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[2021] ZAGPJHC 655
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MAN Financial Services (SA) (Pty) (RF) Ltd v Elsologix (Pty) Ltd and Others (36672/2020) [2021] ZAGPJHC 655 (24 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO.: 36672/2020
NOT
REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
MAN
FINANCIAL SERVICES (S.A.) (PTY) (RF)
LTD
APPLICANT
AND
ELSOLOGIX
(PTY)
LTD
FIRST
RESPONDENT
TOKESH
MANFANIKIO TRUST
SECOND
RESPONDENT
DURANDT,
BAREND JOHANNES VORSTER
N.O.
THIRD
RESPONDENT
FOWLER,
JOYCE RUTH
N.O.
FOURTH
RESPONDENT
JUDGMENT
VAN
NIEUWENHUIZEN AJ
:
[1]
In
this application, the Applicant (“MAN Financial Services”)
seeks the return of a 2018 MAN truck, more fully described
as set out
in prayer 1.1 of the notice of motion (“the asset”) from
the First Respondent (“Elsologix”).
The remaining
Respondents do not feature in this application. The genesis of the
application is an instalment sale agreement concluded
between MAN
Financial Services and Elsologix (“the agreement”). It is
common cause that Elsologix is in breach of the
agreement. MAN
Financial Services has thus cancelled same. Accordingly, MAN
Financial Services seeks possession of the asset either
in terms of
the
rei vindicatio
,
or alternatively the right it asserts the agreement affords it to
reclaim possession of the asset. Finally, MAN Financial Services
therefore seeks that its claim for damages, as well as the prayer for
costs in this application be postponed
sine
die
.
[2]
MAN
Financial Services’ case in its founding affidavit is
summarised at paragraph 5 thereof as follows:
“
5. This
application is launched by virtue of the fact that:
5.1
the
Applicant is the respective owner of the vehicle, as will be
demonstrated hereunder;
5.2
the
Applicant requested the First Respondent to return the vehicle to the
Applicant in that the monthly instalments payable in terms
of the
Instalment Agreement are not paid and the account of the First
Respondent has fallen in arrears.”
[3]
MAN
Financial Services continues to allege that Elsologix failed or
refused to return the asset to it or to pay the arrear instalments,
alternatively the balance due in respect thereof and that it
consequently cancelled the agreement and demanded return of the
vehicle
unless the outstanding amount was settled. It follows,
according to MAN Financial Services, that the possession of the asset
by
Elsologix is unlawful and that it is entitled to return thereof by
virtue of its ownership, and in particular due to its election
to
cancel the agreement.
[4]
Elsologix’s
grounds of opposition, albeit slightly more extensive in its
answering affidavit, was appropriately limited by
agreement between
the parties’ respective counsel in their practice note, as well
as in argument before me, to a disputation
of MAN Financial Services’
asserted ownership in respect of the asset, and also a denial that
MAN Financial Services has
a contractual right flowing from the
agreement to claim repossession of the asset.
[5]
The
starting point is of course to have regard to the relevant terms of
the agreement as expressly referred to in the affidavits.
I propose
to quote from the agreement itself annexed to the founding affidavit
and I accordingly interpose to make some apropos
remarks in that
regard prior to commencing with such an exercise.
[6]
In
the founding affidavit, MAN Financial Services did not expressly
plead many of the terms which are, in my respectful view, highly
relevant to the present application. It is of course trite that not
only must an applicant in motion proceedings make out a proper
case
in the founding papers and that an applicant is bound to the case
made out therein and may not make out a new case in the
replying
affidavit. (See
National Council of
Societies for the Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at paragraphs 29 to 30). Reliance on specific
content of annexures in affidavits must be clearly identified (see
Genesis Medical Aid Scheme v Registrar,
Medical Schemes and Another
2017 (6) SA
1
(CC) at paragraphs 169 to 171). It is further trite that an
applicant is entitled to make out a case for relief on the averments
contained in an answering affidavit (See
Administrator,
Transvaal and Another v Theletsane and Others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) 195H/I). And then finally it is not an immutable rule
that a court may not have regard to amplified matters in a replying
affidavit.
