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[2012] ZAGPPHC 70
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T.A.V.R v H.V.R (59938/10) [2012] ZAGPPHC 70 (24 April 2012)
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 59938/10
DATE:
24 April 2012
IN
THE MATTER BETWEEN:
T
A V
R
............................................................................................................................
Plaintiff
and
H
V
R
...........................................................................................................................
Defendant
JUDGMENT
LEDWABA,
J:
[1]
The plaintiff issued summons against the defendant seeking an order
on the following terms:
1.1
"Teruggawe van die Toyota Fortuner met registrasienommer DTF 066
MP en VIN-nommerAHTYZ59GX08004373.
1.2
In die alternatief, indien dit bevind word dat die Verweerder nie
meer in besit is van gemelde voertuig nie, betaling in die
bedrag van
R296 819.92 synde die uitgawes en aflosprys van die voertuig.
1.
Betaling in die bedrag van R29 446.11 ten opsigte van die
versekeringpremies namens Verweerderes betaal;
1.4
Koste van die geding.
1.5
Verdere en of alternatiewe regshulp."
[2]
The defendant filed a counterclaim in terms where of she wants an
order in the following terms:
2.7
"'n Bevel ingevolge waarvan die Eiser beveel word om binne 7 dae
alle dokumente wat nodig is ten einde die Verweerder in
staat te stel
om 'n Toyota Fortuner met registrasienommer DFT 066 MP op haar naam
te registreer, aan die Verweerderes te voorsien.
2.2
Koste van die geding.
2.3
Verdere en/of alternatiewe regshulp."
[3]
I will commence with a summary of the background facts which are
common cause between the parties and which I consider relevant
for
the proper adjudication of this matter.
3.1The
plaintiff and the defendant were married to each other and the
marriage was absolved by the High Court on 20 June 2006.
3.2
In the settlement agreement that was made an order of court on 15
September 2006 the parties, inter alia, agreed that:
3.3.1
The parties have two minor children and the court ordered that
custody (the primary residence of the children) is awarded
to the
defendant in casu and the plaintiff in casu had rights of reasonable
contact.
3.3.2
The defendant would keep as her property the business, Aldrine
Financial Investment, as her sole property.
3.3.3
The defendant would keep the Pajero motor vehicle which was in her
possession as her sole property. The plaintiff would buy
from the
defendant the following vehicles:
3.3.3.1
Land Cruiser
3.3.3.2
Toyota Hilux
3.3.3.3
Ford Bantam For Rl00 000.
3.4
From May 2007 - May 2008 the plaintiff , the defendant and the
children stayed together at 6 President Street, Nelspruit. However,
as to whether the parties were attempting to reconcile or whether
they slept in the same bedroom was in dispute and I will deal
with
same later in the judgment.
3.5
From August 2007 to November 2010 the plaintiff had a love
relationship with Ms Gizela Verster.
3.6
In December 2007 the plaintiff entered into a credit agreement with
ABSA for the purchase of a Toyota Fortuner 3.00 D4 4x4 which
was
registered in the plaintiff's name on 4 January 2008. The monthly
installments of the Fortuner was R5889.58 over a period of
54 months.
The first payment was due and payable on 2 February 2008.
3.7
The Pajero which was awarded to the defendant in terms of the
settlement agreement which was made an order of court was traded
in
when the Fortuner was purchased and R100 000 of the trade-in amount
was used as a deposit for the Fortuner.
3.8
Possession of the Fortuner has always been with the defendant. When
the defendant left the plaintiff's house in May 2008 with
the
children she also took the Fortuner.
3.9
The Plaintiff paid for the monthly installments and the insurance of
the Fortuner.
[4]
The main issue to be decided here is whether the Fortuner was donated
to the defendant or not or if there was an agreement that
the
defendant would be liable to pay for the monthly installments and the
insurance. This aspect will also be dealt with in detail
later in
this judgment.
