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[2010] ZAWCHC 438
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University of Fort Hare v Waveleng 256 (Pty) Ltd (8605/2005) [2010] ZAWCHC 438 (12 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO. 8605/2005
THE
UNIVERSITY OF FORT HARE
….................................................................................
APPLICANT
And
WAVELENGTHS
256 (PTY) LTD
…...................................................................................
RESPONDENT
Coram
:
DLODLO,
J
Judgment
by
:
DLODLO,
J
For
the Applicant
:
ADV.
M. BLUMBERG
Instructed
by
SMITH
TABATA INC
C/o
Smith Tabata Buchanan Boyes
8
th
Floor,
5 St George's Mall
CAPE
TOWN (REF. N. Hoffman)
TEL.
NO. 021 406 9100
For
the Respondent : ADV. H. DU TOIT
ADV.
JW VAN DER MERWE
Instructed
by : VAN DER SPUY & ATTORNEYS
4
th
Floor,
14 Long Street
CAPE
TOWN
(REF.
CH VAN BREDE)
TEL.
NO. 021 4181329
Date(s)
of Hearing
:
23,
24 APRIL 2007,
06
AUG. 2007, 12,19 SEPT. 2007, 19 MAY 2010
Order
granted on
:
19 MAY 2010 (With reasons to follow)
Judgment
(Reasons) delivered on : 12 AUG. 2010
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO. 8605/2005
THE
UNIVERSITY OF FORT HARE
….............................................
APPLICANT
And
WAVELENGTHS
256 (PTY) LTD
…...............................................
RESPONDENT
JUDGMENT
DELIVERED ON THURSDAY, 12 AUGUST 2010
DLODLO,
J
[1]
The Applicant seeks the return of a painting belonging to it which
came to be in the possession of the Respondent in 2005
(and is now
in the possession of its erstwhile attorneys). The Respondent, which
was placed in liquidation while these proceedings
were underway, no
longer opposes the relief sought. The liquidator has stated (in a
letter dated 30 July 2009) that he does "not
intend to oppose
[the] application and will accept the outcome of the case." The
attitude of the liquidator (as it appears
from the aforementioned
letter) is, however, that the Applicant must nonetheless approach
the court for relief (a curious and
unhelpful attitude to adopt). In
any event the consequence of the Respondent's supervening
liquidation and the liquidator's decision
not to persist with the
defence(s) is that the evidence led by the Respondent in relation to
prescription on 23 and 24 April
2007 was interrupted before being
completed. The consequences of this for the Respondent, which has
elected not to complete the
evidence, are addressed below. Mr.
Blumberg represented the Applicant.
SUMMARY
OF COMMON FACTS
[2]
The Applicant, the University of Fort Hare, owns a substantial
collection of contemporary South African Art. Custody and care
of
the Applicant's art collection falls within the responsibility of
the Applicant's National Heritage and Cultural Studies Centre
(NAHECS), the current director of which is Mr. Cornelius Thomas, the
deponent to the principal Founding and Replying Affidavits
filed on
behalf of the Applicant ('Mr. Thomas'). The Respondent is a dealer
in art and antiques. In early July 2005, Mr. Thomas
was contacted by
a representative of Sotheby's Auctioneers in Cape Town, Mr. I Hunter
('Mr. Hunter'). Mr. Hunter was in possession
of a painting by the
artist Mr. George Pemba ('Pemba'). Mr. Hunter, who, as it turned
out, had been handed the painting on consignment
by the Respondent's
representatives, was researching the provenance of the said
painting. He had been prompted to contact Mr.
Thomas (of the
Applicant) by a label on the reverse side of the painting. The said
label:
bore
the words "University of Fort Hare, AJD Meiring Art Gallery";
indicated
that the artist was Pemba, the title of the painting "Unholy
Three". And the medium oil.
[3]
For convenience the said painting is referred to simply as 'the
painting'. Mr. Hunter had contacted Mr. Thomas out of concern
that
the painting "came from the Applicant's collection".
Sotheby's had been consigned the painting for sale by the
Respondent. Mr. Thomas responded to Mr. Hunter on behalf of the
Applicant, stating per e-mail that it appeared that the painting
"may well belong to" the Applicant. Further investigations
confirmed Mr. Thomas' initial inclination that the painting
belonged
to the Applicant. Accordingly, the Applicant's attorneys addressed a
letter to the Respondent's attorneys asserting
the Applicant's
ownership of the painting and demanding its return.
[4]
The Respondent too, asserted ownership of the painting and thus
refused to return it to the Applicant. The ensuing impasse
regarding
ownership of the painting led to the launch of these proceedings.
