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[2018] ZAGPJHC 552
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Pillay v Saber and Another (2018/33126) [2018] ZAGPJHC 552 (18 September 2018)
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
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2018/33126
In
the matter between:
PILLAY
,
PREBAI
Applicant
and
SABER
,
RODWAAN
First
Respondent
AFFORDABLE
INVESTMENTS CC
Second
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an urgent
application by the applicant for interim vindicatory relief against
the first and second respondents. This part
of the applicant’s
application is for an interim order pending a decision on the
applicant’s main application based
on
rei
vindicatio
in relation to her motor vehicle.
[2].
In the relevant
portion of her notice of motion the applicant applies for an order,
pending the hearing of her application for the
return of her vehicle,
inter alia
in the following terms:
‘
2.
The second respondent and any other persons who may be in possession
of the motor vehicle bearing the following description:
Land Rover
Discovery 4 V8 5-0 HSE with VIN no: SALLAAAF3BA585945 (formerly with
registration no: […]GP) (‘the vehicle’)
are
forthwith interdicted from disposing of the said motor vehicle.
3.
The sheriff of this Honourable Court is hereby directed to forthwith
remove the vehicle from wherever it may be located and to
store the
same in safekeeping.’
[3].
This portion
of the applicant’s application, being part ‘A’, is
primarily aimed at the second respondent, who
the applicant alleges
is presently in possession of the said vehicle. From the papers
before me this fact appears to be common
cause. No relief is sought
against the first respondent at this stage, and he did not oppose
this part of the application, which
the applicant initially launched
as an
ex
parte
application, but, on my insistence when the matter was called for the
first time on Tuesday, the 11
th
of September 2018, was served on the second applicant.
[4].
The
applicant’s application is founded on her ownership of the
vehicle, in respect of which she maintains that she retained
ownership. During February 2018 the applicant had instructed the
first respondent, a car dealer and a neighbour of theirs at the
time,
to assist her in selling the vehicle for a good price. In her
founding affidavit the applicant states that the agreement
between
her and the first respondent was that the first respondent would
immediately pay to her the purchase price of the vehicle
once a
purchaser had been secured and the proper transfer of the ownership
effected. She further states that on the 13
th
of March 2018 the first respondent advised her that the vehicle had
been sold for the sum of approximately R431 000 and they
were in
fact given an amount of R48000 in cash, being a portion of the
purchase price. The first respondent furthermore advised
her that the
balance would follow shortly. She then went on to state as follows:
‘This was contrary to our arrangement that
he would pay me in
full immediately upon the sale of the vehicle’.
[5].
The aforegoing
statement is, in my judgment, the death knell for the case of the
applicant. Implicit in what is stated by her in
her founding
affidavit is that the vehicle was sold to a third party on her behalf
and that she acquiesced, at very best for her,
in the sale of the
vehicle. Later on in her affidavit the applicant again confirmed that
they had established that the vehicle
had been sold to the second
respondent and in fact registered into its name. As soon as this fact
had been established, the applicant
then demanded payment of the
balance of the purchase price from the first respondent, who in turn
undertook to pay the amount due
to the applicant on specified dates.
This undertaking was not kept by the first respondent, who
subsequently signed an acknowledgment
of debt in favour of the
applicant for the sum of ‘R473 000 less repair cost’.
[6].
An integral
part of the applicant’s cause is her alleged ownership of the
vehicle. It is however abundantly clear that on
her own version the
applicant had authorised the first respondent to sell the vehicle on
her behalf, which he did by selling the
said vehicle to the second
respondent. The applicant has therefore not established the basic
requirement for an interim interdict
that being that she has a
prima
facie
right. On her own version the vehicle had been sold to the second
respondent on her instructions and pursuant to the sale agreement
the
said vehicle had been registered into the name of the second
respondent.
[7].
In any event,
the second respondent opposes the urgent application on precisely
that ground, namely that it (the second respondent)
had bought the
vehicle from the applicant, via her agent, the first respondent. The
first respondent’s authority was evidenced
by the following
facts: he was in possession of the vehicle, the keys of the vehicle,
the original certificate of registration
and a copy of the identity
card of the applicant, being the registered owner of the vehicle.
[8].
It was
submitted on behalf of the second respondent that at the very least
the first respondent had ostensible authority to sell
the vehicle.
That, from a legal point of view, entitled him to sell to the second
respondent the vehicle, which he did. I find
myself in agreement with
this submission.
[9].
In
Worldwide
Vehicle Supplies Ltd v Auto Elegance (Pty) Ltd and Others
,
1998 (2) SA 1075
(W), the facts of the matter were not dissimilar to
those
in casu
.
The applicant in that matter had placed the first respondent, a
dealer in second - hand cars, in possession of two motor vehicles
and
the first respondent had sold the vehicles to the second and third
respondents. The applicant claimed, however, that it had
retained
ownership of the motor vehicles. It stated that it had supplied the
motor vehicles to the first respondent on consignment
in order for
the first respondent to attempt to sell the motor vehicles as the
applicant's agent. It was common cause that the
agency agreement had
been cancelled. The applicant therefore brought an urgent application
for the delivery by the second and third
respondents of the motor
vehicles.
[10].
Wunsh J held that the termination of the
agreement between the applicant and the first respondent could not
affect third parties
who were not even aware of such an agreement.
When the agency agreement was terminated, the apparent
jus
disponendi
of the first respondent in
the eyes of the public remained. The court held further that the
applicant should have foreseen that,
with the first respondent's
control of the vehicle and its situation as part of its stock in
trade continuing after the termination
of the agency or consignment
agreement, a third party could have been misled to his or her
prejudice in buying and paying for the
vehicle and the applicant
should have taken prompt action to recover possession. Even if the
applicant was the owner of the vehicle
therefore, it was estopped
from vindicating it.
[11].
Applying these principles
in
casu
, I am of the view that under no
circumstances is the applicant entitled to vindicate her vehicle from
the second respondent.
[12].
The
applicant’s urgent application against the second respondent
therefore stands to be dismissed.
Order
In
the result, I make the following order:-
1.
The applicant’s urgent application
against the second respondent is dismissed with cost.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
14
th
September 2018
JUDGMENT
DATE:
FOR
THE APPLICANT:
18
th
September 2018
Advocate
INSTRUCTED
BY:
Shaheed
Dollie Incorporated
FOR
THE SECOND RESPONDENTS:
Advocate
Cowley
INSTRUCTED
BY:
Vos
Viljoen & Becker Inc