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[2013] ZAFSHC 84
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Hadebe v Hendrikz, In re: Hendrikz v Hadebe and Another (3394/2012) [2013] ZAFSHC 84 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3394/2012
In the matter between:-
S W HADEBE
............................................................................
Applicant
and
C T HENDRIKZ
.....................................................................
Respondent
In re:
In the application
between:
C T HENDRIKZ
..........................................................................
Applicant
and
S W HADEBE
...............................................................
First
Respondent
FEEZAAD MOHAMMED
.........................................
Second
Respondent
_____________________________________________________
JUDGMENT
BY:
JORDAAN, J
_____________________________________________________
DELIVERED
ON:
30 MAY 2013
_____________________________________________________
[1] The applicant seeks
leave to appeal to the Full Court of this Division against a judgment
and order granted by an Acting Judge
in this Division.
[2] Since the said trial
judge is not available anymore, the matter has been placed before me
for adjudication.
[3] For the sake of
clarity I will refer to the parties as in the main application so
that the present applicant will be referred
to as the first
respondent. The respondent in this application will be referred to as
the applicant.
[4] The applicant sold a
certain VW vehicle to the second respondent in terms of a written
agreement. The agreement, read as a whole,
reserved ownership in the
applicant until payment of the vehicle has been effected. That has
never been done with the result that
the applicant claimed return of
the vehicle from the first respondent who appeared to have bought the
vehicle from an entity called
the Glen Volkswagen in Glen Eagles. It
does not appear how the Glen Volkswagen came into possession of the
vehicle, but it can
be accepted that, for purposes of this
application, they obtained the vehicle from the second respondent,
who bought it from the
applicant.
[5] The second respondent
did not oppose the application and it was only opposed by the first
respondent, the present applicant.
The opposition was based on two
arguments, namely denial of the applicant’s ownership, based on
a certain clause of the agreement
and secondly, a defence of
estoppel.
[6] As far as the
ownership of the vehicle is concerned, it is clear from the
agreement, read as a whole, that the applicant indeed
retained
ownership and that the vehicle has not been paid so that the
applicant was entitled to recover the vehicle from whoever
in terms
of a vindicatory application. I am not convinced that any reasonable
prospect of success on appeal has been shown as far
as this defence
is concerned.
[7] The main contention
of the first respondent is that the applicant is estopped from
claiming back the vehicle since he created
a position by which the
public and specifically the first respondent was misled to believe
that the second respondent was the owner
and entitled to dispose of
the vehicle. This contention is based on the facts that the applicant
gave possession of the vehicle,
including the keys thereof, to the
second respondent and also placed the second respondent in possession
of the so-called NATIS
documentation or the registration papers
relating to the vehicle.
[8] The court
a quo
was not convinced that the necessary underlying facts, basing a
successful defence of estoppel, has been proven and granted the
order
entitling the applicant to possession of the vehicle.
[9] It is clear from the
papers that the first respondent does not allege that he bought the
vehicle or obtained the vehicle from
the second respondent, but from
some or other further entity. It is also uncontested that the
applicant never signed any transfer
papers entitling the transfer of
ownership of the vehicle or the registration thereof to any other
entity or even to the second
respondent himself. It must be inferred
that the vehicle was transferred to the Glen VW as a result of some
or other fraudulent
act committed by the second respondent,
inter
alia
forging the signature of the applicant to enable transfer.
[10] The mere delivery of
the vehicle and the keys thereto does not, on its own, constitute a
representation that the possessor
of that vehicle is also the owner
thereof and entitled to dispose thereof. The first respondent heavily
relies on the fact that
the NATIS registration documents has been
placed into possession of the second respondent and that the
representation that he was
entitled to deal with the vehicle was
thereby created negligently and to the detriment of the public and
himself. I find that hard
to accept. The NATIS documents would have
shown that the applicant is the owner of the vehicle and the
information thereon would
indeed be contrary to any inference that
the second respondent is the owner and entitled to dispose of the
vehicle. The mere possession
of the vehicle and the registration
documents is insufficient to constitute a representation that the
possessor thereof is entitled
to dispose of the vehicle. It is common
knowledge that a large part of vehicles in this country are financed
in terms of instalment
sale agreements in which cases the possessor
of the vehicle is obviously not entitled to dispose thereof. What has
been given to
the second respondent by the applicant did not show
that the second respondent is entitled to dispose of the vehicle and
indeed
did not in fact enable him to dispose of the vehicle lawfully.
He could only have done so by some or other fraudulent means.
[11] What is more, the
first respondent relies on the representation by the applicant to the
effect that the second respondent was
entitled to dispose of the
vehicle. However, the first respondent did not obtain the vehicle
from the second respondent, but from
another entity. The
representation as to the entitlement of the second respondent
therefore did not play any role as far as the
first respondent’s
knowledge was concerned. It is clear that it was the fraudulent act
by the second respondent in transferring
the vehicle to another
entity, most probably the Glen VW, which caused the first respondent
to be able to buy the vehicle from
that entity. It was not caused by
any representation made by the applicant, as alleged.
[12] In conclusion, I am
not convinced that, firstly, there was any representation
sufficiently proven to be negligent or entitling
the second
respondent to dispose of the vehicle and secondly, I am not convinced
that it was shown that such representation, if
any, was causally
connected to the first respondent buying the vehicle. That was caused
by the fraudulent act of the second respondent.
[13] In the result, I am
not convinced that any reasonable prospect of success has been shown
and the application for leave to appeal
must therefore fail.
[14]
Leave to appeal
is therefore refused and the application for leave to appeal
dismissed with costs.
_______________
A.F. JORDAAN, J
On behalf of applicant:
Adv H.J. Cilliers
Instructed by:
A P Pretorius &
Partners
BLOEMFONTEIN
On behalf of respondent:
Adv J.W. Kloek
Instructed by:
c/o Rosendorff Reitz
Barry
BLOEMFONTEIN
/spieterse