the matter further. Thereafter, the
appellant instituted her civil action for the
recovery of the
vehicle.
JUDGMENT
OF THE COURT
A QUO
[17]
The court
a
quo
identified the key issue for
determination as being whether the appellant or the respondent was
the owner of the motor vehicle.
It noted that it was faced with
two irreconcilable versions. The court considered the
credibility of the parties and the
probabilities of their versions.
[18]
With regard to the question of the nature
of the R42 000 payment by the respondent to the appellant, the court
found that the appellant’s
version that it was a gift was
improbable. The court noted that the appellant had testified
that this was the only monetary
gift she had ever received from the
appellant and found it improbable that the respondent, who was a
businessman, would suddenly,
and out of the blue, give the appellant
R42 000.
[19]
The court
a
quo
also accepted as probable the
respondent’s version that both vehicles had been registered in
appellant’s name to avoid
his life partner finding out about
his affair with the appellant and their business dealings. The
court was persuaded, too,
that the appellant’s SMS to the
effect that she would bring back the respondent’s vehicle was
evidence that the appellant
well knew that in terms of the
arrangement between them, she was not the owner of the vehicle.
The court found that the probability
was that the appellant knew that
the respondent was the owner as the vehicle had been bought with his
money, and that she knew
that the money she had received from him was
not a gift, but was in fact capital intended to be used to buy and
sell vehicles.
The court noted that it was common cause that
the respondent had been involved in buying and selling (or attempting
to sell) the
vehicles through the respondent’s friend in
Kroonstad.
[20]
As to the credibility of the parties, the
court
a quo
found the respondent to have been an honest witness who told things
as they were and who was not moved under cross-examination.
The
court took it to be a point in his favour that the respondent had
been open with the court in saying that he had used his cousin’s
funeral in Lesotho as a pretext to get the vehicle back from the
appellant.
[21]
On the contrary, the court dismissed the
appellant as a dishonest witness who wanted to be unjustly enriched
from money provided
by the respondent, and who took advantage of the
fact that the respondent had wanted to keep his dealings with the
appellant a
secret from his life partner.
[22]
The court also rejected the evidence of the
appellant’s nephew who had testified that he had approached his
aunt with a proposal
to buy the Jetta, and that she had bought the
Jetta with her own money. The court found that the nephew had
been biased in
favour of his aunt.
ISSUES
ON APPEAL
[23]
The appellant noted no less than 15 grounds
of appeal. Many are interrelated, and are aimed at various
findings made along
the way in the judgment of the court a quo.
In essence, the real issue on appeal is whether the court
a
quo
was correct in finding that the
appellant had not met the onus of establishing that she was the owner
of the motor vehicle.
[24]
The appellant takes issue with the court
a
quo’s
rejection as improbable the
appellant’s version that the R42 000 paid to her was a gift.
This was a crucial finding
by the court below as it went directly to
the nub of the appellant’s case, viz. that she had
independently bought the motor
vehicle for herself, and that she and
the respondent were not involved together in the business of buying
and selling cars.
[25]
To sustain this version, the appellant was
required to satisfy the court that for no reason other than from a
fit of generosity
the respondent had paid her a substantial sum of
money. Further, that this “gift” had no connection
with the
respondent subsequently being involved in the transactions
in terms of which first the Jetta was purchased and sold, and
subsequently
the Megane was purchased. This is because the
appellant did not dispute that the respondent had been involved by,
among other
things, assisting to sell the Jetta through the
respondent’s friend in Kroonstad; identifying the Megane as
being a possibility
for the next vehicle to purchase; attending to
purchase the Megane at the auction; taking delivery of it; once again
arranging
for the same friend in Kroonstad to attempt to sell the
Megane; and going together with the appellant to retrieve the Megane
from
Kroonstad when a sale did not come through.
[26]
The appellant flatly denied in her evidence
that she and the respondent had been involved together in the
business of buying and
selling the Jetta, and then buying the
Megane. In other words, her version was that none of this
conduct on the part of the
respondent was indicative of a business
relationship between them, nor was the respondent’s initial
payment of R42 000 into
her account indicative of such a
relationship.
[27]
Was the court
a
quo
wrong in concluding that the
appellant’s version as to the nature of the R42 000 payment was
improbable? In my view,
the court cannot be faulted in this
regard. On a balance of probabilities, the evidence established
a link between the initial
payment of R42 000 into an account held in
the appellant’s name, and the commencement of a business to buy
and sell vehicles.
