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
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case number: 2376/202I
In the matter between:
PARK MOTORS WELKOM (PTY) LIMITED Plaintiff
and
MONTANA GENERAL TRADING 196 CC Defendant
CORAM: LOUBSER, J
HEARD ON: 1 4, 15 & 17 NOVEMBER 2023, 23 & 24 JANUARY 2024
JUDGEMENT BY: LOUBSER, J
DELIVERED ON: 4 APRIL 2024
[1] This is an action in which the Plaintiff claims from the Defendant the amount of
R550 000.00 plus interest and costs of suit in terms of the common law implied
warranty against eviction. It is alleged in the summons that the Defendant sold a
motor vehicle to the Plaintiff, but that the South African Police Service attached
the vehicle some 18 months later as being a stolen vehicle.
[2] The Pleadings:
In the particulars of claim to the summons, the Plaintiff allege that on 10 May
2017 at Kroonstad, alternatively Welkom, the Plaintiff and the Defendant
concluded a verbal agreement of sale. In terms of the agreement, the Plaintiff
purchased from the Defendant a 2017 Isuzu double cub vehicle for the amount
of R550 000.00. At the time of the conclusion of the agreement, the Plaintiff was
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represented by Hennie Britz and the Defendant was represented by Neels
Hamman alternatively L.J. Fouche. It was an implied term of the agreement that
the Defendant warranted to the Plaintiff that the Plaintiff would not be evicted,
alternatively that no third party who had an unassailable claim or title in respect
of the vehicle, would evict the Plaintiff.
[3] It is further alleged that the Defendant delivered the said vehicle to the Plaintiff
on the same day, namely 10 May 2017. The Defendant also rendered an invoice
to the Plaintiff, which caused the Plaintiff to pay the purchase price to the
Defendant, still on the same day. The said invoice was attached to the
summons.
[4] On the same day the Plaintiff sold the vehicle to Petrus Johannes Hamman in
terms of a verbal agreement of sale. For this purpose Hamman obtained
financing from Standard Bank, with whom he concluded a written instalment sale
agreement. In terms of this agreement, Hamman would become owner of the
vehicle upon payment of the full purchase price to Standard Bank. On 13
December 2017 Hamman sold the vehicle to Midcity Motors, and two days later
Midcity Motors sold the vehicle to F.H. Briedenhann, who concluded a written
instalment sale agreement with Wesbank for the purchase of the vehicle. On 16
October 2018 the police took possession of the vehicle as being a stolen vehicle.
The claim of the police to the vehicle was unassailable, it is alleged in the
summons.
[5] Lastly, it is stated in the summons that when the police attached the vehicle, and
as a result of Briedenhann being evicted as aforesaid, all the successive sellers
of the vehicle were held liable to repay the purchase price to the successive
purchasers of the vehicle, the claims of such purchasers being unassailable. It is
consequently alleged in the summons that the Defendant is also liable to repay
the purchase price to the Plaintiff in terms of the common law implied warrant y
against eviction.
[6] In its Plea to the Summons the Defendant denied the particulars of the Plaintiff
as set out in the Particulars of Claim. It is further denied that mr. Neel s Hamman
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had any legal authority to act on behalf of the Defendant, but it is pleaded that “a
mr. Hamman” sold the Isuzu. It is also denied that the invoice attached is an
original invoice from the Defendant as issued by the Defendant. Most of the
remaining allegations in the Summons are then admitted by the Defendant, save
to say that the Plaintiff only reimbursed Midcity Motors in the amount of R420
000.00.
[7] This Plea filed by the Defendant prompted the Plaintiff to file a Replication
thereto, firstly persisting in its allegation that it was the Defendant who sold the
vehicle to the Plaintiff, represented by its du ly authorised agent, mr. Neels
Hamman. Secondly, the Plaintiff stated that the Defendant is estopped from
denying that it was the Defendant who had sold the vehicle, and is also estopped
from denying that Hamman had any legal authority to bind the Defendant
contractually with the Plaintiff.
[8] Responding to a request for Further Particulars in terms of Uniform Rule 21, the
Defendant stated that mr. Neels Hamman was never employed by the
Defendant. It further stated that the account with number 1[…] is a Nedbank
account held by L. J. Fouche (Jnr), and that the payment in the amount of R102
000.00 was made on the 19
th May 2017 by the account holder Louis Fouche
(Jnr). The relevance of this account and its holder will transpire later herein.
[9] In the minutes of a pre- trial conference held by the legal representati ves of the
parties, it was agreed that the issues for trial are, amongst others, whether or not
Neels Hamman represented the Defendant, and if he did not represent the
Defendant, whether the Defendant is estopped from raising such as a defence.
