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[2019] ZANCHC 16
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Jonker v Thiebaut (1116/2018) [2019] ZANCHC 16 (1 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case No:
1116/2018
Heard
on: 08/02/2019
Delivered on:
01/03/2019
In
the matter between:
JACOBUS
WILLEM JONKER
Applicant
And
GERDA
THIEBAUT
Respondent
JUDGMENT
MAMOSEBO
J
[1]
In this
rei vindicatio
matter the applicant seeks from the
respondent the return of a Toyota Quantum Minibus with Vin Number
JTFRX13PX08028754 and a Volkswagen
Microbus with Vin Number
AAVZZZ25ZVU004000; that upon failure by the respondent to do so
within seven days the sheriff of this
court be authorised to attach
the said vehicles and deliver them to the applicant; and costs of the
application.
[2]
The following were common cause. The parties entered into a verbal
agreement in terms of which the applicant
would purchase the said
vehicles in his name. They were in a romantic relationship for three
and a half years which terminated
during August 2015. The vehicles
were and still are registered in the applicant’s name. The
vehicles were purchased on credit
for their joint business venture to
transport miners in Kathu, Northern Cape Province. The vehicles are
still in the possession
of the respondent.
[3]
The respondent denies in her answering affidavit that the applicant
is the
de
facto
owner
of the vehicles. She contends that she paid a deposit of R60 000.00
in cash on 14 November 2014 towards the purchase
of the Quantum
Minibus and a further R441 722.10 in instalments on the vehicles, the
licence disc fees, permit fees as well as
the insurance and
maintenance of the vehicles bringing her total contribution to
R501 772.10.
[4]
Ms Labuschagne, counsel for the respondent, submitted that the
applicant should have instituted action
proceedings as there is a
dispute of fact not soluble on papers. The respondent maintained that
they had an agreement that the
vehicles will be transferred in her
name as soon as the outstanding bank balance was settled.
[5]
The issues for determination are whether or not the applicant has
established that he is the owner of
the two vehicles and entitled to
exercise the rights of an owner under the
rei vindicatio;
to
demand the return of the vehicles to his possession; and, whether or
not there was an agreement to transfer the vehicles under
the name of
the respondent upon settlement of the purchase price.
[6]
The parties resided in Bloemfontein, which is in the Free State
Province, during the existence of their romantic
relationship. The
applicant was and still is permanently employed in Bloemfontein. They
established a joint business venture in
Kathu to transport miners to
and from work for remuneration. According to the applicant the
arrangement was that they would have
equal shares in the profits
generated from the business and that the vehicles would form part of
the business venture. He denies
that there was an agreement that he
would transfer ownership of the vehicles to the respondent. The
respondent has been in
de
facto
possession
of the said vehicles since 2013.
[7]
On the certificate of registration the applicant’s name is
recorded as the owner and title holder
of both vehicles. The
applicant maintains that they had agreed that the financial
responsibility which included depositing money
generated from the
business into the applicant’s bank account on a monthly basis
to enable him to pay for the credit agreements
of the vehicles, the
licence permit and insurance fees, shall lie with the respondent. The
respondent either failed to make those
monthly payments timeously or
make sufficient amounts available which resulted in him incurring
bank penalties in his account.
[8]
The applicant attached a list of expenses versus deposit payments by
the respondent into his bank account
from December 2013 to May 2018.
A close scrutiny shows a shortfall resulting in the applicant
carrying those losses as the debits
were linked to his bank account.
He also attached the bank statements confirming the shortfall in
other instances. The downside
regarding the respondent’s
failure to take the Quantum Minibus for service resulted in the
warranty, which would have been
valid up to 190 000 kilometres,
falling off before its expiry date.
[9]
The respondent made payments or was supposed to make payment from the
profits of the business and not
from her personally. The applicant
maintains that the vehicles never stopped or failed operating but
their business clientele changed
from miners to school children but
the business remained operational. He could not have been validly
excluded from the business
because the client basis changed. The
respondent merely represented their business when she entered into an
agreement to transport
school children by utilising the very
vehicles.
[10] The
assets utilised to purchase the Quantum Minibus were the trade in of
the Toyota RunX and the Opel Corsa Utility
1.8i. As observed on
Annexure “GT1” the total purchase amount was shown as
R309 353.33 with no cash deposit but
a trade in allowance of
R110 000.00 minus an amount still owing of R37 000.00,
leaving the net trade-in of R73 000.00
and a total purchase
balance of R236 353.33.
[11] In as
far as the Volkswagen Microbus is concerned the applicant avers that
the business grew and necessitated the
purchasing of a second vehicle
which they also bought and registered in his name.
