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[2017] ZAFSHC 16
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Champion Sealers CC v Van Heerden (943/2016) [2017] ZAFSHC 16 (6 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 943/2016
In
the application between:
CHAMPION
SEALERS CC
Applicant
and
B
VAN HEERDEN
Respondent
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
6 FEBRUARY 2017
[1]
The applicant is a close corporation named Champion Sealers t/a Roof
Leak (Champion Sealers). The respondent is a 55 year old
female,
Bettie van Heerden (Ms van Heerden). Champion Sealers in its notice
of motion seeks an order that Ms van Heerden be compelled
to cause
“the registration and retransfer” of two vehicles,
to witt a JCB loader vehicle and a Nissan CM motor
vehicle (“the
vehicles”) into the name of Champion Sealers, with ancillary
relief.
[2]
The deponent to the founding affidavit is Johanna Alida Prinsloo (Ms
Prinsloo), a member of Champion Sealers. According to her
Ms van
Heerden and Champion Sealers during 2011 “decided to form a
specific purpose vehicle and business entity, in order
to do work for
large mining companies. Because of problems related to the “
black
listing”
with Harmony Gold Mine and Anglo American of some
of the role players involved, personal and further registration was
not possible.”
[3]
In her answering affidavit Ms van Heerden admits that she concluded
an agreement in May 2012 with Mr Gary Prinsloo (Mr Prinsloo),
the
husband of the deponent, and became a member of a close corporation
named Roovac CC. Mr Prinsloo informed her that he would
affect the
necessary to have her qualified as a vendor with Harmony Gold Mine
(“Harmony”), which required having the
equipment to
perform the work. She was handed two sale agreements pertaining to
her buying the said vehicles, which she signed
on 1 October 2012. Mr
Prinsloo indicated that the vehicles would be transferred in her name
to comply with the requirements of
Harmony. She never took possession
of the vehicles and it remained in the possession and control of
Champion Sealers and/or Mr
Prinsloo. The vehicles were however
transferred in Ms van Heerden’s name. During an assessment by
Harmony the latter cancelled
her vendondorship upon realising that
the vehicles were those of the applicant.
[4]
Hereafter the applicant sought to effect registration of the vehicles
in its name and various correspondences between the parties’
legal representatives were exchanged. For purposes hereof I do not
intend to deal therewith, save for a letter dated 14 September
2015
by Ms van Heerden’s attorney. The letter records that Ms van
Heerden has suffered damages due to the applicant’s
breach of contract and requests a payment of the amount of R
50 000,00 to respondent where after she would assist the
applicant
in obtaining copies of the original registration documents.
In addition she avers that she is not in possession of the originals.
[5]
From the papers it is abundantly clear that Ms van Heerden is not the
owner of the vehicles. There is no legal reason why it
should be
registered or remain as such in her name. In the opposing affidavit
the respondent states that GJP Service CC is the
owner of the Nissan
vehicle. In the applicant’s replying affidavit Ms Prinsloo
stated that she is the sole member of the
said entity, the directing
mind thereof and has no objection against the relief sought and/or
the registration of the Nissan vehicle
in the name of the applicant.
[6]
To my mind this objection by respondent should not on its own and in
view of the common facts between the parties stand in the
way of me
granting relief to the applicant. The real defence forwarded by the
respondent lies therein that the entire agreement
concluded between
applicant and respondent tantamount to fronting and that I should not
order the reregistration of the vehicles
since fronting is an
offence and the purpose of registering the vehicles in her name was
to defraud the mine (and possibly
third parties). For purposes of
this judgment I am prima facie satisfied that the agreement between
the applicant and respondent
constituted fronting (contravening the
provisions of the
Broad-Based Black Economic Empowerment Act 53 of
2003
)
.
[7]
Mr Coetzer pressed hard upon me not to grant the relief sought by the
applicant under these circumstances as it would amount
to the court
approving illegal and unlawful actions. I am not called upon to
adjudicate the contract with Harmony and whether same
constituted
fronting but I will make an appropriate order in this regard by
instructing the registrar to forward a copy of the
papers and this
judgment to the Director of Public Prosecutions, Free State for
consideration.
[8]
The applicant avers that the agreement in terms whereof the vehicles
were inter alia transferred to the respondent was cancelled
in 2013.