[5]
The plaintiff's evidence together with the evidence of Ms Gizela
Verster can be summarized as follows:
5.1
The plaintiff testified that the defendant and the children came to
stay with him in May 2007 because the children were going
through
some emotional traumas which affected their academic progress.
However, he specifically told the defendant that he would
not be
responsible for her maintenance and he would continue to support the
children. The children slept in their own bedrooms.
The defendant and
himself occupied different bedrooms.
5.2
He further agreed to buy ponies to the children as part of their
therapy.
5.3
The defendant told him that she would be gainfully employed in
January/February 2008. She further mentioned that she wanted
to buy a
new vehicle because the service contract of the Pajero expired and
she could not afford to pay for the service of the
Pajero.
5.4
The defendant requested him to buy a vehicle on his behalf and she
would pay the installments and insurance of the vehicle.
She is
employed in February/March 2008 and she would be earning a monthly
salary of about R20 000.
5.5
He then agreed to buy her a vehicle of her choice. The terms of the
oral agreement between the plaintiff and the defendant are
set out in
paragraph 6 of the plaintiff's particulars of claim as follows:
5.5.1
"Gedurende die eerste week van Desember 2007 en te Nelspruit,
het die verweerderes die eiser genader en 'n mondelingse
ooreenkoms
met horn te siuit met die volgende relevante uitdruklike,
alternatiewelik stilswyende, alternatiewelik inbegrepe terme:
5.5.1.1
Die Verweerderes se Mitsubishi Pajero voertuig se diensplan het
verval en kon die Verweerderes nie slaag om vir finansiering
vir 'n
soortgelyke nuwe voertuig te kwalifiseer nie.
5.5.1.2
Die Verweerderes wou graag 'n Toyota Fortuner aankoop en aangesien
die Eiser wel vir finansiering kon kwalifiseer, het die
partye
ooreengekom dat die Mitsubishi Pajero ingeruil sou word as deposito
op die aankoop van die Toyota Fortuner.
5.5.1.3
Die Eiser sou die Fortuner aankoop, finansiering bekom in sy eie naam
daarvoor bekom en die finansierings paaiemente dra,
maar sou die
uitsluitlike gebruik van die voertuig aan die Verweerderes toestaan
onderhewig aan die voorwaarde dat die verweerderes
die maandelikse
finansierings-paaiemente aan die Eiser sou terug betaal en verder
onderhewig daaraan dat sy onmiddelik sou sorg
dat die voertuig
omvattend verseker word deur hear eie versekering uit te neem en te
betaal ten opsigte van die voertuig.
5.5.1.4
Indien die verweerderes die voertuig se uitstaande balans ten voile
afgelos het op die voertuig en die versekering op die
voertuig
stiptelik betaal, sou eiendomsreg by aflos van die skuld op die
voertuig in die Verweerderes se naam oorgaan.
5.5.1.5
Indien die Verweerderes sou versuim om enige paaiement van die
versekering of die finansierder stiptelik elke maand aan
die Eiser te
betaal, sou die Eiser geregtig wees om die ooreenkoms tussen die
partye te kanselleer, om die voertuig in besit te
neem, tee is vir
terugbetaling van aile bedrae reeeds deur die eiser betaal in terme
van paaiemente en versekeringspremies en die
voertuig by aflos van
die uitstaande balans aan die finansierder, eiendomsreg van die
voertuig in sy naam te registreer."
[6]
Contrary to the plaintiff's version on the purchasing of the
Fortuner, the defendant's version is that the Fortuner was given
to
her by the plaintiff in December 2007 as a present for her birth day
and she vehemently denied the terms of the alleged oral
contract that
the plaintiff mentioned.
[7]
The plaintiff, further to support his evidence, testified that even
when they were still staying in the same premises i.e before
May 2008
he did demand payment of the insurance and the installments from the
defendant by way of sms. On 22 October 2008 he sent
a demand by
e-mail, see page 1 of the bundle.
[8]
On 8 December 2007 he paid the defendant an amount of R10 000 because
the defendant threatened him. When the money was deposited
into the
account he noted 'Rica dreig' as a reference to show that he was
threatened.
