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[2010] ZAGPPHC 192
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Manhand (Wp) CC v Penlin Building Supplies and Another (13606/09) [2010] ZAGPPHC 192 (29 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG COURT, PRETORIA
CASE
No. 13606/09
DATE:
29/10/2010
In
the matter between
MANHAND
(WP)
CC
..............................................................................
Applicant
and
PENLIN
BUILDING
SUPPLIES
...........................................................
First
Respondent
FIRST
RAND BANK T/A
WESBANK
................................................
Second
Respondent
JUDGMENT
Van
der Byl, AJ:
Introduction
[1]
In this matter the Applicant seeks, in addition to the usual order of
costs, an order in terms of which -
(a)
the First Respondent is ordered to return to the Applicant a
Manhand Diesel Forklift;
(b)
the Sheriff is authorized to forthwith attach and remove the said
forklift and to return it to the Applicant.
[2]
In issue in this matter is whether the Applicant is estopped from
vindicating the Forklift of which it is the owner and which
is in the
First Respondent's possession.
Relevant
facts of the matter
[3]
The facts fall within a fairly narrow compass.
[4]
The Applicant, Manhand (WP) CC, on 18 October 2007 entered into an
oral agreement with Truck and Tractor Specialists CC, being
a dealer
in products, amongst which forklifts of the Applicant, in terms of
which the Applicant had undertaken to deliver to the
said Truck and
Tractor Specialists CC
"forklifts
and spareparts for forklifts"
to
"sell
to third parties".
[5]
it was an express term of the agreement that the Applicant would
remain the owner of the forklifts and spareparts supplied to
it until
such time as the full outstanding amount for the forklifts and
spareparts was paid by the said Truck and Tractor Specialists
CC. By
virtue of this agreement the Applicant on 18 June 2008 delivered to
Truck and Tractor Specialists CC the Manhand Diesel
Forklift in
question. It appears that the said Truck and Tractor Specialists CC
had, in terms of a sale agreement concluded on
9 June 2008, already
sold the said Forklift to the First Respondent at a stage before it
has paid the Applicant and, therefore,
at a stage when the ownership
in the Forklift still vested in the Applicant.
[6]
In its answering affidavit the First Respondent stated -
(a)
that
it on 9 June 2008 concluded an instalment agreement with FirstRand
Bank Limited trading as Wesbank
("Wesbank")
in
terms of which the First Respondent purchased the Forklift in
question from Wesbank in order to secure financing for the purchase
of the Forklift in question;
(b)
that
in terms of the instalment sale agreement -
(i)
the
First Respondent would take delivery of the forklift on behalf of
Wesbank;
(ii)
the
First Respondent purchased the Forklift from Wesbank;
(iii)
Wesbank
retained ownership of the Forklift until the First Respondent paid
all the amounts due under that agreement;
(c)
that
Wesbank on 6 June 2008 purchased the Forklift from Truck and Tractor
Specialists CC and paid for it in full:
(d)
that
it previously also purchased a forklift from Truck and Tractor
Specialists CC and had no reason to dispute its right and title
to
validly transfer ownership of the vehicle.
[7]
Wesbank was on application joined in the application as Second
Respondent on 14 October 2009
"to
vindicate its interest in the forklift'
and
to prevent the Applicant from recovering the Forklift from the
possession of the First Respondent.
[8]
Apart from confirming the allegations made by the First Respondent in
its answering affidavit, it is contended by Wesbank -
(a)
that
Truck and Tractor Specialists CC is an accredited dealership and that
it had financed many items purchased from it which had
been purchased
by it for on-selling to third parties, such as, the First Respondent;
(b)
that
at no stage had it been it aware that Truck and Tractor Specialists
CC did not have the title to transfer the ownership of
the forklift
to it for purposes of eventually transferring ownership to the First
Respondent;
(c)
that,
had it known that Truck and Tractor Specialists CC was not in a
position to transfer ownership of the forklift, it would not
have
entertained the notion of acquiring the forklift and not have advance
finance to the First Respondent.
Legal
principles applicable
[9]
It had frequently been held by our courts that in circumstances
as in this case
an
owner can in principle be estopped from asserting his rights to
ownership.
