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[2013] ZAFSHC 41
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Southern Star Organisation Engineering (Pty) Ltd v A & J Dieseldiens (A267/2012) [2013] ZAFSHC 41 (14 March 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(FREE STATE PROVINCIAL
DIVISION)
Appeal No.: A267/2012
In the appeal between:
SOUTHERN STAR
ORGANISATION
ENGINEERING (PTY)
LTD
......................................................
Appellant
and
A & J
DIESELDIENS
.
..........................................................
.Respondent
CORAM:
RAMPAI, J
et
BLOEM, AJ
JUDGMENT:
BLOEM, AJ
_____________________________________________________
HEARD ON:
11 MARCH 2013
_____________________________________________________
DELIVERED ON:
14 MARCH 2013
_____________________________________________________
[1] On 15 April 2010 the
appellant issued summons against the respondent in the Magistrate’s
Court, Kroonstad for the return
of a truck and a trailer,
alternatively and in the event of the respondent no longer being in
possession thereof, payment in the
sum of R100 000,00 and
R30 000,00 respectively, interest thereon and costs. On 17
October 2011 and after the close of
the appellant’s case, the
magistrate granted absolution from the instance with costs. It is
against that judgment that the
appellant now appeals.
[2] The appellant is
Southern Star Organisation Engineering (Pty) Ltd and the respondent
is A & J Dieseldiens. The appellant
is based in Port Elizabeth.
It manufactures various steel products, like truck trailers, car
carrier trailers, tipper trucks, water
tankers and drop-side bodies.
It manufactured 90% of the fleet of a ferry company, Southern Star
Organisation (SA)(Pty) Ltd. The
appellant also leased some of its
trucks and trailers to Southern Star Organisation (SA) (Pty) Ltd and
Southern Star Organisation
(Pty) Ltd, the operational company of the
ferry company. The appellant and the other two companies are separate
legal entities.
The respondent is based in Kroonstad and seems to be
in the business of repairing trucks and trailers.
[3] The appellant
manufactured a trailer and had it licensed and registered with the
relevant authorities. It also bought a Nissan
truck from Truck
Busters (Pty) Ltd during April 2006 with the assistance from Wesbank.
It entered into an instalment sale agreement
with Wesbank in terms
whereof, although the appellant had possession of the truck, Wesbank
remained the owner thereof until such
time as it received the last
payment whereupon the appellant would become the owner of the truck.
[4] The appellant made
the truck and trailer available to Southern Star Organisation
(SA)(Pty) Ltd (hereinafter referred to as “the
company”)
on the basis that the company was responsible for all the costs
relating to the licensing, registration renewals
and maintenance of
the truck and trailer.
[5] The appellant became
aware that proceedings were underway for the liquidation of the
company. With the leave of the liquidators
it retrieved all its
assets from the company, save for the truck and the trailer
(hereinafter referred to as “the goods”)
which, it was
informed, were in the respondent’s possession. All attempts to
establish the whereabouts of the goods elicited
a response of no
co-operation from the respondent. The appellant accordingly issued
summons against the respondent, as aforesaid.
[6] The appellant’s
claim is based on the
rei vindicatio
alternatively the
actio
ad exhibendum.
The
rei vindicatio
is available to an owner
for the recovery of his movable or immovable thing from whomsoever is
in possession or has detention of
the thing, irrespective of whether
the possession or detention is
bona fide
. (LAWSA, First
Reissue, vol 27 at paragraph 381 on page 323). To be successful with
its claim based on the
rei vindicatio
, the appellant had to
prove on a balance of probabilities that he was the owner of the
goods (
Dreyer and Another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) at 550I - J) and that the goods were in the
respondent’s possession at the time of the institution of the
proceedings
(
Mehlape v Minister of Safety and Security
1996 (4) SA 133
(W) at 136F-G).
[7] The
actio ad
exhibendum
is available to the owner of a thing upon proof that
he was the owner thereof at the time the defendant disposed of the
thing (
RMS Transport v PSICON Holdings (Pty) Ltd
1996
(2) SA 176
(T) at 181A-B), that the defendant had wrongfully disposed
of the thing, that the defendant had knowledge of the owner’s
claim to the thing and that the owner suffered patrimonial loss as a
result of the defendant’s wrongful disposal of the thing
(
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty)
Ltd
1999 (2) SA 986
(T) at 1011I-J.
