About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 260
|
|
Standard Bank of South Africa Limited v Woodmead Auto CC (41815/13) [2014] ZAGPPHC 260 (24 March 2014)
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
GAUTENG DIVISION,
PRETORIA
CASE NO: 41815/13
In the mptter between:
THE STANDARD BANK OF
SOUTH AFRICA
LIMITED
.................................................
Applicant
and
WOODMEAD
AUTO
CC
..............................................................................................
Respondent
JUDGMENT
Tuchten
J:
1
The applicant has brought a
rei
vindicatio
on
motion for the return of a Maserati Granturismo motor vehicle
presently in the possession of the respondent. The issues are whether
the applicant has established that it is the owner of the vehicle and
whether, if the applicant is the owner, the respondent has
adduced
facts to justify the defence that the applicant is estopped from
asserting its ownership against the respondent.
2 On the ownership issue,
the applicant has established that it financed the purchase of the
vehicle by one Annandale. To create
security for the instalment sale
the applicant concluded with Annandale, the applicant bought the
vehicle from Milstock Cars, paid
cash for it and had it delivered to
Annandale on behalf of the applicant. In terms of the instalment sale
agreement with Annandale,
ownership of the vehicle remained vested in
the applicant until Annandale had fulfilled all his obligations under
the instalment
sale agreement, which included paying the applicant
what was owing under that agreement.
3 Counsel for the
respondent pointed to certain documents in the papers which showed
that Milstock had made out its invoice in relation
to the vehicle to
Standard Bank Vehicle & Asset Finance (as opposed to the
Standard Bank of South Africa Limited) and
that the vehicle had been
registered pursuant to the National Road Traffic Act, 93 of 1996,
(“the Act”) in the name
of Standard Bank Vehicle & Asset
Finance.
4
On the strength of these documents, counsel submitted that the
applicant had demonstrated that the vehicle had been bought by
Standard Bank Vehicle & Asset Finance and not the applicant.
The difficulty with the proposition is that although the
respondent
denied the applicant’s ownership, it at no stage in its papers
suggested that Standard Bank Vehicle & Asset
Finance was a
juristic person separate from the applicant. In fact the applicant
made allegations which indicated that Standard
Bank Vehicle & Asset
Finance
was
the
aDplicant; in other words that Standard Bank Vehicle & Asset
Finance was not a juristic person but a mere trading name
of the
applicant. Tlese allegations were either admitted or not placed in
issue by the respondent.
5 It is accordingly in my
view not open to the respondent on these papers to suggest that
Standard Bank Vehicle & Asset
Finance is a juristic person
separate from the applicant. It would be grossly prejudicial to the
applicant allow this issue to
be raised at this juncture. Counsel did
not suggest that the respondent was in possession of evidence which
would support counsel’s
contention. Nor did counsel ask for a
postponement to search for evidence in this regard.
6 It is further not the
respondent’s case that Milstock could not pass ownership of the
vehicle. The submission at this level
was restricted to the
contention that ownership passed to Standard Bank Vehicle & As
set Finance rather than the applicant.
7 I therefore find that
the applicant has established on these papers that it i:s the owner
of the vehicle.
8 It seems that
Annandale, whose version was not before me, onsold the vehicle to one
Harrison, who then sold it to the respondent.
9
I turn to the estoppel defence. In
OK
Bazaars (1929) Ltd
y
Universal
Stores
Lfc/1973
2 SA 281
C at 287H-288B, the following was held:
As in the present
instance, cases of estoppel by negligence often involve the
fraudulent conduct of a third party and the complaint
against the
person sought to be estopped is that his negligence permitted or
facilitated the fraud. In this situation our Courts
have rejected, as
being too broadly stated, the so-called "facilitation theory",
viz that wherever one of two innocent
parties must suffer by the acts
of a third, he who has enabled such third person to occasion the loss
must sustain it .... It has,
on the contrary, been held that such
cases must be adjudged by the ordinary general principles relating to
estoppel by negligence;
and, of course, the fraudulent intervention
of a third party is an important factor in determining whether the
conduct of the person
sought to be estopped proximately caused the
other's mistaken belief and resultant loss; and whether this result
was reasonably
foreseeable ....
10
In
Stellenbosch
Farmers' Winery Ltd v Vlachos t/a the Liquor Den
2001
3 SA 597
SCA para 4 it was held, in a case in which the plaintiff put
up the defence of estoppel, that the:
I
... onus rested on the
plaintiff to establish... a misrepresentation by the defendant and
reliance thereon by the plaintiff, which
reliance was 'the cause of
his acting to his detriment'.... Such proof would, in my opinion,
include proof that the reliance was
not actuated by some external
influence or factor other than the defendant's misrepresentation.
11 The basis of the
respondent’s defence of estoppel is that the applicant allowed
Annandale to registerthe vehicle in his
name as “owner”,
thus so runs the contention, bringing members of the public,
including the respondent, under the impression
that Annandale was the
owner of the vehicle as that term is used within the context of the
law of property, and thus lulling the
respondent into the belief that
Annandale as; the owner of the vehicle had been entitled to deal with
it as he cfjose.
12 There are a number of
difficulties with this proposition. Firstly, the term owner is
defined in s 1 of the Act to mean, in relation
to a vehicle,
(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 paragraph (a), for any period during which such person has
failed to return that vehicle to the title
holder in accordance with
the contractual agreement referred to in paragraph (a); or
(c) a motor dealer who is
in possession of a vehicle for the purpose of sale,
and who is licensed as
such or obliged to be licensed in accordance with the regulations
made under section 4, and 'owned' or any
like word has a
corresponding meaning.
