About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 256
|
|
Thompson v Johannes Gilfillan Motors (Edms) Bpk t/a Bridge Auto (A175/08) [2010] ZAGPPHC 256 (5 January 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION: PRETORIA)
CASE
NO.: A175/08
DATE:05/01/2010
In
the matter between:
PETER
IAN
THOMPSON
.......................................................................................
APPELLANT
And
JOHANNES
GILFILLAN MOTORS (EDMS) BPK t/a BRIDGE AUTO
...............
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The issue in the appeal before us is whether a motor vehicle with
registration number BGV 017 N was the property of the respondent
or
not when it was attached by the sheriff in execution pursuant to a
judgment that had been granted in the appellant's favour
against one
LOURENS. It will be convenient to set out the chronology of events as
they occurred.
2.
At all material times relevant to the issues the respondent, a motor
vehicle dealer, was the employer of Lourens, a motor vehicle
salesman.
3.The
appellant, after obtaining the judgment referred to above against
Lourens, attempted to attach property belonging to Lourens
in
satisfaction of the judgment for R20 102 in his favour. The appellant
first issued a warrant of execution for the attachment
of a motor
vehicle registration number DZR 940 N which belonged to Lourens. This
vehicle was attached on 13 July, 2006. Lourens
moved an urgent
ex-parte application for the suspension of the warrant of execution
and the stay of execution pending an appeal
against the judgment of
the appellant against him.
4.
Lourens failed to properly note an appeal against the judgment
granted against him. The appellant again instructed the sheriff
to
attach the motor vehicle with registration number DZR 940 N. The
sheriff did so on 24 October, 2006. Lourens once again moved
an
ex-parte application in the court a quo for the stay of the
execution: such order was again granted on 26 October, 2006. On
the
return date, the 15th November, 2006, in the court a quo the rule
/7/5/was discharged. The court ordered that "...the
attachment
by the sheriff is re-issued and the return shall stand. Applicant is
ordered to return the vehicle to the sheriff before
5pm today,
5-11-06". It was common cause before us that the date "5-11-06"
should in fact be "15-11-06".
Lourens was ordered to pay
the costs of that application on the attorney and client scale.
5.
By letter dated 15 November, 2006, and apparently faxed to the
appellant's attorneys at 8:13:03 on 23-11-2006 the appellant's
attorneys were informed that the motor vehicle referred to in the
order in the preceding paragraph that had been issued on 15 November,
2006 had been stolen on 12 November, 2006. That was the start of
intrigue and subterfuge.
The
appellant, ever persistent and clearly pursuant to having obtained
information from the local municipal registration office
issued a
warrant of execution against motor vehicle registration CLR 410 S
then registered in the name of Lourens. The vehicle
was found by the
sheriffs deputy at the premises where Mrs. Lourens conducted her
business. When attachment was attempted, the
deputy was telephoned by
someone from the respondent's business, Bridge Auto, and informed
that the vehicle belonged not to Lourens
but Bridge Auto.
From
exhibit "SI" a NOTIFICATION OF CHANGE OF OWNERSHIP/SALE OF
MOTOR VEHICLE a motor vehicle belonging to Bridge Auto
had been
transferred on 13 November, 2006 to Lourens. The licence number of
this vehicle had been FMD 249 N. I shall revert to
this transfer
later in this judgment.
The
evidence by the deputy sheriff is that he was presented in the course
of that day with proof of ownership of this vehicle by
some person
from Bridge Auto. That document is Exhibit "Wl". The owner
of the motor vehicle is reflected as Lourens and
the buyer as Bridge
Auto. The previous licence numbers of this vehicle are recorded as
FMD 249 N and ND 459843. The registration
particulars of the transfer
are recorded on Exhibit "Y" as follows:
"Licence
number:BGV 017 L
Vehicle
register number:CLR 410 S
Registrasie
overhead
Registering
authority:LOUIS TRICHARDT
Datum
en tyd
Date
and time-2006-12-08 13:13:08"
The
deputy sheriff, presented with these documents, did not proceed with
the attachment of the vehicle on 8 December, 2006.
9.
The matter lay dormant until the 13th of July, 2007, when the sheriff
attached motor vehicle BGV 017 L. The respondent, trading
as Bridge
Auto claimed the attached vehicle "... met registrasienommer FMD
249 N", as its property. It is significant
that the affidavit in
the name of JACQUES GILFILLAN" bears what must be a date stamp
on the document apparently in the court
file. The rubber stamp is
"South African Police Service, Makhado, 25 May 2007". The
document was never signed. The sheriff,
however, acted on this
document and caused an interpleader summons to be issued on 7 June,
2007. The affidavit filed on behalf
of the respondent (Exhibit
"Al-2") was deposed to on 18 July, 2007, after the
proceedings before the Magistrate had already
commenced. It is
significant that the deponent thereto, J GILFILLAN refers to the
vehicle claimed by the respondent as bearing
"... registrasie
FMD 249 N...". Its former registration number and not its
correct number, viz., BGV 017 N.