[8] To prove its case the
appellant called only Anthony Wright, its managing director. He
testified how the goods came to be in
the company’s possession.
He testified that the appellant manufactured the trailer, purchased
the truck with the assistance
of Wesbank, that, when he became aware
of the liquidation proceedings against the company, he went to
Johannesburg where the company’s
main depot was. He collected
all the appellant’s assets which were in the company’s
possession, save for the truck
and trailer. Through the company’s
operational manager, the appellant discovered that the truck and
trailer were at the respondent’s
premises. The appellant had
never had any dealings with the respondent. He and his colleague,
Michael Corney, made telephone calls
to the respondent but its
secretary informed them that the owner was unavailable. She enquired
why they wanted to contact the owner.
She was informed that it was
about the goods. A few days thereafter they telephoned the
respondent’s offices and spoke to
the same lady who said that
the owner could not speak to them and that they should make contact
with the respondent’s attorneys.
When they telephoned the
respondent’s attorneys, they were informed to contact the
respondent directly. The appellant contacted
Wesbank “to try
and recover the truck” on its behalf. Wesbank demanded that the
appellant pay the full outstanding
balance in respect of the truck
seeing that it had breached the terms of the instalment sale
agreement. The appellant paid the
outstanding balance to Wesbank on
12 March 2010. Wesbank thereafter informed the appellant that it
(Wesbank) would be unable to
assist the appellant to recover the
truck. The appellant then issued summons against the respondent on 15
April 2010.
[9] Regarding the
appellant’s claim based on the
rei vindicatio
in respect
of the truck Mr le Roux, counsel who appeared on behalf of the
appellant in the magistrate’s court, submitted
to the
magistrate that the appellant could not rely on the
rei vindicatio
because, so the submission went, the appellant was not the owner
thereof until 12 March 2010 when the last payment was made to
Wesbank. Mr Jooste, counsel who appeared before us on behalf of the
appellant, distanced himself from that submission, but nevertheless
conceded that the appellant did not make out a case based on the
rei
vindicatio
because no evidence was placed before the magistrate
to prove that, as at 15 April 2010, the respondent was in possession
of the
goods. The concession made by Mr Jooste is, with respect,
correct because, in order to succeed, the appellant was required to
prove
not only that it was the owner of the truck (which it became on
12 March 2010 when it paid the full outstanding balance to Wesbank)
but also that, at the time when it instituted the action which gave
rise to this appeal, the respondent had possession of the truck.
(
Chetty v Naidoo
1974 (3) SA 13
(A) at 20C). The
appellant placed no evidence before the magistrate to prove that the
respondent was in possession of the truck
when it instituted action.
[10] For the same reason
the magistrate correctly found that the
rei vindicatio
was
also not available to the appellant in respect of the trailer.
Although it proved that it was the owner of the trailer, the
appellant failed to prove that the respondent was in possession
thereof when it instituted action against the respondent on 15
April
2010.
[11] At the close of the
appellant’s case the evidence showed that the appellant
acquired ownership of the trailer during
2006 and that it became the
owner of the truck on 12 March 2010. The appellant leased the goods
to the company on 12 July 2008.
There was no evidence as to how the
respondent came to be in possession of the goods. Instead, when it
was put to Mr Wright under
cross-examination that the respondent
effected some repairs to the goods and exercised its lien over the
goods “until such
time as the money is paid for the work that
was done”, Mr Wright had no knowledge thereof. That response
serves to prove
that Mr Wright was unable to place evidence before
the magistrate to prove that the respondent was in possession of the
goods,
more particularly that it was in possession thereof when the
respondent instituted the action against it on 15 April 2010.
[12] The next enquiry is
whether the appellant proved that the respondent disposed of the
goods. If so, did the appellant prove
that such disposal occurred
before
litis contestatio
, that it was wrongful and when the
respondent wrongfully disposed of the goods, it had knowledge of the
appellant’s claim
thereto? Mr Jooste conceded that the evidence
is not clear as to when precisely the goods were disposed of, but
submitted that
the only reasonable inference to be drawn from the
evidence was that the goods were disposed of after the respondent
became aware
of the appellant’s claim to the goods. For that
submission he relied on Mr Wright’s evidence that the
respondent, through
its secretary, sent the appellant from pillar to
post when he and Mr Corney made enquiries about the whereabouts of
the goods.
