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[2017] ZAFSHC 145
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Motus Corporation (Pty) Ltd t/a Bloemfontein Multifranchise v Lucas (2980/2017) [2017] ZAFSHC 145 (30 August 2017)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2980/2017
In
the matter between:
MOTUS
CORPORATION (PTY)
LTD
Applicant
t/a
BLOEMFONTEIN MULTIFRANCHISE
and
JACOBUS
LAMBERT FICK LUCAS
Respondent
HEARD
ON:
10
AUGUST 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
30
AUGUST 2017
[1]
The applicant is seeking a relief for the attachment and return of
the motor vehicle sold to the respondent. The interim
order was
granted by my sister Reinders, J on the 14
th
June 2017. The respondent is resisting the confirmation of that
order. The motor vehicle in question is the
2015
Renault Captur 88kw turbo EDC Dynamique 5 door with Vehicle
Identification Number VF 12R401E52841174 and Engine Number
H5FD403D098309.
The current registration letters and numbers is
[C...]
issued to the respondent.
[2]
On the 30
th
March 2017, the parties concluded a cash sale agreement for the
aforesaid motor vehicle. It appears that the entire
negotiations
took place at the premises of the respondent at 89
Oliver Tambo Street, Bloemfontein. The salient terms of
agreement were
that the purchase price was the sum of R231 419.78
(excluding VAT) including an extended service plan agreement of R5
631.39.
Payment was to be made into a designated account or
address. In the event of any breach the innocent party will
have the
right to recover all legal costs and disbursements on an
attorney and client scale. On payment of the sum of R231 419.28,
the delivery of the motor vehicle would be affected.
[3]
The respondent arranged with his bankers namely First National Bank
through their Kimberly branch to effect an Electronic Funds
Transfer
into the nominated bank account of the applicant. On receipt of
the document purporting to be a proof of payment,
the motor vehicle
together with the registration documents were handed to the
respondent. The funds were never received by
the applicant.
It is apparent that the transaction was reversed either by the two
(2) banks or the respondent. Negotiations
between the parties
for the payment of the purchase price or return of the motor vehicle
reached a dead end.
[4]
In his oral argument, Mr Groenewald submitted that the claim was not
a
rei
vindicatio
but
contractual in nature. In this case, the applicant had
cancelled the agreement and was entitled to the return of the
property. It was his contention that the applicant had the
locus
standi
because as at the 1
st
January 2017, the business of Kia Motors South Africa was taken over
“lock stock and barrel” by the applicant.
In this
matter the parties had concluded a cash sale agreement whereby
possession will be given to the respondent on receipt of
payment.
He argued, and correctly so, that the handing over of the
registration documents did not transfer ownership to the
respondent.
The agreement was for a specific amount to be paid into a specific
account.
[5]
In his response, Mr Pienaar submitted that there was a factual
dispute and that the court should be cautious in dealing with
this
matter in this manner in the face of conflict of facts. He
argued that proper documents were handed over on fulfilment
of the
obligations by the respondent. He referred to the agreement
that the applicant had taken over the business of Kia
Motors South
Africa. The definition of stock referred to in that agreement
did not include the motor vehicle which is the
subject of the dispute
between the parties. There was also no affidavit confirming
that it was part of the stock. It
was his further submission
that the rule nisi should be discharged.
[6]
The transaction between the parties was essentially a cash sale
agreement and nothing more. In such matters the general
rule is
that ownership does not pass until the purchase price is paid in full
despite delivery being given to the purchaser.
This principle
was held not to be inviolable but depended on the totality of
circumstances, inference or otherwise showing the
intention of the
parties. See
Eriksen
Motors Ltd v Protea Motors and Another
1973 (3) SA 688
(A).
[7]
The respondent approached the representative of the applicant on the
30
th
March 2017. The offer to purchase and the tax invoice were
generated by the applicant on the same day and reflect the amount
to
be paid as the full purchase price. The purchase price is
interchangeably referred to as the net selling price or total
amount
due. The respondent also instructed his bankers to provide the
applicant with a proof of payment reflecting the same
amount on the
very same day. This modern method of payment can only be
complete when the funds are received in the account
of the
recipient. If the funds are not received, logic dictates that
payment has not been made.
[8]
The necessary documents to facilitate the registration of the motor
vehicle were handed to the respondent when the proof of
payment was
received despite the funds not being in the designated bank account.
He proceeded to register the motor vehicle
in his name. On this
basis he maintains that since 30
th
March 2017, he had been the lawful owner of the motor vehicle.
