About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 341
|
|
Spring Car Wholesalers (Pty) Ltd t/a No Finance Cars v F & H Motors CC (1713/2023) [2023] ZAFSHC 341 (23 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
No.:
1713/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
SPRINGS
CAR WHOLESALERS (PTY) LTD
Applicant
t/a
NO FINANCE
CARS
and
F
& H MOTORS CC
Respondent
JUDGMENT
BY:
VAN RHYN, J
HEARD
ON:
17 AUGUST 2023
DELIVERED
ON:
23
AUGUST 2023
[1]
The applicant, Springs
Car Wholesalers (PTY) Ltd t/a No Finance Cars which conducts
business as,
inter
alia,
a
car rental business seeks the following order:
“
1.
Pending the determination of Part B of this
application and within 24 hours of the granting of this
order, the
Respondent is ordered to hand over the Applicant’s vehicle
being a 2014 Nissan Hardbody NP300 with VIN Number
AND[…],
Engine Number YD 2[…] and with registration number CY8[…]
(“the vehicle”) to the deputy
Sheriff who is authorised
and directed to deliver the vehicle to the applicant for safekeeping:
2.
That the Applicant’s attorneys of record continue to hold an
amount of R17 739.28
as security for the Respondent’s
alleged claim of R17 739.28, subject to the Respondent issuing a
Summons against the
Applicant for the aforementioned sum within 20
business days of the date of the order in this Part A or the handing
over of the
vehicle to the Applicant, whichever is the sooner;
3.
That in the event of opposition of this Part A, the opposing
Respondent be ordered to pay
the costs of the application, and in the
event of no opposition, the costs of the hearing of Part A of this
Notice of Motion shall
stand over for determination by the Court
which hears the application for final relief in terms of Part B of
the Notice of Motion.”
[2]
The respondent is F & H Motors CC, a close corporation with its
principal place of business
at East End, Bloemfontein where it
conducts business as a motor vehicle workshop. On 8 August 2020
the applicant entered
into a rental agreement with a certain Mr R D
Mmolaoa (“Mr Mmolaoa”) in terms of which the applicant
leased the vehicle
to Mr. Mmolaoa for a period of 54 months.
Mr Mmolaoa took delivery of
the vehicle during August 2020, but subsequently failed to pay the
rental, in the amount of R 5 950.00
per month, for several
months.
[3]
During September 2022 the applicant discovered that the vehicle had
suffered a mechanical breakdown
during May 2022 and that Mr Mmolaoa
had the vehicle towed by the respondent for repairs at its workshop.
It is common cause that
the vehicle is still in the possession of the
respondent.
The Applicant contends
that it is the owner of the vehicle.
[4]
Subsequent to repairing the vehicle, the respondent invoiced Mr
Mmolaoa in the amount of R17 739.28
as per Annexure “D”
to the founding affidavit. The applicant was not a party to the
agreement between the respondent
and Mr Mmolaoa regarding the repairs
to the vehicle and remains unwilling to make payment of the invoice
submitted by the respondent
for the repairs. The applicant alleges
that the vehicle is valued at R100 600.00 being the current
retail value. The applicant
contends that it is losing potential
revenue as a result of the respondent’s refusal to release the
vehicle.
[5]
In its answering affidavit the respondent, raised 5 points
in
limine
apart from its defence. These 5 points
in limine
can concisely be summarised as the following:
5.1.
The deponent to the founding affidavit’s authority to litigate
on behalf of the applicant;
5.2.
The foreseeability of a dispute of fact and failure to follow the
action procedure;
5.3.
Ownership of the vehicle by the applicant;
5.4.
Non-joinder of Mr Mmolaoa;
5.5.
The issue of the correct forum for the hearing of this matter, taking
cognisance of the value of the vehicle
and the repair costs as per
the respondent’s invoice, all being within the Magistrates’
Court jurisdiction.