[10]
In
Oakland
Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd
1976
(1) SA 441
(A)
the
principle is elucidated as follows
at
452A-G
"Our
law jealously protects the right of ownership and the correlative
right of the owner in regard to his property
:
unless, of course, the possessor has some enforceable right against
the owner. Consistent with this, it has been authoritatively
laid
down by this Court that an owner is estopped from asserting his
rights to his property only -
(a)
where
the person who acquired his property did so because, by the culpa of
the owner, he was misled into the belief that the person,
from whom
he acquired it, was the owner or was entitled to dispose of it; or
(b)
.....
As
to (a) supra, it may be stated that the owner will be frustrated by
estoppel upon proof of the following requirements -
(i)
There
must be a representation by the owner, by conduct or otherwise, that
the person who disposed of his property was the owner
of it or was
entitled to dispose of it. A helpful decision in this regard is
Electrolux
(Pty) Ltd v Khota and Another
1961 (4) SA 244
(W),
with
its reference at 247 to the entrusting of possession of property with
the indicia of dominium or jus disponendi.
(ii)
The
representation must have been made negligently in the circumstances.
(Hi)
The representation must have been relied upon by the person raising
the estoppel.
(iv)
Such person's reliance upon the representation must be the cause of
his acting to his detriment.".
See
also:
Quenty's
Motors (Pty) Ltd v Standard Credit Corp Ltd
[1994] ZASCA 41
;
1994 (3) SA 188
(A) at
198G
[11]
In the
Electrolux
(Pty)
case
referred to by the learned Judge in the
Oakland
case
it
is stated at
247B-E
as
follows:
"
To give rise to the representation of dominium or jus disponendi, the
owner's conduct must be not only the entrusting of
possession to the
possessor but also the entrusting of it with the indicia of the
dominium or jus disponendi. Such indicia may
be the documents of
title and/or of authority to dispose of the articles.....; or such
indicia may be the actual manner or circumstances
in which the owner
allows the possessor to possess the articles, as for example, the
owner/wholesaler allowing the retailer to
exhibit the articles in
question for sale with his other stock in trade.......".
(See
also:
Concor
Holdings (Pty) Ltd T/a Concor Technicrete v Potgieter
2004 (6) SA 491
(SCA) at 495B; Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie
(WP) (Edms) Bpk
[1996] ZASCA 28
;
1996 (3) SA 273
(A) at 284I-286H)
Evaluation
of Applicant's case
[12]
In applying these principles to the facts of this matter it is clear
that the Applicant, having delivered the Forklift to Truck
and
Tractor Specialists CC, being a dealer and distributor of,
inter
alia,
forklifts,
for purposes of sale to third parties, must have been aware that it
may be sold by Truck and Tractor Specialists CC in
the ordinary
course of business. In having done that it, in the words of Holmes JA
in the
Electrolux
case,
"clothed'
Truck
and Tractor Specialists CC by conduct with the indications of
ownership of the Forklift concerned or of authority to transfer
by
allowing Truck and Tractor Specialists CC to exhibit the Forklift or
offer it for sale with its other stock in trade. In the
circumstances
the conduct of the Applicant could reasonably have been expected to
mislead the Respondents into believing that Truck
and Tractor
Specialists
CC
had the right to transfer ownership in the Forklift. The Applicant
should, therefore, reasonably have foreseen that a prospective
purchaser might act thereon to his or her prejudice. It is apparent
from the evidence that the Applicant took no steps to prevent
it
being sold before Truck and Tractor Specialists CC had paid for it or
draw attention of any third party that Truck and Tractor
Specialists
CC had no right to transfer ownership before ownership has been
transferred to it.
[13]
In my opinion, therefore, the estoppel raised by the Respondents was
clearly established.
Order
[14]
In
the
application
is dismissed with costs.
P
C VAN DER BYL
ACTING
JU
DGE
OF
THE HIGH COURT
ON
BEHALF OF THE APPLICANT
ADV
J N W BOTHA
On
the instructions of:
M
D SWANEPOEL ATTORNEYS
c/o
GEYSER VAN ROOYEN ATTORNEYS
383
Farenden Street Arcadia
PRETORIA
Ref:
C Geyser/SS/MD1/0033
Tel:
(012) 344 1445
ON
BEHALF OF THE RESPONDENTS
ADV
C VAN DER SPUY