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[2020] ZALMPPHC 9
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Steenkamp v Bradbury's Commercial Auto Body CC (2882/2019) [2020] ZALMPPHC 9 (23 January 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE NO: 2882/2019
23/1/2020
In
the matter between:
ANDRE
STEENKAMP
APPLICANT
and
BRADBURY'S
COMMERCIAL AUTO BODY CC
RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
In
this application, the Applicant seeks an order directing the
Respondent to deliver to the Applicant certain motor vehicle, 2011
Toyota Land Cruiser Prado VX 3.0 040 with registration number [….].
("The Vehicle") The Respondent, being in possession
of the
vehicle, opposes the application on the basis that it has a
debtor-and-creditor lien
alternatively
an enrichment (improvement and salvage) lien over the vehicle.
[2]
The
Applicant's case is essentially that it will be entitled to the
return of the vehicle under the following circumstances:
2.1.
where the Respondent has no lien over
the vehicle vis-a-vis the Applicant; and
2.2.
where the lien has been destroyed
through loss of possession by the Respondent.
Factual Background
[3]
It
is common cause that the vehicle was insured with Nzalo Insurance
Limited ("Nzalo"). The vehicle was involved and damaged
in
a collision on 11 March 2018. The Applicant submitted a claim for
repairs to the vehicle to Nzalo via his insurance brokers,
Libra
Vitae Finance Management CC, which claim was approved by Nzalo. Nzalo
arranged for the vehicle to be towed to the Respondent
which conducts
business as a panel beater in Polokwane. The Respondent prepared a
quotation for the repairs to the vehicle and
forwarded the quotation
to Nzalo for authorization to repair. Nzalo appointed an assessor to
inspect the vehicle at the Respondent
and the Respondent received an
authorization letter to repair the vehicle from the assessors, acting
on behalf of Nzalo.
[4]
The
vehicle was repaired by the Respondent and released to the Applicant
on 13 June 2018, after he had paid the excess of R 3 000.00
to the
Respondent. The Respondent gave a warranty / guarantee in respect of
the repairs effected to the vehicle. The Respondent
issued a tax
invoice in respect of the repairs costs for an amount of R 304 832.21
to Nzalo on 7 August 2018.
[5]
The Applicant took the vehicle back to the Respondent on 1 October
2018 in order to
have the air-conditioner fixed under the warranty /
guarantee. This was after almost three months since the vehicle was
released
to the Applicant on 13 June 2018. When the Applicant
followed up on the repairs of the air conditioner on 4 October
2018,
he was informed by the Respondent that Nzalo did not pay for
the initial repairs on the vehicle and that it will not release the
vehicle until it gets paid what is owing to it for the initial
repairs on the vehicle.
[6]
Nzalo
was placed under provisional curatorship on 6 November 2018 and was
apparently liquidated thereafter.
Issues for Determination
[7]
The
issues between the parties appear to me to be the following and fall
to be decided against the factual background which I have
set out
above:
7.1.
Whether
the Respondent has a right of retention (lien) in respect of the
costs of repairs on the vehicle and storage charges.
7.2.
Whether the Respondent has shown
an agreement, expressly or impliedly, to revive the lien which it had
in respect of the repairs
effected to the vehicle and which it lost
when the possession of the vehicle was given back to the Applicant on
13 June 2018.
7.3.
Whether it is possible, in law,
so to revive a lien which has been lost.
The Law
[8]
A
lien is a right of retention which arises from the fact that one man
has put money or money's worth into the property of another
-
United
Building Society v Smookler's Trustees and Galoombick's Trustees
1906
TS 623
at 627-628.
Liens are
generally divided into debtor-and-creditor liens on the one hand and
enrichment liens on the other hand.
[9]
Debtor-and-Credit
liens are rights of retention conferred on a person who has done work
on another's property or rendered a service
pursuant to a contract.
They are not contractual rights in the strict sense in so far as they
are conferred by virtue of the contract,
but by operation of law when
money or money's worth is put into the property of another in
consequence of a prior contractual relationship.
They remain personal
rights in so far as they are not available against the owner where he
or she was not a party to the contract.
They can only be enforced
against a party to the contract. The lien holder is entitled to his
or her contractual remuneration,
including his or her profit - See
Van Niekerk v Van den Berg
1965 (2)
SA 525
(A).