Counsel furthermore relied on an email that Wesbank sent
to the respondent on 4 September 2009 wherein Wesbank stated that the
truck was “in the name of Southern Star Organissation
Engineering (Pty) Ltd”, the appellant herein, and that it
(Wesbank)
was requested by the appellant to assist it to recover the
truck.
[13] Mr Van Rooyen, who
appeared on behalf of the respondent before the magistrate and us,
informed the magistrate that the respondent
had no objection to the
handing in of the appellant’s bundle of documents “op
voorwaarde… dat elke dokument
behoorlik bewys sal word”.
The above email formed part of that bundle. It was Mr Van Rooyen who
cross-examined Mr Wright
on that email at the conclusion of which he
had the email admitted as an exhibit. Accordingly, the evidence shows
that on 4 September
2009 Wesbank informed the respondent that the
truck was in the appellant’s name and that it (Wesbank) was
requested by the
appellant to recover the truck.
[14] Sight should not be
lost of the fact that, as at 4 September 2009, Wesbank was the owner
of the truck. At best for the appellant
at that stage, it had an
interest in the truck. Such interest is insufficient, because the
actio ad exhibendum
is only available to the owner of the
res
.
(
RMS Transport
(
supra
) at 182G). As at 4
September 2009 the
actio ad exhibendum
was not available to
the appellant in respect of the truck, simply because it was not the
owner thereof.
[15] Mr Jooste’s
submission is furthermore based on the assumption that the respondent
disposed of the goods. Mr Wright did
not give evidence that the
respondent disposed of the goods. If the appellant did not prove that
the respondent disposed of the
goods, it follows that it also failed
to prove that the disposal was wrongful, that it occurred before
litis contestatio
and that, at the time of the disposal the
respondent had knowledge of the appellant’s claim thereto.
Regarding the last factor,
on 4 September 2009 Wesbank informed the
respondent that the truck was “in the name of” the
appellant. That could not
have meant and did not mean that the
appellant was the owner of the truck. It indicated only that the
appellant had an interest
in the truck. There is no evidence to prove
that, after 4 September 2009, the respondent was informed that the
appellant will become
the owner of the truck or that it in fact
became the owner thereof on 12 March 2010. The email only dealt with
the truck. There
is no evidence to prove that the respondent was
informed that the appellant was the owner of the trailer. In the
circumstances,
the appellant simply failed to place any evidence
before the magistrate to prove that the respondent disposed of the
goods.
[16] Since the appellant
failed to prove that the respondent disposed of the goods, its claim
based on the
actio ad exhibendum
was also correctly dismissed
by the magistrate.
[17] In summary, on the
evidence at the close of the appellant’s case, no reasonable
person could give or might have given
judgment against the
respondent. Put differently, there was insufficient evidence upon
which a reasonable person could find for
the appellant. (
Oosthuizen
v Standard General Versekeringsmaatskappy Bpk
1981 (1) SA
1032
(A) at 1035H – 1036B.)
[18] The appellant did
not lodge the record of appeal timeously. It accordingly made an
application for the condonation of the late
lodging of the record of
appeal. The affidavit which was used in support of the application
explained why the record of appeal
was not lodged timeously. I am
satisfied that the explanation is satisfactory. The parties were in
agreement that, if condonation
were granted in respect of the late
lodging of the appeal record, I should consider ordering each party
to pay its own costs. That
seems to be fair.
[19] In the
circumstances, I make the following order:
19.1 the late lodging of
the record of appeal is condoned;
19.2. each party pay its
own costs in respect of the application for the condonation of the
late lodging of the record of appeal;
and
19.3 the appeal is
dismissed, with costs.
______________
G.H. BLOEM, AJ
I concur.
______________
M. H. RAMPAI, J
On behalf of appellant:
Adv P.E. Jooste
Instructed by:
Van Zyl’s Inc
Port Elizabeth
Honey Attorneys
BLOEMFONTEIN
On behalf of respondent:
Mr B.C. van Rooyen (Attorney) of
Grimbeek Van Rooyen and
Partners Inc
Symington & De Kok
BLOEMFONTEIN