The evidence also clearly established a link
between that business (involving the purchase of the Jetta, and
subsequently, the
Megane) and the respondent. The capital was
put up by the respondent, and he was intimately involved in the
relevant transactions.
It is significant that the initial
payment to the appellant’s bank account occurred shortly before
the Jetta was purchased
and then sold. This is all consistent
with a joint business venture between the parties involving, as the
respondent contended,
him as the dominant business partner. He
was a businessman at the time. It is common cause that he had
not previously
given the appellant gifts of money. Accordingly,
it is highly improbable, as the court
a
quo
said, that out of the blue he would
have decided to gift the appellant a considerable sum of money and
then, thereafter, simply
to act as her agent in her independent
purchase and sale of cars. The registration of the vehicles in
the appellant’s
name is also completely consistent with the
respondent wishing to keep his relationship with the appellant a
secret from his life
partner. In this regard, the appellant’s
denial that she knew about the respondent’s life partner is
also improbable
in view of the fact that she and the respondent had
been involved in a relationship for a number of years.
[28]
In support of these probabilities is the
fact that it was common cause that the dispute around the ownership
of the vehicle arose
after the romantic relationship between the
parties had broken down. The respondent correctly points out
that the appellant
confirmed that she had sent an SMS to the
respondent telling him to “
come
and get your car
”. She also
confirmed that the respondent had told her via SMS that she should
deliver the vehicle registration papers
to him. This is
consistent with the respondent’s version that although the
vehicle was registered in the appellant’s
name, he was in fact
the owner. Although the appellant said that she had been
“sarcastic” and angry when she
had told the respondent to
come and collect his car, this explanation simply does not hold water
when viewed in the context of
the evidence as a whole.
[29]
In my view, on the probabilities the
evidence points to a business relationship between the parties along
the lines described by
the respondent. Despite the vehicle
being registered in the appellant’s name, it was not the real
intention of the
parties that she would acquire legal ownership.
Her interest in the vehicle was limited to a share in the ultimate
profits
that may have flowed from its sale. She possessed the
vehicle with the consent of the respondent, and not as owner.
A
dispute arose between them after the romantic relationship broke down
and he wished to recover the vehicle from her. She
held out,
wishing to be reimbursed for expenses she had incurred while using
the vehicle. Ultimately, the respondent resorted
to self-help
by using the guise of his cousin’s funeral to secure a return
of the vehicle to him. That the respondent
did so is of no
assistance to the appellant. Her claim was based on the
rei
vindicatio
. She did not rely on
the
mandament van spolie
.
She bore the onus of establishing ownership, not possession. As
the court
a quo
correctly found, she failed to do so and was thus not entitled to
judgment in her favour.
[30]
The appellant also takes issue with the
court
below
approach to, and finding on the
issues of credibility. In the first instance, the appellant
submits that the court a quo erred
in that it did not make a finding
on the probabilities, but rather on credibility. In other
words, the submission is that
the court was persuaded primarily that
the respondent was a credible witness, and that the appellant was not
and that it based
its decision on the probabilities on this
credibility finding. The appellant made this submission on the
ground that in paragraph
22 of the judgment, under the heading
“Evaluation of Evidence”, the magistrate stated that:
“The court is confronted
with two irreconcilable versions.
The court has to make findings on the credibility of factual
witnesses.” The
appellant’s argument is that this
shows that it was the issue of credibility, and not the probabilities
that formed the core
of the ultimate finding by the court.
While it is so that in this paragraph, the court did not say that it
was also necessary
to consider the probabilities of the two versions,
it is quite clear from the paragraphs that follow, that this is
precisely what
the court went on to do. It is evident from the
judgment read as a whole that the court below considered the
probabilities
thoroughly and that this consideration was not based on
the credibility of the competing parties’ testimony, but on the
facts
considered as a whole. Thus, there is no merit in
the appellant’s contention in this regard.
[31]
The
next submission in regard to credibility is that because the
appellant engaged in a subterfuge with his life partner, and because
he lied to the appellant as to why he had not returned the vehicle to
her after the funeral, the court ought to have rejected his
evidence
as being incredible. The point is not well made. Contrary
to what the appellant submits, the fact that he
engaged in a
subterfuge with his life partner as regards to his relationship with
the appellant does not make the respondent
per
se
a dishonest person and litigant. His credibility was to be
judged on whether or not he was honest in his testimony on the
relevant issues before the court, not credibility in other contexts.