[6]
At the commencement of the hearing before me, Mr Roux, counsel on
behalf of the respondent, indicated
that the non-joinder of Mr
Mmolaoa remains a contentious issue on the ground that the respondent
will lose its retention of the
vehicle in respect of its claim
against Mr Mmolaoa. The security proposed by the applicant will
only serve as security in
respect of the respondent’s claim
against the applicant and not as security in respect of the
respondent’s claim against
Mr Mmolaoa with whom it contracted
regarding the repairs to the vehicle.
[7]
The respondent furthermore remains adamant that the applicant should
have approached the Magistrates’
Court for relief and in the
event of the applicant having any substantial success in this
application, it would only be entitled
to costs on the appropriate
Magistrates’ Court scale.
[8]
Subsequent to issuing this application, but prior to the filing of
the respondent’s answering
affidavit, the respondent served a
notice in terms of the provisions of Rule 35(12). A copy of the
authorisation granted
to the deponent to the applicant’s
founding affidavit, to depose to the affidavit and to bring the
application, was requested.
The applicant provided a resolution of
the directors of the applicant company, which to my mind disposes of
the first point
in limine
. The applicant furthermore
appended the Certificate of Registration in respect of the vehicle
issued during May 2023 to its
replying affidavit which provides an
answer to the third point
in limine,
the issue regarding
ownership of the vehicle.
[9]
The respondent’s opposition to the relief sought in Part A of
the Notice of Motion is based
on its contention that it is entitled
to retain possession of the vehicle because it has a
jus
retentionis lien
arising from, what is referred to as a “repair
lien” and that it would not be in the interest of justice and
business
in general, if the applicant be permitted to obtain
possession of the vehicle to which the respondent effected repairs,
without
payment. The respondent avers that the applicant’s
vehicle was repaired and improved by the repairs and that the said
amount
is due as the applicant has ostensibly been enriched as a
result of the repairs effected to the vehicle.
[10]
A right of retention (
ius
retentiones
)
or lien is the right to retain physical control of another's movable
or immovable property as security for payment of a claim
for money or
labour expended on that property. Liens arise by operation of law.
[1]
There are two main kinds of lien,
viz
salvage and improvement liens and debtor and creditor liens.
[2]
The former are based on the principle of unjust enrichment and they
are often referred to as 'enrichment liens'.
[3]
[11]
The protection afforded by a lien is however limited: the retentor
merely has a defence against the
rei
vindicatio
of
the owner. A debtor and creditor lien, on the other hand, can
be enforced only against the other contracting party, in
the matter
at hand, Mr Mmolaoa. The authors of LAWSA
[4]
,
vol 15 at paragraph 85 states as follows:
“
The
owner of the property subject to a right of retention may defeat the
lien by furnishing adequate security for payment of the
debt secured
and in principle so may any debtor who has a right to possession.
However, the mere offer or giving of security
by the owner does not
confer any right of possession to the owner, but a court may, in its
discretion, order cessation of possession
against provision of
security. Whether a court will exercise its discretion to order
restoration of the property to its owner (or
the person with a right
of possession) depends on the particular facts of each case.
The security need not cover the costs
of a possible action by the
lien holder, since the security serves as a substitution for the lien
and not as an additional security”.
[12]
On 10 May 2023 the respondent, as the plaintiff, issued summons in
the Magistrates’ Court, Bloemfontein
against the applicant,
cited as the 2
nd
defendant, for payment of the aforesaid
amount. Mr Mmolaoa is cited as the 1
st
defendant in the
Magistrates’ Court matter.
[13]
Mr Reinders, counsel on behalf of the applicant,
places reliance for the relief sought on the matter of
Pheiffer
v Van Wyk
[5]
,
a judgment by the Supreme Court of Appeal, where the court held that
considerations of equity and justice dictate that in the
case of a
jus
retentionis
based
on an enrichment lien, the court has the same discretion as it had in
the case of a debtor and creditor lien, i.e. to deprive
the lien
holder of possession and to substitute such security. Mr Reinders
argued that the security bond by the applicant’s
attorney in
the amount of R17 739.28 and which is tendered pursuant only to
the granting of judgment against the applicant
in favour of the
respondent, provides adequate security in respect of the respondent’s
claim against the applicant.