[12] The
respondent’s contention on the other hand is that during their
love relationship
she and
the applicant agreed to relocate to Kathu to start the said transport
business. The applicant was meant to resign from
his permanent
employment in order to use his severance package to purchase the
minibus for the transport business. Since she was
unemployed when
they applied for credit for the Quantum Minibus they agreed that the
applicant would make the application in his
name. Not knowing its
total costs she, nevertheless, made a down payment of R60 000.00.
The applicant only raised an amount
of R13 000.00, she says.
[13] The
respondent took possession of the Quantum Minibus in November 2013
when she relocated to Kathu. She found herself
‘unemployed and
unsteady without an income’ and decided to join Ms Retha Van
Rensburg who was operating a scholar transport
business. This
resulted in purchasing part of Ms Van Rensburg’s business for
R137 000.00 which included a transfer of
a Volkswagen Microbus (not the same Minibus forming the subject
matter in this case). Thereafter
she and the applicant bought another
Volkswagen Microbus which was also registered in his name on his
insistence. She
and the applicant agreed that the
vehicles will be transferred into her name once the purchase price
was paid in full. As stated
earlier the respondent vehemently denied
that the applicant is the owner of the vehicles and could claim them
under
rei
vindicatio
.
[14] In order
to succeed with this real right remedy an applicant need to allege
and prove:
(a)
That he or she is the owner of the thing;
(b)
That the thing was in the possession of the respondent when
proceedings were instituted; and
(c)
That the thing which is vindicated is still in
existence and clearly identifiable
[1]
.
It
is common cause that the two vehicles do exist and that they are
clearly identifiable. What remains in dispute is whether or
not the
applicant is the owner of the vehicles.
[15]
Section 1 of the National Road Traffic Act
[2]
states that ‘owner’ in relation to a vehicle, means:
(a)
the person who has the right to the use and enjoyment of a
vehicle
in terms of the common law or a contractual
agreement with the title holder of such vehicle;
(b)
any person referred to in paragraph (a), for any period during
which such person
has failed to return that vehicle to the
holder in accordance with the contractual agreement referred
to in paragraph (a); or
(c)
a motor dealer who is in possession of a vehicle for the
purpose of sale, and who
is licensed as such or obliged to be
licensed in accordance with the regulations made under
section 4, and “owned” or any like word has a
corresponding meaning.
[16] “Title
holder”, in relation to a vehicle means that:
(a)
The person who has to give permission for the alienation of the
vehicle in terms of a contractual agreement
with the owner of such
vehicle; or
(b)
The person who has the right to alienate the vehicle in terms
of the common
law, and who is registered as such in
accordance with the regulations under section
4.
[17]
This pronouncement was made by Jansen JA in
Chetty
v Naidoo
[3]
:
“
It
is inherent in the nature of ownership that possession of the
res
should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some
right
enforceable against the owner (e.g a right of retention or a
contractual right). The owner, in instituting a
rei
vindicatio,
need,
therefore, do no more than allege and prove that he is the owner and
that the defendant is holding the
res
-
the
onus
being
on the defendant to allege and establish any right to continue to
hold against the owner.”
[18]
The respondent maintains that there was an agreement with the
applicant to transfer the properties into her name
upon full payment
of the purchase price. The remarks by Milne JA in
Concor
Construction
(Cape)
(Pty) Ltd v Santambank Ltd
[4]
are
insightful
:
“
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
[5]
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.’”
(Own
emphasis added).
[19] The
following aspects were, among others, considered in establishing
whether the applicant is the owner of the
vehicles in issue:
19.1 The applicant
is the registered owner and titleholder of the two vehicles. It is
incomprehensible why he would assume
the entire risk of the credit
purchases on two occasions if the vehicles belonged to the
respondent;
19.2 It is not
discernible in the papers that the applicant intended to transfer the
motor vehicles to the respondent;
19.3
The Road Traffic Act defines a person in the position of the
applicant as the owner
of these vehicles.
19.4
The respondent intimated in her answering affidavit that she
was unemployed at the time of purchase
of the first vehicle
and depended on the applicant to keep up the premiums for
the
vehicles. It is not in dispute that it was arranged that
instalments would be debited against
the applicant’s bank
account; the
money paid into the applicant’s
account by the
respondent was derived from the profits of the business.
19.5 On her own
version the respondent was unemployed and unstable financially before
she joined Ms Van Rensberg. This implies
that whatever income
that accrued to her was generated by the Quantum Minibus. This must
have enabled her to raise the R137 000.00
to buy into Ms Van
Rensberg’s business. Mindful of the common cause fact that the
decision to allow the applicant to apply
for credit and register the
vehicles in his name was informed by the respondent’s
unemployed status.