[10] The Evidence
The first witness to testify for the Plaintiff was mr. Hennie Britz, the sales
executive of the Plaintiff at the time. He testified that mr. Neels Hamman told him
there is an Isuzu at the Defendant which he wanted to buy. However, the
Defendant could not assist him with financing for the vehicle. He further informed
him that he had already agreed the price for the Isuzu with mr. Fouche of the
Defendant, who was a director of the Defendant. He, the witness, knew mr.
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Fouche, since he was an erstwhile client of the Plaintiff. The witness then
requested documents for the Isuzu from mr. Fouche, amongst others the police
clearance certificate, the Natis document and the invoice for the vehicle. Mr.
Fouche never indicated to him that they were not aware of the transaction, the
witness testified.
[11] The witness further testified that mr. Neels Hamman informed him that his
brother, mr. P.J. Hamman, was actually the person who wanted to buy the Isuzu.
When he received all the said documents from Fouche and Neels Hamm an, the
documents were forwarded to Standard Bank together with the application for
finance. On this document, P J Hamman was indic ated as the purchas er, and
the Plaintiff the owner at that point in time. The invoice showed that the Plaintiff
had purchased the vehicle from the Defendant. The invoice came directly from
Fouche. All these things happened on 10 May 2017. The vehicle was in the
possession of the Plaintiff at its pr emises before it was delivered to P.J.
Hamman.
[12] The witness said that he only kne w one Louis Fouche. He was not aware of any
Louis Fouche Junior. In cross -examination it was put to the witness that the two
Louis Fouches, Senior and Junior, were the two activ e members of the
Defendant at the time of the transaction. The witness responded by saying that
he never spoke to Fouche Junior. He never saw him. He only spoke to Fouche
Senior on his cell phone. It was further suggested to the witness that the invoice
he received did not come from the Defendant, since the account number on the
invoice was in fact the personal account number of Fouche Junior. The
Defendant never sold cars, but Fouche Junior did. It needs mentioning here that
the invoice in question bears the name of the Defendant in bold letters at the top
thereof. It also needs mentioning that the witness gave evidence regarding a
Land Rover vehicle that was traded in by P.J. Hamman when he purchased the
Isuzu from the Plaintiff. This Land Rover went to the Defendant, and the Plaintiff
had to pay an amount of R109 614.00 to the Defendant to complete the deal.
The significance of this evidence appears to be that R109 614.00 was paid into
the account indicated on the Defendant’s invoice, which now appears to have
been the personal account of Fouche Junior. Responding to this information, the
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witness testified that the Plaintiff was made to believe that the Defendant was the
seller, on the face value of the invoice, and on the basis of the conversation the
witness had with Fouche of the Defendant.
[13] It was further put to this witness in cross -examination that Neels Hamman and
P.J. Hamman cannot be traced, while Fouche Senior had already passed on in
April 2020, and Fouche Junior had passed on in January 2022.
[14] The Plaintiff then called a second witness to testify, namely mr. Mark Parodi, a
director and shareholder of the Plaintiff. He testified that Midcity Motors had
instituted action against the Plaintiff when it transpired that the Isuzu was a
stolen vehicle. (It was mentioned earlier herein that Hamm an had sold the Isuzu
to Midcity Motors). According to this witness, the matter between Midcity Motors
and the Plaintiff became settled. In terms of the settlement, the Plaintiff had to
pay Midcity Motors the amount of R550 000.00. It is this amount that the Plaintiff
now claims from the Defendant. The witness concluded that he was not involved
in the transaction between the Plaintiff and the Defendant. In cross-examination
the witness conceded that the Plaintiff never became the registered owner of the
vehicle.
[15] The Plaintiff did not call further witnesses to testify, and closed its case after
presenting the evidence of this witness.
[16] Two witnesses were thereafter called to testify for the Defendant. The first was
mrs Annelie Fouche, the widow of mr. Louis Fouche Junior and since January
2022 the only member and shareholder of the Defendant close corporation. She
holds a B.Com Honours degree from Potchefstroom University and a National
Diploma in Financial Management from the Free State University. She testified
as follows:
[17] She had known the Fouche family since 2014, and in 2015 she became the
financial officer of the Defendant. She and Fouche Junior were married to each
other in 2016. The Defendant does business as a registered micro lender since
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2002. It can provide loans to a maximum of R8 000.00 and the period for
repayment of the loan is 3 months. The business later moved to Wespark in
Kroonstad. In one of the garages on the premises, Fouche Junior stored items
related to the pawn business which he operated in his own name.