10.
The respondent's case rests on the evidence of three witnesses, viz.,
JACQUES GILFILLAN, LOURENS, and VAN HEERDEN. The version
of the first
two witnesses is substantially similar. It is that Lourens, in the
absence of his employer unilaterally licensed the
vehicle as he
needed transport for himself and his family. Van Heerden erroneously
had the vehicle transferred and registered in
his name. He had
intended purchasing the vehicle after proper negotiations with
Gilfillan. He had, on a subsequent occasion discussed
this with
Gilfillan.
11.
Under cross-examination Lourens testified that his son who worked
with him for the respondent was to pay-off"... die kar
klaarbetaal". When this was pursued he changed this to "...
hy gaan begin afbetaal". Asked, "wanneer is daardie
ooreenkoms bereik..." his response was "... toe ek besluit
het ek soek nie meer die voertuig nie" (Page 114 lines
14- 15).
12.
Pressed for the reason why he had registered the vehicle in his name,
the record reads:
uHOF:
En wat was die rede om hierdie voertuig in u se naam te registreer? —
Watter voertuig is dit Edelagbare? Hierdie Citi
Golf? — Die
Citi Golf?
Ja?
— Edelagbare, ek het die papiere die sales lady voor, okay, sy
was ook maar nuut gewees op daardie stadium, sy het die
papierwerk
vir my gedoen. Ek sou as Mnr Gilfillan teruggekom het, sou ek en hy
gepraat het, dan sou ek die voertuig, dan sou ek
die kar gevat het.
Maar ons het nog nooit tot n ooreenkoms gekom dat dit is die bedrag
wat hy soek vir die kar en dit gaan my paaiement
wees of niks nie. Ek
het nou maar net in tussentyd het ek die voertuig gebruik. - Hoekom
het u nie vir die eienaar gewag, tot
hy terugkom? — Mnr
Gilfillan was daar gewees want hy het vir die dag die dametjie, een
van die verkoopsdames, sy het net
die papiere. U praat van *n
dametjie, water dametjie? — Kotie. Sy het net die papiere
ingevul, dit is al. Sy moes nie die
voertuig geregistreer het nie.
Daardie papiere moes alies na Mnr Gilfillan toe gegaan het."
(Page 115 line 12 to page 116
line 5)
13.
This bit of evidence must be considered against the fact that
Lourens not only signed the transfer document but allegedly paid
the
registration fees.
14.
The evidence of Gilfillan is to the effect that Lourens had
approached and discussed his predicament of transport with him and
he, Gilfillan, had made the vehicle available to him for his use.
15.
Asked why the vehicle had been registered in the name of Lourens from
13 November 2006 until 8 December 2006, his response were
that (i) it
had been done wrongly by the ladies working there and, (ii) the lady
had not done it mistakenly but that it was Lourens
who had asked her
to do it for him; (iii) it had been a mistake.
16.
Mrs van Heerden, the stock-controller in the respondent's business
testified that her duties included the registration of motor
vehicles. Her evidence was that "she thought" that in the
previous year Lourens had purchased the vehicle in issue. She
had
been told to invoice it to Lourens. She then registered it in his
name. Subsequently Gilfillan had informed her that Lourens
had not
paid for the vehicle and the vehicle had been taken back into
respondent's stock in December.
17.
The trial Magistrate found that "... not any other court can
equate the question of registration with ownership".
He dealt
with the evidence and concluded that no contract of purchase and sale
had been proved. He found that no purchase price
had been agreed upon
or any money paid by Lourens. He found that the formalities of a sale
had not been "complied with"
and that the respondent was
entitled to a ret vindicatio. He went on to comment that "There
are certain terms and conditions
of work that may be entered into
between employer and the employee at any stage, which may even
develop to a situation where between
the employer and employee, it
may even develop to a sale, but in this situation there is no
evidence before Court that Lourens
ever paid any money to the dealing
..." (Page 144 line 15 to 21).
18.
t is important to note that the trial Magistrate nowhere in his
judgment ever dealt with the credibility of the witnesses who
testified before him. It was submitted in argument before us that the
trial Magistrate had erred in this regard particularly in
the light
of the material contradictions in the evidence of the witnesses who
testified on behalf of the respondent.