The painting remains in the Respondent's possession
(or, more
accurately, in the possession of the Respondent's erstwhile
attorneys of record). The fundamental dispute between the
parties
concerns ownership of the painting. That question resolves into
certain underlying issues (of fact, in certain instances,
and of
contention, in others). In order to delineate the underlying
disputes, an overview of the case asserted by each party
in regard
to ownership follows.
THE
APPLICANT'S CASE
[5]
The Applicant asserts that it acquired the painting in 1969. Whilst
the Applicant has not adduced any first hand evidence
of the
transaction by which the Applicant acquired the property, its
records and catalogues relating to its art collection clearly
reflect that a Pemba oil painting entitled "Unholy Three"
with dimensions 44x34 cm, was purchased by the Applicant
for Forty
rand (R40.00) in 1969, and was given a specific catalogue reference
number. Moreover, the Applicant relies on the following
facts as
evidencing its ownership of the painting:
(a)
the label on the reverse side of the painting (the content of which
is set out above), which clearly indicates the provenance
of the
painting to be the Applicant's art gallery, and which includes the
catalogue reference number G47 given to the painting
in the
Applicant's records;
(b)
the existence of a bibliographic card, created by the Applicant's
employees on acquisition, in respect of the painting for
purposes of
cataloguing the painting and its details;
(c)
the existence of a black plaque on the reverse side of the painting,
giving the name of the painting and the artist, which
is entirely
consistent with other plaques on certain older paintings in the
Applicant's collection.
[6]
The removal of the painting from the Applicant's possession escaped
detection by the applicant's employees. The Applicant
was alerted to
this fact by the call from Mr. Hunter. Prior to the institution of
these proceedings, the Respondent presented
the following version to
the Applicant: The Respondent accepted that the Applicant had, at
some stage, acquired and owned the
painting. The painting had been
sold by the Applicant to one Mr. Tombani Foslara ('Mr. Foslara') (at
that stage the Respondents
did not attach a date to the alleged
purchase by Mr. Foslara). Mr. Forslara sold the painting to one Ms
Una Mostert ('Ms Mostert')
in 2003, who had in turn sold the
property to the Respondent that same year. The Applicant rejected
the assertion that Mr. Foslara
legitimately purchased the painting
from the Applicant. The Applicant asserts in this regard that it is
not in its policy to
sell any of its artwork. In any event, had the
Applicant (notwithstanding its policy) resolved to sell a piece of
art, this decision,
like any other to sell an item of the
Applicant's property, would have necessitated the passing of a
resolution on behalf of
the Applicant. No such resolution exists,
either in relation to the sale of the painting in particular, or to
the sale of any
artwork at all. Any 'sale' of the property to Mr.
Foslara was, at best for the Respondent and Mr. Foslara, an
unauthorized sale
(that is, one involving the theft/misappropriation
of the painting on the part of the 'seller').
THE
RESPONDENT'S CASE
[7]
The Respondent's case on the papers is that the Respondent purchased
the property from Ms Mostert in Port Elizabeth during
or about
October 2003. Ms Mostert had purchased the property from Mr. Foslara
in the latter's home in a village outside Fort
Hare during October
2003. Mr. Foslara was employed by the Applicant between 1970 and
1972 and had purchased the painting for
Fifty rand (R50.00) at (but
not from) the Applicant's art gallery. The Applicant was not at any
stage the owner of the painting.
The presence of the painting at the
Applicant's art gallery in 1970 (when Mr. Foslara obtained
possession thereof) is explained
by the fact that the Applicant used
to exhibit and sell works on behalf of various artists, including
Pemba. The Respondent is
therefore "constrained" to deny
that the painting to which reference is made in the applicant's
records is a different
painting to that now in the Respondent's
possession (although no real basis is provided for this assertion).
[8]
Even if Mr. Foslara did not acquire ownership of the painting when
obtaining possession of it in 1970, he retained possession
thereof
more than thirty (30) years thereafter "openly as the owner
thereof and thereby became owner by virtue of acquisitive
prescription. In support of its case the Respondent has adduced
affidavits by:
(i)
Ms
EMM Williams ('Williams'), a director of the Respondent,
and the
deponent to the chief Answering Affidavit;
(ii)
Mr.
Foslara;
(iii)
Ms
Mostert;
(iv)
Grant
Moster, Ms Mostert's son (who accompanied Ms Mostert
on her trip
to the Ciskei when she purchased the painting from Mr.
Foslara);
(v)
EJ
De Jager ('De Jager');
(vi)
DH
Meiring ('Meiring');
(vii)
E
Duminy.
A
brief summary of the salient allegations in each of the affidavits
of De Jager, Meiring and Duminy is apposite.
[9]
In his affidavit Mr. De Jager proclaims to have been the curator of
the Applicant's art collection from 1970 to 1998. He has
never seen
the painting, which, he concludes, was not part of the Applicant's
art collection during his tenure. Frequent audits
and stock takes
were conducted in respect of the Applicant's works of art (inter
alia) during Mr. De Jager's tenure. Such checks
would have resulted
in the detection and reporting of any stolen or missing artwork.
[10]
Mr. Meiring was employed by the Applicant in the chemistry
department from 1962 to 1975 and is the son of the late Professor
AJD Meiring, the founder of the Applicant's AJD Meiring Art Gallery.
Mr. Meiring attended most if not all art exhibitions held
at the
Applicant's gallery and constantly viewed the Applicant's art
collection. Given the high level of security maintained
at the
Applicant, and the system of checks in place, Mr. Meiring is of the
view that
"there
is no doubt that a painting could not have been stolen or lost or
unlawfully removed from the premises of the Fort
Hare University."
[11]
Mrs. Duminy is the wife of the late Professor PA Duminy, an employee
of the Applicant from 1969 to 1978. Ms Duminy and her
late husband
were involved in handling artworks on behalf of Pemba. The Duminys
personally handled Pemba's private sales at the
University, that is,
the exhibition and sale of Pemba art at the University on behalf of
Pemba. Mrs. Duminy constantly encountered
duplicate paintings by
Pemba of the same subject matter with subtle differences. Mrs.
Duminy is of the view that
"a
painting could not have been stolen or lost or unlawfully removed
from the premises of the Fort Hare University"
Despite
her intimate involvement in the sale of Pemba's art at the
University (that is, on behalf of Pemba), Mrs. Duminy has never
seen
the painting and asserts that it was never
("never
ever")
displayed
at Applicant's art gallery. She says that it is inconceivable that
Applicant would have purchased the painting since
it was unsigned.
THE
ISSUES
[12]
On the basis of the above, the issues are whether or not:
(a)
The Applicant owned the painting before or at the time that Mr.
Foslara obtained possession of it;
(b)
If so, whether Mr. Foslara acquired title to the painting when
obtaining possession thereof (put differently, whether Mr.
Foslara
obtained possession pursuant to a valid sale concluded with the
Applicant);
(c)
If not, whether Mr. Foslara nonetheless possessed the painting for
an uninterrupted period of 30 years
"openly
and as the owner",
thereby
acquiring ownership by acquisitive prescription.
Each
of these issues is addressed below.
THE
REFERRAL TO ORAL EVIDENCE: PRESCRIPTION
[13]
The parties agreed that the third issue outlined above, viz. whether
Mr. Foslara acquired the painting by prescription, could
not be
resolved on the papers. Accordingly, the following issue was
referred for the hearing of oral evidence:
"...
whether or not Thembani Foslara possessed the Pemba painting in
question openly and as if he were the owner thereof
for an
uninterrupted period of 30 years or for a time period which,
together with any periods for which it was so possessed by
his
successors-in-title, constitutes an uninterrupted period of 30
years, as contemplated by the provisions of section 1 of the
Prescription Act, No 68 of1969."
[14]
Evidence on the question of prescription was led by the Respondent
on 23 and 24 April 2007 during which the Respondent called
two
witnesses, viz.:
Mrs.
Kaoleka Foslara, whose testimony was to the effect that she married
(the now late) Mr. Foslara (according to customary rites)
in 1970.
Thereafter she moved into Mr. Foslara's house (located in a village
near Alice in the Eastern Cape). She noticed the
painting in the
house for the first time in 1971. The painting remained in the house
(in the dining room) until it was sold by
Mr. Foslara in 2005/2006.
Mr. Samuel Foslara, whose testimony was to the effect that he was
born on 6 June 1974. He is Mr. Foslara's
nephew. His family home is
situated but one house away from that of the Foslaras, and he
visited the Foslaras frequently while
growing up. He recalls seeing
the painting in the Foslaras' home when he was growing up.
ANALYSIS
[15]
The relevant portion of section 1 of the Prescription Act 68 of 1969
('the Act') provides as follows:
"
...a person shall by prescription become the owner of a thing which
he has possessed
openly
and
as if he were the owner thereo
f
for an uninterrupted period of 30 years
or
for a period which, together with any periods for which such thing
was so possessed by his predecessors in title, constitutes
an
uninterrupted period of 30 years"
(emphasis
supplied)
The
onus of proving prescription is on the party asserting that he has
acquired ownership of the thing concerned by prescription.
