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[2013] ZAGPPHC 37
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Malan v Janse Van Rensburg and Another (23802/11) [2013] ZAGPPHC 37 (5 February 2013)
NOT
REPORTABLE
(N
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 23802/11
DATE:05/02/2013
In
the matter between:
HENDRIK JOSEPHUS
MALAN
.............................................................................
Plaintiff
and
NICOLAAS
JANSE VAN
RENSBURG
.................................................................
1st
Defendant
E
M
KRIEL
................................................................................................................
2nd
Defendant
JUDGMENT
MNGQIBISA-THUSI,
J
1.
The plaintiff instituted an action against the first defendant in
which he is claiming payment of an amount of RI20 000.00 on
the
ground that the first defendant has been unduly enriched after the
motor vehicle he had sold to the plaintiff and for which
he was duly
paid was confiscated by members of the South African Police Service
after it was identified as a stolen vehicle.
2.
In his amended particulars of claim the plaintiff alleges that on 9
June 2010 he entered into a written sale agreement with the
first
defendant for the purchase of a motor vehicle. The agreed purchase
price was R120 000.00 of which he paid R94 000.00 in cash
and R24
000.00 through electronic transfer into the account of the second
defendant. He testified that during August 2010 that
he had resold
the motor vehicle to Motor vehicle Kings for R150 000.00. However he
had to repay Motor vehicle King the purchase
price after it was
discovered that the motor vehicle was a stolen vehicle.
3.
The plaintiff obtained default judgment against the second defendant
after he failed to enter appearance to defend. However,
all attempts
by the sheriff to execute against the second defendant have been
futile because his place of residence is always locked
and the second
defendant does not respond to any communication
4.
These proceedings therefore pertain only to the first defendant,
hereafter referred to as ‘the defendant’.
5.
In his plea the defendant admits selling the relevant motor vehicle
to the plaintiff but alleges that he was acting in his capacity
as an
agent of Ekcard Kriel (“Kriel”), the former second
defendant. Further, the defendant denies receiving any monies
from
the plaintiff.
6.
At the hearing there was agreement that there would be no separation
of the merits and quantum.
7.
The plaintiff testified that after seeing an advertisement on the
Gumtree web site of the sale of a Toyota Hilux Raider (“the
motor vehicle”), he had contacted the person whose contact
details were on the advertisement, indicated his interest to buy
the
motor vehicle and an appointment was made for him to view and inspect
the motor vehicle. On 9 June 2010 he, together with his
friend, Peet
Van der Westhuizen met with the defendant. The defendant took them on
a test drive and on their return they stopped
at a garage to closely
inspect the motor vehicle. After the defendant confirmed to him and
Van der Westhuizen that he was the owner
of the motor vehicle, the
plaintiff made an offer to purchase the motor vehicle andTndicated
that he had R94 000.00 in cash and
was prepared to transfer the
balance electronically. The defendant indicated to him and Van der
Westhuizen that the transfer could
be done at Kriel’s home
since he had a Standard Bank account. On arrival at the Kriel’s
home where they found him in
the company of a woman, the defendant
gave him a written contract to sign. I pause to point out that the
written agreement of sale
indicates the defendant as the seller and
the plaintiff as buyer. He then gave the defendant the amount of R94
000.00 in cash and
thereafter, whilst the defendant and the woman
were counting the money, he and Kriel went to another room in the
house where there
was a computer in order to make an electronic
transfer of the balance. After the transfer was made and they
returned to the room
where the others were, the defendant gave him a
copy of his identity document to enable him to register the motor
vehicle in his
name. The motor vehicle was registered in his name on
10 June 2010. He had resold the motor vehicle to Motor vehicle King
for R150
000.00. However, on 8 March 2011 he was informed by motor
vehicle King that the motor vehicle had been confiscated by the
police
as motor vehicle was stolen. As a result he had to repay the
R150 000.00 to Motor vehicle King.
8.
Under cross examination, the defendant’s version put to the
plaintiff was that he would deny that he had told the plaintiff
and
Van der Westhuizen that he was the owner of the motor vehicle and
that he never received the amount of R120 000.00 from the
plaintiff.
Further, that the defendant would testify to the fact that through
the whole transaction he was acting as an agent of
Kriel, working on
commission.
9.