19.
In interpleader proceedings the claimant to the attached property
bears the onus of proving that ownership of the attached property
vests with him (Greenfield NO v Blignaut 1953(3) SA 597 (S.R.) at
598; Gleneagles Farm Dairy v Schoombee 1949(1) SA 830 (A) at
836). In
the present case the respondent bore the onus of proof.
20.
The evidence of Gilfillan and Lourens that the vehicle was merely
lent to Lourens is contradicted by van Heerden. Her evidence
as
summarised above is clear that she was instructed to invoice the
vehicle to Lourens. That was followed by the registration of
the
vehicle in the name of Lourens. Van Heerden was designated by the
respondent as one of the people with the right of authority
to
register vehicles sold/purchased by the respondent.
21.
The evidence of the three witnesses referred to in the above
paragraph has to be viewed against the facts prevailing at the
various times. Lourens was the registered owner of the vehicle on 8
December, 2006, when the sheriff attempted to attach it. Some
person
from the respondent's firm claimed it belonged to the respondent.
That allegation was false. The respondent then hurriedly
transferred
the vehicle to the respondent that afternoon. The documents provided
to the sheriff that afternoon had clearly not
been in existence when
the deputy sheriff had been told the vehicle belonged to the
respondent.
22.
The evidence of Lourens on its face value shows clearly that there
was more~to the lip of the tongue when he testified that
his son was
paying off the motor vehicle. His effort to change that version by
adding that it would be upon reaching an agreement
with the
respondent was clearly a belated fabrication which flies against the
probabilities and the fact that such payment was
without having
discussed the purchase of the vehicle with the respondent.
23.
The evidence of van Heerden is supported totally by documentary
proof. The transfer to Lourens followed upon the transaction
being
"invoiced" on the instructions of Gilfillan. Van Heerden's
duties included the registration of vehicles. She was
expressly
authorised to do so. Even the re-transfer of the 8th of December 2006
was delegated expressly to her on that date.
24.
It is clear upon the evaluation of the facts that the transfer of the
vehicle to the respondent on 8 December, 2006 was to avert
a lawful
attachment of the vehicle and the transfer to the respondent was a
ploy to prevent it.
25.
The trial Magistrate in insisting upon proof of payment played into
the trap set up by Lourens and the respondent. He failed
to take into
account the relationship between the respondent and Lourens. As an
employee the parties were at liberty to make any
arrangements with
regard to the purchase price of the vehicle without reducing anything
to writing. The arrangement could have
been one of credit.
Instalments could have been deducted from the salary or commission on
sales or bonus earned by Lourens. There
was clearly no apprehension
on the part of the respondent that Lourens would abscond or dispose
of the vehicle surreptitiously.
This observation finds support in the
fact that Lourens was still having the vehicle in his possession when
it was attached in
May 2007.
26.
The "say-so" of Lourens has to be considered in the light
of the history of his conduct towards evading payment of
the judgment
debt against him. On 15 November 2006 when the Magistrate ordered
that his motor vehicle DZR 940 N be returned to
the sheriff before
5pm it was not brought to the Magistrate's attention that the vehicle
had already been "stolen" on
the 12th. Further, the letter
advising the appellant's attorney of the alleged fact was faxed or
e-mailed six (6) days after it
was typed. This impact negatively on
the credibility of Lourens.
27.
It is clear upon the evaluation of all the facts in this case that
there was clearly collusion between Lourens and Gilfillan
when the
respondent claimed the vehicle and had it transferred on 8 December,
2006 and on 17 May, 2007. It is further my considered
view that by
transferring ownership to Lourens the respondent, if the purchase
price had not been paid in full must have agreed
to credit being
given to Lourens. That, coupled with delivery and registration of the
vehicle in Lourens' name constituted the
necessary tradition.
28.
It was argued further that the documents evidencing the registration
of the vehicle were inadmissible or if admissible, the
contents
thereof were not admitted. It is not necessary to deal at any length
with this argument. Firstly, the documents were official
documents:
that was never disputed. Secondly, the transfer recorded in the
documents was admitted in evidence by the witnesses
particularly by
Lourens and van Heerden.
29.
It is my considered view that the trial Magistrate erred in finding
that the vehicle BGV 017 N was the property of the respondent.
30.
The appeal is accordingly upheld and the attachment in execution of
the said vehicle by the sheriff is confirmed.
G.
Webster
JUDGE
IN THE HIGH COURT
I
agree.
A.
Louw
JUDGE
IN THE HIGH COURT