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[2010] ZAGPJHC 98
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Nedbank Limited v Euro Blitz 21 (Pty) Ltd and Others (2010/10766) [2010] ZAGPJHC 98 (4 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE No. 2010/10766
DATE:
04/11/2010
Reportable in the
electronic law reports only
In the matter between:
NEDBANK
LIMITED
Applicant
and
EURO
BLITZ 21 (PTY) LTD
First Respondent
CAVALETTO
5 (PTY) LTD
Second
Respondent
MULTI
MANAGED INVESTMENTS
(PTY)
..
Third Respondent
MARK
ANTHONY LEISHER
.
...
Fourth
Respondent
O
M MAKGATO N.O (in his capacity
as
liquidator of OMNI AIR (PTY) LTD
..
Fifth Respondent
JUDGMENT
WILLIS J:
[1] The applicant, in
Part B of its Notice of Motion, seeks an order directing the
third and/or fourth respondents to return
an aircraft to the
applicant failing which the sheriff is authorised to attach and
remove the aircraft and deliver it to the applicant;
declaring that
the applicant is the lawful owner and possessor of the aircraft;
declaring a sale in execution of the aircraft on
24 February 2010 to
be null and void and that the sheriff repay any funds received from
the third and/or fourth respondent in respect
of the sale in
execution to the execution creditor.
[2] The application was
initially brought as an urgent application on 30 March 2010 as “Part
A” of the Notice of Motion.
The urgent part of the application
was resolved by way of an interim interdict granted by agreement
between the parties. This interim
interdict, in effect, restrained
the respondents from dealing with the aircraft in any way pending the
resolution of Part B. The
aircraft is collecting dust in the hangar
where it has been since two judicial attachments and a sale in
execution. Costs were
reserved in respect of the interim interdict.
[3] It is the case of the
first to fourth respondents (“the respondents”) that the
third respondent validly purchased
the aircraft at a sale in
execution on 24 February 2010, and that in terms of section 70 of the
Magistrates Court Act 32 of 1944
(“the Magistrates Court Act”)
it consequently became the owner thereof. The applicant contends the
opposite: that the
sale in execution was not valid.
[4] During December 2006,
the applicant purchased a 1970 Cessna 402B aircraft with registration
number: ZS-AVL and engine/serial
number: 402B-0029 together with its
avionics, keys, log books, batteries and certificates of
airworthiness from 402 Aviation CC.
The applicant paid for the
aircraft on 14 December 2006. The applicant became the registered
owner of the said aircraft and on
the same day “on-sold”
the aircraft to the fifth respondent (“Omni Air”) in
terms of a written instalment
sale agreement subject to the
conditions contained therein. Clause 2.1 of the instalment sale
agreement specifically provided that
ownership of the aircraft would
remain vested in the applicant until Omni Air had paid all amounts
due in terms of the instalment
sale agreement.
[5] As a term of the
agreement of the sale of the aircraft to Omni Air an “aircraft
mortgage bond” was registered in
favour of the applicant. This
occurred on 10 January 2007. The aircraft was duly delivered by
402 Aviation CC to Omni Air
on the instructions of the applicant.
[6] Omni Air fell into
arrears in terms of the instalment sale agreement. The applicant
elected to cancel the agreement on 28 August
2009 on account of Omni
Air’s continued failure to remedy its breach. Nevertheless,
Omni Air failed to return the aircraft
to the applicant. The
applicant then sought and obtained a court order in this division of
the High Court on 21 October 2009, under
case number 38631/09
confirming cancellation of the instalment sale agreement, ordering
Omni Air to return the aircraft to the
applicant and authorising the
sheriff to attach and remove the aircraft from the premises of Omni
Air.
[7] At that time, the
applicant had no information pertaining to the location or
whereabouts of the aircraft and appointed “Discovery
Auctions”
to establish the whereabouts of the aircraft, determine the fair
market value of the aircraft and to find a suitable
buyer. The
aircraft was located by Discovery Auctions at the premises of the
first respondent. It was located at Hanger 1, Rand
Airport, Germiston
on 11 November 2009. There it has remained. It is common cause that,
at this time, it was in the legal “possession”
of the
first respondent and, if not of the first respondent, then the second
respondent. The sheriff has confirmed that, acting
on the
instructions of the applicant and pursuant to the warrant of
attachment that was issued by the registrar of the High Court
consequent upon the judgment granted in favour of the applicant on 21
October 2009, went to the hangar of the first respondent
on 18
November 2009, served a copy of the order and judicially attached the
aircraft. For reasons of practicality, the sheriff
did not,
however, remove the aircraft from these premises. The respondents
deny that they were made aware of this process of service
of the
order and the attachment by the sheriff.