Accordingly,
in
casu
the
onus is on the Respondent to satisfy the court on a balance of
probabilities that the requirements of section 1 of the Act
have
been satisfied. If indeed prescription was running against the
Applicant (a question addressed below), it was obviously
interrupted
by the service of the notice of motion and founding papers in this
application on the Respondent on 2 September 2005,
in terms of
section 4 of the Act. The Respondent therefore had to prove that for
an uninterrupted period of (or in excess of)
30 years prior to 2
September 2005, Mr. Foslara possessed the painting
openly
and
as if the owner thereof. (Mr. Foslara's tenure as possessor may be
added to that of his successors, Ms Moster and thereafter
the
Respondent itself, to achieve the required period of 30 years.)
[16]
There are two reasons why the court should decide the question of
prescription against the Respondent, namely:
(a)
Firstly, Mr. Foslara's possession of the painting did not meet the
requirement of
"openness"
posited
by section 1 of the Act.
(b)
Secondly, the Respondent failed to discharge the onus of proving
that it, together with its predecessors (and in particular
Mr.
Foslara) possessed the painting for the required period of 30 years.
THE
REQUIREMENT OF OPENNESS
[17]
The requirement of openness which is placed squarely in issue on the
papers as evident on paragraph 5.4.3 of the Replying
Affidavit
existed before the commencement of the Act. It was a component of
the requirements posited by the predecessor to the
Act, viz. the
Prescription Act of 1943 (falling within the
'nee
clam''
requirement)
and, before that, of those posited under the common law. The facts
of the instant case raise this question: What
degree of openness is
required? See Carey Miller
Land
Title in South Africa
p
163 sv
"Openly;
Joubert
(ed)LAWSA
Vol 21
par
132. In
Smith
and Others v Martin's Executor Dative
1899
16 (SC) 148 (at 151) De Villiers CJ defined it as
"possession...so
patent that the owner, with the exercise of reasonable care, would
have observed it."
That
test has since been adopted by the Appellate Division and is thus
authoritative. See
Bisschop
v Stafford
1974
(3) SA 1
(A) at 8A.
[18]
The test does not require actual knowledge on the part of the owner
that his thing is in the possession of the would-be acquirer.
That
is, the test is not subjective. Rather, it is objective: what is
required is that the possession is sufficiently open so
that it
could have come to the owner's attention, with the exercise of
reasonable care, that his thing was in the possession
of the
acquirer. In
Welgemoed
v Coetzer and Others
1946
(TPD) 701, it was put thus (at 720):
"...the
exercise is open even without actual knowledge on the part of the
true owner,
provided
it was open for all to see who wanted to see, and would have been
known to the true owner but for his carelessness in
looking after
his property
."
(emphasis
supplied)
[19]
The test as first enunciated in
Smith's
case
supra
and
thereafter adopted by the Appellate Division in
Bisschop
v Stafford
supra,
has
been summarized by Carey Miller (Loc. cit) as follows:
"...the
requirement is subject to an objective test the practical effect of
which is to
require
the claimant to establish that the nature of his possession was such
that a reasonable man would have been aware of it
."
(emphasis
supplied)
The
need for openness vis-a-vis the owner himself has been stressed:
"As
far as openness is concerned, the possession must be so open and
patent that not only the general public, but also the
owner, would
have been able to see and take notice of the possession and the
various acts of user associated therewith."
Joubert
(ed)
LA
WSA Vol 21
para
132.
[20]
The test should be applied with due regard to the rationale behind
the requirement of openness (which is in turn informed
by the
rationale behind the doctrine of prescription itself), which Carey
Miller (Loc.cit) describes as twofold: Firstly, openness
is required
because prescription operates to convert an outward appearance to a
legal reality. Accordingly an
"element
of publicity "
is
required. Secondly, it would be unfair for prescription to run
against an owner who does not have an opportunity to interrupt
the
running of prescription by vindicating the thing (since he does not
know, and could not reasonably know, that the thing is
in the
possession of the acquirer). In this regard, De Wet says the
following:
"Bowendien
kan die verkryging deur die een 'n verlies vir die ander meebring,
en hierdie verlies is slegs geregyerdig indien
die persoon die
geleentheid gehad het om te wete te kom dat sy goed deur 'n ander
besit word en dat hy gevaar loop om sy goed
deur verjaring kwyt te
raak"
[21]
Turning to the facts at hand, during Mr. Foslara's tenure (for
however long that may have been), the painting was kept inside
his
private dwelling in his village. Mrs Foslara testified that the
painting was not visible to those who did not actually step
inside
the dwelling. Hence it was submitted by Mr. Blumberg that possession
in that manner does not satisfy the test for openness,
for two
reasons: Firstly, the Applicant could not by the exercise of
reasonable care have established that the painting was in
the
possession of Mr. Foslara. In this case, as in the case of
Smith
v Martin's Executor Dative
supra,
"the owner might have passed ... daily without knowing that
[his
thing]
was
in the occupation of anyone else".
