About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 105
|
|
Bester v Labella Imports CC (1444/2011) [2011] ZAFSHC 105 (24 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1444/2011
In the matter between:
LEON CARL BESTER
…...........................................................
Applicant
and
LABELLA IMPORTS CC
…..................................................
Respondent
HEARD ON:
17 APRIL 2011
_____________________________________________________
DELIVERED ON:
24
JUNE 2011
KUBUSHI, AJ
INTRODUCTION
[1] This application was
before the court on an urgent basis and was dismissed for lack of
urgency. The applicant,
inter alia
, prayed for an order in
terms of the following:
1.1 That the sheriff of
the court be authorised and ordered to attach a blue Ford Mustang
Shelby GT500 Supersnake (the motor vehicle)
in the possession of the
respondent or wherever it may be found and to hand it over to the
applicant;
1.2 That the respondent
be ordered, in case the motor vehicle is not in his possession or
control, or if not found by the sheriff
not to be in his possession
or control, to inform the sheriff of where the said motor vehicle is
and the particulars of the person
who is in possession thereof;
1.3 That the applicant be
ordered to pay an amount of R715 000 to the respondent within 14 days
after the delivery of the motor
vehicle to the applicant;
1.4 That the respondent
be ordered to pay the costs of this application;
1.5 Further and/or
alternative relief.
[2] The respondent
opposed the application on the following basis:
2.1 That the applicant
failed to join the South African Revenue Service (SARS) as a party to
the proceedings. According to the respondent
the amount which the
applicant had tendered was due and payable to SARS and such payment
was a condition precedent for the release
of the motor vehicle.
2.2 That as the applicant
was in fact seeking specific performance of the agreement concluded
he failed to make out a case for the
terms of the agreement to
encapsulate it. The applicant failed to allege in his founding
affidavit that the parties had agreed
that the applicant would be
afforded 14 days after the date of delivery of the motor vehicle to
pay the tax to the respondent or
to anyone.
2.3 The application is
premised on the postulate that the applicant is the owner of the
motor vehicle. The respondent argued that
it is not so, as he acted
as a consignee when he imported the motor vehicle and did not import
the motor vehicle in the name of
the applicant as his agent.
The application has now
been brought in the normal way before this court.
[3] In a letter dated 4
April 2011, which is three days after the hearing of the urgent
application, the respondent’s attorneys
informed the
applicant’s attorneys that the vehicle has been sold. The
applicant’s attorneys in response to that letter
requested, in
a letter dated 7 April 2011, the respondent’s attorneys to
provide them amongst others, with the particulars
of the purchase
agreement of the motor vehicle and the particulars of the motor
vehicle. In a letter to the applicant dated 7 April
2011 the
respondent refused to provide the applicant with the requested
information.
[4] On the 10
June
2011 the applicant filed a replying affidavit. The replying affidavit
raised issues which placed some of the facts in the respondent’s
opposing affidavit in dispute. As a result thereof applicant applied
for an order referring the factual disputes to trial. The
main issues
raised which were in dispute were:
4.1 Who is responsible
for duties, storage and taxes;
4.2 Who repudiated the
agreement;
4.3 Who is the owner of
the motor vehicle – did the respondent act as an agent of the
applicant or as consignee.
[5] In addition to the
factual disputes the applicant’s replying affidavit also raised
a new and further relief whereby the
respondent should be ordered to
provide the applicant with the following information: the exact
details of the vehicle, as well
as its whereabouts; including but not
limited to, the name of the person or entity to whom the vehicle was
sold, the date on which
the vehicle was sold, where delivery took
place, to whom on behalf of the third party (purchaser) delivery was
effected, the physical
address of delivery and the contact
particulars of the third party and/or the third party agent.
[6] The respondent’s
counsel on the other hand, argued for the dismissal of the
application and based his contention on two
grounds. Firstly, that
since the respondent had disposed of the motor vehicle there was no
longer any dispute between the parties
and the application has become
mute. Secondly, that the respondent’s replying affidavit raised
a new cause of action of a
mandamus
– requesting the
court to order the respondent to provide the applicant with certain
information. The applicant, as per the
respondent’s counsel,
failed to comply with the requirements of the
mandamus
.
At the hearing of the
application the applicant was represented by Adv Gilliland and the
respondent by Adv Grobler. Both counsels
addressed me only on the
issues stated in paragraphs 3 – 4
supra.
ISSUES
[7] I now have to
determine whether or not the disposal of the motor vehicle by the
respondent rendered the application mute, and
if not, whether there
are factual disputes in this matter that will necessitate the
referral of this matter to trial. I also have
to decide whether or
not the respondent should be compelled to furnish the applicant with
the information as set out in paragraph
five
supra
.
