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[2010] ZAGPPHC 579
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Mutual & Federal Insurance and Another v Minister of Safety and Security (10175/2007) [2010] ZAGPPHC 579 (18 February 2010)
/EVDM
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT)
Case Number:
10175/2007
Date: 18 February
2010
In the matter
between:
MUTUAL & FEDERAL
INSURANCE
......................................................................................
1
st
PLAINTIFF
A.
BUSH
.....................................................................................................................................
2
nd
PLAINTIFF
vs
THE MINISTER OF
SAFETY
& SECURITY
.............................................................................
DEFENDANT
JUDGMENT
Delivered on: 18
February 2010
POTTERILL J,
§1.
The plaintiffs are claiming the amount of R48 000 00 from the
defendant. The plaintiffss claim is based on delict alternatively
the
action ad
exhibendum.
The
second plaintiff's vehicle was stolen on 8 October 2001 The first
plaintiff compensated the second plaintiff for the loss in
terms of
an insurance contract The vehicle was recovered by the South African
Police Service and was handed n at Komatipoort The
delict lies
therein that the vehicle was reieased to an unauthorized person. The
employees of the defendant acted negligently in
that they released
the vehicle to the incorrect person without taking the necessary
steps or precautions to ascertain whether the
person had the
authority to do so. In acting so they would have foreseen reasonable
steps to guard against such occurrence. Due
to these negligent acts
the plaintiffs suffered patrimonial loss. In the alternative the
plaintiffs are the owner of the vehicle,
the defendant was in
possession of the vehicle and the defendant disposed of the vehicle
with knowledge of the plaintiffs’
ownership.
The defendant raised
a special plea of prescription. On the merits the plea is that the
plaintiffs were not the owner of the vehicle
but that Absa Bank
Ltd(t/a Bankfin) was at the time of the theft the owner.
It is further denied
that the vehicle was recovered by the SAPS durina November 2002 or at
any time and was handed in at the Komatipoort
SAPS, in the event that
the court does find that the vehicle was released, the defendant
denies that the vehicle was released to
an unauthorised person. If
the court should find that it was released by members of the SAPS
then it is denied that they acted
within the course and scope of
their employment. If found that the vehicle was handed to an
unauthorized person then the patrimonial
loss was caused by the
unauthorised person alternatively an act on the part of a member of
the SAPS acting outside the course and
scope of his employment. The
defendant agreed on the quantum being R45 000.u^.
Very little of the
plaintiffs' evidence is in dispute. Mr Carelse, a member of the SAPS
at the time attached the vehicle on 11 November
2002. a;; the factory
numbers on the vehicle were filed off. On the chassis he could
however still identify the vehicle by using
the electro acid process.
He could identify all the numbers except the last one. In his
handwriting he wrote the number as AFATDEA01TR13017
and then the last
number a scratched out “ 2 “and next to it a “1.”
He then utilises the wild card process
and the computer identified
the vehicle as the stolen vehicle of the second plaintiff. He did
this by connecting the vehicle to
a Boksburg docket MAS 252/10/2001
.This vehicle is however red and not white as the second plaintiff's
vehicle was. He testified
that although the Ford Motor Company told
him there was not a vehicle with a number “1 “ as the
last number, Ford will
have to tell the Court if there exists such a
vehicle or not. He is however sure that it was the second plaintiff's
vehicle. The
vehicle is then booked into the SAP13 and the SAP13
camp. He has knowledge of the only process of how the vehicle could
be booked
out. It must be done in terms of an order of disposal by
the commander, a SAP136. an entry in the occurrence book and new
SAPVIN
numbers must be allocated to the vehicle. It is highly
unlikely that a vehicle is booked out a day after it has been
identified
The cross-examination was directed to the fact that a red
Ford Courier could not be the second plaintiff's vehicle as he had a
white Ford Courier. There must also be doubt because of the “1”
or “2” at the end of the chassis number
Mr Carelse was
adamant that although there are some difficulties he was sure that
the vehicle belonged to second plaintiff. It
was aiso put that even
if it was Mr Bush's vehicle then the SAPS was not negligent in
handing over the vehicle to Mr van der Westhuizen
as the agent of
Mutual and Federal for Hillbank. Mr Carelse could give no comment as
he did not have knowledge of what happened
after the vehicle was
identified by himself as belonging to MAS 252/10/2001.
