About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2019
>>
[2019] ZAKZDHC 26
|
|
Padayacee v Hussein and Another (9902/2018) [2019] ZAKZDHC 26 (1 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No. 9902/2018
In
the matter between:
KARINA
VEROSHA PADAYACEE
Applicant
and
MAHOMED
IMERANE HUSSEIN
First
Respondent
H
MOHAMED
Second
Respondent
JUDGMENT
BEZUIDENHOUT
J
[1]
Applicant seeks the return of a 1936 model Ford registration number
[….] together with
some further relief. She granted her father
Gonaseelan Nair the authority to bring the application on her behalf.
She however,
also deposed to an affidavit confirming this and is also
the applicant in this matter. Her father deposed to the
affidavit
setting out the facts of the matter. First respondent
filled a notice to oppose, his attorneys withdrew thereafter and he
did not
file an answering affidavit. Second respondent filed an
answering affidavit and is opposing the relief claimed.
[2]
Nair borrowed the sum of R60 000.00 from first respondent who then
kept the Ford as security for
repayment of the loan. It is not
deputed that the vehicle was that of his daughter. The sum of R60
000.00 which was advanced to
Nair during March 2018 was repaid during
May and June 2018 together with interest and fully paid up by 22 June
2018. First respondent
however, refused to return the said vehicle.
From correspondence attached to the founding affidavit it is clear
that first respondent
did not dispute that the vehicle had to be
returned, kept on stating that he would do so and up until 8 August
2019 promised the
return of the vehicle. It was only on 23 August
2018 that first respondent informed Nair that the vehicle had been
sold to second
respondent. He then indicated that one Lionel Pillay
authorised the sale of the vehicle and an affidavit by the said
Lionel Pillay
indicating that he was authorised by Nair (it is common
cause he is the Neville referred to) to do so is attached to the
founding
affidavit. Pillay however, in another affidavit disputes
that he attested to the said affidavit and that it is his signature
thereon.
On 22 August 2018 applicant reported the vehicle stolen to
the Sydenham Police.
[3]
Second respondent alleges that he lent money to first respondent and
accepted the motor vehicle
as part payment of this loan at a value of
R150 000.00. The motor vehicle was delivered to him by first
respondent with all the
necessary documentation and was transferred
into his name during May 2018. He is therefore the rightful owner
thereof.
[4]
It was submitted on behalf of second respondent that there was a
dispute of fact relating to the
affidavit of Pillay whether he signed
it and had been authorized to sell the vehicle. The motor vehicle
registration form is attached
to the founding affidavit and it is
apparent there from that applicant is the owner of the said vehicle.
Second respondent has
not attached any documentation indicating that
the vehicle has indeed been registered into his name. Second
respondent also provides
no information about the loan to first
respondent, what the amount thereof was, but merely a bold allegation
that the vehicle was
given to him as part payment of such loan. On
the papers it is not disputed that the vehicle was not returned to
applicant by first
respondent.
[5]
The question that arises is whether indeed there is a real and
genuine dispute of fact. On the
papers it is apparent that applicant
is the owner of the vehicle. It is not disputed that a loan was made
to Nair by first respondent
and that the vehicle was given as
security and had to be returned. In the affidavit of Pillay, he
indicates he was granted permission
by Neville to sell the vehicle.
Neville is not the owner of the vehicle. Further, he does not state
that he was granted any forms
or documentation to effect transfer of
the vehicle. It is also not disputed that applicant never signed any
transfer documents
in respect of the said vehicle. In my view, there
is no real dispute of fact. Even if the affidavit of Pillay is
accepted it merely
states that he was granted permission to sell the
vehicle and nothing further. He does not refer to transfer
documentation at all.
There is further the affidavit of Captain
Pillay stating that the identify document used to transfer the
vehicle to second respondent
is fraudulent. It has been submitted
that this affidavit should not be allowed as if should have formed
part of the founding papers.
However, in the founding papers it was
stated that a criminal case had been opened on 22 August 2018. It
merely sets out that the
matter was investigated and that the
identity document attached to the transfer documents is fraudulent.
In my view it is
a response to the averment by second respondent that
he had all the necessary documentation but failed to attach any of it
to his
affidavit.
[6]
Applicant on a balance of probabilities proved that she is the owner
of the vehicle and that either
first or second respondent is in
possession thereof. She is therefore entitled to the return thereof
as it is not disputed that
the loan by Nair was paid up. Second
respondent has failed on a balance of probabilities to proof that he
was lawfully in possession
of the vehicle. He attached no documents
to substantiate his claim to the vehicle. It would have been very
easy for him to do so
if he had such documents.
[7]
First respondent by not returning the vehicle, committed theft. The
affidavit of Pillay is dated
July 2018 but the vehicle according to
second respondent was transferred during May 2018 at that time first
respondent was still
holding the vehicle as security and was to
return the vehicle. The vehicle can therefore be taken form where it
is.
[8]
It has been submitted that paragraph 1 of the order only refers to
first respondent and not second
respondent and, the relief can
therefore not be granted as the vehicle is with second respondent.
The only indication that the
vehicle is with second respondent is his
bold averment to that effect. The prayer needs to be amended to state
“alternatively
second respondent”.
Order:
An order is granted in terms of
Prayers 1, 2, 3 and 4 of the notice of motion as amended.
BEZUIDENHOUT
J
DATE
OF HEARING :
16 October
2019
DATE
OF JUDGMENT :
01 November 2019
FOR
THE APPLICANT :
R
Athmaram
Attorney for
the Applicant:
Roy Singh
Attorneys
Suite B1 –
Ground Floor
22 – 26
Beach Grove, Stafmeyer House
Durban
Tel: 031
3058281
Fax: 031
3058280
Email:
rrsingh@liove.co.za
Ref: RS/
Padayacee
FOR
THE RESPONDENT:
Z
Ploos van Amstel and
Ms Sing
Attorneys for
the Second
Respondent
Esthe Muller Incorporate
c/o Johan Jooste & Co
Ground Floor,
DDP House
32 Dullah
Omar Road
Durban
Tel: 031 3054242
Fax: 031 3054578