The plaintiff called Van der Westhuizen. His testimony substantially
corroborated the plaintiffs evidence. Under cross examination
the
following version of the defendant was put to Van der Westhuizen.
That the defendant would testify that he had told the plaintiff
at
the garage that he could not complete the transaction on his own and
it was necessary for them to go to Kriel in order to get
the
necessary papers. Van der Westhuizens’ response was that the
defendant had told them that the motor vehicle was his,
registered in
his name and was fully paid. Van der Westhuizen denied that the
defendant had told them he was Kriel’s agent
and that Kriel was
the actual owner.
10.
The plaintiff closed its case.
11.
The defendant testified as follows. He was employed by Kriel as an
agent to sell motor vehicles working on commission. Kriel
was
responsible for placing advertisement in papers of motor vehicles on
sale and he would include his contact details as he was
his
salesperson. He admitted to selling the motor vehicle to the
plaintiff but denied that he did so in his capacity as owner of
the
motor vehicle since it belonged to Kriel. He denied that he signed
the contract and stated that he had no agreement. He also
denied that
he was given any money by the plaintiff. His evidence is that the
plaintiff gave the money to his sister who then started
counting it
and that the plaintiff had made a transfer of the balance into
Kriel's account. He testified that Kriel and his sister
did not allow
him to receive anv monies for the motor vehicles he sold, hence he
took the plaintiff and Van der Westhuizen to Kriel’s
house. He
admitted that the motor vehicle was registered in his name but
explained that it was only done so since he was the salesperson.
He
admitted that the plaintiff came to his house with Van der
Westhuizen, took them for a test drive and later took them to Kriel’s
house. He testified that even though he was not the owner of the
motor vehicle, the motor vehicle sold to the plaintiff was parked
at
his house as his sister and Kriel had security problems where they
lived. He denied that Kriel had a Standard Bank account but
an ABSA
one. However he testified that he had a Standard Bank account.
12.
Under cross examination the defendant reiterated that he was Kriel’s
agent. On being questioned about the sale agreement,
he said Kriel
had completed the agreement and had asked him to sign since he is the
one who got the buyer. Although admitting to
signing the contract he
averred that he did so as Kriel’s agent. The defendant also
testified that he was unaware that the
motor vehicle was stolen since
he did not have any problems registering it when it was bought from
the previous owner. He testified
that he was still in possession of
two of Kriel’s motor vehicles but added that they were bought
by his sister.
13.
The defendant called Kriel to testify. He testified as follows. That
he employed the defendant as a salesperson to sell motor
vehicles he
had bought for resale. That on the day in question the motor vehicle
sold was parked at the defendant’s house
as he was the
salesperson. The defendant and plaintiff came to his house. He took
the plaintiff outside to inspect the motor vehicle.
Contrary to the
version put to the plaintiff that he had given the amount of R94
000.00 to him, Kriel testified that the plaintiff
had given the cash
amount to his wife who counted it and he had done an electronic
transfer into his bank account held at FNB for
the balance. He denied
ever having a Standard Bank account. He testified that if
the
defendant concluded a cash deal it was the arrangement that he would
come to his house with the customer so that the money would
be
received by his wife for his benefit. He further testified that when
the deal was concluded and the money handed over, he took
the motor
vehicle’s papers and gave them to the plaintiff. He testified
that he and the defendant had an arrangement that
whenever he buys a
motor vehicle for re-sale it would be registered in the defendant’s
name since he was the salesperson.
He admitted that he completed the
sale agreement and the plaintiff and the defendant signed as buyer
and seller, respectively.
He testified that plaintiff knew that he
was the owner of the motor vehicle. He admitted that he was under
sequestration since
2011 but denied evading the sheriff.
14.
Under cross examination he confirmed that he had applied for the
voluntary surrender of his estate and had deposed to founding
affidavit thereto but could not explain why the plaintiff was not
listed as one of his creditors since at the time the motor vehicle
he
sold to him had been confiscated by the police. He claimed that he
had an oral agency agreement with the defendant. When questioned
about his bank account he revealed that when he discussed the case
with the defendant, after the defendant had testified, it was
only
then that he became aware that a Standard Bank account was in issue
and not FNB, where he has an account. Contrary' to the
plaintiff and
the defendant’s evidence that the plaintiff had inspected the
motor vehicle at a garage, Kriel reiterated that
he had taken the
plaintiff outside his house in order for the plaintiff to inspect the
motor vehicle. He admitted that the defendant
still worked for him
although he denied that he owned any motor vehicles.