[7]
In
Triomf Kunsmis (Edms) Bpk v AE&CI
Bpk en Andere
1984 (2) SA 261
(W),
Coetzee J (as he then was) said the following at 269B – H:
“
In
die huidige geval word 'n finale bevel aangevra by kennisgewing van
mosie-prosedure. Hier is nie sprake van slegs 'n tydelike
bevel
pendente lite nie en dit is by uitnemendheid ook die soort geval waar
die volgende stelling wat NESTADT R in Shephard v Tuckers
Land and
Development Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) op 177
aanhaal, van toepassing is:
"It is founded on
the trite principle of our law of civil procedure that all the
essential averments must appear in the founding
affidavits or the
Courts will not allow an applicant to make or supplement his case in
his replying affidavits and will order any
matter appearing therein
which should have been in the founding affidavits to be struck out."
Verder aan:
"This is not
however an absolute rule. It is not the law of Medes and Persians.
The Court has a discretion to allow new matter
to remain in a
replying affidavit, giving the respondent the opportunity to deal
with it in a second set of answering affidavits.
This indulgence,
however, will only be allowed in special or exceptional
circumstances."
Dit is interessant dat
wanneer NESTADT R sê dat dit nie 'n absolute reël is nie,
hy praat van 'n diskresie
"... to allow new
matter to remain in the replying affidavit."
My indruk is dat
hierdie reëls soos aldus geformuleer hoofsaaklik van toepassing
is op wat gewoonlik beskou word as "new
matter ", wat nie
sinoniem is met 'n nuwe oorsaak van aksie nie. In die geval van 'n
nuwe oorsaak van aksie wat die bestaande
een vervang kan ek my kwalik
omstandighede indink wat nie die onvermydelike gevolg het dat die
proses, soos op daardie stadium,
afgewys word nie. Dit is een ding om
slegs ekstra feite ter ondersteuning van 'n bepaalde oorsaak van
aksie, òf te onderstreep
òf vir die eerste keer aan te
haal in 'n repliserende verklaring. Dis 'n ander ding om geheel en al
bollemakiesie te slaan
ten opsigte van gedingsoorsaak wat die
gedingvoering in 'n totaal verskillende rigting stuur.
Die oorsaak van aksie
moet behoorlik uiteengesit word in stukke soos hierdie wat beide
pleitstukke en getuienis kombineer. Dit is
nodig om dit so uiteen te
sit want daardeur, soos ek reeds aangetoon het, kan die saak verder
op 'n ordelike manier bereg word.
Indien daar dus van die
oorspronklike oorsaak van aksie geheel en al afgewyk word in die sin
van prysgewing daarvan en vervanging
met 'n splinternuwe verskillende
oorsaak van aksie, het so 'n applikant eintlik alles wat voorafgegaan
het laat vaar.”
[8]
In
Bowman NO v De Souza Raoldao
1988
(4) SA 326
(T) at 327D – H, Kirk-Cohen J stated the following:
“
Generally
speaking, an applicant must stand or fall by his founding affidavit;
he is not allowed to make out his case or rely upon
new grounds in
the replying affidavit. See, for example, Director of Hospital
Services v Mistry
1979 (1) SA 626
(A) at 635 in fin - 636 where
Diemont JA said the following:
'When, as in this
case, the proceedings are launched by way of notice of motion, it is
to the founding affidavit which a Judge will
look to determine what
the complaint is. As was pointed out by Krause J in Pountas' Trustee
v Lahanas
1924 WLD 67
at 68 and as has been said in many other cases
"... an applicant
must stand or fall by his petition and the facts alleged therein and
that, although sometimes it is permissible
to supplement the
allegations contained in the petition, still the main foundation of
the application is the allegation of facts
stated therein, because
those are the facts which the respondent is called upon either to
affirm or deny".
Since it is clear that
the applicant stands or falls by his petition and the facts therein
alleged
"it is not
permissible to make out new grounds for the application in the
replying affidavit".'
