Changing Tides 74 (Pty) Limited v Trade Properties Ventures No 131 CC and Another (2021/21686) [2021] ZAGPJHC 553 (15 September 2021)

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[2021] ZAGPJHC 553
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Changing Tides 74 (Pty) Limited v Trade Properties Ventures No 131 CC and Another (2021/21686) [2021] ZAGPJHC 553 (15 September 2021)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER:
2021/21686
DELETE
WHICHEVER IS NOT APPLICABLE
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
In
the matter between:
CHANGING
TIDES 74 (PTY) LIMITED
Applicant
and
TRADE
PROPERTY VENTURES NO 131 CC
First
Respondent
LIQUIDITY
SERVICES S.A. (PTY) LIMITED
Second Respondent
JUDGMENT
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal representatives
by e-mail. The date and time for
hand-down is deemed to be 11h30 on
the 15
th
of September 2021.
DIPPENAAR
J
:
[1]
This is an opposed application, conducted via a virtual hearing,
in
which the applicant sought orders (i) upholding an oral contract of
sale between the applicant and the first respondent pertaining
to
certain mechanical cranes; (ii) declaring the applicant to be the
owner of the cranes; (iii) directing the first respondent to
release
the cranes to the applicant against due performance by the applicant
of the agreement of sale, together with costs. The relief
was couched
as “semi urgent vindicatory relief”.  The first two issues
are central to the determination of the application,
as the
determination of the remainder is predicated on findings in favour of
the applicant on those issues
[2]
The present application was preceded in Part A by an urgent
application for certain interdictory relief launched on 3 May 2021.
By consent an interim order was granted on 20 May 2021 in terms
of
which the respondents were interdicted from disposing of the cranes
pending determination of this application. Costs were reserved,
to be
determined in the present application.
[3]
The first respondent opposed the application whereas the second
respondent abided the decision of the court.
[4]
In summary, the applicant’s case is that on 24 March 2021
an oral
agreement was concluded between it and the first respondent in terms
whereof the first respondent sold certain mechanical
cranes to it for
a purchase price of R11 million plus VAT, aggregating an amount of
R12 650 000. Ownership passed to the applicant
immediately. All that
remained outstanding was how the purchase price was to be paid,
namely whether in two or four instalments.
This oral agreement formed
the basis of applicant’s claim for declaratory relief, both in
relation to the validity of the oral
agreement and its ownership of
the cranes.
[5]
In summary, the first respondent denied that an oral sale agreement
was ever concluded and contended that the parties had been
negotiating for the sale of the cranes but that no agreement had been
concluded. It further disputed that ownership of the cranes was ever
transferred to the applicant or that any real agreement was
concluded
in terms of which ownership thereof could be transferred. Its case
was that a third party, Mitsubishi Hitachi Power Systems
Africa (Pty)
Ltd (“MHI”), was the owner of the cranes at the date the alleged
oral agreement was concluded. It was argued that
ownership of the
cranes could thus not be transferred to the applicant and that the
first respondent would not and could not have
formed the intention to
hold possession of the cranes on behalf of the applicant under the
construction of
constitutum possessorium
advanced by the
applicant, well knowing that it was not the owner of the cranes.
[6]
It is
trite that a party is obliged to make out its case in its founding
papers so that a respondent knows what case it has to meet.
It is
also trite that in motion proceedings, the affidavits constitute both
the pleadings and the evidence
[1]
.
[7]
The
applicant seeks final relief. The matter is thus to be determined on
the basis of the so called Plascon Evans test
[2]
.
Where there is a genuine dispute of fact, the respondent’s version
must be accepted. A dispute will not be genuine if it is so
far-fetched or so clearly untenable that it can be safely rejected on
the papers.
[3]
[8]
A real
dispute of fact arises, inter alia, where a court is satisfied that
the party who purports to raise the dispute has in its
affidavit
seriously and unambiguously addressed the facts said to be
disputed.
[4]
[9]
In
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
Another
[5]
,
the Supreme Court of Appeal enunciated the approach to be followed in
relation to whether disputes of fact are bona fide thus:
“
The
court should be prepared to undertake an objective analysis of such
disputes when required to do so. In J W Wightman (Pty) Ltd
v Headfour
(Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371(SCA)
, it was suggested how that might be
done in appropriate circumstances. ....
A court must
always be cautious about deciding probabilities in the face of
conflicts of facts in affidavits. Affidavits are settled
by legal
advisers with varying degrees of experience, skill and diligence and
a litigant should not pay the price for an adviser’s
shortcomings.
Judgment on the credibility of the deponent, absent direct and
obvious contradictions, should be left open. Nevertheless
the courts
have recognised reasons to take a stronger line to avoid injustice.