[14]
Two reasons as to why this court should not grant
the relief sought were raised by Mr Roux. These
two arguments
hinge on:
14.1
An important distinction exists regarding the factual position
relating to the three (3), relevant parties
in the
Pheiffer
matter and the three (3) parties in the matter at hand. One of the
parties in the matter at hand, Mr Mmolaoa, is not a party before
the
court. Therefore, the non-joinder of Mr Mmolaoa in this matter
compromises the respondent’s position.
14.2
The
second issue is the mode of security: whether the security in the
form of an undertaking by an attorney, is sufficient to discharge
the
respondent’s lien. The respondent, with reference to
Steyn
Lyell Maeyane Attorneys v Oelofse
[6]
argued that the written undertaking given by a firm of attorneys does
not constitute adequate security, similar to the security
by way of a
bank guarantee in the
Pheiffer
matter.
[15]
Mr Mmolaoa is responsible, in terms of the provisions of the rental
agreement between him and the applicant,
for,
inter alia
, the
service, repair and maintenance of the vehicle whilst the vehicle is
in his possession and during the existence of the rental
agreement.
The respondent therefore contends that Mr Mmolaoa had the necessary
authority to provide instructions to the respondent
to effect repairs
to the vehicle.
[16]
From the invoice submitted by the respondent it is evident that the
amount of R17 739.28 has been outstanding
since 17 May 2022.
There can be no doubt that Mr Mmolaoa has abandoned the vehicle and
has failed to regain possession of the vehicle
for approximately 15
months. During September 2022 Mr Mmolaoa’s account with
the applicant was in arrears. The applicant
struggled to make contact
with Mr Mmolaoa, who obviously did not report the mechanical
breakdown of the vehicle to the owner. Evidently
Mr Mmolaoa has
abandoned the vehicle and is not in the least perturbed by the
respondent’s lien.
[17]
Regarding the respondent’s argument that it would lose its
retention lien
vis a vis
Mr Mmolaoa in the event of an order
granted in terms of Part A of the Notice of Motion, I am of the view
that the respondent’s
retention of the vehicle must be
evaluated against the obvious disinclination of Mr Mmolaoa to regain
possession of the vehicle.
There is no legal basis upon which
the applicant can be ordered to provide any form of security for the
respondent’s claim
against Mr Mmolaoa.
[18]
As to the second objection regarding the mode of security the
following considerations are relevant:
18.1
The applicant initially averred that its attorney of record holds and
shall continue to hold an amount of
R17 739.28 as security for
the respondent’s claim subject to the conditions as set out
above. Appended to the replying
affidavit, marked annexure G, the
applicant filed a “Security Bond” dated 5 June 2023 in
the Magistrates’ Court
proceedings under case number 3828/2023.
18.2
However, the heading of the Security Bond refers to the applicant as
being the first as well as the second
Defendant, which is clearly
wrong. In terms of the security bond the applicant’s attorney
irrevocably undertakes to pay to
the respondent a maximum amount of
R17 739.28 pursuant only to the granting of a judgment against
the applicant (the second
defendant in the Magistrate’s Court
proceedings) after the applicant having exercised its options of
appeal or review should
it elect to do so.
[19]
At the hearing of the matter, Mr Reinders indicated that the
applicant will have no objection if it is ordered
that the amount of
security be kept in trust by the respondent’s attorney rather
than the applicant’s attorney. The
respondent is amenable to
this offer which provides a solution to the respondent’s
objection in this regard.
[20]
On behalf of the applicant it is contended that the longer the
respondent continues to refuse to hand over
control and possession of
the vehicle, the greater the prejudice to the applicant. This is a
case where the court needs to consider
an exercise of a discretion.
From the relevant case law, the weight of authority seems to be in
favour of the view that even where
the claim in respect of which the
ius retentionis
is stated is made in good faith, the court has
the authority to order delivery to the owner against adequate
security.
