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[2019] ZALMPPHC 61
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SA Taxi Finance Solutions (Pty) Ltd v J and D Panelbeaters CC and Another (2606/2019) [2019] ZALMPPHC 61 (12 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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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: 2606/2019
12/12/2019
In
the matter between:
SA
TAXI FINANCE SOLUTIONS (PTY) LTD
APPLICANT
and
J
AND D PANELBEATERS CC
FIRST RESPONDENT
(REGISTRATION
NUMBER: 2003/076219/23)
MATOME
DANIEL RAMAPELA
SECOND RESPONDENT
(IDENTITY
NUMBER: [….])
JUDGMENT
MAKGOBA JP
[1]
In
this application the Applicant seeks an order that the Respondents
must return a motor vehicle of which the Applicant is the
owner upon
the issuing of security by the Applicant in the amount of the
Respondent's purported claim. The application is opposed
by the
Respondents.
[2]
There
are no material facts in dispute in this matter and it is only a
question of law that requires adjudication by this Court.
The
Applicant's vehicle is in the possession of the Respondents. The
Respondents are exercising a right of lien over the motor
vehicle,
hence the Applicant had tendered security in substitution of the
Respondents' salvage lien.
[3]
The
First Respondent stored the vehicle at its premises without the
knowledge or permission of the Applicant and thus incurring
daily
costs. The First Respondent now claims a lien over the vehicle with
regard to alleged "stripping and storage costs"
in the
total amount of R 89 160.00. The Applicant disputes liability in the
aforesaid amount and further disputes that the First
Respondent has a
valid enrichment claim against it.
[4]
The
Applicant tenders substitution of security to the First Respondent
for the amount claimed against the return of its property,
pending
the outcome of an action to be instituted by the First Respondent.
The First Respondent has not accepted the Applicant's
tender for
security and it is for this reason that the Applicant is compelled to
launch the present application.
[5]
The
only question in issue in the present proceedings is whether the
First Respondent, alternatively the Second Respondent is entitled
to
remain in possession of the vehicle in exercise of a lien despite the
fact that the Applicant as the owner of the vehicle has
tendered
security for the First Respondent 's full claim. To date the
Respondents have failed to institute an enrichment claim
against the
Applicant.
[6]
A
right of retention or lien is the right to retain physical control of
another's movable property or immovable property as security
for
payment of a claim for money or labour expended on that property.
Liens arise by operation of law. There are two kinds of liens
namely,
salvage and improvement liens (which are referred to as enrichment
liens) and debtor and creditor liens. In this matter
the Respondents
rely on a salvage lien.
[7]
It
is trite that the owner of the property burdened by a lien may defeat
the lien by furnishing adequate security for payment of
the debt
secured by the lien. See:
Wille's
Principles of South African Law, 9
th
Edition page 665.
This is exactly what the Applicant in the
present application has done.
[8]
In
the present case the Respondents' lien over the Applicant's motor
vehicle may be defeated by the Applicant giving adequate security
for
the claim of the Respondents for salvage costs. The Court has an
unfettered discretion to grant such relief. See:
Zeda
Financing (Pty) Limited v du Toit t/a Amco Diensstasie
1992 (4) SA
157
(0)
and
Pheiffer
v Van Wyk
2015 (5) SA 464
(SCA).
[9]
In
the present matter I am satisfied that the Applicant foreshadows the
institution of action by the Respondents for the claim of
an amount
of R 89 160.00. However, the Applicant requires the return of its
vehicle for which purpose it is prepared to provide
security in
substitution of the lien. I am inclined to exercise my discretion in
favour of the Applicant in this regard.
[10] I accordingly
grant the following order:
10.1. That the First Respondent,
alternatively the Second Respondent are directed to immediately
return the following
motor vehicle to the Applicant upon the issuing
of the letter of undertaking for funds to be held in trust by the
Applicant's attorneys
on behalf of the Respondent:
a 2013 TOYOTA QUANTUM SESFIKILE 16 SEATER -
PETROL with engine number 2TR8540240, and chassis number
AHTSX22P307009683.
APPEARANCES
Heard
on
: 09 December 2019
Judgment delivered on
: 12 December 2019
For
the Applicant
: Adv. J H Mollentze
Instructed
: Mari - Lou Bester Inc
c/o Diamond Inc
For
the First Respondent
: Adv. J P Morton
Instructed
: Rachidi Inc Attorneys