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[2012] ZAGPPHC 270
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Mccarthy Ltd t/a Forsdicks BMW v Aniyu Admin and Man Services Zinniaville CC and Others (55888/12) [2012] ZAGPPHC 270 (13 November 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 55888/12
DATE:13/11/2012
In
the appeal of:
McCARTHY
LIMITED t/a FORSDICKS BMW Applicant
and
ANIYU
ADMIN AND MAN SERVICES
ZINNIAVILLE
CC
...................................................................................................
First
Respondent
DADA
MOTORS - POTCHEFSTROOM
CC
....................................................
Second
Respondent
CLEMENT
MARULE
..........................................................................................
Third
Respondent
MAIN
WAY MOTORS
CC
...................................................................................
Fourth
Respondent
EMERALD SKY TRADING 345 (PTY) LTD t/a
SMART
WHEELS
...............................................................................................
Fifth
Respondent
MPHO
LESOLLE
...............................................................................................
Sixth
Respondent
LUCY
MABENA
.................................................................................................
Seventh
Respondent
AUTO MOTOR SPORT (PTY) t/a LEO HAESE,
CENTURION
.......................................................................................................
Eighth
Respondent
SEAGULL
CAR SALE
CC
…..........................................................................
Ninth Respondent
PENG
INVESTMENTS HATFIELD (PTY) LTD t/a
LEO
HAESE
….................................................................................................
Tenth
Respondent
JAN
MYBURGH
.................................................................................................
Eleventh
Respondent
MOHAMMED
SEEDAT
....................................................................................
Twelfth
Respondent
AL MEDINA MOTORS (PTY) LTD t/a FOUCHE
MOTORS
...........................................................................................................
Thirteenth
Respondent
RIDWAAN
CASIM
.............................................................................................
Fourteenth
Respondent
NAZREEN
CHOONARA
..................................................................................
Fifteenth
Respondent
BARLOW WORLD MOTORS LTD t/a CLUB
MOTORS,
RANDBURG
...................................................................................
Sixteenth
Respondent
HYDE PARK AUTO (PTY) LTD t/a SANDTON
AUTO
...................................
Seventeenth
Respondent
YUSUF
MOHAMMED
.......................................................................................
Eighteenth
Respondent
YASAAR
HASSEN
...........................................................................................
Nineteenth
Respondent
MUZDALIFAH INVESTMENTS CO t/a BARGAIN
MOTOR
CENTRE
.............................................................................................
Twentieth
Respondent
GOLDEN
ERA CARS (PTY)
LTD
...................................................................
Twenty-first
Respondent
HYDE
PARK AUTO (PTY)
LTD
.......................................................................
Twenty-second
Respondent
ARBE
CAR SALES (PTY)
LTD
.......................................................................
Twenty-third
Respondent
DAWOOD
YUSUF
SEEDAT
...........................................................................
Twenty-fourth
Respondent
SUV
CARS
CC
................................................................................................
Twenty-fifth
Respondent
MASHUDA
EBRAHIM
.....................................................................................
Twenty-sixth
Respondent
CARLTON
MOTORS AND WHEEL
CC
.......................................................
Twenty-seventh
Respondent
EBRAHIM
GHOOD
.........................................................................................
Twenty-eighth
Respondent
AUTO BAVARIA t/a ANDRE DREYER MOTORS (PTY)
LTD
...................
Twenty-ninth
Respondent
JUDGMENT
Van
der Byl AJ:-
Introduction
[1]
The Applicant trades as a dealer in new and used BMW vehicles in
Morning side, Johannesburg.
[2]
It is the Applicant' case that during July 2012 the Twenty-fourth
Respondent, Mr. Dawood Ysuf Seedat ("Mr. Seedaf), approached
the
Applicant's dealership in Morningside where he had discussions with a
certain Mr. Sean Harduth, the Applicant's new sales manager,
and a
certain Mr. Ntokobane Mogotsi, the Applicant's dealership manager. Mr
Seedat represented and held himself out to be the owner
of a business
called "Vereeniging Value Services", that he was a
so-called "fleet customed and that he was interested
in
purchasing numerous vehicles which included the 1-series, 3-series,
5-series and 7-series BMW's on behalf of clients in and
around South
Africa.
[3]
The evidence on behalf of the Applicant, furthermore, shows that when
a customer purchases a vehicle from the Applicant the
procedure
followed is the following -
(a)
the vehicle would be identified by the customer who would then
complete an "offer to purchase form", whereupon, the
Applicant would issue an invoice to the customer;
(b)
the customer would pay on account of the invoice, whereupon, the
vehicle would be delivered to the customer;
(c)
where a bank finances the purchase of the vehicle, the invoice will
be made out to the bank, whereupon, the bank will issue
a release
note before the vehicle will be delivered to the customer;
(d)
in the event of a "cash deaf or if the customer wishes to make
payment by means of an "electronic funds transfer"
the
funds must first be cleared by the relevant bank and the payment must
be reflected in the Applicant's bank account before the
vehicle would
be delivered to the customer.
[4]
in terms of the "offer to purchase form" -
(a)
delivery will only be given to the customer once the full purchase
price is paid (clause 6);
(b)
ownership of the vehicle shall pass to the customer only upon payment
in full of the purchase price paid by the customer (clause
7.2).