To summarise the
evidence in chronological order I next deal with Mr Bush's evidence.
He bought the vehicle in terms of an Instalment
Ss'e Tansaction
financed by ABSA. The vehicle is stolen in October 2001. The first
plaintiff in terms of an insurance contract
paid the balance
outstanding to Bankfin and the balance to Mr Bush. In terms of the
agreement of loss it was agreed that the company
may dispose of the
vehicle if found and whatever monies are obtained therefor shall be
retained by the company for its own benefit.
Mr Pienaar phoned him to
identify the vehicle at Komatipoort. He went to the SAP13 camp and
identified the vehicle as being the
vehicle he bought. The vehicle
was red. not white but he could see that the vehicle was white
because he pulled away the rubber
in the inside of the car at the
door and the white paint was still there. He also identified the
vehicle by the unusual tow-bar
with step and locking system. He also
had a rubber mat made from unusual material from a friend and it was
specially cut by his
son to fit the vehicle. Although there was in
depth cross-examination it can be stated unequivocally that the
vehicle that Mr Bush
identified was his vehicle. So much is admitted
by the defendant in his address to court
Mr
Pienaar testified that he was a major in the SAPS before he in 1998
started Pine Pienaar Invest that has the business of
inter
alia
recovery
of stolen vehicles for insurance companies. He got instructions from
Hillbank on instruction of the first plaintiff to
recover this
vehicle from Komatipoort. He phoned Mr Bush to identify the vehicle
and he did so on 12 November 2002. He then travels
to Komatipoort to
recover the vehicle, but they could not find the vehicle and he never
recovers the vehicle. He is informed that
the vehicle was handed over
to a Mr van der Westhuizen. He did however not believe this and on 23
October 2002 he requests the
defendant to investigate where the
vehicle is. He did not believe this version because a vehicle cannot
be recovered without the
relevant documentation and that
documentation was not there. This is confirmed by Inspector S D
Malupi, the investigating officer,
in a letter to Captain T A Theledi
[p21 of A], Inspector Malupi told him that he thought the vehicle was
pressed. Nobody knows
what happened to the vehicle and according to
him the vehicle was pressed, stolen out of the SAP13 or unlawfully
handed over. On
14 August 2003 he discussed it with Daan Swanepoel of
the first plaintiff and made his submission that the vehicle being
handed
over to van der Westhuizen is unfounded. On 23 October 2003 he
then writes a letter to the Area Commissioner Nelspruit requesting
a
report on what happened to the vehicle. On 8 January 2004 he faxed a
letter enquiring when the report could be expected He does
not recail
the letter addressed to him on 11 November 2005 with the following
content:
“
1
A report from Komatipoort SAPS was received which indicated that the
mentioned vehicle
was
handed out to an
unauthorised person.
2
It is proposed for you to refer this matter to a legal representative
for further handling
."
This letter emanated
from the office of the Deputy Area Commissioner Operational Services
Area Lowveld.
In cross-examination
it was put to the witness that many vehicles are stolen from the
SAP13 camp. It was also put that Inspector
Malupi would testify that
van der Westhuizen fetched many vehicles from the SAP13 camp.
§ 6. Mr Davis,
employed at the first plaintiff as manager of recovery of sioien
vehicles, testified. On 19 November 2001 the
SAPS informed them that
vehicle had been recovered. On 5 December 2002 they instructed
Hillbank to recover the vehicle from Komatipoort.
They had the
vehicle deregistered. The vehicle was never recovered. The first
plaintiff knew is 2003 that something was seriously
wrong with the
recovery of the vehicle.