APPLICANT HAS NO CLAIM
AGAINST THE RESPONDENT
[8] The respondent’s
counsel contended that the disposal of property to another person was
a complete defence and as such
the disposal of the motor vehicle by
the respondent rendered the applicant’s claim mute. He argued
that a claim can only
be made against a person who is in possession.
He referred me in this regard to the case of
LEAL & CO V
WILLIAMS
1906 TS 554
and to
AMLER’S PRECEDENT OF
PLEADINGS
5ed p409.
[9] The appellant’s
counsel in counter argument stated that there is no where in the
papers where it is stated that the vehicle
has been sold. According
to him, the respondent was being dishonest and he found it improbable
that she was able to sell the vehicle
in two days time. He contended
further that this aspect had not become mute because the applicant
had put the right to dispose
of the motor vehicle in dispute.
According to him, this was a factual dispute that must be referred to
trial.
[10] In considering this
aspect I assumed that the motor vehicle was disposed of. The decided
case which the respondent’s
counsel referred me to, in my
opinion, did not come to the assistance of the respondent. According
to the judgment in that case,
for a disposal of possession to be a
complete defence it must be a
bona fide
disposal. In the
instance, my opinion is that, the disposal of possession by the
respondent could not have been
bona fide
since at the time of
the disposal there was a dispute. The applicant further submitted
that the respondent acted dishonestly in
disposing the motor vehicle
well knowing that there was a pending action in respect thereof. I
agree with this submission. The
respondent’s disposal of the
motor vehicle with the full knowledge that the applicant was claiming
delivery thereof was,
in my view,
mala fide
. In
PHILIP
ROBINSON MOTORS (PTY) LTD V NM DADA (PTY) LTD
1975 (2) SA 420
(A) case wherein the applicant also claimed delivery of a motor
vehicle, the court at 428C held that the respondent acted
mala
fide
in disposing of the motor vehicle whilst being aware of the
applicant’s resolute and persistent claim.
[11] The court at 428B
held also that:
“
if
respondent had been bona fide, it would have been a simple and
reasonably prudent precaution, in view of all that had gone before,
to telephone the appellant and ask whether the coast was clear: …”
Similarly, in the
instance, the respondent should have done the same. The respondent
was aware that the applicant was claiming delivery
of the motor
vehicle and the applicant had even tendered payment of the
outstanding taxes. Despite all that, she sold the motor
vehicle
without any reference to him. My finding on this aspect is that the
disposal of the motor vehicle does not render the application
mute
and
prima facie
does not provide a complete defence as
suggested by the respondent’s counsel.
REFERAL TO TRIAL
[12] The applicant’s
counsel, submitted that factual disputes have arisen which have the
effect that the application cannot
be properly decided on affidavit.
He contended that such disputes arose after the respondent filed her
opposing affidavit. According
to counsel, the disputes of fact arose
in respect of the following issues:
12.1
The total
contract price
. The applicant contended that the amount of R735
000 was the total contract price inclusive of all taxes. The
respondent, according
to the applicant, falsified an e-mail (Annexure
“LMB1”) dated 23 April 2010 which the respondent alleged
it informed
the applicant about the payment by him of the extra
things like demurrage, duties and taxes. According to the applicant’s
counsel the e-mail that the applicant received from the respondent
bearing the same date and time of delivery, did not have this
extra
information;
12.2
The ownership of
the motor vehicle.
The applicant contended that the respondent
had no right to sell the motor vehicle as he was the owner of the
motor vehicle. He
maintained that the respondent acted as his agent
when acquiring the motor vehicle. The respondent argued that she was
the owner
of the motor vehicle and was therefore entitled to dispose
of it. According to her, when acquiring the motor vehicle, she acted
as a consignee and not as an agent of the applicant;
12.3
Cancellation of
the agreement.
The appellant submitted that the respondent had no
right to cancel the contract and to sell the motor vehicle. The
respondent argued
that the contract had been validly cancelled and
that the contract between the parties had clearly contemplated the
cancellation
of the contract.
[13] The respondent’s
opposition to refer the application to trial is contained in
paragraph 6
supra.
[14] I have already
concluded that the disposal of the motor vehicle by the respondent
does not render this application mute. My
view on the request for a
mandamus
by the applicant is that, this is a separate cause of
action which must be dealt with separately from the main application.
The
application does not turn on it and I will deal with it later.