Therefore,
the applicant had no effective opportunity to vindicate the painting
while it was in Mr. Foslara's possession. In those
circumstances, it
is submitted that prescription did not run against the applicant
during Mr. Foslara's tenure as possessor.
Secondly, the possession
exercised by Mr. Foslara's lacked the requisite
"element
of publicity"
in
that it did not create any impression
"in
the world at large"
that
Mr. Foslara owned the painting. These submissions cannot be faulted
at all. I fully agree with Mr. Blumberg in this regard.
[22]
For purposes of acquisitive prescription, Williams' statement that
Mr. Foslara possessed the painting
"openly
in his home"
is
thus an oxymoron. The conclusion that prescription did not run
during Mr. Foslara's tenure as possessor accords with the general
proposition advanced by Badenhorst, Pienaar et al (Silberberg &
Schoeman
The
Law of Property
4
(ed) 158.) that
"The
effect of the very wide meaning giving to the nec clam requirement
by our courts, by requiring possession to be patent
not only
vis-a-vis the general public but also vis-a-vis the owner, is that a
thief or a robber, and even a bona fide third party
acquiring from
him or her, will rarely be in a position to acquire ownership of a
stolen (movable) thing by prescription"
AN
UNINTERRUPTED PERIOD OF 30 YEARS?
[23]
It was incumbent on the Respondent to prove that the painting came
into Mr. Foslara's possession prior to 2 September 1975
(i.e. more
than 30 years before these proceedings were launched). The only oral
evidence to this effect was that of Mrs. Foslara.
(Samuel's evidence
in this regard does not assist the Respondent. He testified to
seeing the property for the first time after
commencing primary
school, which he did at age 7. Samuel thus saw the painting for the
first time during or after 1981, since
he was born in 1974.)
[24]
Mrs. Foslara's testimony was that she first noticed the painting in
their house in 1971. Unsurprisingly, the Applicant did
not lead any
direct evidence to contradict this. However, the fact that Mrs.
Foslara's testimony was uncontroverted does not
mean that it must be
accepted. If evidence is unconvincing, the court may reject it
notwithstanding that it went uncontradicted.
See
Denissova
N.O. v Heyns Helicopters (Pty) Ltd
[2003]
4 All SA 74
(C) at para 33
Meyer
v Kirner
1974
(4) SA 90
(N) at 93 G-H
Minister
of Justice v Seametso
1963
(3) SA 530
(A) at 534 G-H
Ramakulukusha
v Commander, Venda National Force
1989
(2) SA 813(V)at838
H-I.
Mrs.
Foslara was not a convincing or reliable witness as to the date on
which she first noticed the painting in their house. She
was unable
to recall the dates of important events, revealing her memory to be
unreliable. Furthermore, her testimony displayed
several significant
contradictions and inconsistencies. In short, Mrs. Foslara did not
present a coherent and credible version
as to when the painting was
first possessed by Mr. Foslara. These aspects are analyzed below.
[25]
Mrs. Foslaras was unable to recollect any of the following:
(a)
When the painting was removed from the house. She testified that
this occurred in 2005/2006. The painting was in fact sold
in October
2003. If Mrs Foslara is unable to recall when the painting was
removed from the house with any certainty at all, she
surely cannot
remember when it first appeared in the house, given that the first
appearance took place 30 years before the removal
thereof.
(b)
Whether her marriage before the magistrate took place in 1990 or
1992.
(c)
What age and in what year she finished school.
(d)
Her age when she got married. She conceded that she had no idea how
old she was when she got married.
(e)
Her age when she and Mr. Foslara met.
(f)
Mr. Foslara's age when they first met. She said that she had
forgotten this.
(g)
The age of her husband when he passed away.
(h)
Whether
the painting was present in the house when she moved
in.
(i)
The
years when her siblings were born.
(j)
The year in which her older sister got married, (k) The number of
years she spent at school, nor her age when leaving school.
(1)
When her husband stopped working at the University of Fort Hare and
thereafter started working in Johannesburg. In this regard
she was
unable to provide any more particularity than to say that her
husband moved to Johannesburg to work at some stage in
the 1970's.
(m)
For how many years she was a shepherd after leaving school and
before getting married.
(n)
The year in which she finished school.
(o)
Her age when leaving school.
(p)
At times she could not even recall when her husband passed away.
(q)
That she discussed the date when she first saw the painting when
making her affidavits with the 'assistance' of Mrs. Williams
in July
2006. (Samuel testified that this was discussed, and the content of
the affidavits indicates that it was.)
