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2023
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[2023] ZAECMHC 22
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Nohako v Nkosi (5257/2022) [2023] ZAECMHC 22 (21 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
CASE NO.: 5257/2022
Matter heard on: 20
April 2023
Judgement delivered
on: 21 April 2023
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
In the matter between: -
NOBESUTHU MARGARET
NOHAKO
Applicant
and
BENJAMIN NKOSINATHI
NKOSI
Respondent
JUDGMENT
SMITH
J:
[1]
The applicant seeks an order, inter alia, declaring the respondent’s
‘impoundment’ of her
vehicle, a Nissan Hardbody, unlawful
and directing him to return the vehicle to her.
[2]
The circumstances which resulted in the vehicle being in the
respondent’s possession are as follows.
[3]
The applicant stated that during July 2022, she had lent her vehicle
to her daughter, who on 9 September 2022,
while driving the vehicle,
collided with the respondent’s vehicle. The respondent then
‘impounded’ the vehicle
at the scene, without obtaining
her or her daughter’s consent. Despite numerous requests by her
daughter for the respondent
to return the vehicle, he has refused to
do so, stating that he would only return it once his own vehicle had
been repaired. On
27 September 2022, her attorneys wrote to the
respondent demanding that he returned the vehicle forthwith. The
respondent referred
that letter to his attorneys who replied on 29
September 2022, inter alia, stating that the parties had agreed that
he would keep
and use the applicant’s vehicle until such time
as his own vehicle had been repaired. The respondent also denied that
the
applicant’s vehicle was driven by her daughter, but
asserted that it was driven by her son, without a valid driver’s
licence and whilst being under the influence of intoxication liquor.
[4]
The respondent’s version can be summarized as follows. On the
day of the collision the applicant’s
vehicle was driven by her
son, without a valid driver’s licence, and whilst being under
the influence of liquor. The accident
was caused solely by his
reckless and negligent driving. The applicant arrived on the scene
and authorized her daughter to agree
to an arrangement in terms of
which he would retain and use the vehicle until such time that his
own vehicle had been repaired
to its pre-accident state.
[5]
Despite having been alerted to the fact that the version proffered by
the respondent raises genuine and fundamental
factual disputes, the
applicant nevertheless chose to institute application proceedings.
She also did not apply for the matter
to be referred for oral
evidence. The approach to be adopted by the court in such an
eventuality is trite. The matter must be decided
on the respondent’s
version unless it is so farfetched or uncreditworthy that it can be
rejected out of hand.
(
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
[1984] 2 All SA
366
(A))
[6]
In
National Director of Public of Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA), at para 26, the Supreme
Court
of Appeal clarified the
Plascon-Evans
principle as follows:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the
facts
alleged by the latter, justify such order. It may be different if the
respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the papers.
The court below did not have regard to these propositions
and instead
decided the case on probabilities without rejecting the NDPP’s
version.’
[7]
And in
Wightman t/a J W
Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA), at para 13, the Supreme Court of Appeal
explained that:
‘
A
real, genuine and
bona fide
dispute of fact can
exist only where the court is satisfied that the party who purports
to raise the dispute has in his affidavit
seriously and unambiguously
addressed the fact said to be disputed. There will of course be
instances where a bare denial meets
the requirement because there is
no other way open to the disputing party and nothing more can
therefore be expected of him.’
[8]
As mentioned earlier, the respondent’s version raises material
and bona fide factual disputes which,
if decided on the papers, must
in terms of the abovementioned legal principles, be resolved on his
version. That version is not
so improbable, uncreditworthy or
farfetched that it can be dismissed on the papers. It
can also by no stretch of the imagination be described as a bald
denial. The respondent has given a detailed explanation as to
what
had transpired at the scene of the accident and how it came about
that the applicant’s vehicle is in his possession.
He has
personal knowledge of those facts and has thus provided sufficient
justification for the possession and use of the applicant’s
vehicle so as to raise a genuine and bona fide factual dispute.
[9]
Mr Noah, who appeared for the applicant, submitted that the purported
agreement is invalid, even on the respondent’s
version. In this
regard he submitted that the respondent relies on an agreement which
was allegedly concluded between him and the
applicant’s
daughter. It is common cause that the applicant is the owner of the
vehicle and her daughter therefore did not
have the authority to
conclude such an agreement on her behalf, or so the argument went.
[10]
To my mind this argument is unsustainable. As Mr Talapile, who
appeared for the respondent, correctly submitted, the
latter
unambiguously stated that the applicant had authorized her daughter
to conclude the agreement and that she had freely and
voluntarily
handed the vehicle keys to him.
[11]
Mr Noah has also belatedly applied for the matter to be referred for
viva voce evidence. However, no such application
was made on the
papers. In any event, the applicant had been aware at the time of
launching the application proceedings that the
respondent’s
version will raise disputes of fact that might not be capable of
resolution on the papers. The respondent’s
version was clearly
stated in the letter of 29 September 2022, to which I referred to
above. The applicant must therefore bear
the consequences of her
decision to institute motion proceedings regardless.
[12]
I am therefore of the view that the applicant has failed to make out
a case for the relief sought in her notice of motion
and the
application falls to be dismissed with costs.
[10]
In the result the following order issues:
(a) The application
is dismissed with costs.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant:
Mr. Noah
:
T. Noah & Sons Inc. Attorneys
No. 54 Wesley Street
MTHATHA
(Ref.: TN/654/22)
Counsel
for the Respondent: Mr. Talapile
:
Babe & Talapile Inc. Attorneys
:
No. 71 Cumberland Street
MTHATHA
(Ref.: BT/CIV-MR N NKOS)