What should be set out
in the founding affidavit and the particularity required has been
dealt with in a number of cases; see, for
example, Joseph and Jeans v
Spitz and Others
1931 WLD 48
; Victor v Victor
1938 WLD 16
at 17 and
Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and
Others
1974 (4) SA 362
(T) at 369B. Each case will depend on its own
facts. The correct approach is set out in the Titty's Bar case supra
as follows:
'It
lies, of course, in the discretion of the Court in each particular
case to decide whether the applicant's founding affidavit
contains
sufficient allegations for the establishment of his case. Courts do
not normally countenance a mere skeleton of a case
in the founding
affidavit, which skeleton is then sought to be covered in flesh in
the replying affidavit.'
”
[9]
Finally,
in
Lagoon Beach Hotel (Pty) Ltd v Lehane
NO and Others
2016 (3) SA 143
(SCA) at
paragraph 16, Leach JA, on behalf of the unanimous Full Bench, held
as follows:
“
Then
there is the fact that a voluminous replying affidavit containing a
great deal of evidential material relevant to the issues
at hand had
been filed. Relying upon authorities such a Sooliman [Industrial
Development Corporation of South Africa v Sooliman
and Others
2013
(5) SA 603
(GSJ) para 9], the appellant argued that it was 'axiomatic
. . . that a reply is not a place to amplify the applicant's case'
and
that the new matter had been impermissibly raised by Lehane in
reply, that it was evidential material to which the appellant had
not
been able to respond, and that it fell to be ignored. However, again,
practical common sense must be used, and it is not without
significance that many of the hearsay allegations complained of were
admitted by the appellant in its answering affidavit. …”
[10]
I
hasten to add that Mr Kruger, who appeared on behalf of Elsologix,
did not suggest that the contractual provisions I am about
to refer
to could not be considered.
[11]
The
afore alluded to relevant provisions of the agreement were:
“
Our
Instalment Sale Agreement is in two parts, Commercial Terms and
Standard Terms, referred to together as ‘Agreement’.
In
this Agreement:
·
MAN Financial Services (S.A.) (RF) (Pty)
Limited is referred to as ‘we’ or ‘us’;
·
the Borrower is referred to as
‘Borrower’ or ‘you’;
·
the money that we lend you is referred
to as the ‘Loan’;
·
the asset purchased with the Loan is
referred to as the ‘Asset’; and
·
the supplier of the Asset to you is
referred to as “Supplier”.
Standard Terms
2.
Instalment
sale
Our instalment Sale
Agreement allows you to purchase the Asset using the Loan which you
repay by regular instalments over an agreed
period, with fees and
interest.
3.
Ownership
Under this Agreement:
·
the Asset purchased with the Loan
belongs to us until you have paid all your financial obligations;
·
provided you are not in default, you are
entitled to possession and use of the Asset; and
·
when you have paid all your financial
obligations we will transfer ownership of the Asset to you.
4.
Delivery
and Acceptance
Before you accept
delivery of the Asset from the Supplier, you will check that it is:
·
what you want or ordered;
·
fit for the purpose for which you intend
to use it;
·
in good working order; and
·
free of any defects.
We will pay for the
Asset when you have accepted it and ownership will pass to us, unless
we already own the Asset in terms of a
Sale and Purchase Agreement or
Interim Loan Agreement that we have entered into with you.
...
13.
Default
and consequences
...
If you are in default,
we may:
·
by notice to you, end this Agreement and
demand immediate payment of the whole outstanding balance of your
Loan with continuing
interest, fees and costs;
·
re-possess the Asset; or
·
enforce any Security provided in terms
of this Agreement;”
[12]
According
to Mr Kruger, albeit that the provisions of the agreement
unambiguously record and confirm MAN Financial Services’
ownership of the asset, the agreement is a simulated one in that
respect. In his submission, because the agreement is simulated,
I am
to give effect to the true nature thereof which does not evidence the
requirements for MAN Financial Services to acquire ownership
and, as
such, MAN Financial Services had not discharged its onus to prove
ownership (with reference to the requirements for the
transfer of
ownership). His submissions continued to the effect that Elsologix,
on its version, asserts ownership of the asset
on the basis that the
agreement was no more than a loan agreement and that a cash sale
occurred between Elsologix and the supplier,
and in accordance with
the general proposition that in a sale for cash, ownership passes
upon payment of the purchase price from
the supplier to Elsologix and
that the source of the funds of that purchase price was indeed the
money paid by MAN Financial Services
through the agreement
constituting the loan (as defined). Elsologix was thus no more than
the borrower or credit consumer and MAN
Financial Services the lender
or credit provider.
