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[2016] ZAGPPHC 701
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Abdullah v Station Commander of the Pretoria West Police Station and Others (57991/2016) [2016] ZAGPPHC 701 (16 August 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 57991/2016
DATE:
16 AUGUST 2016
In
the matter between:
ZO
Abdullah
..............................................................................................................................
Applicant
And
The
Station Commander of the
Pretoria
West Police
Station
........................................................................................
First
Respondent
Crazy
Motor Din
CC
................................................................................................
Second
Respondent
Minister
of Safety and
Security
.................................................................................
Third
Respondent
JUDGMENT
RABIE,
J
1.
The applicant launched an urgent
application for an order directing the first respondent to return her
VW Polo motor vehicle and
to ensure that the vehicle is not marked as
a stolen and recovered vehicle. Costs were claimed from all the
respondents.
2.
The first and third respondents did not
oppose the application but the second respondent did. The applicant,
firstly, alleged that
the first respondent is in the unlawful
possession of the vehicle. She also relied on her right as owner to
claim the vehicle.
3.
As background the applicant stated that
during October 2015 she wanted to buy a vehicle for her personal use.
Her brother was in
the business of buying and selling motor vehicles
and he succeeded in sourcing the particular vehicle from the second
respondent
who is in the business of selling vehicles and with whom
he had had a long business relationship. The applicant says that her
brother
concluded an agreement with the second respondent in terms of
which he would pay for the vehicle in instalments whilst she would
take possession thereof prior to the full purchase price having being
paid. She stated that she took possession at the end of October
2015.
Furthermore that her brother had made payment for the vehicle through
one of his companies. She stated that the full purchase
price of
R87.000 had been paid during October and November 2015.
4.
The applicant also referred to a
n
invoice furnished by the second respondent to her brother reflecting
that the vehicle had been "fully settled". This
document
was dated 27 November 2015. The applicant thus concluded tha
t
she is the owner of the vehicl
e. The vehicle
has also been registered in her name.
5.
On 19 July 2016 two members of the SAPS
attended her home and advised her that the vehicle had been reported
stolen by the managing
member of the second respondent who had stated
that the vehicle had been stolen from him by her brother. They
intended to confiscate
the vehicle. The applicant stated that for a
number of reasons she decided to tender the vehicle over to the SAPS.
The vehicle
is presently stored at the SAPS impound in Pretoria.
6.
The applicant alleged that the conduct
of the second respondent and also that of the first respondent was
unlawful. The applicant's
claim is for final relief.
7.
The second respondent filed an answering
affidavit wherein the deponent to the affidavit on behalf of the
second respondent, Mr
R. Abdulla, disputed the claim of the
applicant. I shall very briefly refer to his version. He stated that
he and the brother of
the applicant had had a long business
relationship but that during or about July 2015 this relationship
started to encounter problems.
He stated that in the period July to
November 2015 the brother purchased a total of nine vehicles from the
second respondent of
which one of the vehicles was the one which
forms the subject of this application. He stated that the brother
failed to make full
payment of the vehicles purchased from the second
respondent. The deponent referred to the vehicles and the amounts
paid and the
balances outstanding. He further referred to three VW
Polo vehicles of which the one in issue, was one of the three. He
stated
that the initial agreement was that the brother would pay for
these vehicles by supplying the second respondent with three Toyota
vehicles the value of which would be set off against the value of the
three Polo vehicles. However, the Toyota vehicles were never
tendered
by the brother and accordingly the brother remained indebted to the
second respondent to the amount of R 365 000, 00 in
respect of the
three Polo vehicles.
8.
The second respondent stated that the
brother is currently indebted to himself and/or the second respondent
in the cumulative amount
of R1 875 000, 00 in respect of ail nine
vehicles.
9.
He further stated that during or about
November or December 2015 and after he had confronted the brother in
respect of the monies
owed, the brother agreed to pay the outstanding
monies by means of
postdated
cheques
which were purportedly issued in the name of one of his companies.
This company was 101 Twenty Nkosi Trading Pty Ltd. However,
during
January 2016 when the deponent attempted to bank the first of these
cheques, he was informed by the bank that the account
had been
closed. He also later established that the brother had no connection
with this particular company.
10.
In any event, the deponent immediately
confronted the brother in respect of the dishonoured cheque whereupon
the brother furnished
him with a new series of 15 post dated cheques
in the amount of R125 000,00 each, issued purportedly by another of
the entities
in which the brother had an interest namely Blue Bean
Trading Enterprises 197 CC. The first of these cheques were payable
on 31
May 2016. The cumulative amount of these cheques was R1 875
000,00 and related to all nine vehicles soid to the brother,
including
the Polo vehicle in question.
11.
The deponent stated that he accepted the
cheques in good faith and accepted the brother's explanations and had
no doubt that the
brother would faithfully honour his obligations.
The deponent suggested that an attorney be approached to document the
arrangement
and although the brother initially agreed thereto, he
eventually refused to sign the agreement stating that the cheques
would suffice
to confirm his indebtedness.