Based on my conclusions in paragraph 14 above, I am therefore
satisfied
that the issues raised by the applicant in paragraph 12
above, are indeed factual disputes which cannot be resolved on the
papers
before me. Where facts are in dispute the court has a
discretion as to the future course of the proceedings. Rule 6 (5) (g)
of
the Uniform Rules of Court provides that:
“
Where an
application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems
meet with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for him or any other person to be
subpoenaed to appear and be examined and
cross examined as a witness
or it may refer the matter to trial with appropriate directions as to
pleadings or definition of issues,
or otherwise.”
[16] The sub-rule sets
out three different courses which the court may adopt: it may dismiss
the application with costs or order
the parties to go to trial or
order oral evidence in terms of the rules. The court may dismiss an
application if the applicant
should have realised when launching the
application that a serious dispute of fact, incapable of resolution
on papers, was bound
to develop. See
ROOM HIRE CO (PTY) LTD v
JEPPE STREET MANSIONS (PTY) LTD
1949 (3) SA 1155
at 1168. I
am satisfied with the applicant’s counsel’s explanation
that the applicant could not reasonably have foreseen
that a serious
dispute of fact, incapable of resolution on the papers was bound to
develop. He contended that at the time when
the application was moved
the applicant had no knowledge of the extra information contained in
annexure “LMB 1” and
also that at that time the
respondent had not sold the motor vehicle. My view is that I cannot
at this stage dismiss the application
but must refer it for
viva
voce
evidence.
[17] In the exercise of
its discretion under the sub-rule the court must select the most
suitable method of employing
viva voce
evidence for the
determination of a dispute. See
ROOM HIRE CO (PTY) LTD v JEPPE
STREET MANSIONS (PTY) LTD
at 1162 above. In the instance, the
applicant requested an order referring the matter to trial and the
issues to be referred to
trial have been defined as appears from
paragraph 12 above. There being no reason before me to persuade me
otherwise I conclude
that this application must be referred to trial.
REQUEST FOR
INFORMATION
[18] The applicant argued
that the respondent has consistently failed to provide the applicant
with confirmation that the motor
vehicle had been imported, the
whereabouts thereof and the particulars of the motor vehicle;
including the relevant references
and source documents pertaining to
the payable taxes. According to him there is no reason why the
respondent should refuse to divulge
the particulars of the purchaser
of the motor vehicle to him. He relied on section 32 (1) (b) of the
Constitution and section 50
of the Promotion of Access to Information
Act, Act 2 of 2000, as the legislation that established his right to
the information
he required.
[19] Section 32 (1) (b)
of the Constitution provides that everyone has a right of access to
any information that is held by another
person and that is required
for the exercise or protection of any rights. Section 50 of the
Promotion of Access to Information
Act provides that a culture of
transparency and accountability in, amongst others, private bodies
should be fostered by giving
effect to the right to access to
information and the exercise and protection of rights should, by
granting effective access to
information, be actively promoted. Being
an existing juristic person the respondent is a “private body”
as defined
in section 1 of this Act.
[20] The applicant
contended further that in the event the matter is referred to trial,
it will be necessary for him to join the
purchaser of the motor
vehicle to these proceedings and, obtain an order preventing the
dissipation and/or encumbrance of the motor
vehicle pending
finalisation of the trial.
[21] According to the
respondent’s counsel the applicant is now applying for a
mandamus
. To do so, the applicant must satisfy the
requirements of a
mandamus
, namely, that:
21.1 he has a clear right
to claim this relief from the respondent;
21.2 an injury was
actually committed or reasonably apprehended; and
21.3 there is no similar
protection by any other remedy.
[22] He submitted that
the applicant has not satisfied any of the requirements in that:
22.1 the applicant has
not proffered, not even in the replying affidavit, any evidence as to
any right entitling him to the information.
He contended that the
Promotion of Access to Information Act, on which the applicant relied
for a statutory right to information
as being of no assistance to the
applicant at this stage. The applicant must first comply with the
requirements of the Act, and
if he is not successful, he can then
approach the court.
22.2 the applicant failed
to indicate to the court what irreparable harm he will suffer should
the court fail to come to his aid.
He maintained this as being due to
the fact that the respondent had already provided the applicant with
the whereabouts of the
motor vehicle by disclosing that it was at
City Deep.
22.3 there were vast
alternative remedies at the disposal of the applicant which he failed
to follow before approaching court for
relief. According to him the
Promotion of Access to Information Act, enquiries at the registering
and licensing authorities are
some of the avenues which are available
to the applicant to find this information.