[13]
There
is of course no onus, in the strict sense, on MAN Financial Services
to prove ownership and whether or not a case has been
made out falls
to the trite legal position enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634E – 635C. As was stated by Harms DP in
National Director of Public Prosecutions
v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
paragraph 26:
“
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.
[1]
”
[14]
I
am not of the view that there is no irresolvable dispute of facts on
the papers before me, rather there is a dispute of conclusions
emanating from the facts on the papers.
[15]
Mr
Kruger placed particular reliance on
Concor
Construction (Cape) (Pty) Ltd v Santambank Ltd
1993
(3) SA 930
(A) at 933B and
ABSA Bank Ltd
t/a Bankfin v Jordashe Auto CC
2003 (1)
SA 401
(SCA), paragraphs 2, 9, 10, 16 and 18 in support of his
submissions that it was necessary for MAN Financial Services to
demonstrate
that there had been an intention for ownership of the
asset to pass to it (presumably at some stage) and delivery of the
asset
in some form recognised in law, which it did not do. However, I
find that the
ration
In
Concor Construction
at
933B – 934A rather supports the case of MAN Financial Services,
where Milne JA held:
“
The
scraper is a movable. The derivative mode of acquisition of ownership
on which the plaintiff relies is delivery. The requirements
for the
passing of ownership by delivery include, inter alia, (a) that the
transferor must be capable of transferring ownership;
(b) delivery
must be effected by the transferor with the intention of transferring
ownership and taken by the transferee with the
intention of accepting
ownership; and (c) payment where the sale is a cash sale. Joubert
(ed) The Law of South Africa vol 27 para
165. In Lendalease Finance
(Pty) Ltd v Corporacion de Mercadeo Agricola and Others
1976 (4) SA
464
(A) at 489H it was held that
'. . . ownership
cannot pass by virtue of the contract of sale alone: there must, in
addition, be at least a proper delivery to
the purchaser of the
contract goods . . .'
and at 490A that
'. . . under a cash
sale ownership is normally taken to have been intended to pass once
there has been, in addition to delivery,
due payment of the purchase
price . . .'.
In Trust Bank van
Afrika Bpk v Western Bank Bpk en Andere NNO
1978 (4) SA 281
(A) at
301H-302A it was held that:
'Volgens ons reg gaan
die eiendomsreg op 'n roerende saak op 'n ander oor waar die eienaar
daarvan dit aan 'n ander lewer, met die
bedoeling om eiendomsreg aan
hom oor te dra, en die ander die saak neem met die bedoeling om
eiendomsreg daarvan te verkry. Die
geldigheid van die eiendomsoordrag
staan los van die geldigheid van enige onderliggende kontrak.'
It is clear, however,
from the passage at 302G-H and the reliance upon the judgment of
Centlivres JA in Commissioner of Customs
and Excise v Randles,
Brothers & Hudson Ltd
1941 AD 369
at 411 that the legal
transaction preceding the delivery may be evidence of an intention to
pass and acquire ownership. Equally,
the absence of such an agreement
may, depending upon the circumstances, be evidence of the absence of
any such intention. What
is required for the transfer of ownership of
movables is further analysed in Air-Kel (Edms) Bpk h/a Merkel Motors
v Bodenstein
en 'n Ander
1980 (3) SA 917
(A) at 922E-F where Jansen
JA said:
'Blote ooreenkoms kan
dus nie eiendomsreg oordra nie - traditio (oorhandiging) moet ook
geskied; en omgekeerd, blote oorhandiging
is ook nie voldoende nie –
dit moet gepaard gaan met 'n ooreenkoms tussen oorhandiger en
ontvanger dat daarmee eiendomsreg
gegee en geneem word.'
