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[2015] ZAGPPHC 497
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Van Rensburg v Alette Wessels Kunskamer (Pty) Ltd and Others (41102/2013) [2015] ZAGPPHC 497 (19 June 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 41102/2013
DATE:
2015.06.19
PIETER
JANSE VAN
RENSBURG
Plaintiff
V
ALETTE
WESSELS KUNSKAMER (Pty) LTD
First
Defendant
ALETTE
WESSELS
Second
Defendant
JUDGMENT
MABUSE
J
:
[1]
This is an action by the plaintiff against the defendants for the
return of three original Ruth Everard paintings, alternatively,
the
payment of their value in the sum of R1, 500,000.00. In addition the
plaintiff seeks against the defendants, the one paying
and the other
to be absolved, payment of the sum of R250, 000.00 and an order in
terms of which the defendants are interdicted
from making certain
accusations against him and other ancillary relief. This action is
resisted by the defendants.
[2]
The plaintiff is an adult male person and art teacher who works as an
artist. He resides at […….], The Willows,
Pretoria. The first defendant is a company with limited liability
duly registered as such in terms of the company statutes of this
country with its main place of business at Alette Wessels Kunskamer
of Maroelana, Pretoria. The second defendant is an adult business
woman who conducts business in the name of the first defendant and at
the first defendant’s business premises.
[3]
The parties applied, in terms of Rule 33(4) of the Uniform Rules, for
a separation order in terms of which the matter would
proceed only on
the merits while the issues relating to quantum would be postponed
sine die. The application was accordingly.
Before leading
evidence the plaintiff was confronted by a hurdle in the form of the
defendants’ point
in
limine,
as the plaintiff’s counsel called it, and as it was
subsequently confirmed by the defendants’ counsel. It would
appear
that the plaintiff had prepared a bundle marked ‘bundle
3’, which he had planned to use in the trial. The
defendants
raised what they called a point
in
limine
against the said bundle on three grounds, firstly that it was
incomplete, secondly that it was delivered late, and thirdly and
lastly that it had not been properly bound. The plaintiff thereupon
decided to dispense with the use of the said bundle.
[4]
The plaintiff claimed from the defendants the return of the three
paintings called,
Standing
Nude,
Seated
Nude
,
and
Lady
in Dressing Gown
,
all three of them by Ruth Everard. The plaintiff’s claim is
based on averments that he is the owner of the paintings; that
he had
given no one the right to remove them from his house and that the
defendants were in possession of them. It is clear from
the evidence
of the plaintiff and of Moolenbeek that these paintings were
unlawfully removed from his house. Moolenbeek testified
that he
removed the three paintings from the house he shared with the
plaintiff without the plaintiff’s knowledge and consent.
[5]
Mr. Moolenbeek testified that he handed the paintings to the
defendants. The second defendant has admitted that she received
the
paintings from Moolenbeek; that Moolenbeek had told her that the
paintings were his and that she saw them in inventory of Moolenbeek’s
assets and more importantly that the defendants had these paintings
in their possession. The second defendant admitted furthermore
that she has sold the three paintings to a certain Van der Merwe.
It is the plaintiff’s evidence, and this evidence
has been
confirmed by the defendants, that the defendants have failed or
refused to furnish the plaintiff with the necessary details
of the
said Van der Merwe. The basis of their doing so was their
desire to protect the identity of their customers. Failure
by
the defendant to furnish the plaintiff with the full details of the
person to whom they had sold the paintings derailed the
plaintiff’s
chances of taking action against the purchaser for the recovery of
the said paintings. It is consequently
for this reason that
this action was directed against the defendants. Had the second
defendant disclosed the details of the
purchaser to the plaintiff in
time, the plaintiff would instead have directed his action against
such a purchaser. During
cross-examination, the second
defendant undertook to reclaim the three paintings, wherever they
are, if the Court ordered so.
[6]
In order to succeed with his action against the defendants, the
plaintiff need only satisfy this court that he was the
owner of
the said paintings and secondly that they were, without his consent,
in the possession of the defendants. It is
immaterial as to how
the defendants gained possession of the paintings.
[7]
It is apposite at this stage that I refer to the culpable conduct of
the defendants. On 5 April 2013 the plaintiff’s
attorneys
wrote an email to the defendant’s attorney. The
defendant’s attorneys received the plaintiff’s
attorneys’
email dated 5 April 2013 on only 6 April 2013. This is not in
dispute.
[8]
In the said the following important messages were contained. After
the plaintiff’s attorneys had, in the preceding paragraph
explained the circumstances under which, according to the plaintiff,
the three paintings were removed from the plaintiff’s
house,
they continued and stated as follows in paragraph 4 thereof:
“
Ten
tye van die gebeure en meer spesifiek toe u besit geneem het van die
3 skilderye, was u bewus van die feit dat hierdie 3 skilderye
aan ons
kliënt behoort het.”