[23] I agree with the
submissions by the respondent’s counsel, the applicant is
applying for a
mandamus
and for him to succeed in his request
for this order he must show on the papers that on a balance of
probabilities he has a clear
right, that his apprehension of damage
to that right being caused by the respondent’s acts is a
reasonable apprehension in
the circumstances and that no other
adequate remedy is available. The court in
ALLIANCE CASH &
CARRY (PTY) LTD V COMMISSIONER SOUTH AFRICAN REVENUE SERVICE
2002 (1) SA 789
(TPD) at 795I – J stated as follows:
“
It must be
borne in mind that the appellant in this matter applies for mandamus,
ie mandatory interdict. The applicant must therefore
establish a
clear right, an injury actually committed or reasonably apprehended
and the absence of similar protection by any other
ordinary remedy
(Setlogelo v Setlogelo
1914 AD 221
at 227)”
[24] In my view the
applicant failed to establish each of these requirements. Although
the applicant had in terms of section 32
(1) (b) of the Constitution
and section 50 of the Promotion of Access to Information Act as
quoted in paragraph 19 above, established
his right to the
information required, he however failed to prove to this court a
clear right which he seeks to protect. Whether
the applicant has a
right is a matter of substantive law and whether that right is
clearly established is a matter of evidence.
In order to establish a
clear right the applicant had to prove on a balance of probabilities
that right which he seeks to protect.
There is no evidence to that
effect before me. See
CRYSTAL HOLDINGS
(PTY) LTD V THE REGIONAL LAND CLAIMS COMMISSIONER
[2008] 1 All SA (N) at 260g.
[25] The applicant has
shown no actual injury committed or a reasonable apprehension of
injury as there is no such evidence before
me. The applicant must
have proven some other act actually done showing interference with
his right or a well grounded apprehension
that acts of the kind will
in future be committed by the respondent. See
JONES &
BUCKLE
9ed Volume 1 at p93 and
CRYSTAL HOLDINGS (PTY)
LTD V THE REGIONAL LAND CLAIMS COMMISSIONER
supra
.
[26] The applicant has
other remedies available to protect his alleged rights – the
procedure prescribed in terms of the Promotion
of Access to
Information Act, is one such procedure as stated by the respondent’s
counsel. In the
ALLIANCE CASH & CARRY (PTY) LTD
case supra, Spoelstra J at 795 when considering the case of
VAN
NIEKERK V PRETORIA CITY COUNCIL
1997 (3) SA 339
(T), that was
referred to him in argument, stated as follows:
“
I do not
understand this statement to convey that a party to legal proceedings
has at all times free access to this Court as soon
as he maintains
that in terms of the Constitution he has a right to information from
the State.”
Spoelstra J, went further
to say at 793J:
“
Had the
appellant availed itself of the remedies, the present proceedings
would in all probability have been unnecessary and could
have been
avoided.”
[27] In my view, the
applicant adopted a wrong procedure to access the information from
the respondent. His counsel conceded as
much when he submitted to
this court that if he had been responsible for the drafting of the
papers he would have applied for an
interim relief. Chapter 3 of Part
3 read with Chapter 2 of Part 4 of the Promotion of Access to
Information Act sets out a detailed
procedure which must be followed
to access information in the records of private bodies. This is the
procedure that the applicant
ought to have followed. Under the
circumstances I find my self constrained to can grant this order.
COSTS
[26] The applicant prayed
that the respondent be ordered to pay the costs of the application.
The respondent on the other hand prayed
for an order against the
applicant on an attorney and client scale. It is trite that the costs
of the suit be awarded to the successful
party. In the instance the
judgment is substantially in favour of the applicant. The court has
however a discretion in awarding
the costs. Its discretion is wide,
unfettered and equitable. See
INTERNATIONAL EXPORTS (PTY) LTD V
FOWLES
1999 (2) SA 1045
(SCA). My view is that the costs of
this application should be determined at the trial.
ORDER
[27] In the circumstances
I make the following order:
IN RESPECT OF THE
ORDER FOR REFERRAL TO TRIAL
27.1 The applicant is
ordered to proceed by way of trial for the enforcement of his claim.
27.2 The notice of motion
shall stand as a simple summons.
27.3 The opposing
affidavit shall stand as a notice of intention to defend.
27.4 The applicant shall
deliver a declaration to the respondent within four weeks from the
date of this order.
27.5 The Uniform Rules
dealing with further pleadings, discovery and the conduct of trials
shall thereafter apply.
IN RESPECT OF THE
ORDER FOR THE REQUEST OF INFORMATION
27.8 The order is
dismissed.
COSTS
27.9 Costs of the
application to be determined at the trial.
________________
E. M. KUBUSHI, AJ
On behalf of the
applicant: Adv. J. G. Gilliland
Instructed by:
De Klerk & Marais Inc
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Grobler
Instructed by:
Honey Attorneys
BLOEMFONTEIN