In Da Mata v Otto
1972 (3) SA 858
(A) at 689 D-E, the following was
said:
In
regard to the appellant
‘
s sworn
statements alleging the oral agreement, it does not follow that
because these allegations were not contradicted
–
the
witness who could have disputed them had died – they should be
taken as proof of the facts involved. Wigmore on Evidence, 3
rd
ed., vol. VII, p.260, states that the mere assertion of any witness
does not of itself need to be believed, even though he is unimpeached
in any manner, because to require such belief would be to give a
quantative and impersonal measure to testimony. The learned author
in
this connection at p. 262 cites the following passage from a decision
quoted:
“
it
is not infrequently supposed that a sworn statement is necessary
proof, and that, if uncontradicted, it established the fact involved.
Such is by no means the law. Testimony, regardless of the amount of
it, which is contrary to all reasonable probabilities or conceded
facts-testimony which no sensible man can believe-goes for nothing;
while the evidence of a single witness to a fact, there being
nothing
to throw discredit, cannot be disregarded.”
[10]
The papers are replete with factual disputes regarding the central
issue of whether
an oral agreement was concluded between the
applicant and the respondent on 24 May 2021 as contended by the
applicant. It is not
necessary to particularise all the factual
disputes raised on the papers in detail.
[11]
The applicant argued that the first respondent’s version should be
rejected as untenable
on the papers. I do not agree. The first
respondent has grappled with the issues set out in the founding
papers and I am not persuaded
that its version can be rejected as
palpably false and untenable on the papers.
[12]
There
is merit in the first respondent’s contention that the applicant
should have anticipated material disputes of fact arising
prior to
the launching of the present application thus justifying its
dismissal
[6]
, specifically
regarding whether an oral agreement had been concluded between the
parties, an issue dealt with extensively in correspondence
between
the parties.  The first respondent urged me to dismiss the
application in the exercise of the discretion afforded
[7]
.
Although I could have done so, I decline the invitation and rather
determine the application on its merits.
[13]
The
applicant at no stage sought a referral of the application to oral
evidence or trial. Rather, it argued that if it was found that
there
are irresoluble factual disputes on the papers, the court could
mero
motu
exercise its discretion to refer it to evidence, relying on
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[8]
.
I am not persuaded that that option is open to me
[9]
.
Much depends on the particular enquiry and its scope. It is trite
that oral evidence should not be permitted where the affidavits
themselves do not present such evidence. It is trite that a party is
not allowed to lead oral evidence in order to make up shortcomings
in
its own case or to make out a case not made out in its papers
[10]
.
Considering the inadequacies in the applicant’s case on its papers,
I am not persuaded that there is any merit in the contention
that the
matter should be referred to oral evidence, even if it had been open
to me to do so.
[14]
The first issue is whether the applicant has established the oral
sale agreement contended
for. I conclude that in the answering
papers, the first respondent seriously and unambiguously addressed
the facts averred by the
applicant which it disputed. Thus the first
respondent’s version must be accepted.
[15]
On the first respondent’s version, at the meeting of 24 March 2021,
the applicant
had revived an earlier proposal to purchase the cranes
and girders, but would revert on a proposed payment plan. The first
respondent
insisted on a minimum deposit of R5.5 million as it
required the funds to settle the last instalment due to MHI for
purchase of the
cranes. Once that was received a draft offer to
purchase would be prepared. No payment proposal was furnished by the
applicant and
no offer to purchase was ever prepared. That version is
corroborated by the documentary evidence attached to the answering
affidavit.
The applicant did not materially address this version in
reply nor provided cogent evidence to the contrary. Rather, it put up
broad
averments and “confirmatory affidavits” by persons who at
best provided irrelevant opinion evidence, rather than primary facts
and who were not present at the meeting at which the alleged
agreement was concluded facts and which did not take the applicant’s
case any further.
[16]
The applicant’s affidavits further provided no supporting facts for
the contention
that the parties agreed that ownership of the cranes
would pass to the applicant immediately, notwithstanding the
postponement of
the applicant’s payment obligations or any facts
which would support constructive delivery of the cranes to the
applicant. The
agreement contended for regarding the transfer of
ownership of the cranes is an unusual one and is not borne out by any
factual evidence.
[17]
A
further lacuna in the applicant’s case is the absence of a real
agreement between the parties to transfer and receive ownership
of
the cranes. As pointed out by the first respondent, it is trite that
there are three juristic acts involved in the transfer of
ownership:
(i) the agreement which creates the obligation to transfer the cranes
(i.e. the contractual obligation); (ii) the real
agreement between
the parties to transfer and to acquire ownership of the cranes and
(iii) the actual transfer of ownership of the
cranes, being movable
property, by way of delivery.
[11]
[18]
Central
to these issues was the ownership of the cranes at the time the
alleged oral agreement was concluded on 24 March 2021. It
is trite
that a person cannot transfer ownership of a thing if it is not the
owner thereof
[12]
. On the
papers it was not disputed that MHI was the owner of the cranes and
thus that no real agreement could be concluded for the
transfer of
ownership as the first respondent was not at the time the owner
thereof. The applicant did not dispute the averment that
it knew of
MHI’s ownership of the cranes in its papers. In the applicant’s
papers, MHI’s ownership was phrased as a “representation”
and
in its supplementary affidavit, it was contended that applicant had
no knowledge of such alleged ownership. No direct allegation
was made
to put MHI’s ownership in dispute.
