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[2011] ZAKZDHC 41
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ABSA Bank Ltd v Robin's Mobile and Fleet Maintenance CC (11956/2011) [2011] ZAKZDHC 41 (5 April 2011)
IN THE KWAZULU - NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 11956/2011
In
the matter between:
ABSA
BANK LIMITED
................................................................................
Applicant
and
ROBIN’S
MOBILE & FLEET MAINTENANCE CC
...............................
Respondent
JUDGMENT
NDLOVU J
[1] This matter was argued before me on 31 March 2011
being the extended return date of the rule
nisi
granted by the
court on 29 October 2010.
[2] The rule
nis
i incorporated interim relief in
the following terms:
“
1.1. Directing the Respondent forthwith to
deliver to the Applicant alternatively the Deputy Sheriff for the
area in which the under
mentioned truck tractor may be found assisted
by the Applicant, certain truck tractor described as:
2004 Volvo Self Propelled Heavy load, truck tractor,
Registration No. ND 191 514, Engine No. D 124 29088
Chassis No. YV2 J4 CMC 142847401
(hereafter ‘the vehicle’)
Against delivery to the respondent of the bank guarantee for payment
of the sum of R5 650,64 (Five Thousand Six Hundred and Fifty
Rand
Sixty Four Cents), together with interest thereon at the mora rate of
15,5% per annum reckoned from 1 March 2010 to date of
service of
these papers by the Deputy Sheriff aforesaid, and being Annexure
‘ABSA1” to these papers
Ordering the Respondent immediately to disclose to the Sheriff and
the Applicant the precise whereabouts of the vehicle and
precise
place of the alleged storage facility wherein the vehicle may be
found.
1.3. Ordering the Sheriff or his Deputy forthwith to deliver the
vehicle to the Applicant at a place nominated by the Applicant.
1.4. Directing the Respondent to institute action against the
Applicant in a competent Court for recovery of any claim it alleges
it has for storage fees of the vehicle within 30 (thirty) days of
confirmation of the rule with or without modification and failing
which the claim for storage fees will, as against the Applicant,
lapse.
1.5. Ordering the Respondent to pay the costs of this application.
That the orders referred to in paragraphs 1.1, 1.2, and 1.3 hereof
do operate as interim orders pending the return day or any
extension
thereof.”
[3] It is common cause that on or
about 18 November 2008 the applicant sold the vehicle to a corporate
entity known as Reefer Logistics
CC (“Reefer”) in terms
of an instalment sale agreement (“the Agreement”) whereby
Reefer would pay certain
monthly instalments towards the debt on the
vehicle. In terms of the Agreement ownership of the vehicle would
remain with the applicant
until such time that the debt was fully
discharged by Reefer.
1
[4] On or about 1 July 2009 the applicant instituted
legal action against Reefer at the Pinetown magistrate’s court
after
Reefer had allegedly failed to pay the specified monthly
instalments to the applicant in terms of the Agreement. Upon the
respondent
having failed to respond to the summons, default judgment
was granted by the magistrate’s court against Reefer on 6
October
2009, in the following terms:
“
1. An order confirming the plaintiff’s
cancellation of the AGREEMENT.
2. An order authorising and directing the Sheriff
of the Court and/or his Deputy, to seize and take into his custody
and thereafter
to hand over to the plaintiff or its nominated agent
the vehicle.
3. Costs on the scale as between attorney and client, to be taxed.”
[5] For the reasons indicated in his return of service
dated 28 October 2009, the sheriff was unable to execute the warrant
of delivery
(issued on the strength of the default judgment
aforesaid), that is, to remove the motor vehicle from the possession
of Reefer
and handing it over to the applicant. Hence, the vehicle
remained in the possession of Reefer then.
[6] It appeared from the papers that, in the meantime,
the vehicle encountered mechanical problems which resulted in Reefer
taking
it to the respondent for repairs. It was common cause that the
respondent, a close corporation, conducted business as a garage or
workshop. This is how the respondent got into the picture in this
matter. According to the answering affidavit the respondent undertook
the repairs on the vehicle.
[7] The respondent apparently complained about Reefer’s
failure to pay for the repairs which were effected by the respondent
on the vehicle. It was on this basis that the respondent sought to
claim the right of retention over the vehicle pending payment
of a
specified sum of money (set out hereunder), being for repairs and
storage charges. What follows gives an illustration of how
the
respondent sought to justify its claim of a legal right to retain the
vehicle in its possession until the amounts allegedly
owed to the
respondent by Reefer were paid in full.