[5]
Mr. Seedat identified 55 BMW vehicles (the details of which are
specified in Annexures C1 to C4, record pp. 62 to 65) which
he was
interested in purchasing. It would appear that he indicated that he
preferred to pay for the vehicles by way of cheque and
by way of
electronic payments. He issued a series cheques on 31 July 2012 and
on 24 August 2012 and on 6 August 2012 made an electronic
payment in
an amount of R1,5 million.
[6]
The vehicles were delivered by Messrs Harduth and Mogotsi without
securing that full payment for the vehicles had taken place,
being a
situation in respect of which they had no authorization.
[7]
All the cheques issued, amounting to R15 875 000, were, however,
stopped by Mr. Seedat.
[8]
A criminal charge was laid against Mr. Seedat and he was arrested and
charged with fraud and released on bail.
[9]
A forensic investigation into the transaction revealed that Messrs
Harduth and Mogotsi assisted Mr. Seedat in this simulated
and
fraudulent transaction and that, for instance, Mr. Seedat had paid an
amount of R1 million into Mr. Mogotsi's bank account
without any
lawful cause. Messrs Harduth and Mogotsi have been suspended pending
the finalization the investigation into these
transactions, and
disciplinary proceedings have been instituted against them.
[10]
In an investigation by the Applicant to trace the whereabouts of the
persons who are in possession of the vehicles it became
apparent that
Mr Seedat has, after taking delivery of the vehicles, sold the
vehicles to numerous car dealerships in Gauteng, North-West
and
Mpumalanga some of which had, as I will indicate below, in turn sold
the vehicles to third persons and entities.
[11]
Various attempts to persuade those entities and persons to return the
respective vehicles to the Applicant were unsuccessful,
although some
of the second line purchasers returned the vehicles purchased to the
persons or entities from whom they had purchased
the vehicles.
[12]
The dealerships, entities and persons who are currently in possession
of the vehicles are the dealerships, entities and persons
cited as
Respondents in this matter and the particulars of the vehicles in
their possession are set out in the Notice of Motion,
as amended.
Relief
claimed by the Applicant
[13]
As is apparent from the Notice of Motion, as amended, the Applicant
seeks, in addition to the usual order of costs against
those
Respondents opposing the application, an order against the First to
Twenty-Ninth Respondents directing the Sheriff to attach
and remove
such vehicle or vehicles from the respective Respondents and to
deliver same to the Applicant for, as I was informed
from the bar,
safekeeping pending the finalization of an application or action to
be instituted within 30 days as from the date
of any order that may
be made in accordance with the Notice of Motion.
[14]
The Applicant, having considered the opposing affidavits filed by all
the Respondents who elected to oppose this application
and who
indicated that they are no longer in possession of any of the
vehicles concerned, withdrew the application against the
Fourth,
Eleventh, Sixteenth, Seventeenth, Nineteenth, Twentieth,
Twenty-first, Twenty-second, Twenty-fourth, Twenty-seventh and
Twenty-eighth Respondents.
[15]
It, furthermore, appears that no order is sought against the Eighth
Respondent who seems to have returned one of the vehicles
concerned
to the Fifth Respondent from whom he purchased the vehicles and the
Ninth Respondent who seems to have returned one of
the vehicles
concerned to the Twenty-third Respondent from whom he purchased the
vehicle whilst the application is not opposed
by the Eighteenth,
Twenty-sixth and Twenty-ninth Respondents. As is apparent from the
opposing affidavit of the Fifth Respondent
it sold one of the
vehicles to the Twenty-ninth Respondent who subsequently returned the
vehicle to it, whereupon, it refunded
the Twenty-ninth Respondent the
money it paid for the vehicle. There is accordingly no basis for any
relief to be granted against
the Twenty-ninth Respondent.
[16]
In the course of the hearing of this matter, it became apparent that
the Twenty-fifth Respondent was, to the knowledge of the
Applicant,
not or no longer in possession of the vehicle the return of which was
claimed from him and it was indicated on behalf
of the Applicant
that, despite with its initial persistence with its application
against the Twenty-fifth Respondent, no order
was sought also against
him.
[17]
I am accordingly called upon to consider the Applicant's case against
the remaining 16 Respondents, being the First, Second,
Third, Fifth,
Sixth, Seventh, Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth,
Eighteenth, Twenty-third and Twenty-sixth Respondents
who are all
admittedly still or, in the case of the Twenty-sixth Respondent,
seems to be, in possession of the vehicles specified
in the amended
Notice of Motion.
Factual
averments made in opposing affidavits
[18]
The First, Second, Third, Fifth, Sixth, Seventh, Tenth, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Twenty-first and Twenty-third
Respondents all vehemently oppose the application that all have filed
opposing affidavits.
[19]
In the case of the First Respondent, Aniyu Admin and Man Services
Zinniaville CC, it is contended in an affidavit deposed to
by one of
its members -
(a)
that during July 2012 he was informed by his son and daughter-in-law
that they were informed by the father of his daughter-in-law,
a
certain Mr. Patel, that one, Dawood Seedat (who is the Twenty-fourth
Respondent), who was in the Vereeniging area had acquired
a number of
BMW vehicles he was selling at very reasonable prices;
(b)
that he asked his son and daughter-in-law to arrange a visit to
Roshnee near Vereeniging where Mr. Seedat was based in order
to see
whether there was a BMW that might be suitable to purchase for the
First Respondent as he was looking for a vehicle, especially
a BMW
320, for use in the affairs of the First Respondent;
(c)
that a meeting was, through Mr Patel, arranged in Roshnee with Mr.
Seedat for the morning of Wednesday, 1 August 2012;
(d)
that, having driven from Rustenburg to Roshnee, they met Mr Patel who
guided them to the address of the Mr. Seedat where he
asked them to
follow him in his car;
(e)
that they drove to a residential home a few blocks away where they
went through the gate to an adjacent yard where Mr. Seedat
pointed
out about six to eight BMW's that were parked there;
(f)
that, his son having determined from a friend that the price of a
vehicle such as one they wished to purchase would be about
R385 000,
Mr. Seedat indicated that he wanted R370 000 for the vehicle, but
they eventually bought it for R365 000;
(g)
that they agreed that the amount be paid into a banking account held
by Olympic Park Trading t/a BP, Nirvana, which is a fuel
service
station of Mr. Patel;
(h)
that Mr. Seedat, thereupon, handed them the vehicle's registration
form
(Annexure MYH 1, record p. 997.6) dated 30 July 2012 which
relates to a BMW
3-series with engine number B2350165 and Vin
number WBA3B16070NP41623,
indicating that the Title Holder and
Owner was "Forsdicks, Sandton";
(i)
that he wrote out a cheque for the amount made out to Mr. Patel's
service station and deposited it into its bank account;
(j)
that he a few days later arranged with one Mohamed Sikandir, known
for taking care of the registration of vehicles, to take
care of the
registration of the vehicle in the name of the First Respondent;
(k)
that Mr. Sikandir indicated that he stil! needed a change of
ownership form to be completed by Forsdicks (the Applicant) and
a
copy of the identity document of its proxy;
(I)
that they then phoned Mr. Seedat who explained that it was an
oversight on his part and that he would arrange for the documents
to
be made available;
(m)
that a few days later the documents, Annexure MYH3, being the change
of ownership form containing the name of one UK S Hendriks"
as
the proxy of Forsdicks, and Annexure MYH 4, were collected from Mr.
Seedat whereafter the vehicle was registered in the name
of the First
Respondent on 13 August 2012;
(n)
that after having received a letter from the Applicant's attorneys
requesting the return of the vehicle they obtained a "tax
invoice" from Mr. Seedat on 14 September 2012.
[20]
In the case of the Second, Third, Fifth, Sixth, Seventh and Tenth
Respondents, Dada Motors - Potchefstroom CC, Clement Marule,
Emerald
Sky Trading 345 (Pty) Ltd t/a Smart Wheels, Mpho Lesolle, Lucy Mabena
and Peng Investments Hatfield (Pty) Ltd t/a Leo Haese,
it is
contended in a joint answering affidavit on their behalf by Mr.
Shiraz Mohomed Ebrahim, the managing director of the Fifth
Respondent
-
(a)
that the Fifth Respondent is a motor vehicle dealer that sells
vehicles to other dealerships that does not usually do business
with
the public;
(b)
that towards the end of July 2012 the managing director of the
Twenty-fifth Respondent, SUV Cars CC, Mr. Shaheen Goolam, phoned
him
and informed him that he has a number of 3-series BMW's in stock and
that the Twenty-fifth Respondent would be able to give
the Fifth
Respondent a very good price in respect of these vehicles;
(c)
that the Fifth Respondent, thereupon, having been furnished with the
original "Certificate of Registration in respect of
Vehicle"
(also known as the Natis document) in respect of each vehicle,
purchased 11 of these vehicles from the Twenty-fifth
Respondent on 30
and 31 July 2012 in respect of which he caused the vehicles to be
registered in the name of the Fifth Respondent
as owner and title
holder of the vehicles;
(d)
that the Fifth Respondent, thereupon, sold -
(i)
three of these vehicles (having engine number A5990209 and Vin number
WBA3B16070NP42951, engine number A8820235 and Vin number
WBA3B16090NP78866 and engine number A0880220 and Vin number
WBA3B16010NN76300) to the Second Respondent, DADA Motors, on 30 July
2012 (who subsequently sold one of these vehicles (being the one
having engine number A0880220 and Vin number WBA3B16010NN76300)
to
the Sixth Respondent, Mpho Lesolle, who is currently in possession of
the vehicle;
(ii)
three of these vehicles (being the ones having engine number
B1050229 and Vin number WBA3P160XONN76344, engine number B1700162
and
Vin number WBA3B160X0NN76O84 and engine number A55002200 and Vin
number WBA3B16010NN76250) to the Eighth Respondent, Auto Motor
Sport
(Pty) Ltd, on 1 August 2012 (who subsequently sold one
of the
vehicles (being the one having engine number engine number B1050229
and Vin number WBA3P160XONN76344) to the Third Respondent
who is
currently in possession of the vehicle) and another of the vehicles
(being the one having engine number B1700162 and Vin
number
WBA3B160XONN76084) to the Seventh Respondent, Lucy Mabena, who is
currently in possession of the vehicle and the third of
these
vehicles (being the one having engine number A55002200 and Vin number
WBA3B16010NN76250) was returned to the Fifth Respondent
and it was
refunded by the Fifth Respondent;
(iii)
two of these vehicles (being the ones having engine number 2960180
and Vin number WBA3B16040NP44396 and engine number 73218077
and Vin
number WBA3D36030NN68950) to the Tenth Respondent, Peng Investments
Hatfield (Pty) Ltd, on 30 July 2012;
(iv)
one of these vehicles (being the one having engine number
73708079
and Vin number WBA3D36070NP06148) to the Twenty-ninth
Respondent, Auto Bavaria Midrand, on 30 July 2012 who returned the
vehicle
to the Fifth Respondent who bought it back and is currently
in its possession;
(e)
that the Twenty-fifth Respondent at the time of the sale handed him
tax invoices in respect of the 11 vehicles, the original
Natis
documents, original motor vehicle licence and licence disc, original
notification of change of ownership, Hendriks' identity
document and
proof that the vehicles were registered in name of the Fifth
Respondent, a spare key and a service booklet (the so-called
"indicia
of dominium, jus disponendi or scenic apparatus");
(f)
that he was informed by Mr. Goolan that he purchased the 11 vehicles
from Mr. Seedat.