After examining the
meaning of traditio in our law, the following conclusion is reached
at 923H-in fine:
'. . . dat traditio
neerkom op 'n besitsoordrag - hetsy met 'n verskuiwing van die
regstreekse daadwerklike beheer van een persoon
na 'n ander, hetsy
daarsonder. In lg geval geskied daar geen verandering van persoon wat
die regstreekse beheer betref nie, maar
daar vind tog 'n
besitsverskuiwing plaas deur ooreenkoms, op grond van toepassing van
die leerstuk van middellike besit.
Om
eiendomsreg van 'n roerende saak oor te dra moet daar dus die nodige
saaklike ooreenkoms wees (soos hierbo genoem) en ook traditio
in die
sin in die vorige paragraaf verduidelik.'
”
[16]
Van
der Merwe explains the distinction between the real agreement and the
agreement that gives rise to the duty to transfer as follows:
“
At
the moment of passing of ownership the transferor must have the
intention of transferring ownership (animus transferendi dominii)
and
the transferee must have the intention of accepting ownership (animus
accipiendi dominii). This intention supplies the subjective
element
for the passing of ownership whereas the objective element is
supplied by delivery or registration. The intention of the
parties at
the moment of transfer is important: if the transferor has the
intention of passing ownership at the time of the conclusion
of the
agreement but changes his mind before the moment of delivery, this
requirement is not fulfilled. The mental element has
been referred to
as the “saaklike ooreenkoms” in contradistinction to the
“verbintenisskeppende ooreenkoms”
or agreement which
gives rise to the duty to transfer. The difference between the
“contractual” agreement and the “real”
agreement (that is, the agreement to give and accept transfer)
becomes apparent where the “transferee” takes the law
into his own hands and takes possession of the object without there
being an intention to transfer on the part of the transferor.
Far
from becoming owner of the thing, the “transferee” will
be branded a mala fide possessor who is open to the mandament
van
spolie of the “transferor”. The principles applicable to
agreements in general in regard to capacity to act, error,
and so
forth also apply to real agreements. It is therefore a factual
question whether the real agreement is effected in the circumstances
of the particular case.”
[2]
[17]
From
the wording of the agreement I have quoted above, in line with the
aforegoing authorities, it is clear that the parties had
the
necessary intention for ownership of the asset to vest with MAN
Financial Services until such time as the loan had been paid
in full
by Elsologix. The very delivery that Elsologix asserts from the
supplier to it constituted vicarious possession as referenced
in
Concor
Construction
and which the pleadings before me (as affidavits constitute both
pleadings and evidence
[3]
) on
behalf of MAN Financial Services certainly covers. I am unable to
agree with Mr Kruger’s submission that the provisions
in the
agreement relating to the “
loan”
is irreconcilable with those dealing with the ownership of the asset
and that they are thus or should thus be regarded as
pro
non scripto
in some way or form. Not only had that not been pleaded, but it is
also irrelevant to the alternative suggestion of Mr Kruger that
such
purported irreconcilability would result in MAN Financial Services
failing to discharge its onus. As already mentioned above,
there is
no onus to speak of in motion proceedings where final relief is
sought.
[18]
The
provisions quoted above, as expressly referenced in the affidavits
before me, are clearly sufficient to cover a scenario of
vicarious
possession for purposes of the delivery requirement in the transfer
of ownership from the supplier to MAN Financial Services.