These
words should have warned the defendants about the ownership of the
three paintings. With this warning it behoved the defendants
to
confront Moolenbeek and to investigate his claim of ownership of
these paintings. The defendants still could have verified this
information by calling the plaintiff and getting from him more
information about ownership of the paintings. This the
defendants
failed to do.
[9]
The said email went further at paragraph 5 stated as follows:
“
Ons
wil op rekord plaas dat ons kliënt nie bewus was van die feit
dat Mnr. Moolenbeek skilderye van sy erf af verwyder en aan
u
oorhandig het nie en het hy dit eers na die tyd gehoor. U het
ook nadat u in besit van die drie skilderye gekom het ons
kliënt
telefonies gekontak en probeer oorreed om ‘n sekere dokument by
u of man te kom teken, wat ons kliënt
heeltemal
tereg geweier het om te doen. Ons plaas op record dat u blykbaar,
volgens Mnr Moolenbeek, daarop aangedring het da tons
klient
sekuriteit aan u verskaf, waarna Mnr Moolenbeek blykbaar ‘n sms
boodskap aan u gestuur het tot die effek dat Mnr Janse
van Rensburg
bereid is om sekuriteit te verskaf. Ons klient was te alle revante
tye onbewus was van hierdie gebeure en kommunikasie
en het nie
teenoor enige person aangedui da thy bereid is om sekuriteit te
verskaf nie. Hy het ook nie die versending van die sms
boodskap
gemagtig nie en was trouens ook nie daarvan bewus nie.”
Again
the first part of this paragraph should have been the cause for
concern for the defendants as far as it related to the ownership
of
the three paintings. Instead, without Moolenbeek having furnished
them with verifiable proof of his ownership of the three paintings,
the defendants persisted that the plaintiff was not the owner of the
paintings and that the paintings belonged to Moolenbeek. They
furnished no valid reason why they believed that an inventory of
assets Moolenbeek had given them constituted sufficient proof
of
Moolenbeek’s ownership of the three paintings. They did
not take the matter up with Moolenbeek but simply chose
to bury their
heads in the sand and to insist that Moolenbeek was the owner. This
conduct is unreasonable and does not demonstrate
any honesty on the
part of the defendants. The defendants also claimed that
because the plaintiff “
en
Mnr Moolenbeek is na my wete lewensmaats vir die afgelope ongeveer
veertig jaar”
the paintings belonged to their universal partnership.
[10]
In paragraph 8 of the plaintiff’s attorneys’ email, the
defendants were requested to keep these three paintings
in their
possession if they still had them or, if they had sold them and did
not have them, to furnish the plaintiff’s attorneys
with the
full details under which they were sold to a third party and the
physical address of the third party. The request was
framed as
follows:
“
8.
U word versoek om binne 24 uur skriftelik die volgende te bevestig.
8.1
Indien die skilderye in the besit van ‘n derde persoon is, ‘n
uiteensetting van die omstandighede
waaronder dit in die derde
persoon se besit gekom het en wat die fisiese adres van daardie
persoon is.”
Instead
of furnishing the plaintiff with the information requested, the
defendants responded as follows in paragraph 1.8 of their
email dated
8 April 2013:
“
Kragtens
die skriftelike o.a pandgewingsooreenkoms, was ons geregtig om die 3
skilderye te verkoop, wat ons gedoen het en ek is
nie bereid om
vertroulike inligting van ons klant, aan u te openbaar nie, behalwe
om u meet e deel dat die 3 skilderye teen die
markwaarde daarvan,
naamlik R300,000.00 verkoop is en welke waarde ek hieronder mee
verder handel;”
[11]
This request was repeated in the plaintiff’s attorneys’
email dated 24 May 2013 to the defendants. Still the defendants
refused to furnish the plaintiff with the necessary information. The
defendants persisted with their attitude that the paintings
did not
belong to the plaintiff but to Moolenbeek and that the plaintiff had
consented to pledging them. This is despite the fact
that knew before
the suspension of Moolenbeek on 12 October 2012 that Moolenbeek was
dishonest and that he had the tendency of
claiming ownership of other
people’s art works. It is now clear from the evidence of
Moolenbeek that the plaintiff was correct
in all respects and that
the defendants have no leg to stand on with regard to the ownership
of the paintings.
[12]
In their plea, the defendants had pleaded that they had no knowledge
that the plaintiff was an artist and an art teacher. This
was not
true for, during adroit and insidious cross-examination, the second
defendant admitted that the plea contained information
that was not
correct. She admitted furthermore she knew that the plaintiff was an
art teacher and an artist. It must be pointed
out this stage
that the second defendant, as a witness, did not, in many respects,
make a good impression to the court. She had
a tendency of making
unsubstantiated allegations. She refused to make simple admissions,
was evasive in answering some of the crucial
questions put to her and
on occasions would give long winded answers.