[26]
Over and above the obvious unreliability of her memory, the
following features of her testimony detract from the cogency
of her
evidence to the effect that she first saw the painting in 1971:
(a)
Mrs. Foslara explained her recollection that she first saw the
painting in 1971 based on her recollection that she had married
Mr.
Foslara the previous year, 1970. Her certainty (in the face of her
clearly unreliable memory) that she got married in 1970
was
initially based on Samuel's birth shortly after their marriage. At
first she said mere
"months"
passed
between when she and her husband met and Samuel's birth (in 1974)
(although she later, after the tea interval on the first
day,
changed her testimony, stating that the period which passed was
three years.) Later Mrs. Foslara claimed that she remembered
1970 as
the year of her marriage because it was the year her sister's child
was born. The two explanations proffered are contradictory
and thus
neither is satisfactory.
(b)
The
viva
voce
evidence
given by her contradicted the content of certain previous statements
made by her under oath. Those sworn statements were
made by her with
the assistance of Samuel who testified to the fact that he made sure
that Mrs. Foslaras understood the content
of the affidavits she was
signing, and that such content was correct.
(c)
The
contradictions are as follows:
In
an affidavit
jurat
5
July 2005 she stated on oath that:
(i)
She knew her husband since
"1965"
(while
testifying in oral evidence that they only met in 1970). This was an
aspect which
Samuel
indicated was pertinently discussed and which Mrs. Foslara agreed
to.
(ii)
That
her customary marriage with Mr. Foslara took place in
1973.
(iii)
That
the painting that was in their house
"from
1970 onwards".
(iv)
In
a further affidavit
jurat
5
July 2006, Mrs. Foslara stated on
oath that the painting had been
in her family
"since
early
1970"
(emphasis
supplied).
(d)
Her version that she could not remember if the painting was in the
house when she moved in, but that she
suddenly
noticed
it, and that she recalls that this was in 1971 is not a credible
one.
(e)
Mrs. Foslara testified that after leaving school (after standard 5),
she spent
"years"
as
a shepherd before getting married to Mr. Foslara. She also testified
that a few years passed between when she finished standard
5 and
marrying Mr. Foslara. That testimony does not fit readily with her
getting married in 1970, when she was 13 years old (she
was born in
October 1967).
(f)
On an analysis of the recorded evidence, some uncertainty as to the
date of her marriage emerges. She stated that
"I
arrived there in 1971 and found him working for that company".
That
is, presumably, a statement that she moved into the house in 1971.
That answer, which she gave in cross-examination, was
followed by
visible and audible gesticulating by Samuel, who was present in the
courtroom at the time (one's suspicion is raised,
regrettably, by
Samuel gesticulating immediately after Mrs. Foslaras had
contradicted herself). She then corrected herself later
by saying
that"/
arrived
in 1970".
(g)
Her
testimony that she fell pregnant for the first time in 1975
does
not, without further explanation, sit easily with her testimony
that
she married in 1970.
(h)
There
are other examples of Mrs. Foslara contradicting herself.
In
examination-in-chief she was asked how the painting got into her
house. She replied that she did not question that. In cross-
examination she was asked whether she discussed the painting with
her husband when she saw it for the first time. She responded
that
her husband ignored her when she asked him where he got it. She
repeated that response. Later on in cross-
examination she again
contradicted herself in stating that
"I
did
not ask him as to where he got it
[the
painting]
from.
"
(i)
Her
recollection that she first noticed the painting in 1971 is
made
all the less believable by her admission that she did not pay
any
particular attention to the painting when she saw it. She
went
further to state that she
"did
not think about it at air.
(j)
Her testimony that she could not remember if the painting was
present in the house when she moved in was also contradicted
at
times. Under cross-examination she said
"When
I arrived there, it was there".
(k)
Of great significance is her testimony that the painting was sold in
2005/2006. It is, however, known that the painting was
sold in
October 2003 by Mr. Foslara to Ms Mostert. That Mrs. Foslara can
remember the year she first saw the painting (over 35
years ago),
but cannot remember the year it was removed from the house (three or
four years ago) stretches one's credulity.
(1)
Curiously, the Respondent did not put before the court the documents
which would have resolved the debate about when the Foslaras'
customary marriage took place. (See the questioning by the court at
p58:16-20 of the transcript).
(m)
In the face of the failure of her memory on numerous scores, and the
contradictions in her evidence, Mrs. Foslara was forced
to temper
her testimony towards the end, to the effect that she had first
noticed the painting
"around
1971".
[27]
As regards the affidavit of Mr. Foslara (that which forms part of
the Answering papers), it does not add, significantly or
at all, to
the scanty evidence led by the Respondent in regard to prescription,
for the following reasons:
The
statement in paragraph 3.6 of that affidavit that he
"bought
the painting for R50.00 in 1970"
is
contradicted by his written statement on 27 July 2005 where he said
that
"Due
to my age and the time elapsed since obtaining it I
can
not record
the
gentleman's name or
the
date of purchase
.