It is
patently not a case such as contended for by Mr Kruger of MAN
Financial Services trying to achieve some sort of pledge through
a
simulated transaction. Further corroboration (if any was required) of
the parties’ intention and the form of delivery is
found with
reference to the registration documents indicating that the asset is
indeed registered in the name of MAN Financial
Services as ‘
title
holder’
and Elsologix as ‘
owner’
and I agree with what was said by Rogers J in
ABSA
Bank Ltd v Nedbank Ltd t/a The Motor Finance Corporation and Others
(13187/16)
[2016] ZAWCHC 190
(15 December 2016) at paragraph 15:
“
In
terms of the
National Road Traffic Act 93 of 1996
a vehicle is
registered in the name of an ‘owner’ and ‘title
holder’. Depending on the circumstances, the
same person or
different persons may be ‘owner’ and ‘title
holder’. The expression ‘owner’
is defined in
s 1
as meaning inter alia the person who has the right to the use and
enjoyment of the vehicle in terms of the common law or a contract
with the title holder or a motor dealer who is in possession of the
vehicle for the purposes of sale and who is licensed or obliged
to be
licensed as a dealer. The expression ‘title holder’ means
the person who has to give permission for the alienation
of the
vehicle in terms of a contract with the owner or the person who has
the right to alienate the vehicle in terms of the common
law. The
‘title holder’ is thus closer to the common law notion of
an owner than the ‘owner’ as defined
in the Act.”
[19]
The
contentions on behalf of Elsologix in its answering affidavit that
suggests to contradict the content of the agreement insofar
as
ownership of the asset is concerned is contrary to the parol evidence
rule and cannot be taken into account. As was held by
Watermeyer JA
in
Union Government v Vianini
Ferror-Concrete Pipes (Pty) Ltd
1941
(AD) 43 at 47:
“
(T)his
Court has accepted the rule that when a contract has been reduced to
writing, the writing is, in general, regarded as the
exclusive
memorial of the transaction and in a suit between the parties no
evidence to prove its terms may be given save for the
document or
secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied
by parol
evidence.”
[20]
I
further find significance in the absence of any clear and cogent
assertion on behalf of Elsologix that it intended to acquire
ownership of the asset other than as provided for in terms of the
agreement. The high water mark in this regard is set out paragraph
32
of the answering affidavit on behalf of Elsologix as follows:
“
By
lending money to the first respondent, the applicant enabled the
first respondent to purchase the truck from a supplier. A cash
sale
was concluded between the first respondent and the supplier and the
ownership of the truck passed to the first respondent
upon payment of
the purchase price and delivery of the truck to the first respondent.
In this scenario, the applicant does not
acquire ownership of the
truck notwithstanding statements in the alleged instalment sale
agreement to the contrary.”
[21]
Attempted
reliance on behalf of Elsologix of the rebuttable presumption in law
that the possessor of a movable thing is also the
owner thereof does
not even arise given the facts of this matter and even if it could
notionally be said to have arisen, it was
stillborn due to the facts
and thus rebutted to the extent necessary.
[22]
Elsologix’s
reliance on
Jordashe Auto
is
misplaced. In that matter, the Appellant, ABSA Bank, had asserted
ownership acquired through
constitutum
possessorium
in respect of certain
motor vehicles acquired by a dealership under a floor plan agreement.
Those vehicles were in turn obtained
by the dealership from the
Respondent, Jordashe Auto, on consignment. It was found that whether
or not ownership by delivery had
been transferred to ABSA Bank was a
factual question to be determined on whether or not Jordashe Auto had
indeed reserved ownership
and its version of the contract. That
question was referred back to the court
a
quo
to hear oral evidence. In that
matter there were competing claims of ownership from the original
supplier, and a subsequent funder
thereof, which is not the case
before me.
[23]
Finally,
very recently Yacoob J handed down a judgment in this court on almost
identical facts in the matter of
ABSA
Bank Limited v Elsologix (Pty) Limited
,
as yet unreported, under case number 21179/2020 on 9 March 2021. Mr
Alli, who appeared for MAN Financial Services before me, also
appeared on behalf of ABSA Bank in that matter, and Mr Kruger on
behalf of Elsologix. The facts are virtually identical as was
the
grounds of opposition raised by Elsologix. Leave to appeal was
refused by the learned judge, and the petition to the Supreme
Court
of Appeal likewise failed. Mr Kruger submitted that I was not bound
by the judgment of Yacoob J for two reasons, namely,
firstly, the
learned Judge did not deal with the submissions of Elsologix and the
authorities relied upon by it (to which I have
already referenced
herein) and thus her judgment is
sub
silento
. Secondly, that I was to find
that she was clearly wrong, and as the learned judge had been sitting
as a single judge in this division,
I was able to diverge from her
decision.
