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[2024] ZAKZPHC 37
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Toyota Financial Services v Enige Consulting Company (Pty) Ltd and Another (48/2022P) [2024] ZAKZPHC 37 (19 February 2024)
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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
48/2022P
In the matter between:
TOYOTA FINANCIAL
SERVICES
PLAINTIFF
And
ENIGE CONSULTING
COMPANY (PTY) LTD
FIRST DEFENDANT
DAVAHN
NAIDOO
SECOND DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Plaintiff instituted an action against Defendants claiming the return
of a 2018 Toyota
Etios 1.5 XS/SPRINT with chassis number M[...] and
engine number 2[...]. Any damages which was claimable to be
adjourned
sine die
and costs on a scale as between attorney
and client.
[2]
Defendants admitted that the agreement was entered into and that
possession of the
said motor vehicle had been taken by them.
They however raised the defence that the vehicle was in a collision
on 3 May 2019
and was written off and that the insurer had
subsequently repudiated the claim. The underwriters were in the
process of ceasing
business. The vehicle wreckage was taken
away by them and had remained in their possession. A further
defence raised
was that there had not been compliance with the
National Credit Act.
[3]
At the commencement of the hearing Defendants informed the Court that
it was no longer
pursing the defence that the National Credit Act was
not complied with. Plaintiff informed the Court that the only
issue
was the return of the motor vehicle. It was further
agreed between the parties that due to the defence which was raised
by
Defendants that it could not return the motor vehicle as it had
been destroyed that it has the duty to begin. The matter
accordingly proceeded on that issue only. A trial bundle was
handed in which was to be used during the evidence. The
trial
bundle consisted of the accident claim form and the accident report
form.
[4]
Mr. T Naidoo testified on behalf of Defendants and stated that he was
the general
manager of First Defendant and oversaw the finances of
First Defendant. He had sight of the accident claim form in
pages
1 to 6 of the bundle which has the heading of “Desire”.
According to the accident claim form the insured was one
D Naidoo, a
director. The vehicle is described as the vehicle which the one
that Plaintiff is claiming return of with registration
number N[...]
1[...] 9[...] and registered in the name of First Respondent.
The driver of the vehicle, according to the form,
was one Siyabonga
Ndlovu. It is recorded thereon that the driver was an
employee. In respect of accident damage it
states that there
was “impact to side and front”. The vehicle was
travelling at approximately 20 km per hour
before and at the time of
impact.
[5]
From the accident report (AR) form it appears that the collision
occurred on Hellen
Joseph Road in Glenwood, Durban. It was not
disputed that the accident report relates to the vehicle in
question. The
sketch indicates that the other vehicle collided
with the front right corner of the vehicle in question. It
appears, from
the description of the accident, that the vehicle in
question, which is marked A, was moving out of a parking bay when the
other
vehicle, marked B, collided with it. The witness was not
present at the time of the accident but testified that the motor
vehicle was removed from the scene and that he does not know where
the motor vehicle is but it is not with him.
[6]
During cross-examination he confirmed the two reports to which I have
referred to
above. He did not have possession of the motor
vehicle and if he had it he would have returned it. He did not
see the
motor vehicle at the time of the collision or thereafter and
did not see what damage had been caused to the vehicle. He
could
not provide an assessors report and stated that the
administrative staff would have followed it up. He however does
not know
who of them did so. He never a saw a report about the
vehicle. All that he knew was what he was told when he called
the call centre of the insurance company. He could not provide
any document that the motor vehicle was written off.
The claim
form was completed by First Defendant and not himself. He was
shown certain documents which indicated that a vehicle
with the
registration number in question was spotted during August 2022 in the
Empangeni area. It was put to him that it
was picked up by a
camera and he said he could not dispute it as he had no knowledge
thereof. He had no knowledge of it being
written off. He
further confirmed that the agreement between the parties made
provision for costs to be awarded on an attorney
and client scale.
[7]
During re-examination he confirmed that from the accident reports
there was no indication
of the speed that the other vehicle was
travelling at the time of the collision and that all that could be
seen from the report
handed in on behalf of Defendants was the
registration number of the vehicle. That was the evidence for
the Defendants as
well as the case for the Defendants.
[8]
Ms Hlongwane, an employee of Wesbank, testified that they provide
assistance to Toyota,
Volkswagen and various other financial services
in legal matters in establishing the whereabouts of certain motor
vehicles.
She indicated that there are various cameras which
are placed at various positions throughout South Africa. She
then referred
to printed documents which registered the registration
number of the vehicle in question in the Empangeni area during 2022
thus
after the collision had been reported. This normally
happens after somebody has requested a report and then as soon as the
vehicle passes what she termed as the MPR System then it would record
the vehicle registration number. However what is picked
up is
only the registration number of the vehicle. There is no
picture of the vehicle or a description of the vehicle.