§ 7. Inspector
Malupi
:
the investigating officer, was then called by the
plaintiffs' as the defendant decided not call him. He testified that
he never
could ascertain what happened to the vehicle: it could still
be in the SAP camp, could be stolen or it was pressed as he had said
to Mr Pienaar. There were none of the required documents expected
when the vehicle is handed over to an authorized agent. He also
does
not believe that the vehicle was handed over to van der Westhuizen.
He did not look for the vehicle it is not his job The
SAPS has a
record of what vehicles were pressed, but it was not before court.
§ 8. No
witnesses were called by the defendant.
§ 9. Addressing
the plea of prescription first speaks for itself. Mr Bester for the
defendant argued that on 14 August 2003
Daan Swanepoel of the first
plaintiff knew that the vehicle was recovered but was no longer to be
found. In terms of section 12(1)
of the Prescription Act 68 of 1963
[hereinafter referred to as the Act] the debt was due. Summons was
only issued on 15 March 2007
and served on 26 March 2007. more than 3
years later. He relied on Truter And Another v Deysel 2006(4) SA 168
SCAon 174:
“
[19]
‘Cause of action
:
for the purposes of prescription thus means every fact which it would
does be necessary for the plaintiff to prove, if traversed,
in order
to support his right to the judgment of the Court. It does not
comprise every piece of evidence which is necessary to
prove each
fact, but every fact vshich is necessary to be proved.”
And also:
“
[16]
...A debt is due in this sense when the creditor acquires a complete
cause of action for the recovery of the debt. that is
when the entire
set of facts which the creditor must prove in order to succeed with
his or her ciaim against the debtor is in place
or
;
in other words,
when everything has happened which would entitle the creditor to
institute action and to pursue his or her claim."
The plaintiffs argue
that even after the trial nobody knows what happened to the vehicle.
Their cause of action was thus only complete
when they for the first
time received information from the respondent concerning the vehicle
on 3 March 2005: summons was thus
issued within the three year
period.
They
also rely on section 14[1] of the Act. where the running
ot
prescription
is interrupted by an express or tacit acknowledgment of liability by
the debtor. If prescription had started to run
then it was
interrupted by the letter dated 11 November 2005. In this letter the
respondent acknowledges liability in that they
declare that the
vehicle was handed out to an unauthorised person and the plaintiffs’
agent is instructed to refer the matter
to a legal representative for
further handling.
Even
if prescription had started to run in August 2003
:
without making such a finding, then I find that prescription was
interrupted as contemplated in section 14(1) of the Act. On the
facts
of this matter the debtor intended to admit that the debt existed and
that it was liable therefore. This ietter was written
in response to
a report requested by the agent of the first plaintiff informing what
had happened to the vehicle. The letter refers
to the report written
by Inspector Malupi which after investigation informs that the
necessary documentation was never completed
and thus begs the
inference that the vehicle was handed out to an unauthorized person.
In the letter dated 11 November emanating
from the office of the
Deputy Area Commissioner the first plaintiff is informed that the
vehicle was indeed handed out to an authorized
person. The intention
of the defendant can thus only be to inform the plaintiff that a debt
existed. If the defendant's employees
handed the vehicle to an
unauthorized person without the necessary documentation then the
defendant is liable therefore. The intent
of the debtor is made even
clearer when it goes as far to inform Mr Pienaar that they should
take this matter to a legal representative.
This is to admit
liability. The fact that the liability is not quantified is not a bar
for the application of Section 14(1). In
the words of Benson v
Walters 1984(1) SA 73 (A) on 90G
“
It
is sufficient if it capable of ascertainment by calculation or
extrinsic evidence without the further agreement of the parties."In
casu
the
quantum is so capable.
I accordingly
dismiss the special plea of prescription.
§
10. The first plaintiff before
litis
contestatio
was
the owner of the vehicle.