[21]
In the case of the Twelfth Respondent, Mohammed Seedat, the
Respondent admitted, having purchased one of the vehicles concerned,
being BMW320i sport vehicle, having engine number A0750161 number
WBA3B16080NN75919 from Motordeal CC who in turn purchased the
vehicle
from the Twenty-fifth Respondent, being in possession of the vehicle.
[22]
In the case of the Thirteenth Respondent, Al Medina Motors (Pty) Ltd
t/a Fouche Motors, it is contended, by way of an opposing
affidavit
deposed to by one Naeem Choonara, a member of the Thirteenth
Respondent, that an entity called Golden Rewards t/a as
Fouche Motors
(that seems to be the Respondent cited as the Thirteenth Respondent)
purchased the vehicle, being BMW 320i sport
vehicle, having engine
number A3930219 and Vin number WBA3B16070NP44134, from Mr. Seedat and
that it is still in possession of
the vehicle.
[23]
In the case of the Fourteenth Respondent, Ridwaan Casim, he conceded
that he purchased the vehicle claimed from him in the
Notice of
Motion, being the BMW320i sport vehicle, having engine number
73828085 and Vin number WBA3D36070NN99778, from the Twenty-third
Respondent who in turn purchased the vehicle from Mr. Seedat and that
he is currently in possession of the vehicle.
[24]
In the case of the Fifteenth Respondent, Nazreen Choonara, it is
conceded that the Respondent, having purchased the vehicle
in
question, BMW320i vehicle, having engine number A6110218 and Vin
number WBA3B17040NP43166, from the Fourth Respondent, Mainway
Motors
CC, is presently in possession of the vehicle in question.
[25]
In the case of the Eighteenth Respondent, Yusuf Mohammed, who is not
opposing this application, it appears from the founding
affidavit
that he is currently in possession of one of the vehicles concerned,
being BMW 320i vehicle, having engine number 73798079
and Vin number
WBA3D360X0NP06211.
[26]
In the case of the Twenty-third Respondent, Arbe Car Sales (Pty) Ltd,
it is in an affidavit deposed to by its director, Mr.
Zaeem Arbe,
admitted that it purchased three of the vehicles in question, being
BMW 528i vehicle, having engine number A3720117
and Vin number
WBAXG3204CDW65664, BMW 528i vehicle, having engine number B2990153
and Vin number WBAXG3207CDW66002 and BMW 320
diesel vehicle, having
engine number 72398088 and Vin number WBA3D36010NN69076, from Mr
Seedat. It would, however, appearfromthe
Fourteenth Respondent's
opposing affidavit that he purchased another vehicle, being a BMW
320i sport vehicle, having engine number
73828085 and Vin number
WBA3D36070NN99778, from the Twenty-third Respondent. It is also
contended in contradictory terms (record
p. 930, para 14.2 and record
p. 941, para 27) and that it is currently in possession of two of
those vehicles, being BMW 528i vehicle,
having engine number A3720117
and Vin number WBAXG3204CDW65664 and BMW 320 diesel vehicle, having
engine number 72398088 and Vin
number WBA3D36010NN69076. No
explanation, as far as I could ascertain, seems to be afforded what
happened to the BMW 528i vehicle,
having engine number B2990153 and
Vin number WBAXG3207CDW66002. I have accordingly for purposes of this
application to accept that
the Twenty-third Respondent is still in
possession of the three vehicles in question until such time as he
discloses what happened
to the third of the vehicles it, according to
the opposing affidavit, purchased.
[27]
As far as the Twenty-six Respondent is, Mashuda Ebrahim, concerned
who elected not to oppose this application, it would seem
that
according to the investigation instituted by the Applicant that he is
in possession of one of the vehicles, being BMW 335i,
having engine
number 9227783 and Vin number WBAPM560X0NN35523.
Submissions
made by counsel on behalf of the Respondents opposing this
application
[28]
Having focussed on the requirements to be established by an applicant
for an interim interdict {Harms, Civil Procedure in the
Supreme
Court, at A5.7), it was submitted by counsel on behalf of the
Respondents opposing this application -
(a)
thai the Applicant failed to establish a prima facie right, though
open to some
doubt (Webster v Mitchell
1948 (1) SA 1186
(W) at
1189), in that, particularly -
(i)
it failed to prove that ownership of the various vehicles have not
passed to Mr Seedat and that he and the other Respondents,
as first
and further line receivers were, therefore, free to transfer
ownership from the one to the other;
(ii)
it was in any event in the circumstances estopped from claiming the
return of the vehicles on the basis of the rei vindicatio
as it
represented, through its employees, Messrs Harduth and Mogotsi,
negligently or otherwise to all third parties that ownership
had in
fact passed to Mr Seedat;
(b)
that the balance of convenience favours the Applicant.
[29]
I deal seriatim with each of these submissions.
Ownership
of the vehicles in question
[30]
It is clear from the founding papers that the Applicant that it was
at all relevant times the owner of the vehicles which Mr.