[19]
This in my view creates various unsurmountable obstacles for the
applicant. First,
the first respondent, as it was not owner of the
cranes at the time of the alleged oral agreement of 24 March 2021,
could not transfer
ownership of the cranes to the applicant. Second,
the first respondent, knowing that it was not the owner of the
cranes, on its version
did not, and in the circumstances could not
form any intention to transfer ownership of the cranes to the
applicant.
[20]
There
is a third obstacle which faces the applicant, being delivery of the
cranes. It is trite that ownership of movables is transferred
by
delivery
[13]
. The applicant
has relied on constructive delivery in the form of
constitutum
possessorium
[14]
. Central to this form of
delivery is a change in intention on the part of the possessor of the
movable, the first respondent, being
from an intention to hold
possession for itself to an intention to hold possession for the
applicant.
[21]
The applicant’s case was in terse terms and rested on the averment
that although
it would have acquired ownership of the cranes
immediately upon the conclusion of the agreement, possession of the
cranes in the
interim would remain with the first respondent. I am
not persuaded that the applicant has established delivery, required
for the
transfer of ownership of the cranes.
[22]
The common cause fact that at the time of the alleged agreement and
transfer of ownership
of the cranes to the applicant, MHI was, to the
knowledge of the parties, the owner of the cranes until it received
full payment
of the purchase price from the first respondent, puts
pay to any contention that the first respondent thereafter could or
did retain
possession of the cranes for the applicant. It was
undisputed that the last payment to MHI only occurred on 16 April
2021, well after
conclusion of the alleged oral sale agreement. I
agree with the first respondent that the undisputed inability of the
first respondent
to transfer ownership of the cranes to the
applicant, constitutes an insurmountable obstacle to the applicant’s
case.
[23]
For these reasons I conclude that the applicant has not established
that it is either
entitled to a declaratory order that an oral sale
agreement was concluded on 24 March 2021, or to a declaratory order
that it was
the owner of the cranes. It follows that the application
must fail.
[24]
I turn to the issue of costs. The first aspect is the reserved costs
of the urgent
application.  Both parties blamed the other for
the need to pursue the urgent application pursuant to an appropriate
undertaking
not being provided timeously.  In considering all
the facts, and the respective stances adopted by the parties, it
would be
appropriate to direct that the costs follow the result.
Regarding the remainder of the costs, there is no reason to deviate
from
the normal principle that costs follow the result. In relation
to this application, it follows that as the applicant has been
unsuccessful,
it is to be held liable for the costs.
[25]
I grant the following order:
The
application is dismissed with costs, including the reserved costs of
the urgent application.
EF
DIPPENAAR
JUDGE OF THE HIGH
COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
12 August 2021
DATE
OF JUDGMENT
:
15 September 2021
APPLICANT’S
COUNSEL
: Adv. B. Ford
APPLICANT’S
ATTORNEYS
: Ooni & Wadia Inc. Attorneys
RESPONDENT’S
COUNSEL
: Adv P. de B Vivier SC
RESPONDENT’S
ATTORNEYS
:
Enderstein Van Merwe Attorneys
[1]
Minister of
Land
Affairs and Agriculture v D &F Wevell Trust
2008 (2) SA 184
(SCA)
;
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
Republic of South Africa and Others
1999 (2) SA 279(T)
at 323G-234A
quoted with approval in National Credit Regulator v Lewis Stores
2020
(2) SA 390
(SCA) para [29]
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E to 635C
;
NDPP
v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para [26]
[3]
J
W Wightman (Pty) Ltd v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371(SCA)
para 12
[4]
PMG Motors Kyalami (Pty) Ltd (in liquidation) v Firstrand Bank Ltd,
esbank Division
2015 1 All SA 437
(SCA) ;
2015 (2) Sa 634
(SCA);
Wightman supra para 13
[5]
2011 (1) SA 8
(SCA) at paras [19] and [20]
[6]
Adbro
Investments Co Ltd v Minister of the Interior
1956 (3) SA 345
(A) at
350A; Gounder v Top Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
2008 (5) Sa 151
(SCA)
para [10]
[7]
Willovale Estates CC and Another v Bryanmore Estates Ltd
1990 (3) SA
954
(W) at 961H-I
[8]
1949
(3) SA 1155
(T) at
1665
[9]
Di Meo v Capri  Restaurant
1061 (4) SA 416
(N) at 615 H-606A;
Hymie Tucker
1081 (4) SA 175
(N) 179E-H
[10]
Minister
of Land Affairs and Agriculture v D &F Wevell Trust
2008 (2) SA
184
(SCA) at p
aras
[57] -[59]
[11]
LAWSA2nd edition Volume 27, par 213, p263
[12]
Based on the maxim
nemo
plus iuris ad alieam tranferre potest, quam ipse haberet.
See
Absa Bank Ltd t/a Bankfin v Jordache Auto CC
2003 (1) SA 401
(SCA)
par [17]
[13]
Dreyer and Another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548
(SCA)
[14]
Vasco Drycleaners v Twycross
1979 (1) SA 603
(A)