That
was the evidence on behalf of Plaintiff and also Plaintiff’s
case.
[9]
At the request of Defendants the matter was adjourned as Defendants
wished to submit
written submissions.
[10]
It is submitted on behalf of Defendants that the denial of possession
is a defence to a
re vindicatio.
That a copy of the
claim form was attached as well as the SAPS Accident report. He
submitted that the vehicle was in the accident
as appears from the
accident report and that the witness was telephonically advised by
the insurer of the vehicle that it was written
off. The vehicle
registration being captured in the Empangeni area was only the
registration number of the vehicle and not
the asset itself and from
the collision description it could not be determined what the
accident damage would have been.
The witness Ms Hlongwane on
behalf of Plaintiff could only indicate that it was the registration
number of the vehicle that was
recorded. He further submitted
that it would be unenforceable if judgment was granted to Plaintiff
for the return of the
motor vehicle as it is not in possession of
Defendants.
[11]
It was submitted on behalf of Plaintiff that it was contended by
Defendants that Lion Africa
took physical control of the vehicle and
that they set up a special defence. Accordingly they had to
satisfy the Court that
they were entitled to succeed on this
defence. The witness Mr. T Naidoo indicated, during
cross-examination, that he would
have returned the vehicle if it was
in his possession thus indicating that he accepted that Plaintiff was
entitled to receive the
said motor vehicle. The evidence of the
witness T Naidoo was of a telephonic conversation which was hearsay
and inadmissible.
The damage to the vehicle must have been
minimal and T Naidoo never had sight of the damage to the vehicle and
therefore could
not comment thereon. He submitted that the SMAC
extracts which were provided by Plaintiff indicated that the vehicle
had
been sighted after the collision in the Empangeni area.
[12]
All that can be determined from the claim form and the police
accident report is that the vehicle
in question was involved in a
collision in Durban during 2019. The driver of the vehicle was
not called, who could have enlightened
the Court as to the damage to
the said vehicle. There was also no evidence from the panel
beater or the insurance company
that the said vehicle was damaged
beyond repair. Further no enquires were made by Mr. T Naidoo as
to where the vehicle was,
who merely accepted that it was with the
insurance company. Accordingly there was no evidence indicating
what the condition
of the vehicle was after the collision, what
happened to it after the collision as there was no evidence as to its
condition when
it was towed away. He has no direct knowledge of
where it was taken and his evidence was mostly hearsay which is
inadmissible
and did not take Defendants case any further. The
evidence by Plaintiff’s witness also merely indicated that a
vehicle
with that registration number was spotted in the Empangeni
area in 2022 sometime after the collision. However there is no
indication that it is the vehicle in question but merely the
registration number and therefore also does not take the matter any
further.
[13]
Defendant could place no evidence before Court that the vehicle was
no longer in its possession.
The fact that it may have been
taken to a panel beater does mean that Defendants lost possession of
the said vehicle. Further
Defendants with knowledge of
Plaintiff’s claim as it has admitted the agreement and it was
agreed that the only issue was
whether the vehicle could be
returned. The disposal of the vehicle in such circumstances
would be wrongful and provide no
defence.
[14]
Accordingly there was no evidence as to the damage to the vehicle,
where the vehicle was taken,
by whom it was taken, where it is except
hearsay evidence. Defendants have thus failed to that the
vehicle is no longer in
their possession and accordingly the defence
cannot be sustained.
Order:
1.
An order is granted in terms of paragraph 2
of the particulars of claim.
2.
The further relief which is sought in
paragraph 3 of the particulars of claim is adjourned
sine
die
.
3.
First and Second Defendants jointly and
severally, the one paying the other to be absolved to pay the costs
on a scale as between
attorney and client.
P C BEZUIDENHOUT J.
MATTER
HEARD ON:
5
FEBRUARY 2024
JUDGMENT
RESERVED ON:
(When
heads of argument were filed)
12
FEBRUARY 2024
JUDGMENT
HANDED DOWN ON:
19
FEBRUARY 2024
COUNSEL
FOR PLAINTIFF:
A
G FLEMMING
Instructed
by:
Legator
Mckenna Incorporated
Durban
Tel:
031 305 1517
Ref:
MAT5610 – GG
Email:
mail@legator.co.za
c/o
M Du Plessis Attorney
Pietermaritzburg
Ref:
Kyla
COUNSEL
FOR DEFENDANTS:
S
A CASSAN
Instructed
by:
Keowan
Y Reddy Inc.
Durban
Tel:
031 502 1938
Ref:
E069/KR/2022/02
Email:
admin@kyrinc.co.za
Email:
KEOWAN@KYRINC.CO.ZA
c/o
Mastross Incorporated
Pietermaritzburg