[9]
The plaintiff strongly denied that when the defendant stayed with him
from May 2007 - May 2008 they were trying to reconcile
and that they
shared the same bedroom.
[10]
He further said even if they stayed together there was no love
relationship between them and he was in love with Ms G V. In
December
2007 he went on holiday to Balito in Kwazulu- Natal for about 10 days
with Ms V and left the defendant and the children
behind. In April
2008 he again went on holiday again with Ms G V .He denied that he
ever went to Balito with the defendant in December
2007.
[11]
Ms V when she testified confirmed that she went on holiday with the
plaintiff in December 2007 and again for six weeks with
the plaintiff
in about April 2008.
[12]
The defendant in her evidence denied that in December 2007 she
threatened the plaintiff when she demanded payment of the R10
000.
She said the plaintiff promised to pay her R10 000 when they were
staying together for the errands that she made for the children.
She
said because the money in her bank account was depleting in December
2007 she insisted that the plaintiff should pay her R10
000.
[13]
The defendant further said when they stayed together they were
working on a reconciliation and they had an intimate and affectionate
relationship. She also said in December 2007 she went on holiday to
Balito with the plaintiff and she gave a detailed description
of the
unit where they were staying. She further said in 2006 after the
divorce she went on holiday to Cape Town with the plaintiff.
[14]
The defendant further said the Fortuner was the plaintiff's choice
and if she had a choice she would have chosen a 'bakkie'
because she
would use it to load the ponies. She further said when they were
still married the plaintiff used to shower her with
donations. She
mentioned a BMW X 5, Range Rover and a wrist watch of about R17 000.
She did not deny that the service contract
of the Pajero had expired.
[15]
She said when stayed with the plaintiff she was not working and she
could not afford the monthly installments of about R6000,
excluding
insurance, for the Fortuner because she would earn a salary of about
R7500 when she starts with her employment in about
March 2008.
[16]
She said the plaintiff only contacted her for the payment of the
insurance monies for the Fortuner in October 2008 and when
the
Fortuner was purchased she never applied for the insurance.
[17]
She stated that their attempt to reconcile was negatively affected
when she discovered that the plaintiff has a relationship
with Ms
Verster.
[18]
The other important aspect that I need to deal with relates to the
two letters in Exhibit A on pages19 and 20 from Barnard
& Khan
Attorneys to D N Van Schalkwyk Dated 6 June 2008 (first letter) and a
letter on pages 34 and 35 of Exhibit A from Shapiro
& Shapiro
attorneys addressed to the defendant dated the 11 of March 2009
(second letter).
[19]
The first letter deals with settlement negotiations meeting
concerning the sharing of the movable property that was held on
5
June 2008. What of importance is clause 8 of the first letter and it
reads as follows:
"
Die aangeieentheid ten opsigte van die Toyota Fortuner het die partye
ooreengekom dat ons Klient sal toesien tot die betaling
van die
maandelikse paaiemente tot en met die voertuig afbetaal is waarna die
voertuig op u klient se naam oorgedra sal word. U
klient sal toesien
tot die betaling van die maandelikse versekering ten opsigte van
hierdie voertuig en onderneem om sodanige inligting
aan ons klient
deurte gee." (own underlining)
[20]
The plaintiff denied that his attorney reflected the settlement
agreement correctly. The defendant testified that when the
aforesaid
settlement negotiations were held she left because she was of the
view that her attorney did not carry out her instructions.