12.
The deponent attempted to bank the first
check on 2 June 2016 but it was returned marked "refer to
drawer".
13.
All attempts to have the vehicles
returned to him came to nought and it was at this point that the
deponent established that the
initial checks issued by 101 Nkosi
Trading were in fact not signed by the brother and that he was in
fact not a director of that
entity. The deponent stated that he
became highly suspicious of the behaviour of the brother and
accordingly during July 2016 reported
the matter to the Pretoria West
police station. He was informed that the brother's actions
constituted fraud and that the motor
vehicles couid be impounded
pending the outcome of the criminal investigation into the brother's
conduct. It appears that such
a charge was laid and the conduct of
the police referred to above, namely to attach the Polo vehicle,
resulted from this charge.
14.
The deponent consequently denied that
the applicant or her brother became owners of the vehicle and
consequently that either of
them could succeed with a rei vindicatio
claim. He also noted that he cannot understand how the vehicle came
to be registered in
the name of the applicant since neither he nor
the seoond respondent had signed a Notice of Change of Ownership
which is a document
required by the motor vehicle registration
authority to be completed and signed by both the seller and the
purchaser of a motor
vehicle before registration in the name of a
purchaser can be effected.
15.
The deponent also stressed the fact that
the Polo vehicle had not been paid for and that the brother thus
never became owner of
the vehicle and neither did the applicant.
16.
As far as payments are concerned the
deponent referred to the payments which were made during October and
November 2015 whilst it
is clear from a Whatsapp conversation that
the discussions regarding the Poio vehicle only occurred on 22
November 2015. The vehicle
was furthermore only purchased by the
second respondent on 26 October 2015 and thus the first alleged
payment for the vehicle which
allegedly occurred on 13 October 2015,
cannot b$ the truth.
17.
As far as the invoice stating that the
vehicle had been "fully settled" the deponent stated that
this document was accepted
in good faith and on the presumption that
the three Toyota vehicles would be delivered to the second respondent
as payment for
the three Polo vehicles. At that point it was not
considered that monetary payment would be made for the Polo vehicles,
it is not
necessary to further refer herein to the allegations and
arguments on behalf of the parties.
18.
As far as the applicant's allegation is
concerned that the SAPS is in the unlawful possession of the vehicle
because a warrant had
not been obtained, the allegation cannot be
sustained. On the applicant's own version she consented to the
seizure of the vehicle
and consequently the police officials were
entitled to do so. The vehicle had thus been lawfully seized by the
SAPS. Regarding
the basis upon which the members of the SA PS seized
the vehicle it is not known what the evidence was that was presented
to them
which prompted them to seize the vehicle. For this reason
alone it cannot be found that the seizure was unlawful.
19.
If the seizure by the police was lawful,
the fact that the applicant may be the owner, does not assist her. i
shall nevertheless
address the issue of her alleged ownership. As far
as the applicant's rei vindicatio claim is concerned the applicant
ciaims final
relief. The applicant thus bears the onus to prove on a
balance of probability that she is the owner of the vehicle. In her
replying
affidavit the applicant did not address the version of the
deponent on behalf of the second respondent in any particular detail.
She denied in general terms the conclusions drawn by the deponent on
the facts presented by him and boldly stated that his defence
is
unsustainable and that she is the owner of the vehicle. She took the
view that if there is a dispute between the second respondent
or the
deponant and her brother, such dispute has to be adjudicated
separately and cannot affect her rights to the vehicle.
20.
I disagree with this conclusion.
According to the respondent, whose version I have to accept for
purposes of this application, the
vehicle was sold to the brother but
since he had failed to pay the purchase price of the vehicle,
ownership in the vehicle never
passed to the brother. The applicant's
title in and to the vehicle cannot be stronger than the title of her
brother. On the second
respondent's version the brother never
obtained title in respect of the vehicle and consequently neither did
the applicant. The
deponent explained that he had been fraudulently
induced to accept the first set of checques in the place of the'
exchange of vehicles
and that those cheques were not honoured.
Furthermore, the second set of checks which were dated December 2015
and January 2016
were also not honoured. This version of the deponent
was not rebutted by the applicant and neither did she rebut his
version regarding
the invoice indicating that the transaction
regarding the Polo had been "fully settled". In the
circumstances the applicant
had failed to prove ownership of the
vehicle.
21.
It is not necessary for me to decide
whether the brother had defrauded the brother or the second
respondent or not or whether he
had stolen the vehicle or not. I have
mentioned before that it is unknown what the evidence was upon which
the police decided to
seize the vehicle but on the assumption that
the evidence was similar to that presented by the deponent to this
court, I cannot
conclude that the seizure had been unlawful.
22.
In the result I am of the view that the
application should be dismissed. As far as costs are concerned, there
is no reason why costs
should not follow the event.
23.
In the result the following order is
made:
1.
The application is dismissed with costs.
C.P.
RABIE
JUDGE
OF THE HIGH COURT