[24]
Whilst
the learned judge did not refer to or discuss the authorities relied
upon by Elsologix, I can find no fault whatsoever with
her logic and
reasoning. Thus, not only do I have doubts that the decision could be
considered to be
sub silento
,
but even if it was, that has the same effect of
obiter
dictum
which constitutes convincing
authority and I am sufficiently convinced that her judgment is
correct. In the same breath it therefore
follows that I am definitely
not convinced that the learned judge was clearly wrong and that I may
(or should) depart from her
judgment.
[25]
In
closing, I have considered all the written and oral submissions on
behalf of the parties (even though I might not have expressly
dealt
with each and every single one of them) and I have come to the
unequivocal conclusion that MAN Financial Services is entitled
to the
relief claimed based not only on the
rei
vindicatio
, but on the provisions of
the agreement itself. Put differently, even if there had been some
basis upon which it could have been
held that Elsologix was indeed
the owner of the asset, and not MAN Financial Services, MAN Financial
Services was nonetheless entitled
to possession thereof (irrespective
of the word “
re-possess”
used in the agreement), by virtue of its terms and the common cause
breach by Elsologix in meeting its obligations thereunder.
[26]
There
is no saving grace for Elsologix in the suggestion that absent
establishment of ownership on behalf of MAN Financial Services’
ownership over the asset, that it would not have a contractual right
to such “
re-possession”
.
The obligation created in the agreement for Elsologix to hand over
possession of the vehicle to MAN Financial Services cannot
be
discarded and any way you slice it, MAN Financial Services must
succeed.
[27]
Accordingly,
I make the following order:
1. The
First Respondent is ordered to return to the Applicant a 2018 MAN
truck TGS-26-4406X4BLS-LX-ALU-E
with engine number 51549981045002 and
chassis number AAM78W6349PX37630 (“the asset”);
2. In
the event of the First Respondent failing or refusing to return the
asset to the Applicant
forthwith, then in that event, the sheriff of
this court is authorised and directed to enter upon the First
Respondent’s
premises, or wherever the asset might be kept, to
attach the asset and return same to the Applicant;
3. The
costs of this application are reserved and the Applicant’s
claim for damages (if
any) is postponed
sine die
;
4. The
Applicant is directed to deliver to the Respondents, and file with
the Registrar of this
court, an affidavit which sets out the damages
claimed by it at least ten (10) days before the date upon which the
matter is re-enrolled
for an order for damages and costs (including
the adjudication of the reserved costs).
H P VAN NIEUWENHUIZEN
Acting Judge of the High
Court
Gauteng
Division of the High Court, Johannesburg
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected on 24
August 2021 and is handed down electronically
by circulation to the
parties/their legal representatives by e-mail and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 24 August 2021.
Date of
hearing: 3
August 2021
Date of
judgment: 24
August 2021
Appearances:
Jay Mathobe Inc
Attorneys for the
Applicant
Counsel for the
Applicant:
Advocate
N Alli
Scholtz Attorneys
c/o
Mark Anthony Beyl
Attorneys
Attorneys for the
Respondents
Counsel for the
Respondent:
Advocate M A Kruger
[1]
“
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634 - 635;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 55;
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma
v National Director of Public Prosecutions and Others
2009
(1) SA 1
(CC)
(2008 (2) SACR 421
;
[2008] ZACC 13)
paras 8 - 10.”
[Fn
number 13 in the judgment, which due to formatting, is numbered 1 in
this judgment]
[2]
The
Law of South Africa, Volume 27, First Re-issue Volume, paragraph
362(d) [footnotes omitted]. In his work
Sakereg
,
2
nd
Edition, Butterworths, Durban, 1989, the learned author goes further
at page 303 by stating the following:
“
At
delivery of movable things, the requirement of consensus generally
appears from the “verbintenisskeppende ooreenkoms”
that
accompanies or precedes delivery.”
(my
translation)
[3]
See the authorities approved by Zondo J (as he then was) in
Genesis
Medical
op
cit