[8] An affidavit deposed to on 30 August 2010 by one
Sevandran Pillay, apparently the managing member and authorised
representative
of the respondent, was attached to a letter dated 30
August 2010 addressed to the applicant by the respondent’s
attorneys.
The letter aforesaid was marked “without prejudice”,
although, it may be pointed out, there was nothing in its contents
to
indicate or suggest an attempt towards any settlement of the dispute
or other grounds that justified such marking. Mr
Tobias
, for
the applicant, submitted that an affidavit has never been a “without
prejudice” document and further that, in
any event, there was
no legal reason why the contents of both the letter and the affidavit
should not be disclosed to the court.
Mr
Govender
, appearing
for the respondent, correctly conceded during argument that both the
letter and the affidavit were indeed not “without
prejudice”
documents.
[9] In the said affidavit Mr Pillay set out the account
of events which led up to the stage that the applicant instituted
this litigation.
It seems to me apposite to refer to the pertinent
provisions of Mr Pillay’s affidavit and I propose to do so
presently:
“
5 The vehicle was first brought to my
workshop circa the 20
th
of May 2009 for inspection, repair and maintenance. A significant
amount of work was then carried out on the vehicle engine with
the
fees for my work amounting to R 147, 656.59.
6 The vehicle was brought in by Mr SK Govender the proprietor of
Logistics who undertook to pay my fees once the vehicle received
its
first payment.
7 I was advised that the vehicle was being managed / run by one
Desigan S Naicker, who had secured a contract for the vehicle and
required same to be repaired as quickly as possible in order to meet
the terms of the contract. I was under the impression DS Naicker
is a
partner to GS Naicker at Logistics.
8 The work was duly completed as soon as possible and the vehicle
returned to Logistics on the
19
th
of June
2009
together with our invoice, with the expectation that I would
receive my payment within a short time.
9 Since some time had elapsed, and my payment was not forth-coming, I
attempted to contact Logistics and SK Govender in order to
demand my
payment.
10 Despite several undertakings, no payments have been forthcoming.
11 Thereafter circa the
28
th
of February
2010
a driver who informed me that he worked for Kevin (SK
Govender) drove the abovementioned vehicle to my premises for further
repairs
to the gearbox as the vehicle was not accepting / acquiring
the requested gear.
12 I spoke to Kevin via the driver’s cellular phone and
requested payments, which he once again undertook to make.
13 I duly removed and stripped the gearbox for inspection and then
called Kevin to advise him of my assessment of the problem to
his
vehicle gearbox and advised him that I would not continue further
work until my fees for the work done and services rendered
in June
2009 was paid in full and further until he paid me a deposit for the
work that I was instructed to carry out at that juncture
to the
gearbox.
14 I once again received empty promises regarding my payment and I
then informed Kevin that I would not release the vehicle from
my
premises until I was paid in full. The vehicle remains in my
possession to date as a result of failure to pay my fees.
15 As a result of the vehicle being left at my premises at my
workshop I was constrained to remove same to another storage facility
as I necessarily required the space to work on current repairs for
which I was being paid. I am constrained to pay for storage
cost out
of my pocket and the said vehicle is now causing me to suffer further
loss, as evidenced by my invoice.”
[10] Apart from the repair charges of
R 147 656.59 referred to in paragraph 5 of Mr Pillay’s
affidavit
2
the respondent further charged Reefer
the sum of R 18 360.00 (annexure M) for storage of the vehicle for
the period 1 March 2010
to 31 July 2010 (153 days at R120.00 per day)
and R5 650.64 (annexure L) for removing gearbox and “diagnosis”
of the
mechanical problem after the vehicle was brought back on or
about 28 February 2010. It is noted that in terms of the respondent’s
answering affidavit the storage charges had increased from R18 360,00
to R34 920.00 as at the date of the answering affidavit (that
is, 22
December 2010). The respondent’s invoices (supposedly annexures
A1 and A2) were, however, not attached to the answering
affidavit, as
alleged
3
(see Paragraph 6(d) of the
respondents answering affidavit.
[11] It is apparent from paragraph 14 of Mr Pillay’s
affidavit that the respondent laboured under the impression that as
long
as Reefer did not pay the money allegedly owing to the
respondent then the respondent had the right of retention of the
vehicle.