"
(emphasis
supplied) (The latter is, inherently, a more credible version than
the former. Moreover, the sudden improvement of memory
is entirely
unexplained.) Not present at all in the handwritten affidavit made
by Mr. Foslara on 28 October 2005 (which was not
put before the
court by the Respondent and in circumstances where Respondent had,
falsely, led the court to believe that the
one was a
"typed
copy"
of
the other).
[28]
In the earlier statement, Mrs. Foslara said that "7
am
not conversant with English Languag (sic) but this statement was
explained to me by a Xhosa speaking interpreter"
Mrs.
Foslara confirmed in her testimony that her husband could not
understand English. There is, however, no evidence or indication
that the affidavit was translated and explained to Mr. Foslara
before he signed it. This is especially significant since that
typed
affidavit is not a
"copy"
of
the earlier affidavit. As is indicated above, there is a very
material difference between the two. Was Mr. Foslara even made
aware
of this difference? What is more, the very purpose for the fourth
set of affidavits (including in particular the affidavits
of Samuel
and Mrs. Foslara) filed by the Respondent was to respond to the
attacks on the affidavit of Mrs. Foslara made by the
Applicant in
reply. No evidence was led by the Respondent, however, as to how the
affidavit came to be signed by Mr. Foslara
(i.e. was it read to him?
did he understand it?). Samuel, in his testimony, disavowed any
knowledge of how Mr. Foslara's typed
affidavit came to be signed,
even though, startlingly, this is a matter which he (Samuel)
attested to in his own affidavit.
[29]
The entire thrust of the version presented, i.e. that Mr. Foslara, a
construction worker, purchased the painting from the
University for
Fifty rand (R50) in 1970 (about R2015 in today's terms), is, quite
simply, not credible. The attempt to add credibility
to this version
by the statement in paragraph 3.9 that "7
have
over the years bought quite a few paintings that I hang in my house"
failed.
That statement was not corroborated by Mrs. Foslara, who denied
this.
[30]
The 'progression' (in memory as well as competency in the English
language) evidenced by the three statements made by Mr.
Foslara,
when viewed chronologically, is remarkable beyond credibility. The
important allegation by Mr. Foslara in his first
statement that he
bought the painting
"at
the time of a University closure"
(a
statement which, if properly particularized and investigated, is
potentially dispositive of the dispute regarding the period
of
possession) is seemingly simply forgotten or jettisoned (by the
person responsible for the drafting) in his later statements.
One
cannot escape the sense that it is the latter given DH Meiring's
evidence, on behalf of the Respondent, that
"During
the riots in the mid 70's to 80's the university was closed down
totally".
[31]
In light of the aforegoing, it is befitting that the testimony of
Mrs. Foslara, together with the affidavit of Mr. Foslara,
is
insufficient to discharge the onus on Respondent to prove that the
painting was in the possession of Mr. Foslara from before
September
1975. For the reasons given above, the court finds that Tembani
Foslara did not possess the painting openly and as
if he were the
owner thereof for an uninterrupted period of 30 years, or for a time
period which together with any periods for
which the painting was so
possessed by his successors in title, constitutes an uninterrupted
period of 30 years, as contemplated
by section 1 of the Act. The
defence of prescription therefore fails. That leaves the two
remaining questions framed above. In
that regard, those two disputes
are not
"real,
genuine or bona fide"
disputes
of fact, as would prevent a determination on the papers - see the
test developed in
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 I as applied in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA).
Rather,
what is advanced by the Respondent in this regard amounts to mere
conjecture which is gainsaid by objective evidence,
and in relation
to which the appropriate attitude is that those allegations and
contentions
"are
so far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers"
These
two issues are addressed below.
OWNERSHIP
BY APPLICANT WHEN FOSLARA OBTAINED POSSESSION OF THE PAINTING
[32]
It is common cause that the painting was in possession of the
Applicant when Mr. Foslara obtained, or shortly prior to Mr.
Foslara
obtaining possession thereof (since it is asserted by the Respondent
that Mr. Foslara purchased the painting at the University).
Significantly, the Respondent also admits (or at least does not
deny) that the Applicant in 1969 purchased a painting meeting
the
description of that in its records from Pemba. A presumption of
ownership follows from possession. See
Van
der Merwe
Sakereg
2de
uitgawe 94. It is thus presumed that, immediately prior to Mr.
Foslara obtaining possession of the painting, the Applicant
was the
owner thereof.