[8] The aircraft came to
be in possession of the first respondent by reason of the first
respondent having carried out work to the
aircraft at the request of
Omni Air. There is no dispute that Omni Air is indebted to the first
respondent and that the first respondent
has a lien over the aircraft
respect of work done, materials supplied and hangerage pertaining to
the aircraft.
[9] Meanwhile, the second
respondent obtained judgment in the amount of R42 000.00,
against Omni Air in the Alberton Magistrate’s
Court on 11
august 2009. This judgment was for certain rentals alleged to be
outstanding. The applicant was not, until some
time later,
aware either of the claim or the judgment granted. The second
respondent then caused for the aircraft to be judicially
attached on
17 November 2009 pursuant to its judgment. The aircraft was
ultimately sold to the third respondent at a subsequent
sale and
execution on 24 February 2010 which related to the second
respondent’s judgment. The applicant was not, at
the
time, aware of the said sale in execution. Consequently, the sale
took place in the absence of the applicant notwithstanding
that the
aircraft had been previously attached as a result of the applicant’s
judgment. The applicant learned of the sale
to the third respondent
for the first time on the 2nd March 2010. Omni Air has since
been liquidated.
[10] As mentioned above,
the applicant obtained an urgent interdict on 30 March 2010,
restraining the respondents from dealing with
the aircraft in any
way, pending the finalisation of the present application. The
application initially came before me on 18 May
2010 for the
consideration of Part B of the application. There has been a
dispute of fact on a narrow issue: whether the
third respondent
bought the aircraft in good faith and without any knowledge of any
defects pertaining to the sale in execution
when the sale in
execution took place on 24 February 2010. In view of a dispute of
fact on this narrow but critical issue, I referred
that issue to oral
evidence.
[11] Section 70 of the
Magistrates Court Act provides as follows:
Sale in execution
gives good title
A sale in execution by
the messenger shall not, in the case of movable property after
delivery thereof or in the case of immovable
property after
registration of transfer, be liable to be impeached as against a
purchaser in good faith and without notice of any
defect.
Accordingly, the parties
and the court were in agreement that the case turns on whether or not
Mr Ivo Dos Santos Castelo Branco
(“Branco”), the sole
shareholder, director and chief executive (referred to by the
applicant as “the controlling
mind”) of the first, second
and third respondents was aware at the time of the sale in execution
of the aircraft of the applicant’s
ownership and the attachment
thereof, consequent upon the judgment in favour of the applicant.
[12] Oral evidence was
led on 27 May, 8 September and 4 October 2010. It is clear that the
hangar where the aircraft has been at
all critical stages in this
saga is owned by the second respondent and that the first respondent
conducted a business as aircraft
maintenance organisation from the
same premises. It is common cause that Ms Diane Du Pisanie (“Du
Pisanie”) has been
at all material times in the permanent
employment of the first respondent as a receptionist at the premises
where the first and
second respondents conduct their business. Mr
Pelser, the sheriff, testified that on 18 November 2009 he served a
copy of the court
order under case number 38631/09 and the writ of
attachment on Du Pisanie. This is confirmed by his return of service
at the time,
although he records therein that he served on a Ms “Du
Plessis”. I shall revert to this aspect later. The sheriff
testified
that, in addition, he served the following documents on the
Du Pisanie all of which she admitted having received at the time
these
were served on her:
(i)
all documentation pertaining to the action
instituted by Wesbank against Omni Air;
(ii)
all the legal documentation pertaining to the
legal action instituted by Imperial Bank against Omni Air;
all legal documentation
pertaining to the legal action instituted by the second respondent
against Omni Air;
(iii)
the present application.
None of the respondents
had any person in a similar position to that of Du Pisanie in
their employment at the premises. Du
Pisanie did, however, perform
certain secretarial and administrative functions on behalf of the
second respondent from time to
time. In the execution of her duties
on behalf of the first respondent Du Pisanie spoke to Branco on a
daily basis and she agreed
that she always, without exception, handed
legal documents served on her to Branco and that, had the warrant of
attachment of 18
November 2009 been served on her she would have
given it to Branco. Although Du Pisanie’s contract of
employment was with
the first respondent, it is clear that in her
mind she worked for Branco. Before analysing the evidence any
further, I pause
to observe that, although the return of
service relating to the service of the attachment on 18 November 2009
records that it was
served on a certain person called “Du
Plessis”, it is clear that this is an error. The person must
have been Du Pisanie
not only because the sheriff identified her, is
an independent witness and at the time of service of the writ of
attachment would
have had no idea that this dispute would arise but
also there is no person by the name of “Du Plessis” at
the premises.