15.
The plaintiff bears the onus of proving his claim. It is not in
dispute that the plaintiff was sold the motor vehicle and that
after
making fill payment the motor vehicle was delivered to him. By
selling the motor vehicle to the plaintiff the seller gave
a warranty
that he was transferring full ownership to the plaintiff. The issue
in dispute is whether at the time the motor vehicle
was sold to the
plaintiff, the defendant or Kriel was the actual owner of the motor
vehicle and therefore the actual seller of
the motor vehicle. On this
point the versions of the parties are mutually destructive in that
the plaintiffs version is that the
defendant had assured him that he
was the owner of the motor vehicle. This was confirmed by the motor
vehicle’s documents
given to him by the defendant and the
identity document for purposes of registering the vehicle in his
name.
Furthermore,
the plaintiff had given part of the purchase price directly to the
defendant and the balance indirectly through an
electronic transfer
into Kriel’s account. The defendant’s version is that he
was not the owner of the motor vehicle
but Kriel was. That the whole
amount of the purchase price was given to Kriel and therefore the
plaintiff could not seek recourse
against him but Kriel.
16. In National Employers' General
Insurance Co Ltd v Jagers 1984(4) SA 437 (E) the court stated at 440D
-G:
“
...
that in any civil case, as in any criminal case, the onus can
ordinarily be discharged by adducing credible evidence to support
the
case of the party on whom the onus rests. In a civil case the onus is
obviously not as heavy as it is in a criminal case, but
nevertheless
where the onus rest on the plaintiff as in the present case, and
where there are two mutually destructive stories,
he can only succeed
if he satisfies the Court on a preponderance of probabilities that
his version is true and accurate and therefore
acceptable, and that
the other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding
whether that evidence
is true or not the Court will weigh up and test the plaintiffs
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the
probabilities favour the plaintiff, the Court will accept his version
as being probably true. If however
the probabilities are evenly
balanced in the sense that they do not favour the plaintiff s case
more than they do the defendant’s,
the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence is true and that the defendant’s
version is
false.”
17.
The following facts are common cause:
17.1
the defendant negotiated the sale of the motor vehicle with the
plaintiff after the motor vehicle was advertised with the
defendant’s
contact details;
17.2
the defendant had taken the plaintiff and Van der Westhuizen on a
test drive where after to Kriel’s house.
17.3
At the time of the sale the motor vehicle was registered in the
defendant's name.
1
7.4 the plaintiff has paid the full purchase price.
17.5
the defendant had given the plaintiff his identity document.
18.
The plaintiff and Van der Westhuizen came across as credible
witnesses when they testified about the events leading to the sale
of
the motor vehicle. They were credible witnesses. Van der Westhuizen’s
evidence was consistent with that of the plaintiff
and no
contradictions could be found even under cross examination. I was not
impressed with Kriel as a witness. His evidence on
some parts
contradicted that of the defendant even though he disclosed that he
had discussed the matter with the defendant after
the defendant gave
evidence. His evidence and that of the defendant were not
satisfactory at all. The defendant could not give
a reasonable and
plausible explanation why, if the motor vehicle was owned by Kriel,
it was registered in his name, was parked
at his place, and his name
appeared on the advert as the seller of the motor vehicle. In his
amended plea the defendant alleged
agency. The onus rested on him to
prove the agency. I am satisfied that the defendant has not satisfied
the burden of proving that
he was Kriel’s agent and acted only
as his agent.
19.
I am satisfied that the plaintiffs version as to the events leading
to him being sold the motor vehicle is more probable and
I accept it
and reject the defendant's version as highly improbable. Further. I
am satisfied that the plaintiff has discharged
the burden of proving
his claim against the defendant on a balance of probabilities.
20.
Accordingly the following order is made:
20.1
The defendant must pay the plaintiff the amount of R120 000.00;
20.2
The defendant is liable to pay interest on the amount mentioned in
20.1 at the rate of 15.5% per annum calculated from 11 March
2011 to
date of final payment;
20.3
The defendant to pay the costs of this action.
NP
MNGQIBISA-THUSI
Judge
of the High Court