[12] The true position, however, is that the owner of
the vehicle is the applicant and not Reefer. Therefore, regardless of
whatever
dispute exists between the respondent and Reefer the court
is required to determine whether, in the circumstances of this case,
the applicant, before it can be entitled to the return of the
vehicle, is liable to pay to the respondent –
12.1 The amount of R 147 656. 59 for “repairs”
in terms of the invoice dated 19 June 2009 (annexures H1, H2 and H3)
12.2 The amount of R 5 650.64 in terms of the invoice
dated 1 March 2010 for “removing gearbox and diagnosing”
(annexure
L)
12.3 The amount of R 18 360.00 for “storage”
in terms of the invoice dated 31 July 2010 (annexure M), or the
alleged
updated amount of R34 920.00 aforesaid.
[13] A lien is a right of retention “which arises
from the fact that one man has put money or money’s worth into
the
property of another.”
4
It constitutes the right to retain physical control of
another’s property in order to secure payment of a claim for
expenditure
of money or monetary value by the possessor of the
property, until the claim has been satisfied.
5
[14] Debtor-and-creditor liens constitute a right of
retention conferred on someone who has done work on the property of
another
or undertaken some service in terms of a contract.
6
This type of lien secures the amount owed and covers all
expenses incurred upon the property in order to fulfil their
contractual
obligations.
7
The lien then enables the possessor to remain in
possession until the expenses that he has incurred have been
compensated.
8
[15] Therefore, it is trite that,
unless there is evidence to an agreement to the contrary, once an
object retained by a creditor
as security for debt under a lien, is
released to the debtor the lien is immediately destroyed and cannot
automatically be revived
and relied upon by the creditor at a later
stage. In
Oceana
Leasing Services (PTY) Ltd v BG Motors (PTY) Ltd
9
the court stated as follows-
“
The motor vehicle was released to the said
Chetty even although the charges due in respect of the particular
repairs had not been
paid and there is no suggestion that any
reservation or conditions were imposed on such release or that it was
regarded as a temporary
release from the possession of the
respondent. There is no suggestion further that such release was due
to fraud, duress or mistake.
In such circumstances, it is clear, on
the authorities, that the right of retention is lost or extinguished
and does not automatically
revive if possession of the vehicle is
again regained.
Gazide and Another v
Nelspruit Town Council
(
supra
at 53);
Martinus v Taljard
1952 (1) SA 49
at 53-54;
Muller and
Another NNO v Bryant & Flanagan (Pty) Ltd
1976
(3) SA 210
(D) at 220;
Rondalia Bank Bpk
v Pieter Nel Motors (Edms) Bpk
1979 (4)
SA 467
(T) at 470; Van der Merwe
Sakereg
at 511.”
[16] In the present instance there was no suggestion
that when the respondent released the vehicle to Reefer on 19 June
2009 the
said release was on a temporary basis or that there was an
agreement between the parties that upon failure by Reefer to pay the
amount due then the lien would be revived. The consequence therefore
is that when the vehicle was released the respondent’s
lien
over it was immediately extinguished and it was not revived when the
vehicle was brought back to the respondent on or about
28 February
2010.
[17] I think the legal position on
this aspect was clearly stated in
Marinus
v Taljaard
10
:
“
In the present case there was no
contractual pledge: the respondent merely claims a right of
retention. A lien is not a conventional
mortgage. It is a right
tacitly conferred by law upon a person who is in possession of the
property of another of which he has
expended money or labour of
retaining possession of the property until he has been duly
compensated (Willie
Principles of South
African Law
(3
rd
ed., pp. 230, 231)). The considerations which apply to cases of
conventional pledge do not necessarily have equal application to
rights of retention tacitly conferred by law. In my judgment the
correct view to take is that once a right of retention is lost
consequent upon the creditor’s voluntary surrender of
possession, the lien is thereby destroyed and that it does not, in
the absence of further tacit or express agreement, thereafter revive
merely upon the article’s coming again into possession
of the
creditor. In the words of Story,
Agency
,
sec. 367, since lien is a right founded upon possession, it must
ordinarily cease when possession ceases….” (at 53H-54A)
[18] It has also been held that a
lien for storage is not maintainable at our law. In
Trust
Bank van Afrika Bpk v van der Walt N.O.
11
the court
determined
the claim of lien for storage charges as follows (translated
version):
“
There is no agreement to pay storage.