The names “Du Plessis” and “Du
Pisanie” are so similar that it is easy for a mistake of this
nature to
have been made by the sheriff.
[13] It is common cause
that Du Pisanie was contacted by a certain Cindy-Lee Koster
(“Koster”) from Discovery
Auctions during or about 11
November 2009 for the first time and that they had regular
communication with each other thereafter.
Koster made certain
enquiries in relation to the aircraft to Du Pisanie. These included
establishing whether the aircraft was located
at the premises,
requesting a photograph of the aircraft, informing Du Pisanie that
she required the aircraft in order to show
it to prospective
purchasers and enquiring whether there were any amounts due and owing
to the first respondent pertaining to the
aircraft. Koster also
requested from Du Pisanie copies of all the invoices of the alleged
amounts due which Du Pisane provided
to her at request and thereafter
on a monthly basis.
[14] It is also common
cause that a certain Mr Marthinus Oberholster (“Oberholster”)
of Corporate Services (Pty) Ltd
who came to the premises in order to
inspect the aircraft and that Oberholster enquired from Du Pisanie
whether a start run on
the engines of the aircraft could be done. It
is clear that Du Pisanie had been aware of a standard policy that to
start the engines
of any aircraft at the hangar the written consent
of the owner of the relevant aircraft was required that she advised
Oberholster
of this requirement, insisting on receiving written
consent from the owner before a start run would be allowed to test
the engine.
Du Pisanie communicated via e-mail with Oberholtster on
the 11 January 2010. Oberholster’s evidence was that he sent
her
an attachment to an email which indicated that the applicant had
consented to the start up of the engines. Du Pisanie also had a
conversation with a person which at the time she could not recall but
later on appeared to be Mr Christo Verhoefen (“Verhoefen”)
acting for the applicant during or about 2 March 2010. In addition,
she had a further discussion with the same person later on
that day
in terms of which she advised him that she was in possession of a
return of service from the sheriff in respect of a different
aircraft
relating to Imperial Bank Limited.
[15] Du Pisanie testified
that:-
(i)
she was never told nor was she aware of the
applicant’s ownership of the aircraft;
the sheriff had not
served on her the court order and the writ of attachment under case
number 38631/09;she was not aware of the
applicant’s aircraft
mortgage bond;
(ii)
there was no attachment to Oberholster’s
email;
(iii)
she did not inform Branco about the applicant’s
interest or the conversations with Koster, Oberholster or Verhoefen.
Du Pisanie conceded,
however that she spoke to Branco on a daily basis and that she
immediately brings to his attention all important
documents, such as
legal notices, which come before her.
[16] Mr Graham Burrell
(“Burrell”), the first respondent’s maintenance
engineer, testified that he did not see
a letter that Oberholster
brought with him to the hangar which recorded the applicant’s
interest in the aircraft. This is
not inconsistent with the evidence
of Oberholster that he did not actually give the letter to Burrell.
[17] Branco testified
that he was not aware of the Applicant’s ownership of the
aircraft at the time of the sale in execution
and only became aware
thereafter that the applicant had an interest in the aircraft. He
said that Du Pisanie never told him about
any of her dealings in this
matter with Pelser, Oberholster, Koster or Verhoefen such that he
would have been aware of the applicant’s
interest in the
aircraft. He claimed that had he been aware of the applicant’s
ownership of the aircraft he would not have
purchased the aircraft as
he would not have wanted to become involved in litigation with the
applicant. Branco concedes that he
bid for the aircraft at “an
absolute bargain”. Standing on its own, the evidence of Branco
cannot be rejected.
[18]
In determining the factual dispute in this case, I shall have regard
to the principles set out in the well known case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
[1]
:
The technique generally
employed by courts in resolving factual disputes of this nature, may
conveniently be summarised as follows.
To come to a conclusion
on dispute of issues, a court must make findings on:
(a)
The credibility of the various factual witnesses;
(b)
Their reliability; and The probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness, that in turn will
depend on a variety of subsidiary factors, not necessary in orderly
importance such as:-
i)
The witness’ candour and demeanour in the
witness-box;
ii)
His bias, latent and blatant;
Internal contradictions
in his evidence;
External contradictions
with what was pleaded or put on his behalf, with established fact or
with his own extracurial statements
or actions;
The probability or
improbability of particular aspects of his version;
iii)
The calibre and cogency of his performance
compared to that of other witnesses testifying about the same
incident or events.