19.6
The respondent did not deny the averment by the applicant
that she used the money
generated from the profits to make deposits
into his account.
19.7 Because the
purchase of the Quantum Minibus in the applicant’s name was
based on the lack of income of the respondent,
I enquired why the
second vehicle was also
bought in his name because at that stage
the respondent was enjoying
an income and was no longer dependant on the applicant. I was not
persuaded by the response.
19.8 In her
answering affidavit the respondent stated at para 5.11 that she and
the applicant bought another Volkswagen Microbus
jointly whereas at
para 11.4 she claimed to have bought the Volkswagen Microbus solely.
When I pointed out the discrepancy counsel
ventured to submit that
the vehicle was purchased by both the applicant and the respondent.
Counsel is debarred from testifying
from the bar to resolve her
client’s contradiction.
[20] I am not
persuaded by the submission made on behalf of the respondent that the
agreement was for the applicant
to transfer ownership upon full
payment. I am satisfied that based on the certificates of
registration of the motor vehicles
attached as well as the other
supporting documentation that the applicant is the registered owner
thereof.
[21]
What remains is to make a finding on the submission by Ms Labuschagne
regarding the existence of a dispute of fact
and whether this Court
should either dismiss this application or refer it for oral
evidence. The principle in
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
[6]
was
stated as follows:
“…
where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as
stated by the
respondents together with the admitted facts in the applicant’s
affidavits justify such an order… Where
it is clear that the
facts, though not formally admitted, cannot be denied, it must be
regarded as admitted.”
In
Plascon-Evans
Paints v Van Riebeeck Paints
[7]
Corbett
JA’s insightful remarks need repetition in clarifying the
general rule in the
Stellenbosch
Winery
case stating:
“
It
seems to me, however, this formulation of the general rule, and
particularly the second sentence thereof, requires some clarification
and, perhaps, qualification. It is correct that, where in proceedings
on notice of motion disputes of fact have arisen on the affidavits,
a
final order, whether it be an interdict or some other form of relief,
may be granted if those facts averred in the applicant’s
affidavits which have been admitted by the respondent, together with
the facts alleged by the respondent, justify such an order.
The
power of the Court to give such final relief on the papers before it
is, however, not confined to such a situation.
In certain instances the denial by the respondent of a fact alleged
by the applicant may not be such as to raise a real, genuine
or
bona
fide
dispute
of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163 – 5
;
Da Mata v Otto NO
1972
(3) SA 858
(A) at 882D – H). (Own emphasis added)
[22]
Regard being had to the afore-mentioned principles, and the factual
analysis I am satisfied that I could grant
the relief sought by the
applicant on the papers.
The
submission made on behalf of the respondent that
this application cannot be dealt with in motion proceedings
and be
finalised must therefore fail. The denials raised by the respondent
do not raise a real, genuine or
bona
fide
dispute of fact and I accordingly reject them. The applicant is
therefore entitled to final relief sought.
[23]
On the issue of costs. There is no reason why costs should not follow
the result. In the result, the following
order is made:
Order
1.
The
respondent, Ms Gerda Thiebaut, is ordered to forthwith return the
Toyota Quantum Minibus with VIN number JTFRX13PX08028754 and
the
VOLKSWAGEN MICROBUS with VIN number AAVZZZ25VZU004000 to the
applicant, Mr Jacobus Willem Jonker.
2.
Should
the respondent fail to comply with the order in paragraph (1) above
within seven (7) days of this order, the sheriff of this
Court is
authorised to attach these vehicles and deliver them to the
applicant.
3.
The
respondent is to pay the applicant’s costs of suit.
MAMOSEBO J
NORTHERN CAPE DIVISION
For the
applicant
Adv JM Rust
Instructed
by:
Huggey Hendricks Inc
c/o
Venters Rust Inc
For the respondent:
Adv J M Labuschagne
Instructed
by:
Taylor & Nagel Attorneys
c/o
Yolandi Koen Attorneys
[1]
Introduction to the Law of Property, A J van der Walt et al, Juta,
7
th
Ed, at 164; Silberberg and Schoeman’s The
Law of Property, 5
th
Ed, LexisNexis at 243
[2]
Sec
1(d) of Act 64 of 2008
[3]
1974 (3) SA 13
(A) at 20B-D
[4]
1993 (3) SA 930
(A) at 933C – H
[5]
1978 (4) SA 281
(A) at 301H – 302A
[6]
1957 (4) SA 234
(C) at 235E - G
[7]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634