[21]
The contents of the second letter reads as follows:
"21.1
Ons tree op namens u vorige eggenoot Mnr Tobias Albertus van Rhyn in
hierdie aangeieentheid en dit is ons instruksies
om u soos hieronder
uiteenigesit word, mee te deel, soos ons hiermee doen:
21.2
Gedurende ongeveer Desember 2007 het u en ons klient 'n mondelingse
ooreenkoms aangegaan in terme waarvan:
21.2.1
Ons klient 'n sekere Toyota Fortuner 3 L 4x4 motorvoertuig by wyse
van afbetalingsverkoopsooreenkoms met Absa Bank Beperk
aangekoop het
21.2.2
U het 'n Mitsubishi motorvoertuig ingeruil vir die aankoop van die
voormelde Toyota motorvoertuig. Die netto opbrengs voortspruitend
uit
die inruil van die gemelde Mitsubishi motorvoertuig het 'n bedrag van
R135 000,00 beloop.
21.2.3
Ons klient aanspreeklik sou wees vir die betaling van die maandelikse
paaiemente betaalbaar ten opsigte van die gemelde Toyota
motorvoertuig.
21.2.4
U sou aanspreeklik gewees het vir die betaling van die maandelikse
versekeringspremies met ingang van die 1ste dag van die
maand nadat u
'n betrekking bekom het en 'n inkomste begin verdien het ten opsigte
van die gemelde Toyota motorvoertuig.
21.3
U het gedurende Februarie 2008 'n betrekking bekom en aan die einde
van Februarie 2008 'n inkomste begin verdien. As suiks
was u in terme
van die voormelde ooreenkoms aanspreeklik vir betaling van die
maandelikse versekeringspremies ten opsigte van die
voormelde Toyota
Motorvoertuig met ingang van 1 Maart 2008. Die maandelikse
versekeringspremies het 'n bedrag van R989,52 per maand
beloop.
21.4
Tot datum hiervan moes u 'n totale bedrag van R12863J6 ten opsigte
van die versekeringspremies van die voormelde Toyota motorvoertuig,
betaal het.
21.5
Tot datum hiervan weier en/of versuim u om die betrokke
versekeringspremies te betaal.
21.6
Inaggenome die voormelde het u die voormelde ooreenkoms tussen u en
ons klient gerepudieer, welke repudiasie ons klient hiermee
aanvaar.
As gevolg hiervan kaselieer ons klient hiermee die voormelde
ooreenkoms.
21.7
Inaggenome die voormelde is ons klient geregtig op lewering van die
voormelde Toyota motorvoertuig.
21.8
Teen lewering van die gemelde Toyota motorvoertuig, tender ons klient
hiermee betaling van die voormelde bedrag van R12 863.76
wat u aan
ons klient verskuldig is ten opsigte van die versekeringspremies ten
opsigte van die gemelde Toyota motorvoertuig wat
u geweier en/of
versuim het om te betaal en wat as gevolg hiervan ons klient moes
betaal het.
21.9
Tensy die voormelde Toyota motorvoertuig binne 14 dae na ontvangs
hiervan deur u aan ons klient terugbesorg word, sal ons klient
geen
ander alternatief he nie as om die nodige aksie teen u in te stel vir
die lewering daarvan, sonder enige verdere korrespondensie
en op u
koste.
21.10
Ons verneem graag van u as 'n saak van dringenheid in die verband.
21.11
Geliewe ontvangs hiervan te erken."(own underlining).
[22]
The plaintiff denied that he instructed Shapiro & Shapiro
attorney's to write to the defendant and further said they just
wrote
the letter based on the contents in his file.
[23]
During arguments the plaintiff's counsel submitted that the onus was
on the defendant to prove that the plaintiff donated the
Fortuner to
her.
[24]
The legal position is that the plaintiff should prove that there was
a contract and that there was no donation. In my view,
the onus is on
the plaintiff even if the defendant denies the existence of the
contract between the parties see Sadie v Annandale
1992 (2) SA 240
(OPD) at 243 E.
[25]
According to the documents in the bundle it is common cause that the
Fortuner was registered in the name of the plaintiff and
that he
became the owner therefore sometime in 2010 when he settled the
amount due to ABSA Bank.
[26]
Regarding the alleged oral contract that the plaintiff alleged in his
particulars of claim, which contract he must prove, I
think there are
material and important aspects which needs to be considered to
determine if the plaintiff succeeded in proving
on the balance of
probabilities that the alleged contract existed and that the Fortuner
was not donated to the defendant.