[13]
The power of this Court to make orders is unlimited. This Court
may make orders of any possible nature. It may
also make orders
that are designed to protect a right. In terms of our common
law, the principle embodied in the
maxim
ubi jus ibi
use
ibi remedium
still applies. In terms of the law an absolute owner of
property who is unlawfully deprived of possession is entitled, by
means of
vindicatio
to recover its possession from any person in whose possession such
property is found. See
Henning
v Petra Meubels 1947(2) SA 407(T) at p.412
.
In order to succeed with this remedy, the owner, or in this case the
plaintiff, needs only prove two facts namely that he
is the owner of
the property in question and secondly that the said property is in
the possession of the defendants. The
owner of the property may
recover his property from any person, without having to compensate
him, who has it in his possession
irrespective of the circumstances
under which such a person gained possession of such a property, in
other words, whether he became
the possessor
bona
fide
or
mala
fide
.
[14]
The defendants in this case no longer have possession of the three
paintings. The defendants may, however, be ordered
to restore
possession under the following circumstances only:
1.
On the ground that the defendants have undertaken to do so if ordered
by the Court to recover possession
of the property wherever it is.
The implication here is that restoration of possession of the
plaintiff’s property
is still possible.
2.
That the defendants have unjustifiably withheld vital details of the
purchaser from the plaintiff
and had thereby made it impossible for
the plaintiff to reclaim possession of the three paintings from the
possessor.
“
Where
my thing is found, there I have indicate it.”
See
Heuning
v Van Greuning
1979 (4) SA 952A
at 959
.
3.
The defendants knew before they suspended Moolenbeek on 12 October
2012 that Moolenbeek was dishonest
and had employed the same pattern
of giving some people other people’s paintings and claiming
them to be his own paintings.
[15]
It was never the defendants’ case that the three paintings were
irreclaimable. At any rate in view of the evidence
that the
paintings have now been sold and delivered to someone else, which
means that they are no longer in the possession of either
of the
defendants, the owner of the property or the paintings may, if he so
chooses, claim the value of the paintings from Moolenbeek,
as the
person who stole them from his house or, still if he so chooses from
the defendants as the persons who parted with the three
paintings
with the full knowledge that they belonged to the plaintiff or as a
persons who undertook during trial, to comply with
an order of Court
to recover them, if so ordered. See
John
Bell and Company Ltd v Esselen 1954(1) SA 147(1) at 153 AD
.
In this case the defendants had no justifiable reason to believe that
the three paintings belonged to Moolenbeek. On the
contrary there is
evidence that they should have had a reasonable suspicion of
Moolenbeek’s authority to deal with the paintings
in the manner
in which he did so in this matter. According the defendants could not
be said to be bona fide in accepting the paintings
from Moolenbeek.
[16]
CLAIM TWO
The
plaintiff has set out his cause of action as follows in respect of
his second claim. He has alleged that he is an artist
and art
teacher whose income is at least partially dependant on a segment of
the public and that the public found him as a person
who has specific
trades and acceptable personal qualities. Since October 2012
the defendants have, on times without number,
wrongfully,
intentionally and maliciously, in the alternative, negligently, made
misrepresentations about him. In addition the
defendants have made
false accusations against him and have communicated both these
misrepresentations and false accusations to
the plaintiff personally,
as the defendants have admitted, and to members of the South African
Police Services in Pretoria and
to other people.
[17]
The impact of such misrepresentations and false accusations was that
–
17.1
the plaintiff was living in a homosexual relationship with
Moolenbeek;
17.2 Mr. Moolenbeek
was a thief and a fraudster;
17.3
that the plaintiff was also guilty of the crime they alleged Mr.
Moolenbeek had committed; and,
17.4
that the plaintiff had shared with Mr. Moolenbeek the proceeds of the
crimes Moolenbeek had committed.
[18]
It was furthermore pleaded by the plaintiff that by making such afore
going accusations to the plaintiff personally and communicating
the
misrepresentations to other people, the defendants have unlawfully
and intentionally and maliciously impaired his dignity,
hurt his
feelings, caused him to suffer substantial distress and anxiety and
caused substantial damage to his good name, diverted
custom from him
which resulted in him suffering damages with the potential of the
plaintiff suffering further damages. It
is for the above
reasons that the plaintiff claimed the said amount of R250, 000.00
from the defendants.
[19]
The plaintiff complained about the contents of some of the emails
from the defendants. In the email dated 8 April 2013,
the
defendants had this to say:
19.1 “
1.9 U
kliënt en Mnr. Moolenbeek is na my wete, lewensmaats vir die
afgelope ongeveer 40 jaar.”