This view is incorrect. In
Absa
Bank v Knysna Auto Sonics CC, Case number 266/2015 SCA (unreported)
at par 11 the court said the following:-
“
The
effect of this argument is this: once the vehicle were registered in
the name of the respondent became the owner and title holder
by
virtue of the NATIS registration documents. As pointed out
above this argument incorrectly found favour with the court
a quo,
which erroneously held that unless the registration was impugned or
set aside, ownership vests in the respondent”
.
[9]
The respondent alleges that the motor vehicle is the property of Kia
Motors South Africa not the applicant. I was referred
to the
Certificate of Registration appearing on page 149 of the paginated
papers. The explanation proffered is that the business
of Kia
Motors South Africa was sold to the applicant “lock stock and
barrel” with effect from the 1
st
January 2017. In addition, as correctly pointed out by Mr
Groenewald, at no stage was the respondent informed by any person
that he was transacting in any manner with Kia Motors South Africa.
The extrinsic evidence points to the transaction as being
concluded
with the applicant. The offer to purchase and tax invoice had the
name of the applicant in the legible manner emblazoned
on the
letterhead. The bank account into which the cash price had to
be paid was that of the applicant. At all material
times the
parties were transacting with each other. This argument is
misplaced and I do not find any merit in it.
[10]
The respondent acknowledged that exactly the same amount as the one
paid to the applicant was credited in his bank account
on or around
the 1
st
April 2017. In paragraphs 82 and 83 of the opposing affidavit
he stated the following:-
“
It
need to be mentioned that, on or about 1 April 2017, a transfer of a
sum of R231 419.78 has been made into my current account
from First
National Bank, as is evident from a copy of my bank statement for
that period annexed hereto as Annexure “I”;
and
“
Since
this transfer has been made into my account by First National Bank, I
have requested the official of Standard Bank to enquire
from First
National Bank why such payment was made into my account”.
[11]
The outcome of his enquiry as to the origin of the funds remains
unexplained despite the lapse of more than one hundred and
twenty
(120) days. On receipt of the aforesaid amount, the stunned
respondent administered the funds as his own. The
R20
000.00
was
used to defray his personal expenses and
R200
000.00
deposited in his money market account. The explanation by his
counsel is that he was still waiting for the explanation of
the
origin of the funds from the bank. This conduct militates against
common sense and the dictates of a reasonable man.
The
explanation is so preposterous that it must be rejected. I do
not find any merit in it.
[12]
I am satisfied that the applicant has stablished a clear right.
In addition that the applicant will suffer irreparable
harm in the
event the respondent keep the motor vehicle without the corresponding
payment. Clearly the balance of convenience
favours the
applicant in this regard and is entitled to the order sought.
[13]
The costs shall follow the result as per the general rule governing
the issue of costs. Despite the rule, judicial discretion
must
be applied in such a manner to achieve fairness to all parties.
In this matter, paragraph 7.6 of the “
Standard
Terms and Conditions of the Seller”
provided that in the event of a breach the “
innocent
party shall have the right to recover all legal costs and
disbursement on an attorney an client scale”
.
I do not have any reason to award costs against a losing party on a
different scale than the one both parties agreed upon.
Given
the conduct of the respondent, the applicant should not be out of
pocket because of the actions of the respondent.
[14] I make the following
order.
1.
The
application is granted.
2.
The
Respondent is ordered to forthwith return to Applicant a 2015 Renault
Captur 88kw turbo EDC Dynamique 5door with engine number
H5FD403D098309 and VIN number VF12R401E52841174.
3.
Respondent
is ordered to forthwith return/or supply Applicant the original
eNATIS documentation, together with duly signed Notification
of
Change of Ownership Forms (NCO(5)) of the Renault.
4.
That,
in the event of Respondent failing and/or refusing to return/or
supply to Applicant forthwith the aforesaid documents, the
Sheriff of
Warrenton be and is hereby authorized and requested to enter into and
upon Respondent’s premises, or wherever
same may be found, to
attach the documents referred to in 3 above, and to return the
vehicle and documents to Applicant as a matter
of urgency.
5.
That,
in the event of Respondent failing and/or refusing to forthwith sign
and return to Applicant the Notification of Change of
Ownership Forms
(NCO(5)) the Sheriff of Warrenton be and is hereby authorized and
requested to sign such documents.
6.
The
respondent is ordered to pay the costs of the application on an
attorney and client scale together with all disbursements incidental
thereby.
_____________
MATHEBULA,
J
On
behalf of applicant:
Adv. W Groenewald
Instructed
by:
De Lange, Du Plessis & Leach Att.
On
behalf of respondents:
Adv. C D Pienaar
Instructed
by:
Kramer Weihmann &
Joubert Inc.
/roosthuizen