Seedat
succeeded in obtaining delivery.
[31]
In contending that ownership had not passed to Mr Seedat on delivery,
the Applicant relies on -
(a)
the usual procedure followed by it when a customer purchases a
vehicle from it (record pp. 43 and 44, para 40 of the founding
affidavit) in terms of which delivery of a vehicle purchased takes
place only when the purchase price has been paid, either in
cash or,
if financed by a bank, on delivery by a bank of a release note;
(b)
clauses 6 and 7.2 of a so-called "offer to purchase form"
in terms of which ownership in a vehicle purchased will
pass only
upon payment of the purchase price in full;
(c)
the fraud perpetrated by Mr. Seedat and the deception and fraud
perpetrated by the Applicant's employees who had no authority
or
right to enter into any transaction other than the one concluded in
accordance with the usual procedure prescribed by the Applicant
without first securing full payment before releasing the vehicles.
[32]
Mr Seedat (against whom the application was, as already indicated,
withdrawn because it has been shown that he is no longer
in
possession of any of the vehicles) elected to filed an opposing
affidavit in which he -
(a)
concedes that he indeed purchased the vehicles, that he paid R1,5
million by way of electronic transfer and that he issued various
postdated cheques for the balance of the purchase price;
(b)
alleges that he paid the balance in cash at various times whereafter
the vehicles were released to him and that the cheques
(which were
issued merely to assist the Applicant to commence the invoicing
process necessary to allow the transactions to be commenced)
were
"stopped'.
[33]
The majority of counsel appearing on behalf of the Respondents did
not seriously rely on the allegations contained in Mr. Seedat's
opposing affidavit to the effect that ownership must have passed to
Mr. Seedat on account of the contention that the transaction
was
indeed a cash transaction.
[34]
I believe that Mr. Seedat's allegations relating to the payment of
the balance of the price (which in effect and in my view
unrealistically accuse his co-perpetrators or other employees to have
themselves appropriated the money paid) are, on the probabilities,
for various reasons (with which I do not intend to deal at the
moment), so untenable that it can be rejected with confidence on
the
papers.
[35]
Some submissions were made on behalf of the Respondent that the
evidence on the Applicant's version show that the transaction
was a
credit transaction, but are not premised on any factual allegations
made by the Applicant or Respondents and, even if that
is the
situation, such submissions cannot in view of the provisions of the
agreement, at least on a prima facie basis, be accepted
(Info Plus v
Scheelke
[1998] ZASCA 21
;
1998 (3) SA 184
(SCA) at 1901).
[36]
The allegations on which the Applicant has based its ownership
cannot, except for various speculative contentions, not be factually
challenged by the other Respondents.
[37]
I am in the circumstances satisfied that the Applicant has prima
facie established that ownership had not passed to Mr Seedat
and
still vests in the Applicant.
Estoppel
[38]
The contention on behalf of the Respondents in this regard is in
effect that the Applicant, having allowed Mr. Seedat to take
possession of the vehicles and having supplied him with the original
Natis documents and change of ownership forms, together with
the
spare keys and service books, enabled Mr. Seedat to represent to the
first line Respondent and even the second and third line
Respondents
that he and even the second and third line purchasers could sell the
vehicles and transfer ownership to any purchaser
and that, therefore,
the Applicant is estopped from claiming that there was no intention
to transfer ownership of the vehicles
in consequence of the fraud
perpetrated
by Mr Seedat in apparent cahoots with the two employees concerned.
[39]
As is apparent from a long line of decided cases a party relying on
estoppel must show, the onus resting on him or her, that
such a plea
complies with the principles which have been appositely set out by
Holmes JA in Oakland Nominees (Pty) Ltd v Gelria
Mining & Inv Co
(Pty) Ltd
1976 (1) SA 441
(A), particularly, at 452A-G as follows:
"Our
law jealously protects the right of ownership and the correlative
right of the owner in regard to his property, unless,
of course, the
possessor has some enforceable right against the owner. Consistent
with this, it has been authoritatively laid down
by this Court that
an owner is estopped from asserting his rights to his property only -
(a)
where the person who acquired his property did so because, by the
culpa of the owner, he was misled into the belief that the
person,
from whom he acquired it, was the owner or was entitled to dispose of
it; or
(b)
.............................
As
to (a), supra, it may be stated that the owner will be frustrated by
estoppel upon proof of the following requirements -
(i)
There must be a representation by the owner, by conduct or otherwise,
that the person who disposed of his property was the owner
of it or
was entitled to dispose of it. A helpful decision in this regard Is
Electrolux (Pty.) Ltd. v. Khota and Another,
1961 (4) SA 244
(W),
with its reference at p. 247 to the entrusting of possession of
property with the indicia of dominium or jus dispone ndi.
(ii)
The representation must have been made negligently in the
circumstances.
(Hi)
The representation must have been relied upon by the person raising
the estoppel.
(iv)
Such person's reliance upon the representation must be the cause of
his acting to his detriment".
See
also: Grosvenor Motors (Potchefstroom) Ltd v Douglas
1956 (3) SA 420
(A)at427E
Quenty's
Motors (Pty) Ltd v Standard Credit Corp Ltd
[1994] ZASCA 41
;
1994 (3) SA 188
(A) at
198G Info Plus v Scheelke
[1998] ZASCA 21
;
1998 (3) SA 184
(SCA) at 194F
[40]
In Electrolux (Pty) Ltd. v. Khota and Another,
1961 (4) SA 244
(W) at
247 referred to in the Oakland Nominees case, supra, the approach to
the problem is set out as follows at 247B-E:
"To
give rise to the representation of dominium or jus disponendi, the
owner's conduct must be not only the entrusting of possession
to the
possessor but also the entrusting of it with the indicia of the
dominium or jus disponendi. Such indicia may be the documents
of
title and/or of authority to dispose of the articles, as for example,
the share certificate with a blank transfer form annexed,
as in West
v. De Villiers,
1938 CPD 96
, and the other cases referred to therein;
or such indicia may be the actual manner or circumstances in which
the owner allows the
possessor to possess the articles, as for
example, the owner/wholesaler allowing the retailer to exhibit the
articles in question
for sale with his other stock in trade. . . . In
all such cases the owner 'provides all the scenic apparatus by which
his agent
or debtor may pose as entirely unaccountable to himself,
and in concealment pulls the strings by which the puppet is made to
assume
the appearance of independent activity. This amounts to a
representation, by silence and inaction ... as well as by conduct,
that
the person so armed with the external indications of
independence is in fact unrelated and unaccountable to the
representor [in
casu applicant] . . . or otherwise.'".
[41
] In OK Bazaars (1929) Ltd v Universal Stores Ltd
1973 (2) SA 281
(C)
being a case where, as in casu, fraud was involved and the issue of
estoppel by representation was raised, Corbett J (as he
then was)
indicated the following at 286E.
"Estoppel
by negligence is a well-known concept both in our law and English
taw. In our law the leading case on the topic is
Union Government v
National Bank of SA Ltd.,
1921 AD 121.
The basic requirements of such
an estoppel would seem to be -
(i)
negligent conduct on the part of one person, A, which is calculated
to lead another, B, into the mistaken belief of a certain
state of
facts;
(ii)
such a belief on the part of the, presumably caused by A's conduct;
and
(Hi)
conduct by B to his prejudice induced by this belief"; and at
287H:
"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 whereever 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
[42]
From these principles it follows that, in order to be successful with
their plea of estoppel by representation, the Respondents
must prove
-
(a)
that the Applicant represented, negligently or otherwise, by way of,
inter alia, the indicia of dominium (or as it is also called
the "jus
disponendi" or "scenic apparatus") that Mr Seedat was
the owner of or entitled to dispose of the vehicles
in question;
(b)
that the representation by the Applicant was the proximate cause of
them having acted to their detriment by purchasing the vehicles
which
are currently in their possession.
[43]
I fail, in the absence of any clear indications from any of the
Respondents, to see on a prima facie basis, how and why any
of the
remaining Respondents believed that the Applicant represented that
Mr. Seedat was the owner or entitled to dispose of the
vehicles in
question and, if so, that such representation was the proximate cause
of them having purchased any of the vehicles.
[44]
It would appear that as far as -
(a)
the First Respondent is concerned, he, having received information
that Mr. Seedat has various vehicles for sale at reasonable
prices,
purchased the vehicle parked some where in a vacant piece of land and
paid the purchase price into a banking account of
some one other than
Mr. Seedat and, although he noticed that the owner and title holder
is the Applicant, did so without suspecting
or raising any questions
as to the clandestine nature of the transaction or giving any
explanation as to why he accepted that Mr
Seedat was entitled to sell
the vehicle in question;
(b)
the Fifth Respondent is concerned, its managing director purchased on
behalf of the Fifth Respondent the 11 vehicles concerned
from the
Twenty-third Respondent on the managing member's say so that he
purchased the vehicles from Mr Seedat and, notwithstanding
the fact
that the documents submitted to it indicating that the Applicant is
the owner and title holder of the vehicles, did not
raise a question
as to the authorization of Mr. Seedat to have sold the vehicles to
the Twenty-third Respondent or attempted to
indicate why he believed
that Mr. Seedat was entitled to sell the vehicles either as his own
or on behalf of the Applicant;
(c)
the Second, Third, Fifth, Sixth, Seventh and Tenth Respondents are
concerned, no affidavits were filed in which any indication
is given
as to their perception as to whether or not they believed that either
Mr Seedat or the Fifth Respondent was entitled to
sell the vehicles,
particularly, where the vehicles must have been registered in name of
the Fifth Respondent;
(d)
the Twelfth Respondent is concerned, no indication is given as to how
or why he could have reason to believe that the Applicant
represented
that Mr Seedat was the owner of or entitled to sell the vehicle to
Motordeal CC (as a matter of fact there is no indication
that he even
knew that somewhere along the line Mr Seedat must have sold the
vehicle;
(e)
the Thirteenth, Fourteenth, Fifteenth, Eighteenth and Twenty-third
Respondents are concerned, there is similarly no indication
given by
any of these Respondents as to how and why they could have any reason
to believe that the Applicant represented that Mr
Seedat was the
owner of or entitled to sell the vehicle.
[45]
The plea of estoppel seems rather to be raised based on inferences
drawn from -
(a)
the fact that, particularly, in the case of the First and Fifth
Respondents, the change of ownership form containing the name
of one
"K S Hendriks" as the proxy of Forsdicks;
(b)
the fact that the indicia of dominium or scenic apparatus were handed
to Mr. Seedat.
[46]
As far as "Hendriks" is concerned, the Applicant explained
in reply -
(a)
that the change of ownership forms referred to are not original rue
certified copies;
(b)
that Mr. K S Hendriks is employed by the Applicant as "Admin
cierk more specifically the licensing and registration clerk
for the
dealership" and that during the Applicant's investigation of the
transaction he made a statement (record p. 1017,
Annexure A) in which
he denied having signed any change of ownership form.