[27]
There are mutually destructive versions before the court. The test
enunciated in African Eagle Life Assurance Co Ltd v Cainer
1980 (2)
SA 234
(W) is applicable.
[28]
It is common cause that the Fortuner has always been in the
defendants possession and that the plaintiff paid the purchase
price
and the insurance premiums for the Fortuner.
[29]
The evidence clearly shows that the plaintiff is affluent and when he
was staying together with the defendant before they divorced
he used
to buy her expensive presents.
[30]
On the issue of the R10 000 which was deposited into the defendants
account with reference, 'Rica dreig' despite different
versions
regarding the circumstances under which the money was paid, in my
view, the defendant did exert some pressure on the plaintiff
before
the money was paid,
[31]
Importantly, if the plaintiff and the defendant had some quarrel
regarding the R10 000 before the money was paid, I think it
is highly
unlikely that the Plaintiff would a few days thereafter enter into an
alleged contract involving a huge amounts with
the defendant when the
defendant was unemployed. Also considering that the parties had
unresolved issues, mentioned in the first
letter, on how they had to
share the property acquired during the existence of their marriage. I
fail to understand how would the
parties enter into a contract that
the plaintiff refers to involving money if there were still
unresolved issues.
[32]
What is further interesting about the plaintiff's version is that
after the defendant was employed from February 2008 until
May 2008 he
did not insist that she must pay the installments and the insurance
premiums as allegedly agreed upon.
[33]
The other factor that weakens the plaintiff's version, in my view, is
that in the email sent to the defendant in October 2008,
he only
claimed the insurance premiums and he said nothing about the arrears
of the monthly installments.
[34]
The first and the second letter only mentions the insurance premiums.
The plaintiff could not give an acceptable reason why
the arrear
installments were not claimed.
[35]
The question of who went to Balito with the plaintiff for the festive
season cannot, in my view, determine or assist in determining
whether
the alleged contract regarding the Fortuner existed or not.
[36]
What is not in dispute is that when the defendant discussed the love
relationship between the plaintiff and Ms Verster it caused
some
unpleasantness and the defendant had to leave the plaintiff's house.
I therefore think that when the plaintiff and the defendant
lived
together they entertained that they may live together as husband and
wife again, unfortunately it did not work out.
[37]
The plaintiff was not a credible witness, because he kept on changing
his version during cross examination. He could not explain
why did he
not use all the money for the trade-in value of the Pajero as a
deposit and in the amounts he claims the amount he gained
after
paying the deposit of R100 000 is disregarded. The plaintiff's
version is not probable.
[38]
The defendant was, in my view, a credible witness. Her explanation
about their attempt to reconcile, even though some versions
were not
put to the plaintiff, is reasonable and acceptable.
[39]
Her version that the plaintiff chose the vehicle to purchase and gave
it to her was out of benevolence is probable and acceptable.
Her
counter claim should succeed.
[40]
I therefore make the following order:
42.1
The plaintiff's action is dismissed.
42.2
The defendant's counter claim succeeds.
42.3
The plaintiff is ordered to provide and sign all documents that are
necessary for the registration and transfer of ownership
of the
Fortuner with registration number DFT 066 MP to the defendant within
14 days of this order, failing which the sheriff in
the area where
the defended is resided is authorized to sign the relevant documents
for the registration and transfer of ownership
of the vehicle to the
defendant.
42.4
The plaintiff is ordered to pay the costs of the defendant in respect
of the action and counter claim proceedings.
AP
LEDWABA
JUDGEW
THE HIGH COURT
HEARD
ON: 13 April 2012
FOR
THE PLAINTIFF: Adv T P Kruger
INSTRUCTED
BY: Linhout Prokureurs, Pretoria
FOR
THE DEFENDANT: Adv C F J Brand
INSTRUCTED
BY: Frey & Slabber Ing, Pretoria