The
first plaintiff's ownership flows from the agreement of loss. In
Santam Beperk v
Potgieter
1997(3)SA
415 on 423 the court found
"In
practical terms the insurers right to salvage against the insured
entails a right to claim the transfer of ownership in
the object of
risk or its remains from the insured and, consequently, the right to
claim such property from third parties. ’’
It is not in dispute
that the plaintiffs suffered patrimonial loss of which the quantum is
admitted.
It is however argued
that the plaintiff has not proven negligence on the grounds as set
out in the summons. There is very little
doubt that the plaintiffs
have established negligence. The vehicle was at the SAPS Komatipoort
and now it cannot be found. The
SAPS can give no explanation for
this. The plaintiff has accordingly proven negligence. Whether the
vehicle was stolen, pressed
or handed over to an unauthorized person
is irrelevant.
The defendant
criticises the plaintiff that the plaintiff's evidence now in fact is
that the vehicle was pressed or stolen and their
cause of action
should have been based on an unlawful omission. The evidence was that
the necessary documentation was not completed.
The defendant's
records. SAP 13. p41 of annexure A. show that the vehicle was handed
over to van der Westhuizen on 12/11/2002.
The investigation officer
in writing informed the complaints office on 3/10/2005 that the
vehicle is still not cancelled on the
circulation system. He also
informed that office that no disposal order was completed. On 11
November 2005 the Deputy Area Commissioner
informed Mr Pienaar that
the vehicle was handed out to an unauthorized person. In the
defendant's further particulars it is denied
the vehicle was
recovered, but if recovered then the vehicle was released on 12
November 2002 to a person. Johannes Nicolaas van
der Westhuizen. an
unauthorized person. At trial it is common cause that the vehicle was
recovered and indentified. It is further
common cause that nobody
knows what happened to the vehicle. The defendant did not guard
against the occurrence of the vehicle
disappearing. The evidence
corroborates just how negligent the defendant was: it is basically
impossible to have handed the vehicle
to van der Westhuizen within
the time-span and without the documents. It thus calls for an
inference that perhaps it was stolen.
The defendant even put it to Mr
Pienaar that many vehicles are stolen from the SAP13 camp. This is no
way negates the defendant's
negligence, in fact it compounds their
negligence. It also calls for an inference that the vehicle was
pressed Pecause Inspector
Malupi had a hard time denying that he
thought he had seen on records that the vehicle was pressed and had
told Mr Pienaar so during
the trial All of this is however not
proven, what is proven is that the vehicle disappeared. The SAPS was
negligent in not guarding
against the vehicle disappearing.
§11.
I accordingly find it not necessary to address the cause of action
founded on the
actio
ad exhibendum.
§ 12. As for
costs, the quantum of the claim is well within the Magistrate's Court
jurisdiction. Although the trial took 4
days I can not find that the
issues were so complex that a Magistrate could not preside over me
matter. If punitive costs were
requested due to the way the defendant
changes their stance from plea to trial and even within the trial
then the appropriate submission
would have been attorney and client
costs on the Magistrate's Court tariff. This submission was however
not made
§ 13. I
accordingly make the following order:
§ 13. 1. The
plaintiff's claim is granted in the amount of R45 000;
§ 13. 2. The
defendant is to pay interest on the amount of R45 000 ex 4 April 2006
a tempore morae.
§13.3. The
defendant is to pay the costs on the Magistrate's Court tariff.
§ 13. 4. The
defendant is to pay the first plaintiff the claim and interest amount
S. Potterill
Judge of the High
Court
Delivered on: 18
February 2010
Attorney
for the Plaintiff:
GILDENHUYS
LESSING & MALATJI
INC.
Pretoria
012 427 3779
(Ref: HENK KRUGER /
SVR
01366190)
Attorney for the
Defendant
THE STATE ATTORNEY
Pretoria
Tel: 012 309
1579/1500
(Enq: P. N. MBATA
(Ref:
2042/2007/Z23/kfm)