The respondent avers that “die ooreenkoms het nooit van die
grond af gekom nie”. Ownership of the vehicles
never vested in
the respondent. Sec 1 of the
National Road Traffic Act 93 of 1996
(the “Act”) defines an owner as follow:
“
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 para (a) for any
period during which such holder has failed to return that vehicle to
the title owner
in accordance with the contractual agreement referred
to in para (a) ; or
(c)
a motor dealer who is in possession of a
vehicle for purposes of sale,
and
who is licensed as such or obligated to be licensed in accordance
with the Regulations under section 4, and “owned”
or any
like word has a corresponding meaning.”
[9]
Mr Grobler on behalf of the applicant referred me to the following
passage from King, AJ:
“
Further,
judicial notice does not go that far that this court cannot take
cognisance of the fact that many vehicles today are in
the possession
of persons in terms of lease agreements or hire purchase agreements
with reservation of ownership.
Thus, the
true owner might not be in possession of a vehicle or the registered
owner might not be the true owner
.”
(my emphasis)
See:
Geoghegan v Pestana
1977 (4) SA 31
(T).
To
my mind it is still apposite today and the facts of this case is a
good example thereof.
[10]
In
AllPay Consolidated Investment Holdings (Pty) Ltd and Others
v Chief Executive Officer of the South African Social Security Agency
and Others (Corruption Watch and Another as
amici
curiae
)
(No 2)
2014 (6) BCLR 641
(CC) [at
footnote 47 thereof] it was held that the dissolution of a contract
creates reciprocal obligations to ensure that neither
contracting
party unduly benefits from what has already been performed under a
contract that no longer exists.
I
am of the view that the applicant as owner of the vehicles in terms
of the Act is entitled and compelled to have the vehicles
registered
in its name. The purpose of the Act is inter alia to inform the
registration authorities who the owner of vehicle is,
who the
presumed driver of the vehicle is and who is liable for the payment
of the licencing fees.
[11]
The respondent admits in her answering affidavit that the applicant
is the owner of the vehicles and states “dit was
nog te alle
tye die Applikant se eiendom gewees”. I therefore can see
no reason why the vehicles should not be registered
in the
applicant’s name. The applicant in correspondence dated 13 May
2014 demanded that the respondent should pay the costs
of affecting
the registration in the name of applicant, but I fail to see why she
should do so. If applicant is the owner (as is
common cause) the
applicant is liable for those costs and has been liable throughout.
[12]
The status quo has the effect that Ms Van Heerden is represented to
the registration authorities (and even third parties) as
the
registered owner of the vehicles, whilst that is not true. She
herself declares that she is not the owner of the vehicles
nor has
any other legal interests therein. Had she suffered any damages, I
need not decide that question on these papers.
[13]
Mr Grobler during argument submitted that should I be of the prima
facie view that the conduct of the applicant constitutes
fronting
(which is denied by the applicant), I should not decline the
application but show my displeasure with an adverse cost
order, which
I intend to do.
[14]
Accordingly I grant the following orders:
1.
It is declared that the applicant is
entitled to register into the name of the applicant and at the cost
of the applicant the following
moveable items (“the
vehicles”):
1.1
A JCB vehicle with registration number
[D...], engine number SA3204034341999510 and Vin number
JCB3CX04K02004107;
1.2
A Nissan (CM Series) motor vehicle,
registration number [B...], engine number MJ010125A080256X and VIN
number CMF87F04494.
2.
The respondent is ordered to sign all or
any documentation within 7 (seven) days of being requested to do so
in order to effect
registration of the vehicles into applicant’s
name.
3.
Should respondent fail to comply with
prayer 2 of this order, the registrar of this court is ordered and
authorised to sign all
or any of the documents to have the vehicles
registered in applicant’s name.
4.
The applicant is ordered to pay the cost of
this application.
5.
The registrar of the court is directed and
authorised to dispatch a copy of these papers as well as this
judgment to the Director
of Public Prosecution, Free State for
consideration. The registrar shall comply with this order within 20
(twenty) days hereof.
______________
C.
REINDERS, J
On
behalf of the applicant: Adv. S. Grobler
Instructed
by:
Juan
Adendorff
c/o Peyper Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. J.C. Coetzer
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN