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[2016] ZAGPPHC 265
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SA Taxi Securitisation (Pty) Ltd v Netshidzivhe and Another (64614/2013) [2016] ZAGPPHC 265 (3 May 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH
AFRICA
3/5/16
CASE NUMBER: 64614/2013
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
SA TAXI SECURITISATION
(PTY)
LTD
Applicant
and
NETSHIDZIVHE,
DOREEN
TAKALANI
First
Respondent
NETSHIDZIVHE, DOREEN
TAKALANI N.O.
Second
Respondent
JUDGMENT
BRENNER AJ
1. This is an application
for the vindication of a Toyota Quantum motor vehicle ("the
vehicle"), by the applicant, qua
owner, against the first and
second respondents, who remain in possession of same. The claim is
based on the rei vindicatio.
2. On 4 April 2016, the
respondents served a supplementary opposing affidavit in the
application. At the hearing on 25 April 2016,
the applicant's Counsel
preferred no objection to the introduction of this affidavit, for the
sake of finality, and it was so admitted.
3. Possession of the
above vehicle was given to the late husband of the first respondent,
namely, Ratshilumela Gideon Netshidzivhe,
("the deceased"),
in terms of a written lease agreement executed in March 2008 ("the
lease"). In terms of clause
3.1 of the lease, it is recorded
that the applicant shall at all times remain the owner of the
vehicle.
4. The deceased passed
away on 8 September 2011. On 21 September 2011, his surviving spouse,
being the first respondent, was appointed
the executor in his estate.
She is now cited in this application as the second respondent, nomine
officio, qua executor.
5. On 7 May 2013, the
applicant had issued Summons out of this Court for vindicatory relief
against the first respondent. The action
was withdrawn on 11
September 2013 for want of jurisdiction at the relevant time.
6. The present
application was issued out of this Court on 28 October 2013. In the
founding affidavit, it is asserted by the applicant
that, as at 24
October 2013, the capital, arrears and interest on the vehicle
amounted to the sum of R190 524,18.
7. Included with the
vindicatory relief was a prayer for an order rectifying the lease by
the substitution of the description of
the vehicle as a "Cam
lnyathi 15 seater" with the description "Toyota Quantum",
based on an error common to
the parties.
8. The application was
opposed. The opposing affidavit, served on 2 April 2014, containing
the various points in limine mentioned
below, as also a challenge to
the authority of the deponent to the founding affidavit, Valerie
Veliades ("Veliades").
9. On the merits, the
first respondent says the following. She admits having possession of
the vehicle. She admits that the lease
is binding on the parties,
despite the error in the description of the vehicle. She avers that
the applicant never demanded the
return of the vehicle neither did
she refuse to hand it over to the applicant. She contends that she
approached the applicant in
November 2011 for a settlement figure but
the applicant did not want to conclude an agreement with her or to
discuss anything relating
to the vehicle. According to her, "the
amount escalated because the Applicant did not want me to settle it
nor to pay the
monthly instalments until its legal department dealt
with the matter."
10. In its reply, the
applicant provides documentary proof of the authority of Veliades,
and generally disputes any allegations
at variance with the contents
of the founding affidavit.
11. The issues in casu
were the following, namely: whether this Court had jurisdiction over
the case, whether the applicant should
have joined the respondent as
executor in the estate of the deceased, whether the applicant could
apply to rectify the correct
description of the vehicle, and, based
on new facts introduced by the supplementary affidavit, whether the
applicant was entitled
to vindicate the vehicle in the face of
alleged payments already made and its alleged refusal to render a
full statement of account
to the respondent.
12. As will be seen from
what follows below, the points in limine fell away, leaving only the
defence on the merits to be addressed.
13. Concerning
jurisdiction, the first respondent avers that she resides in
Thohoyandou, in the Limpopo province, this under the
Superior Courts
Act, 10 of 2013
, which commenced on 23 August 2013 ("the Act"),
and that proceedings should have been launched out of the
"Thohoyandou
High Court".
14. This point is without
substance. In terms of
sections 50(1)(h)
, and
50
(2) of the Act,
this Court had jurisdiction over Thohoyandou
from 23 August 2013, pending publication
of a notice to the
contrary. On 15 January 2016, such notice was published, and the
Limpopo High Court was given jurisdiction over
actions instituted
within its designated area, this from 25 January 2016. Therefore, in
respect of actions, which would ordinarily
have fallen within the
jurisdiction of Limpopo, instituted between 23 August 2013 and 25
January 2016, the North Gauteng High Court
retained such
jurisdiction. In argument before this Court, the respondents'
attorney abandoned the defence based on jurisdiction
and was well
advised to do so.
15. On 22 May 2014, the
applicant gave notice to the first respondent of its intention to
amend its notice of motion by the inclusion
of her in another
capacity, qua executor in the estate of the deceased, and therefore
citing her as the second respondent. The
notice to amend was not
opposed and the amended notice of motion was served.
16. On 16 March 2015, by
consent between the parties, the lease was rectified to reflect the
correct description of the vehicle
as a Toyota Quantum. An order to
this effect was granted. A previous order granting default judgment
in addition to rectification
on 16 March 2015 was recalled, on the
appearance of the respondents' representative. Both Counsel for the
applicant and the attorney
for the respondents confirmed this in
argument before Court. By necessary inference, the first respondent
had plainly accepted
the joinder of herself as second respondent,
because only the representative of the estate had the authority to
consent to an order
rectifying an agreement to which the deceased had
been a party.
17. The supplementary
opposing affidavit, summarised, persists with the various points in
limine and contains the following averments
concerning the merits. It
is averred that the first respondent had asked for a settlement
figure on the vehicle since November
2011, to no avail. Her offer to
pay the applicant the sum of R90 000,00 in final settlement was
rejected.
18. The vehicle had not
been used as a taxi since the death of the deceased, its licence had
expired and could not be renewed, and
therefore no income had been
generated. It had remained parked since his death. The deceased had
been able to pay the instalments
while the vehicle was used as a
taxi.
19. In her view, the
applicant should have discussed the matter with the first respondent
before resorting to litigation and incurring
legal costs and claiming
further interest. The applicant had not provided her with a breakdown
of how the sum of R225 996,85 had
been computed. I interpose to
mention that this is not the amount mentioned in the application.
20. She alleges that the
deceased had already paid to the applicant the sum of R306 830,00 in
respect of the vehicle before his
death. This in addition to the
initial deposit of R50 000,00. The estate would be severely
prejudiced if the vehicle had to be
returned to the applicant in the
face of the offer to pay the sum of R90 000,00.
21. The registration
certificate indicated that the estate is the owner of the vehicle
while the applicant is reflected as the title
holder. In her
submission, a title holder cannot have more rights than the owner.
22. It merits mention
that the first respondent produces proof of payment of the sum of R90
734,32 by way of a deposit slip and
R 139 361,00 by way of a bank
statement of the deceased. But these payments are alleged by her to
be for two other vehicles leased
by the deceased from the applicant.
These vehicles are not part of the claim in the instant case.
23. She does not provide
proof of payment of the sum of R306 830,00 for the vehicle forming
the subject-matter of the claim in this
case. Since she was able to
produce documentary proof of payment for two other vehicles, it
appears inherently improbable that
she would have had difficulty in
producing documentary proof of payments made for the vehicle in this
application.
24. None of the
allegations raised by the respondents gives rise to a sustainable
legal defence.
25. In terms of the
lease, the deceased agreed that the applicant was the owner of the
vehicle. This is corroborated by the registration
certificate. The
applicant has averred that the sum of R190 524, 18 was owing by the
estate as at 24 October 2013. There is no
proof to the contrary,
apart from the unsubstantiated and rather dubious allegation by the
respondents that the sum of R306 830,00
was paid. No proof of payment
is provided. The applicant was not obliged to accept the first
respondent's offer, nor to negotiate
with her in her personal
capacity. The applicant had no duty to discuss the matter with the
respondents before resorting to litigation.
26. Neither the first
respondent, in her personal capacity, nor the second respondent, in
her capacity as executor in the estate,
has proved a legal basis for
retaining possession of the vehicle.
27. The applicant is
entitled to the relief sought by way of the rei vindicatio.
28. In the result, the
following order is made:
a. the respondents are
ordered to return to the possession of the applicant a certain
vehicle being a Toyota Quantum with engine
number […] and
chassis number […] ("the vehicle");
b. the sheriff of the
above Court, or his lawful deputy, or the sheriff appointed for the
district of Thohoyandou, is authorised,
directed and empowered to
attach, seize and hand over the vehicle to the applicant;
c. the first respondent,
in her personal capacity, is directed to pay the costs of the
application.
_________________________
BRENNER AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
3 May 2016
Appearances
Counsel for the
Applicant: Advocate JH Mollentze
Instructed by: Marie-Lou
Bester Inc
Counsel for the
Respondent: Attorney MP Sebola
Instructed by: Attorneys
MP Sebola Inc