13 I shall assume that
the applicant caused Annandale to be registered fcr purposes of the
Act as owner of the vehicle. In doing
so, it acted as it was obliged
to do under the Act. Annandale was the owner of the vehicle for
purposes of the Act. But the applicant
was not reflecting Annandale
as the common law owner of the vehicle; it reflected Annandale as the
owner of the vehicle as that
term is used in the Act.
14 In addition, the
applicant registered itself as the title holder in respect of the
vehicle. Title holder is also defined in s
1 of the Act. The term
msans, in relation to a vehicle:
(a) the person who has to
give permission for the alienation of that vehicle in terms of a
contractual agreement with the owner
of such vehicle; or
(b)
the person who has the right to alienate that vehicle in terms of the
common law, and who is registered as such in accordance
with the
regulations under section 4.
1
15 The same documents of
record which reflect Annandale as owner of the vehicle reflect
Standard Bank Vehicle & Asset Finance
as the title holder.
16 So by causing, if it
did so, Annandale to be reflected in the registry as owner, the
applicant did not represent that Annandale
enjoyed the right to sell
the vehicle. That right, according to the registry and the proven
facts in this case, vested in the applicant.
17 But the respondent did
not rely on the registry entries when it bought and paid for the
vehicle. To his credit, the respondent’s
sales manager, Mr
Saber, does not commit himself to so palpable an untruth. The
evidence shows that everyone in the industry knows
that the person
registered under the Act as the owner of a vehicle does not a$ such
have the right to sell it.
18 The respondent,
furthermore did not believe from the registration documents that the
person registered as title holder necessarily
had the right to sell
the vehicle. Alive to the possibility that the vehicle was subject to
a reservation of ownership in favour
of the institution that h^d
financed its purchase at an earlier stage, the respondent checked
with a credit bureau to see whether
any instalment sale, and thus
reservation of ownership, had been recorded.
19 Unfortunately for the
respondent, the records of the credit bureau consulted by the
respondent were inadequate. The applicant’s
interest in the
vehicle was not recorded by the credit bureau and the re spondent, on
these papers, probably bought the vehicle
unaware of the fact that
the applicant was the owner. The respondent suggests that the
applicant was somehow to blame for the inadequacy
of the records of
the credit bureau. But the credit bureau is independent of the
applicant and the shortcomings in the records
of the credit bureau
cannot be attributed to the applicant.
20
Finally, on this score, the respondent could not have been induced to
purchase the vehicle on the strength of anything said by
the
applicant in relation to its and Annandale’s rights in the
vehicle. This is because ths registration records show that
Annandale
passed the vehicle to one Harrison. If these records are accurate,
they show that Harrison became
both
the
owner and the title holder of the vehicle on 6 February 2013. The
same records show that Annandale was registered as both owner
and
title holder two days earlier, on 4 February 2013. It is regrettably
probable, on the respondent’s version, that the
respondent did
not
examine
the registration records. If it had done so, it would have surely
noticed that this vehicle had apparently changed hands
from Annandale
to Harrison in this extraordinary fashion. As the respondent itself
paid for the vehicle on 22 February
2013, this material alone
(ie that the vehicle had changed hands three times in 18 days) would
probably have alerted the respondent
to the fc ct that, on its
version, a fraud was being perpetrated upon it.
21
In
Van
der Molen v Fagan
[2013]
ZASCA 203
the court considered an argument similar to that put up on
behalf of the respondent. The SCA found that in these circumstances
the argument that the respondent had “triggered” a
misapprehension suffered by a purchaser after a fraudulent dealing
with a motor vehicle did not assist the ultimate purchaser faced with
a
rei
vindicatio
where
there had been a fraud subsequent to the acts alleged to have
constituted the trigger and that the proposition of the appellant,
which the court characterised as a re|iance on the facilitation
theory, did not apply in our law.
22 The defence of
estoppel must therefore be rejected on the papers.
23 Finally, the
respondent contended for an improvement lien over the vehicle on the
basis that the respondent effected repairs
to it. The applicant has
tendered a written guarantee in substitution of the alleged lien. It
is not suggested that the guarantee
is defective in form but the
amount of the guarantee is slightly less than that contended foij by
the respondent. Through counsel,
the applicant tendered to consent to
an appropriate order for the higher amount. It is trite that the
court enjoys a discretion
to permit a guarantee to be substituted for
a lien. It was not suggested that this discretion should not be
exercised in favour
of the applicant.
24 This is a commercial
case. Costs must follow the result. Counsel for the applicant asked
for a punitive costs order. The respondent’s
heads of argument
were filed late. It was suggested that the defences were patently
without merit. There is something to be said
for the request for a
punitive costs order but I do not think that the respondent’s
conduct goes quite far enough to justify
it.
25 I make the following
order:
1 The respondent is
hereby ordered immediately to return to the applicant 2008 model
Maserati Granturismo motor vehicle with registration
BC [...], engine
no. M[...] and chassis no. Z[...] (“the vehicle");
2 If the respondent fails
or refuses immediately to return the vehicle to the applicant, the
sheriff for the area having jurisdiction
or his deputy is hereby
authorised and directed immediately to seize the vehicle, wherever it
may be found, and to hand it over
to the applicant.
3 The applicant is hereby
ordered, against delivery to it of the vehicle, to furnish a
guarantee to the respondent in the form of
annexure E1 to the
applicant’s founding affidavit but for the amount of R101 190;
4 The respondent is
ordered to pay the applicant’s costs in the application.
NB Tuchten
Judge of the High Court
20 March 2014
1
Section
4 requires that motor vehicles be registered as required in the
various provinces.