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[2022] ZAFSHC 11
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Springs Car Wholesalers (Pty) Ltd t/a No Finance Cars v Makhanya (5514/2021) [2022] ZAFSHC 11 (28 January 2022)
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: 5514/2021
In
the matter between:
SPRINGS
CAR WHOLESALERS (PTY)LTD t/a
Applicant
NO
FINANCE CARS
and
DR
VUYO MAKHANYA
Respondent
CORAM:
C
NEKOSIE AJ
JUDGMENT BY:
C NEKOSIE AJ
HEARD
ON:
27 JANUARY 2021
DELIVERED ON:
28 JANUARY 2021
[1]
This is a
rei vindication
application for the return of a 2014
Nissan NP300 Hardbody with VIN number ADNALGD22ZR067911 and
registration number [….]
(“the vehicle”) of which
the applicant is the rightful owner which is in possession of the
respondent and presumably
stored at 11834 Lebina Street, Relebohile,
Kroonstad.
[2]
This Court is called upon to decide whether the applicant is entitled
to the return
of the vehicle under
re vindication
.
[3]
The requirements for rei vindication are proof of ownership; (ii) of
an existing and
identifiable thing or object; (iii) which is in the
control of the defendant at the time of instituting legal
proceedings
[1]
.
[4]
The applicant`s case is that it is a long term car rental company. It
rented a vehicle to a Ms
Nqubuka on 22 August 2020. On 3 November
2020 Ms Nqubuka was in an accident and informed the applicant of
same. It appears from
the accident report that the collision involved
a vehicle of the respondent. The applicant instructed Max Towing to
tow the vehicle
to a safe location. On Max Towing`s arrival at the
scene they were informed that the respondent gave instructions for
the vehicle
to be towed by another company to an unknown address.
[5]
After several attempts the applicant contacted the respondent on 28
November 2020.
On 4 December 2020 the applicant sent Mr Maputle to
the respondent. He met with the respondent and the person in charge
of where
the vehicle is stored. The respondent refused to permit the
release of the vehicle and wanted storage costs. On 4 February 2021
Maputle returned to where the vehicle was and was informed that the
respondent moved the vehicle to an unknown location.
[6]
The respondent in essence denies that he was in possession of the
vehicle on the date of commencement
of the proceedings.
[7]
He states that he has a civil claim against Mr Moffert Manganye that
is unrelated
to the accident. He has no association with Ms Nqubuka
or the occupants of the vehicle at the time of the accident.
[8]
The respondent admits knowledge of the whereabouts of the vehicle and
the fact that
storage costs is due but maintains that he is not in
possession of the vehicle therefore the remedy sought cannot be
brought against
him.
[9]
I am satisfied the applicant proved ownership of the vehicle by
production of the
registration papers and the invoice for purchasing
the vehicle. The only remaining issue is whether the respondent is in
possession
of the vehicle.
[10]
It appears from the respondent`s papers that he denies possession
simply because the vehicle is not
physically with him.
[11]
The respondent on his own account and at the very least he
acknowledges that he was involved in collision
with the vehicle as
per the accident report. He confirms that he knew the whereabouts of
the vehicle through the correspondence
of his attorney dated 22
September 2021. Both these aspects in support of the applicants case
emanates from the respondent himself.
[12]
He conveniently remains silent on who instructed the removal of the
vehicle from the accident scene
and how he came to know of the
whereabouts of the vehicle that enabled him via his attorney to asked
storage costs. He denies that
he refused to hand over the vehicle on
4 December 2020 claiming storage costs yet his attorneys
correspondence to the applicant
confirms that storage costs was due.
[13]
The respondent is extremely vague in his resistance of the
application. He essentially provide the
court with a bare denial in
spite of the fact that even on his own evidence he took control over
the vehicle from the accident
scene and kept possession through his
control over the movement or storage of the vehicle. The occupier of
the initial residence
where the vehicle was kept confirms his control
in that he acted on instruction of the respondent.
[14]
I am satisfied that the respondent, though not necessarily
physically, has control over the vehicle
and thereby he is in
possession of the vehicle
[2]
.
The question remains whether the respondent remained in possession
when proceedings were instituted. Based on the fact that the
respondent demanded storage costs as late as 22 September 2021 well
after the vehicle was removed from the initial place of storage
in
March 2021, it is justified to conclude that the respondent remains
in possession of the vehicle to date. He is therefore able
to comply
with an order for return of the vehicle.
[15]
In the notice of motion the applicant seeks compensation for damages
in the event that the vehicle
is not handed over to it. In using rei
vindicatio the applicant is limited to the restoration of its
possession of the vehicle.
Damages suffered as a result of a failure
to restore possession should be claimed by action proceedings in
order that all the facts
be properly ventilated in order that the
court may come to an informed determination of the quantum of damages
suffered.
[16]
I find that the application for the restoration of possession should
succeed but the prayers relating to
payment of damages cannot stand.
Consequently the following order is made:
IT
IS ORDERED THAT
1.
The respondent is ordered to hand over the applicant`s vehicle, being
a 2014 Nissan NP300 Hardbody with VIN
number ADNALGD22ZR067911,
engine number KA20131746X and with registration number [….] to
the deputy Sheriff who is authorised
and directed to deliver the
vehicle to the applicant within 24 hours of this order.
2.
The cost of this application shall be paid by the respondent.
CNEKOSIE, AJ
For
the Plaintiff:
Adv
N Van der Sandt
Instructed
by
Raees
Chotia Attorneys
c/o
Henre Conradie Inc
119
President Reitz, Westdene
BLOEMFONTEIN
For
the Defendant:
Adv
I Macakati
Instructed
by:
Rampai
Attorneys
48
General Hertzog, Dan Pienaar
BLOEMFONTEIN
[1]
Chetty
v Naidoo 1974(3) SA 13 (A) p20B-C
[2]
Underwater Construction and Salvage Co (Pty) Ltd v Bell 1968(4) SA
190 (C)