[18] During 2017 Fouche Senior and Fouche Junior were the only two shareholders
of the Defendant. Before 201 4 Fouche Senior underwent hip- surgery, and
thereafter he could only walk with the aid of a walking frame and he could no
longer drive a motor vehicle. In 2017 he was admitted to Rosepark Hospital, and
in 2018 he terminated his involvement with the Defendant. He passed on in April
2020 when he was already in his eighties. It is impossible that the witness Britz
could have done any business with Fouche Senior in 2017. When Fouche Senior
left the business in 2018, she and the daughter of Fouche Junior purchased
Senior’s 50% shareholding of the business. The following year Junior was
diagnosed with cancer, and in 2020 his daughter left the business. From then on
the Defendant had only two 50% shareholders, namely the witness and Fouche
Junior. When Junior passed on in January 2022, the witness became the only
shareholder and member of the Defendant.
[19] Mrs. Fouche further testified that she was not involved in the transaction that
now forms the subject -matter of this action. She kne w Neels Hamman as a
vehicle trader, but she did not know from where he was. Sometimes Neels
Hamman would dis cuss motor transactions with Fouche Junior, but he was
never employed by the Defendant. He could therefore not represent the
Defendant. P.J. Hamman she did not know at all. She also kn ew nothing of a
Land Rover that was traded in, nor does she know what had happened to this
Land Rover.
[20] The witness also stated that the Defendant never issues invoices . The business
uses a specific program which pertains to micro loans, and there are no invoices.
The invoice that was issued to the Plaintiff for the payment of the purchase price
for the Isuzu, which appears on page 1 of the trial bundle, is an old invoice that
was used from time to time during about 2014. The amount of VAT indicated on
the invoice, must be wrong, because the Defendant was not registered for VAT.
The bank account number of the Defendant indicated on the invoice, is also not
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the account of the Defendant. It was actually the personal account number of
Fouche Junior. The e -mail address of the Defendant indicated on the invoice, is
one that was normally used by Fouche Junior.
[21] The witness further testified that she could only trace one amount that was paid
by the Plaintiff into the bank account of Fouche Junior as indicated on the
invoice, and that was the amount of R109 614.00. Soon after this amount was
paid in, Fouche Junior made a payment of R102 000.00 out of his account to one
Sello, a person to whom Fouche Junior had made loans from time to time.
Between Sello and the Defendant itself there was never any business, she
testified. The Defendant never traded in motor vehicles, and in this respect , she
referred the Court to pages 134 to 136 of the trial bundle, which contain the
registration papers of the Defendant. The Standard Industrial Classification is
indicated as “retail trade, except of motor”.
[22] In cross-examination the witness confirmed that she was not present during the
negotiations regarding the Isuzu. Therefore, she cannot dispute what mr. Britz
had testified. She was also not present when the vehicle was delivered to the
Plaintiff. When asked about the invoice of the Defendant that was issued to the
Plaintiff, she said she could find no indication on her records that the invoice was
ever e-mailed to the Plaintiff.
[23] The second and last witness for the Defendant was mr. Johan Mostert, the
dealer sales manager of Standard B ank in Bloemfontein. He explained in his
testimony that their customer, mr. Hamman, had traded the Isuzu in at Midcity
Motors. He was thereafter contacted by Midcity when it was discovered that the
Isuzu was a stolen vehicle. They wanted to know how Standard Bank could have
financed a stolen vehicle. Litigation then followed between Midcity and the
Plaintiff, which litigation became settled. The witness also referred to the invoice
bearing the heading of Montana General Trading, which was referred to earlier
herein. This invoice was issued, on the face of it, by the Defendant to the Plaintiff
for payment of the purchase price for the vehicle. The witness also referred to a
payment document on page 3 of the trial bundle, showing that Standard Bank
has paid Montana General Trading (customer L. Fouche) an amount of
R109 614.55 into the account that was identified by mrs. Fouche as the personal
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bank account of her late husband. Page 4 of the trial bundle shows that mr. P.J.
Hamman had traded in his Land Rover Discovery for the Isuzu. Pages 8, 9 and
10 create the impression that a S.C. Pinkoane had sold his Isuzu bakkie to mr.
P. J. Hamman.
[24] In cross-examination the witness confirmed that he only became involved in the
transaction at the point where Hamman purchased the Isuzu, and not prior to
that. The Defendant’s case was then closed.
[25] Evaluation:
The first question that has to be considered is whether it was in fact the
Defendant who had sold the Isuzu to the Plaintiff. This question is complicated
by the fact that those directly involved in the transaction, can either not be traced
or they are late. This is save for mr. Britz, the representative of the Plaintiff when
the deal was concluded. His testimony was that mr. Neels Hamman had told him
that there was an Isuzu at the Defendant which his brother, mr. P.J. Hamman
wants to buy. They have already agreed the price for the Isuzu with mr. Fouche
of the Defendant, but the Defendant could not assist him with financing for the
vehicle.