According
to the statement of Mr. Hendriks he recalled that he was approached
on 2 August 2012 by one Mohamed Kaloo who requested
the original
Natis documents of a certain Porsche and a BMW 750! be handed to him.
He refused, but Mr. Kaloo then phoned Mr. Mogotsi
who instructed him
to give Mr Kaloo the original Natis documents.
He
denies having been involved in having signed any change of ownership
form in respect of any of the 55 vehicles delivered to Mr.
Seedat.
[47]
As far as the indicia of dominium or scenic apparatus are concerned,
it appears at least on a prima facie that the documents
must have
been handed, without any authority to do so, to Mr Seedat by his
alleged co-perpetrators, namely, Messrs Harduth and
Mogotsi. I am
accordingly unpersuaded that the Applicant can in the circumstances
be blamed for having been responsible for any
representation that may
have been made to any of the Respondents. Some submissions were made
that the Applicant can in the circumstances
be held vicariously
liable for the actions of its employees. I am not satisfied that this
is a situation, assuming for a moment
that the principle of vicarious
liability can find application in these circumstances, where the
employees acted within the scope
and course of their employment. They
seem to have defrauded their employee, the Applicant.
In
Minister van Veiligheid & Sekuriteit v Phoebus Apollo Aviation BK
2002 (5) SA 475
(SCA) the Court has dealt with the actions of
dishonest policemen who have stolen money they recovered from robbers
who had robbed
that money. The Court held that, judged objectively or
subjectively, those actions did not fall within the course and scope
of
their duties as they embarked on an unauthorised jaunt for their
own benefit with intention of stealing from their own employer.
Balance
of convenience
[48]
In this regard it was contended on behalf of the Respondents -
(a)
that the Applicant initially sought final relief in respect of which
this requirement is not an element, but in terms of its
amended
Notice of Motion now seeks interim relief which placed the
Respondents in a position where this requirement could not been
ventilated;
(b)
that the loss that the Respondents will suffer in the event of the
interim order being granted exceeds any loss the Applicant
may suffer
as it will in the end, if the Applicant's claim is sustained, still
be entitled to the return of the vehicles.
[49]
In my opinion these considerations are unfounded.
[50]
The question of the balance of convenience was indeed raised in the
founding affidavit (record p. 51, para 58) to which, except
the
Twelfth, Thirteenth, Fourteenth, Fifteenth and Twenty-third
Respondents, the Respondents elected not to respond to. The Twelfth,
Thirteenth, Fourteenth, Fifteenth and Twenty-third Respondents,
having indicated that should this Court find that interim relief
is
claimed, did respond extensively thereto.
[51]
As far as the loss that each party may suffer is concerned, I am
satisfied that the vehicles will, to the substantial loss
and
prejudice of the Applicant, devaluate should the Respondents be
allowed to retain possession until such time as the proposed
application or action is finalized and may even be damaged or
transferred to other parties who are not parties to these
proceedings.
Other grounds raised
[52]
in the case of the First Respondent it was also contended, albeit not
seriously, that the Applicant also failed to establish
the
requirements of irreparable harm and the absence of any other
adequate remedy. In my view there is no merit in these submissions.
As I have indicated in relation to the balance of convenience, the
Applicant will, no doubt, assuming that a clear right can eventually
be established, suffer extensive losses as the vehicles may have been
damaged or transferred to other receivers and will, due to
prolonged
used, substantially devaluated. The fact that it may have a claim
against its errant employees can, bearing in mind that
the loss
suffered is in excess of 15 million, hardly be regarded as an
adequate remedy.
[53]
Some mention was also made of the fact that the Applicant bought six
of the vehicles back from the Twenty-fifth Respondent
which, so it
was contended, raises the question why would it have done that if it
is its contention that it retained ownership.
The circumstances under
which these vehicle were purchased by the Applicant is duly explained
(record pp. 698 to 699, para s 15,
16, 17, 18, 19 and 20 and record
p. 703A) from which it appears that the vehicles had been obtained by
the Applicant's Used Vehicle
Manager not realizing that these
vehicles were the vehicles fraudulently obtained by Mr Seedat.
[54]
I need in conclusion to mention that various helpful and
well-reasoned submissions were made by counsel appearing on both
sides, but in view of the fact that I was dealing with this matter as
an urgent matter, I mean no disrespect to counsel in so far
as I did
not deal with all the submissions they have made save to say that I
indeed considered all the submissions made. Should
it, however, in
due course become necessary to deal with any of those issues I will
of course do so.
[55]
This brings me to the question of costs
Costs
[56]
The parties were all in agreement that costs should follow the result
and that, where applicable, such costs should include
the costs
attendant upon the employment of two counsel.
Order
[57]
For the reasons set out in this judgment the following order is
made:-
1.
THAT the application in respect of the Twenty-fifth Respondent be
dismissed with costs.
2.