19.2 The defendants
continued in paragraph 10 of the same email where they stated that:
“
1.10
Verdermeer is ek deeglik bewus daarvan dat daar bowendien ‘n
universele vennootskap tussen hulle bestaan ten opsigte
van al hul
bates en meer besonder, ook die kunsversameling.”
19.3 The word
“
lewensmaat”
appears again in paragraph 8 of the
defendants’ email dated 8 April 2013. It was used in that
paragraph in the following
manner:
“
8.
Indien u kliënt enige skade gelei het soos hy beweer en wat ek
ontken, moet hy sy skade gaan soek
waar hy dit verloor het en dit is
by sy lewensmaat.”
[20]
The plaintiff took umbrage to being referred to as homosexual who
lived in such a relationship with another man.
[21]
Finally, the plaintiff contends that his dignity was violated by the
defendants. It is contended by the plaintiff that
the defendant
violated his dignity when they made the following utterances in their
correspondence dated 8 April 2013:
“
Mnr.
Moolenbeek, wat in ons diens was as bestuurder, het reeds skuld erken
ten aansien van die “verdwyning”, diefstal,
bedrog en
vervalsing en word die klagte deur die Handelsmisdaad-tak van SAPD
ondersoek (volgens mededeling aan my, is hy reeds
gearresteer).
Dit sal in alle waarskynlikheid uit die ondersoek, aan die lig kom
dat u kliënt ook gedeel het in die
geld wat Mnr. Moolenbeek
wederregtelik verkry het uit sy misdrywe, soos wat Mnr. Moolenbeek my
ook meegedeel het, “dat hy
en Pieter die geld nodig gehad het”.
U sal sekerlik u kliënt adviseer oor die strafregtelike
gevolge, wat dit
vir hom inhou.”
In
their email dated 16 June 2013 the defendants stated that:
“
Dit
is egter insigewend dat u nie reageer op die versoek, soos vervat in
my skrywe van 8 April 2013, om my in kennis te stel of
u kliënt
in die omstandighede, soos hy genoodsaak is om te doen, ‘n klag
van diefstal teen Mnr. Moolenbeek aanhangig
gemaak het nie. In
hierdie verband moet u kliënt voor of op sluiting van besigheid
op Vrydag 21 Junie 2013 my in kennis
stel of hy voortgaan met sy
aksie teen ons soos vervat in u dreigemente, by gebreke om my in
kennis te stel of indien u kliënt
volhard om sy dreigement uit
te voer, ek genoodsaak sal wees om ‘n verdere klag van bedrog
teen Mnr. Moolenbeek, en in die
omstandighede, ook ‘n klag teen
u kliënt, aanhangig te maak.”
In
their email dated 29 June 2013 this is what the defendants stated:
“
Ons
kan slegs ‘n negatiewe afleiding daaruit maak dat u kliënt
geensins op my skrywe antwoord nie. Dit is duidelik dat
die SAPD u
kliënt se betrokkenheid as moontlike medepligtige of andersins,
moet ondersoek veral in die lig van Mnr. Moolenbeek
se mededelings
aan my, dat u kliënt gedeel het in van die geld ter sprake.”
The
implication of all these utterances portray, and so unjustifiably,
the plaintiff as a criminal. Accordingly the plaintiff’s
dignity was violated by such utterances. I am satisfied therefore
that the plaintiff has made out a good case against the defendants
in
respect of both his claims.
[22]
Accordingly I make the following order:
1.
The plaintiff’s action on the merits is hereby granted.
2. With
regard to the First Claim the Defendants are hereby ordered to return
the Plaintiff’s three Ruth
Everard paintings, namely, Lady In A
dressing Gown; Standing Nude With Red Hair On A Green Cloth and Nude,
within thirty (30) days
from 19 June 2015, failing which the
Defendants are hereby ordered to pay, the one paying and the other to
be absolved, and still
to be proved or agreed, the value of the
aforementioned three paintings;
3.
With regard to the Second Claim, the Defendants are hereby ordered to
pay, the one paying and the other
to be absolved, the Plaintiff’s
proven damages (including a
solatium
and financial damages);
4. The
Defendants are hereby ordered, jointly and severally, to pay the
Plaintiff’s costs pertaining to
the merits trial (which shall
include the costs incurred pertaining to the quantum until the date
of the pre-trial conference where
the agreement was finalised that
the merits and quantum be separated), on a High Court party-and-party
Scale, which costs shall
include the costs consequent upon
Plaintiff’s counsel attending the pre-trial conference and his
preparation for the pre-trial
conference as well as the costs of
counsel.
_____________________
P.M.
MABUSE
JUDGE OF
THE HIGH COURT
Appearances
:
Counsel
for the Plaintiff:
Adv. L Kok
Instructed
by:
Christo Botha
Attorneys
For
the Defendants:
Attorney S Bester
Date
Heard:
24-26 February 2015
Date
of Judgment:
2015 June 19