As to (b), a witness’
reliability will depend apart from the factors mentioned under (a),
(ii), (iv) and (v) above, on (i),
the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his
recall thereof.
As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each
of the disputed
issues. In the light of its assessments of (a), (b) and (c),
the court will then, as a final step, determine
whether the party
burdened with the onus on proof has succeeded in discharging it.
The
hard case, which will doubtless be the rare one, occurs when a
court
’
s credibility finding compel it
in one direction and its evaluation of the general probabilities on
the another. The more
convincing the former, the less
convincing will leave the latter. But when all factors are
equipoised probabilities will
prevail.
[19] Du Pisanie did not
impress me as a witness. She was frequently evasive. Moreover, I
cannot believe, in the circumstances, that
the sheriff would have
lied about the fact that on 18 November 2009 he served the court
order and writ of attachment of the aircraft
that was issued by the
registrar of the High Court consequent upon the judgment granted in
favour of the applicant on 21 October
2009. Furthermore, the
sheriff’s evidence is corroborated by a return of service,
issued at a time when the sheriff would
have had no inkling of the
events that have given rise to the present dispute. As I have said,
the “Du Plessis” to
whom he has referred in his return
can only have been Du Pisanie. It is most unlikely that Pelser,
Oberholster and Verhoefen should
have conspired to give false
evidence that she must have been aware of the applicant’s
interest in the aircraft. It is “too
much of a coincidence”
that, at every critical turn, Du Pisanie should have been unaware of
the applicant’s interest
in the aircraft. Not only is it
inherently probable that had she had been aware of the applicant’s
interest and especially
the sheriff’s service of the court
order and the writ of attachment but also it is her own evidence that
she would have informed
Branco accordingly. When the evidence is
viewed as a whole, the probabilities favour the applicant.
[20] The parties have
agreed that, in the event that the applicant succeeds in recovering
the aircraft, the order which I make should
protect the respondents’
claim in respect of the lien. This claim is alleged to be for R172
897.41.
[21] The following order
is made:
(a) The first
and/or second and/or third and/or fourth respondents are to deliver
up and return to the applicant the
1970 Cessna 402 B aircraft with
South African Registration Number ZA-ALV having engine / serial
number 402B-0029, together with
the avionics, logbooks, keys,
batteries and certificates of airworthiness (hereinafter collectively
referred to as "the aircraft");
In
the event that the aircraft is not returned to the applicant, as
aforesaid, the sheriff of the court is authorised to attach
and
remove the aircraft from the possession of any of the respondents or
wherever same may be found and deliver it to the applicant;
The
applicant is declared to be the lawful owner and possessor of the
aircraft;
(b) Any purported
sale of the aircraft between the fourth and third respondents which
may have taken place during or after
the 18 November 2009 is be
declared null and void and of no force or effect;
(c) The
purported sale in execution by auction of the aircraft by the sheriff
on the 24 February 2010 is declared to
be null and void and of no
force or effect;
(d) The sheriff who
conducted the purported sale in execution of the aircraft on 24
February 2010 is directed to refund to
the purported purchaser any
moneys received as a consequence of that sale;
The
applicant is to put up security to the satisfaction of the registrar
of this court in an amount of R172 897.41 being the amount
alleged to
be due to the first, alternatively the second, alternatively the
third respondent arising from a lien in respect of
the aircraft;
The
first, second and third respondents are to institute an action
against the applicant for the claim arising in respect of the
alleged
lien within 90 days of the date of this order, failing which the
applicant’s obligation to furnish security as aforesaid
shall
lapse;
The
first, second, third and fourth respondents are jointly and severally
liable, the one paying the other to be absolved, to pay
the
applicant's costs in this application, which costs shall include the
costs reserved on 30 March 2010 and any other costs that
may have
been reserved.
DATED AT JOHANNESBURG
THIS 4th DAY OF NOVEMBER, 2010.
N.P. WILLIS
JUDGE OF THE HIGH
COURT
Counsel
for the Applicant:
S.Aucamp
Counsel
for the Respondents:
L.
Hollander
Attorneys
for the Applicant:
Lanham-Love
Attorneys
for the Respondents:
David
Kotzen
Date of hearing: 18th &
27th May, 8th September, 4th & 27th October, 2010.
Date of judgment:
4th November, 2010
[1]
2003
(1) SA 11
(SCA) at para [5]