[21]
Each case will depend upon its particular facts and the court, in
exercising its discretion, will have regard
to what is equitable
under all the circumstances bearing in mind that the owner of the
vehicle should not be left without his property
unreasonably and, on
the other hand, should not be given possession if his object is,
after obtaining possession thereof, to delay
the respondent’s
recovery of expenses.
[22]
The applicant has been deprived of possession of
its vehicle and, to an unknown extent, also of rental income
in terms
of the lease agreement with Mr Mmolaoa since approximately September
2022.
[23]
Although the general rule is that the successful party should be
awarded costs, the court can, in the exercise
of its discretion,
deprive a successful party of costs either wholly or partly. I am of
the view that the respondent cannot be
criticized for questioning the
allegation regarding ownership of the vehicle in the light of the
Certificate of Registration appended
to the founding affidavit,
marked Annexure “A”. The date of issue of this
certificate is March 2014 and the owner of
the vehicle is indicated
as Thrifty Car Rental. On the applicant’s own version, it
purchased the vehicle on 12 November 2019.
[24]
In its reply to the respondent’s Rule 35(12) Notice and also in
reply to the answering affidavit, did
the applicant remedy the
confusion regarding the ownership of the vehicle. I am
therefore of the view that the allegations
in the applicant’s
founding affidavit were insufficiently detailed to enable an
inference of ownership in the applicant to
be made.
[25]
I further take into consideration the amount relevant to this matter,
which is R17 739.28 as well as
the value of the vehicle being
R100 600.00. The applicant has however failed to justify its recourse
to the High Court in respect
of this application taking into account
that the applicant envisaged the respondent to proceed with its claim
in the Magistrates’
Court.
[26]
I am therefore satisfied that the respondent was entitled to oppose
the application, not only in respect
of the mode of security
presented by the applicant, which was remedied by the offer made at
the hearing of the matter, but also
as a result of the confusion
regarding ownership of the vehicle. These considerations are relevant
to the costs incurred by the
respondent having been dragged to the
High Court by the applicant where this matter could have been
disposed of in the Magistrates’
Court. I am therefore of the
view that the respondent is entitled to all its costs.
ORDER:
[27]
The following order is therefore made:
1.
Respondent is ordered to hand over to the applicant, within three (3)
days of this order,
the 2014 Nissan Hardbody NP300 with VIN Number
AND[…], Engine Number YD 2[…] and with registration
number CY8[…]
(“the vehicle”), presently in its
possession.
2.
The Applicant, through the attorney
acting on behalf of the Respondent, shall continue to hold
an amount
of R17 739.28, as security for the Respondent’s claim in
the aforesaid amount pending finalization of the
action instituted by
the Respondent amongst others against the Applicant under case number
BFN 3828/2023, and in the event of granting
judgment against the
Applicant under the aforementioned case number, to effect payment to
the Respondent to a maximum amount of
R17 739.28
3.
The amount in paragraph 2 above shall be paid by the attorney acting
on behalf of the Applicant
to the attorney acting on behalf of the
Respondent, within three (3) days of this order, to be held in trust
as per paragraph 2
above and to be held so further pending
finalization of any appeal/review in case number 3828/2023.
4.
The applicant shall pay the costs of this application.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Applicant:
ADV.
S J REINDERS
Instructed
by:
HENDRE
CONRADIE INC
(ROSSOUWS
ATTORNEYS)
BLOEMFONTEIN
On
behalf of the Respondent:
ADV.
L A ROUX
Instructed
by:
BADENHORST
ATTORNEYS
BLOEMFONTEIN
[1]
Wille's
Principles of South African Law, 9
th
Edition p 661.
[2]
Brooklyn
House Furnishers (Pty) Ltd v Knoetze & Sons
1970 (3) SA 264
(A)
at 270.
[3]
Wille’s
Principles of South African Law (
supra
)
p662.
[4]
The
Law of South Africa (Second Edition) Vol 15, Part 2.
[5]
2015
(5) SA 464.
[6]
2017
JDR 0543 (SCA).