THAT the First, Second, Third, Fifth, Sixth, Seventh, Tenth, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Eighteenth, Twenty-first,
Twenty-third and Twenty-Sixth Respondents be ordered to forthwith
return to the Applicant -
2.1
in the case of the First Respondent, BMW 320 vehicle, with engine
number B2350165 and Vin number WBA3B16070NP41623;
2.2
in the case of the Second Respondent -
(a)
BMW 320i vehicle, having engine number A8820235 and Vin number
WBA3B16090NP78866;
(b)
BMW 3201 vehicle, having engine number A5990209 and Vin number
WBA3B16070NP42951;
2.3
in the case of the Third Respondent, BMW 320i vehicle, having engine
number B1050229 and Vin number WBA3P160XONN76344;
2.4
in the case of the Fifth Respondent -
(a)
BMW 320i sport vehicle, having engine number A6000177 and Vin number
WBA3B16000NP42709;
(b)
BMW 320i sport vehicle, having engine number AO780161 and Vin number
WBA3B160X0NN76120;
(c)
BMW 320i vehicle, having engine number A55002200 and Vin number
WBA3B1601ONN76250;
(d)
BMW 320d, having engine number 73708079 and Vin number
WBA3D36070NP06148;
2.5
in the case of the Sixth Respondent, BMW 320i vehicle, having engine
number A0880220 and Vin number WBA3B16010NN76300;
2.6
in the case of the Seventh Respondent, BMW 320i vehicle, having
engine number B1700162 and Vin number WBA3B160X0NN76084;
2.7
in the case of the Tenth Respondent -
(a)
BMW 320i sport vehicle, having engine number A2960180 and Vin number
WBA3B16040NP44396;
(b)
BMW 320 diesel vehicle, having engine number 73218077 and Vin number
WBA3D36030NN68950;
2.8
in the case of the Twelfth Respondent, BMW 320i sport vehicle, having
engine number A0750161 number WBA3B16080NN75919;
2.9
in the case of the Thirteenth Respondent, BMW 320i sport vehicle,
having engine number A3930219 and Vin number WBA3B16070NP44134;
2.10
in the case of the Fourteenth Respondent, BMW 320i sport vehicle,
having engine number 73828085 and Vin number WBA3D36070NN99778;
2.11
in the case of the Fifteenth Respondent, BMW 320i vehicle, having
engine number A6110218 and Vin number WBA3B17040NP43166;
2.12
in the case of the Eighteenth Respondent, BMW 320i vehicle, having
engine number 73798079 and Vin number WBA3D360X0NP06211;
2.13
in the case of the Twenty-third Respondent -
(a)
BMW 528i vehicle, having engine number A3720117 and Vin number
WBAXG3204CDW65664;
(b)
BMW 528i vehicle, having engine number B2990153 and Vin number
WBAXG3207CDW66002;
(c)
BMW 320 diesel vehicle, having engine number 72398088 and Vin number
WBA3D36010NN69076;
2.14in
the case of the Twenty-sixth, BMW 335i, having engine number 9227783
and Vin number WBAPM560X0NN35523.
3.
THAT, in the event of any of the Respondents referred to in paragraph
2 of this order failing to return any of the vehicles specified
in
the said paragraph 2 within three days as from the date of this
order, the Sheriff be directed and authorized to attach and
remove
any such vehicle from the relevant Respondent and to deliver such
vehicle to the Applicant.
4.THAT
paragraph 2 of this order be operative as an interim order, pending
the finalization of an application or action, to be lodged
or
instituted within 30 days as from the date of this order by the
Applicant, for an order declaring the respective vehicles to
be the
exclusive property of the Applicant and directing that such vehicles
be released to the Applicant so as to deal therewith
as it deems fit.
5.THAT
the Applicant be ordered to keep the vehicles referred to in
paragraphs 2 and 3 of this order at a safe place until such
time as
the application or action envisaged in paragraph 4 of this order has
been finally determined.
6.
THAT the First, Second, Third, Fifth, Sixth, Seventh, Tenth, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Twenty-first and Twenty-third
Respondents be ordered to pay, jointly and severally, the one paying
the other to be absolved, the Applicant's costs of this application,
including the costs attendant upon the enjoyment of the counsel.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT ADV B ROUX SC
ADV
WTB RIDGARD
On
the instructions of LOUBSER VAN DER WALT INC
375
Charles Street Brooklyn
PRETORIA
Ref:
R P van Wyk/mc/W1467
Tel:
012 460 1915/6
ON
BEHALF OF THE 1st RESPONDENT ADV J J MEIRING
On
the instructions of ABBA PARAK INC
Ref:
GHO/ANI/FORS/LIT1049/AP Tel: 011 830 1410
c/o
JOHAN JOOSTE ATTORNEYS
159
Koos De La Rey Street
PRETORIA
NORTH
Ref:
J Jooste
Tel:
082 859 8544
ON
BEHALF OF THE 2nd, 3rd, 5th, 6th, 7th AND 10th
RESPONDENTS:ADV
J G WASSERMAN SC
ADV
M MOSTERT
On
the instructions of DASOO ATTORNEYS
208
Maltzan Street
Pretoria
West
PRETORIA
Ref:
MrDasoo/SMA.191 011 6841468
ON
BEHALF OF THE 12th, 13th, 14th, 15th AND
23rd
RESPONDENTS: ADV H B MARAIS SC
ADV
D L WILLIAMS
On
the instructions of Z SALOOJEE ATTORNEYS
c/o
A W JAFFER ATTORNEYS 557 Carl Street
Pretoria
West PRETORIA
Ref:
MS/038/LIT/ZS
Tel:
016 422 498/2616
ON
BEHALF OF THE 25
th
RESPONDENT: ADV J H de V BOTHA
On
the instructions of MONTE COETZER INC
Ref:
Mr M P Coetzer/av Tel: 011 492 1450
c/o
RONTGEN & RONTGEN ATTORNEYS
HB
Forum 13 Stampvrug Street