It is well established that even a witness who is found
to have been
dishonest on collateral aspects of his or her testimony may still be
found to have been credible in respect of the
relevant issues.
[1]
It is also trite that an appeal court will not lightly interfere with
a credibility finding by a trial court.
[2]
Having regard to the transcript of proceedings, there is nothing to
suggest that there is any scope for this court to interfere
with the
court a quo’s credibility finding as regards to the
respondent. The transcript of proceedings shows that he
gave
detailed evidence and was not shaken under quite extensive
cross-examination. His version remained consistent throughout.
Moreover, it was consistent with the version he gave in his statement
to the police in 2011.
[32]
There is also no merit in the submission by
the appellant that the court
a quo
erred in making findings on evidence that was not admissible.
The submission was based on the fact that the respondent’s
attorney at trial did not formally put to the appellant the
respondent’s version when cross-examining the appellant.
In the first place, it is not clear from the appellant’s
submissions what was the alleged inadmissible evidence alleged to
have been relied on by the trial court. In the second place,
the appellant’s attorney did not raise an objection to
the
admissibility of aspects of the respondent’s testimony and ask
for a ruling from the trial court. All the record
reflects is
that the appellant’s attorney raised the issue that the
respondent’s attorney had not put various details
of the
respondent’s version to the appellant under cross-examination.
The appellant’s attorney stated that as
a consequence she would
argue that the respondent’s version was to be rejected on the
basis that he was manufacturing a version
on the spot, having heard
the appellant’s version. This is cannot be equated, as
counsel for the appellant argued before
the court on appeal, to an
implied objection having been raised. In so far as the
argument that the respondent’s
version was manufactured after
having heard the appellant’s testimony, this simply cannot be
so. By the extensive details
given in his oral testimony, his
version was consistent with the version given by his attorney in his
opening address, which took
place before the appellant testified.
It was also consistent with the version he gave in his police
statement many years
previously. Furthermore, the respondent’s
attorney explained to the court why he had not put the full details
of the
respondent’s version to the appellant.
[33]
It is also significant that the appellant’s
own attorney put the respondent’s version to the appellant when
she gave
her evidence in chief, albeit not with the level of detail
later given by the respondent. In short, there is no question
that the respondent’s version on the main issue before the
court was laid down and known long before he stepped into the witness
box. There was no unfairness perpetrated against the appellant
in this regard: she was called to answer on the respondent’s
version on the main issue before the court and she did so; further,
the magistrate did not rely on any of the details provided
by the
respondent in his testimony in reaching its decision on the
probabilities. Thus, I am of the view that there was no
misdirection on the part of the court
a
quo
in relying on the details provided
by the respondent in amplification of his well-known version in
finding in his favour on the
probabilities.
[34]
Finally, the appellant submits that the
court below erred in law in finding that the respondent, and not the
appellant, was the
owner of the motor vehicle. The submission
proceeds on the basis that when the appellant loaned the vehicle to
him to attend
the funeral in Lesotho she had no intention, in the
legal sense, of transferring ownership to him. Thus, so the
submission
goes, there was no real agreement between them that he
would acquire ownership. This submission may be disposed of
briefly.
It is based on a misconception. It was never the
respondent’s contention that the appellant had transferred
ownership to
him by loaning the vehicle to him. The nub of the
case was whether the appellant was able to satisfy the onus she bore
of
establishing that she had acquired ownership
in
the first place
. For the reasons
already stated, in my view, the court
a
quo
did not err in finding against her
on this critical point. This leg of the appeal accordingly also
must fail.
CONCLUSION
[35]
It follows, for the reasons stated above
that the appeal must fail. I propose the following order:
1.
The appeal is dismissed with costs, excluding the costs of counsel
for the respondent, who
appeared
pro bono
.
__________________________________________
R M
KEIGHTLEY
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
__________________________________________
S JULY
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard
: 29 January 2018
Date
of Judgment
: 26 April 2018
Counsel
for the appellant
: R Blumenthal
Instructed
by
: Muller Voigt Attorneys
Counsel
for respondent
: MA
Wesley
Instructed
by
: Law Clinic, University of Johannesburg
[1]
Orville
Investments (Pty) Ltd v Sandfontein Motors
2000 (2) SA 886
(T) at 914C-D
[2]
R v
Dhlumayo and Another
1948 (2) SA 677
(A)