[10] In
D
Glaser & Sons (Pty) Ltd v The Master and Another N.O 1979 (4) 780
(CPD)
it was
held that a builder, by virtue of his contract, and by virtue of
having put money and money's worth into his debtor's property,
can
have two liens, one being an enrichment (salvage or improvement) lien
in respect of the necessary and / or useful expenses,
and the other
being a debtor-creditor lien
simpliciter
for expenses
which do not fall into either of those categories but which are
merely luxurious and both these liens can be the result
of the same
contract.
[11]
Enrichment liens are generally regarded
as real rights and may take the form of either improvement or salvage
liens, depending on
whether they relate to useful or necessary
expense respectively
(D Glaser &
Sons (Pty) Ltd
supra). They are
conferred on a person irrespective of any prior relationship between
him or herself and the owner of the property.
To rely on a salvage or
improvement lien, the lien holder must allege and prove:
(i)
lawful possession of the object;
(ii)
that the expenses were necessary for the
salvation of the thing or useful for its improvement;
(iii)
the actual expenses and the extent of
the enrichment of the owner; and
(iv)
that
there was no contractual arrangement between the parties in respect
of the expenses.
See Brooklyn House Furnishers
(Pty) Ltd v Knoetze & Sons
1970 (3) SA 264
(A).
Harms, Amler's Precedents of
Pleadings, 9
th
Edition p 249.
[12]
Salvage and improvement liens are said
to be "real" liens. They are real rights. They are not
created by contract, but
are based on the equitable principle that by
the law of nature it is only fair that nobody should become wealthier
through the
loss and injury of another.
See
D Glaser & Sons (Pty)
Ltd
supra.
[13]
The right of lien exists only if the
lien holder is in possession of the thing to which his or her claim
relates and for as long
as he or she retains possession thereof. This
is subject to exceptions where the lien holder is deprived of
possession by force
or the threat of force or where he or she parts
with possession as a result of fraud. It is trite that loss of
possession destroys
a lien, and the lien cannot be revived by
recovery of possession. The lien does not automatically revive if the
lien holder relinquishes
his or her possession and subsequently
regains it -
Oceana Leasing Services
(Pty) Ltd v B G Motors (Pty) Ltd
1980 (3) SA 267
(W).
[14]
In
Marinus
v Taljaard
1952 (1) SA 49
(CPD)
it
was held that once a tacit right of retention is lost consequent upon
the creditor's voluntary surrender of possession, the lien
is thereby
destroyed and it does not, in the absence of further tacit or express
agreement revive merely upon the article's coming
again into
possession of the creditor.
See also
Muller and Another NNO
v Bryant & Flanagan (Pty) Ltd
1976 (3) SA 210
(D) at 220
and
Randalia Bank Bpk v Pieter Nel
Motors (Edms) Bpk
1979 (4) SA 467
(T) at 470.
Claim for Storage Costs
[15]
The Respondent contends that the
Applicant is liable for storage costs in the amount of R 101 027.50.
Reliance in this regard is
placed upon a tacit agreement that the
Applicant would pay storage charges if he failed and / or refused to
effect payment of the
invoice amount in respect of the repairs.
[16]
The Applicant was first confronted with
the storage costs in the Respondent's answering affidavit. The
invoice for the storage costs
was only issued subsequent to service
of the present application. There is no averment in the Respondent's
papers that the amount
of R 350.00 per day was agreed upon or that it
constitutes the usual or normal storage costs for the vehicle. In my
view, if there
was indeed any agreement, express or tacit, that
storage costs would be charged by the Respondent, it was to be
expected that the
Respondent would have issued invoices for storage
costs on a monthly or at least a quarterly basis. It is improbable
that the Applicant
would have contracted on such basis, moreso that
the Applicant disputed the liability for payment of the repair costs
as per an
invoice issued to Nzalo on 7 August 2018.\
[17]
The reliance on a tacit contract for
storage costs is clearly an afterthought on the Respondent's part. In
the absence of agreement
on the storage costs there can be no
contract between the Applicant and the Respondent. The Respondent has
thus failed to prove
a tacit contract for storage costs. It follows
that the Respondent is not entitled to exercise any lien vis-a-vis
the Applicant.