[33]
In an attempt to rebut that presumption, the Respondent seeks to
explain the Applicant's possession of the painting by suggesting
that the painting was in the Applicant's gallery at the time for
purposes of exhibition and sale
on
behalf of
Pemba.
There is, however, no direct evidence that this was the case. Mrs.
Duminy, who personally (together with her husband) handled
the sales
on
behalf of
Pemba,
in fact states that she does not recall selling that painting on
behalf of Pemba. Moreover, this explanation does not explain,
and is
defeated by the content of the Applicant's records (which reflect
inter
alia
the
purchase by the University of the painting for R40 in 1969 - an
entry admitted to be genuine), together with the bibliography
card,
painting label and plaque referred to above.
[34]
Significantly, the Applicant's allegations that the affixing of the
label and plaque, the creation of the bibliographic card
and the
recording in the accession books would not have taken place if the
painting did not belong to the University (i.e. that
this would not
have occurred if the University was simply allowing Pemba to sell
the painting "through" it) are not
disputed - despite the
adduction of a fourth set of affidavits by the Respondent (which
were filed to respond to
"certain
aspects raised by the Applicant in the replying affidavits'",
but
do not even attempt to respond to Applicant's direct and explicit
challenge to the Respondent to explain the records, the
plaque,
label and catalogue number on the painting itself, and the
bibliographic card). Importantly, Mrs. Duminy does not allege
that
paintings which were sold through the University on behalf of the
artist concerned (i.e. in the
"sales
and exhibitions [which] were held in the Art Gallery of the FS Malan
Archeological Museum")
were
labeled by the University. (One would certainly have expected her to
say so if this were the case.)
[35]
The Respondent seeks to explain the Applicant's records by advancing
(albeit rather faintly) a 'duplicate theory', that is,
that the
painting reflected in Applicant's records is not the same as that in
possession of the Respondent. This explanation
too is beyond
improbable, as it is irreconcilable with the objective facts, for
example:
(a)
the plaque, label and catalogue number on the reverse side of the
painting (dealt with above); and
(b)
the uncanny correlation between the details of the painting captured
in the Applicant's records and those in Mr. Hunter's
e-mail. (And
even more significantly, that the measurements reflected in the
Applicant's records, accord precisely with the dimensions
of the
painting in court.)
[36]
Moreover, the Respondent cannot seriously suggest that the Applicant
had, in around 1970, possession of two duplicate Pemba
paintings
with the same title, when the Respondent's relevant witnesses claim
not to recognize the painting at all (i.e. their
testimony is to the
effect that they have not seen any painting of this description, let
alone two). What puts it beyond doubt
that the Respondent's
assertions and denials in this regard amount to nothing more than
strategic litigation gameplay is the
following concession made on
behalf of the Respondent at the outset of the matter (and after
having made investigations):
"It
has obviously never been our client's contention that the AG J
Meiring Art Gallery of your client was not at some stage
the owner
of the artwork."
A
VALID SALE TO MR. FOSLARA?
[37]
Again, it cannot seriously be contended by the Respondent that an
authorized representative of the Applicant sold the painting
to Mr.
Foslara. The statement that the Applicant does not sell, and has a
policy not to sell, its own art is not contested, seriously
or at
all. The Respondent has adduced affidavits by several witnesses
capable of testifying to whether or not the Applicant ever
sold its
own artworks. None has asserted that the Applicant has or ever did.
The highwater mark of the Respondent's evidence
in this regard is
that works not belonging to the Applicant were sold
"through"
it,
on behalf of the artist concerned; artists sold
"their"
works
(not those of the University)
"through"
the
University. Furthermore, the expungement of the details of the
painting from the Applicant's records would surely follow an
authorized sale of the painting. This has not happened. In any
event, such a sale would have required the passing of a resolution
by the University council. There is no such resolution. The fact
that the Applicant is, unlike the Respondent, a collector of,
not a
"dealer" in, art (it
"collects
artwork and does not sell artwork')
also
militates strongly against this argument.
[38]
It is on the strength of the above reasons or basis that on the 19
th
of
May 2010 I made the order in this matter. For the sake of
completeness I repeat that order hereunder.
ORDER:
(i)
The
Applicant is hereby declared to be the owner of the oil
painting
by GMM Pemba, titled "Unholy Three" and
measuring
44cmx34cm, which is the subject of the dispute in the
above
matter ("the painting").
(ii)
The
painting is to be returned forthwith to the possession of
the
Applicant by the Respondent, alternatively by whosoever
has
obtained possession thereof, by, from or through the
Respondent.
(iii)
Mr.
Cornelius Thomas is declared to be a necessary witness for
purposes
of these proceedings.
(iv)
The
costs of this application shall be borne by the Respondent.
DLODLO,
R