[26] This witness then spoke to Louis Fouche Senior on the phone, who forwarded
documents to him, including an invoice of the Defendant. The invoice showed
that the Plaintiff had purchased the vehicle from the Defendant. All these
documents were forwarded to Standard Bank together with an application for
finance. Mr. P.J. Hamman was indicated on the application as the purchaser,
and the Plaintiff as the owner of the vehicle at the time. Mr. Britz testified that he
was not aware of the existence of a Louis Fouche Junior at the time.
[27] The testimony of mr. Britz clearly shows that neither of the Hammans
represented or even pretended to represent the Defendant in concluding the
agreement of sale. At most, they were only the purchasers of the vehicle, and
the purchase price was already agreed with Fouche of the Defendant. In the
Amended Particulars of Claim, however, it is alleged that the Defendant was
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represented by Neels Hamman, alternatively L.J. Fouche. The focus must
therefore now fall on Fouche to establish whether he was representing the
Defendant. Mr. Britz testified that he had spoken to Fouche Senior on the phone.
The invoice issued by ostensibly the Defendant, clearly came from Fouche
Junior, because it bears the e -mail address used by Junior as well as his
personal bank account. This is according to the evidence of his wife, mrs.
Annelie Fouche.
[28] The irony is that either Fouche Junior or Fouche Senior could have lawfully
represented the Defendant at the time, because the two of them were then the
only shareholders and members of the Defendant. Mr. Britz also testified that the
Plaintiff was made to believe that the Defendant was the seller of the vehicle, on
the basis of the invoice provided by the Defendant and on the basis of his
telephonic conversation with mr. Louis Fouche Senior.
[29] In the premises, this Court has to find that the Plaintiff has proven on a balance
of probabilities that it was the Defendant who had sold the vehicle to the Plaintiff,
duly represented by mr. Louis Fouche Junior or then by mr. Louis Fouche
Senior, for that matter. The fact that Fouche Junior had received the
consideration for the vehicle in his own bank account, has nothing to do with the
Plaintiff. It is a matter between Fouche Junior and the Defendant. It may well be
that Fouche Senior was not aware of this fact, but we will never know for sure.
[30] At the same time, it is a given that sale agreements of this kind have an implied
term, in terms of the common law, that the seller warrant s to the purchaser that
the purchaser would not be evicted, alternatively that no third party who had an
unassailable claim or title in respect of the goods, would evict the Plaintiff. It
therefore follows that in this case, the Defendant is liable towards the Plaintiff,
since the vehicle was attached by the police as a stolen vehicle.
[31] The next and last question for consideration is for what amount the Defendant is
liable toward the Plaintiff. In the Plaintiff’s Particulars of Claim, it claims the
repayment of the purchase price from the Defendant, namely the amount of
R550 000.00. The evidence, however, shows that the only amount paid by the
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Plaintiff to the Defendant was the amount of R109 614.00. In this respect mr.
Britz testified that mr. P.J. Hamman had traded in a Land Rover vehicle when he
purchased the Isuzu from the Plaintiff. According to mr. Britz, this Land Rover
went to the Defendant. Mr. Hamman had still owed the amount of R407 165.00
to Wesbank in respect of the Land Rover, and the Plaintiff settled this amount
with Wesbank when Standard B ank paid over the purchase price of the Isuzu to
the Plaintiff. The R109 614.00 was the balance owing to the Defendant, he
testified. It is therefore clear that the Plaintiff provided the Defendant with a Land
Rover to the value of R407 165.00 as well as a cash payment of R109 614.00.
The total hereof is the amount of R516 779.00. These figures appear from pages
3 and 4 of the trial bundle.
[32] The position is therefore that the Defendant is liable to repay to the Plaintiff the
amount of R516 779.00. Mr. Parodi of the Plaintiff testified that the Plaintiff had
to pay Midcity Motors the amount of R550 000.00, and that is the amount that
the Plaintiff now claims from the Defendant. If this is so, the Plaintiff’s claim is a
claim for damages. In the summons, however, damages are not claimed, but
only the purchase price that the Plaintiff had paid to the Defendant for the Isuzu
vehicle.
[33] In the premises, the following order is made:
1. The Defendant to pay the Plaintiff the amount of R516 779.00.
2. The Defendant to pay the Plaintiff interest on the aforesaid amount at the
prescribed rate of interest a tempore morae.
3. The Defendant to pay the costs of suit.
P. J. LOUBSER, J
For the Plaintiff: Adv. R. van der Merwe
Instructed by: Neumann Van Rooyen Inc, Welkom
c/o Phatshoane Henney Inc, Bloemfontein
For the Defendant: Adv. A.S. Boonzaaier
Instructed by: Theron Jordaan & Smit Inc.Klerksdorp
c/o Callis Attorneys, Bloemfontein
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/roosthuizen