[18]
Even if I were to make a finding that
the Respondent was entitled to exercise a debtor and creditor lien,
the Respondent would still
not be entitled to storage costs. It is
trite that any person exercising a lien is not entitled to any
storage costs merely for
keeping the property on his premises. The
following was stated in
Thor Shipping
and Transport SA (Pty) Ltd v Sunset Beach Trading 208 CC 2017 JDR
1771 (KZP) at para [28]
"As
to the enrichment
claim, counsel for the plaintiff made no submissions in support of
it. Assuming it to be arguable that
some
level of enrichment
(and matching impoverishment)
arose
because the second
defendant had his vehicle kept safe without charge for the storage
period, the answer to the claim would probably
lie in the proposition
that a lien-holder keeps
possession
for its own benefit,
as
a result of which
it
is
not
entitled to claim compensation by way of storage charges
.(See
in this regard the full court decision in
Wessels
v Morice
(1913) 34 NPD 112
; and Laingsburg School Board v Logan
(1910) 27
SC
240.)
".
(My underlining)
[19]
In
the light of the authority cited above I still hold that the
Respondent thus also has no salvage lien in respect of the storage
costs of the vehicle.
Claim for Repairs Costs
[20] The
Respondent purports to exercise a debtor and creditor lien against
the Applicant in respect of
the repair costs of the vehicle now that
Nzalo has failed to pay the amount of R 304 832.21 as per the invoice
dated 7 August 2018.
The Applicant contends that the retention and
possession of the vehicle by the Respondent is unlawful as any lien
which the Respondent
might enjoyed in respect of the repairs done to
the vehicle was destroyed when the Respondent returned the vehicle to
the Applicant
on 13 June 2018 and that the subsequent delivery of the
vehicle to the Respondent on 1 October 2018 did not and could not
revive
the lien.
[21] The
Applicant's contention is correct in the light of the authorities I
have referred to in paragraphs
[13) and [14] hereinabove. I am of the
opinion, therefore, that there is no justification of any grounds for
the Respondent to
withhold possession of the vehicle from the
Applicant.
[22] The
Applicant will be entitled to return of the vehicle if any lien which
the Respondent might have
had over the vehicle was destroyed. In the
present case it is not the Respondent's case that the vehicle was
released under threat
of force or through fraud when same was handed
over to the Applicant on the 13 June 2018. It is also not the
Respondent’s
case that the lien was revived by way of an
agreement with the Applicant on the 1 October 2018.
[23]
The vehicle was released to the
Applicant on 13 June 2018 after payment of the excess amount of R
3000.00 had been made. The release
note (Annexure BC 8 to the
Answering Affidavit) does not contain any provision reflecting a
conditional release of the vehicle.
It is common cause that the
vehicle was returned to the Respondent on 1 October 2018 for repairs
of an air conditioner under
warranty and for no other reason.
Had it not been for the required repairs to the air-conditioner, the
vehicle would not have been
returned to the Respondent.
[24]
It is interesting to note that
the Respondent never requested the Applicant to return the vehicle
prior to 1 October 2018 in order
to exercise its lien over it pending
payment. I agree with the submission made by Counsel for the
Applicant that the alleged "revival"
of the lien was a mere
windfall for the Respondent as it is by no means clear how it would
have recovered possession of the vehicle
otherwise.
[25]
Reverting to the facts of the
present case. As I have shown above, there is no room whatsoever for
any suggestion that the vehicle
was handed to the Respondent on 1
October 2018 upon any understanding that the previously existing lien
should revive. The Respondent
thus lost any lien it might have had
over the vehicle when it was released to the Applicant on 13 June
2018.
[26]
I accordingly hold that the
purported lien was lost when the vehicle was returned to the
Applicant on 13 June 2018 and that there
was no revival of that lien
when the Respondent subsequently re-acquired possession of the
vehicle on 1 October 2018. In the premises
the Applicant is entitled
to the relief sought.
[27]
The conclusion thus reached
renders it unnecessary for me to give any decision regarding the
issue whether there is any debtor and
creditor contract between the
Applicant and the Respondent or between the Respondent and Nzalo,
which gave rise to a debtor-and-creditor
lien in respect of the
repair costs of the vehicle.
[28]
I accordingly grant the following
order:
28.1.
The Respondent is ordered to immediately
return to the Applicant the motor vehicle, 2011 Toyota Land Cruiser
Prado VX 3.0 D4,D registration
[….], engine number IKD2068846
and vehicle identification number
(VIN)
JTEBH3FJ80K044105.
28.2.
The Respondent is ordered to pay the
costs of this application on a party and party scale.
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 9 December 2019
Judgment
delivered on : 23 January 2020
For the Applicant
: Adv. R Grundlingh
Instructed
: Joubert & May Attorneys
For
Respondent
: Adv. A Botha
Instructed
Van Heerden & Krugel
Attorneys
c/o Franco Marx Attorneys