Storage can, therefore, not be claimed
ex
contractu
. If it is claimable it must
be on the ground of enrichment. The applicant is not enriched by the
storage of the lorry. Respondent
had a claim against the applicant
for the repair of the lorry and he held the lorry as security for the
payment of those repairs.
After completion of the repairs the
respondent could immediately have claimed the amount due from
applicant and if applicant failed
to pay, the respondent could have
sued him for the amount due. The debtor is not enriched by costs
incurred by the creditor as
a result of his omission to claim, just
as interest on an outstanding amount of money cannot be claimed.
Storage cannot be claimed
in these circumstances. If respondent
foresaw storage as a result of late payment he should have stipulated
for that.” (at
170F-H)
[19] In a Full Bench decision in
Wessels v Morice
12
the court stated, in part:
“
But, after the permit had been obtained,
and the cattle could have been returned it appears to us that, though
quite within his
rights in refusing to part with them until his
expenses were paid, holding as he did on account of the owner who had
asked for
their return, the plaintiff, in these circumstances, was
debarred from making any further charge for keeping the cattle merely
to enforce his lien (see
Somes v.
British Empire Shipping Co
.
[1860] EngR 761
; ,
8 H.L.C.,
338).
In the case cited the question was whether a person, who having
a lien upon a chattel, chose to keep it for the purpose of enforcing
his lien, could make any claim against the proprietor for so keeping
it. The House of Lords was decidedly of opinion that he could
not,
and on principle we take the same view.” (at 117)
[20] The court, in another Full Bench
decision, confirmed
Wessels,
supra
, on the
principle that “no person has by law a right to add to his lien
upon a chattel a charge for keeping it until the
debt is paid.”
13
In
Harrison
N.O. v. McClelland
14
the following was said:
“
The other item is a sum of ₤8 17s.
6d. for garaging the car. When and where the respondent garaged the
car, does not appear.
She made no claim for it in her statement of
27
th
October. So far as appears (and the applicant in her replying
affidavit avers), this sum was incurred for garaging the car
subsequent
to the applicant claiming possession of it and during the
time when the respondent was retaining possession of it in the
exercise
of the lien she claimed. If this is so, my view is that she
is not entitled to present a claim for the cost of garaging incurred,
in effect, in her own interests in order to retain possession in the
exercise of her lien.” (at 24A)
[21] Mr
Govender
conceded, correctly so in my view,
that (1) there was no agreement between the respondent and Reefer,
express or tacit, at the time
the respondent voluntarily released the
vehicle to Reefer on or about 19 June 2009 that if Reefer failed to
render payment the
lien would be automatically revived and (2) that
whilst the respondent was keeping the vehicle the respondent would be
entitled
to the payment of storage charges. According to Mr
Govender
the respondent’s submission was
only that Reefer kept on making empty promises to pay. Then, if that
is the case, the respondent
cannot rely on a lien to keep the
vehicle. Indeed, it is clear that the respondent was not entitled to
claim any of the alleged
amounts
ex
contractu,
but
could only claim on the basis of undue enrichment.
[22] The applicant has accepted that
the respondent is entitled to R 5 650.64 in respect of the charges
relating “removing
gearbox and diagnosis” which was
undertaken on the vehicle by the respondent after 28 February 2010.
To that amount the applicant
was prepared to have interest
gratuitously added thereon at 15.5% per annum reckoned from 1 March
2010 (being the date of the invoice
of that amount). For this amount
plus interest as aforesaid, the applicant tendered payment by means
of a bank guarantee attached
to the notice of motion,
15
against delivery of the vehicle to
the applicant in terms of paragraph 1.2 of the order prayed in the
notice of motion. Indeed,
there is no reason to suggest that the
owner of property is not entitled to give security for debt owed for
the purpose of defeating
a claim for the lien holder.
[23] The applicant denied that the storage of the
vehicle by the respondent enriched the applicant in any manner. To my
mind, the
respondent has not been able to prove otherwise. In the
circumstances, I am inclined to find that questions 12.1 and 12.3
above
should be answered in the negative and that question 12.2 be
answered in the affirmative.
[24] Accordingly I am satisfied, on the papers, that the
applicant has made out its case against the respondent, which
entitles
the applicant to confirmation of the rule
nisi
. If
the respondent wishes to pursue its claim for recovery of the repair
charges in the amount of R 147,656.59 and other incidental
charges,
if any, it is free to institute an action against Reefer for the
recovery of those monies.
[25] In the event, the rule
nisi
is hereby
confirmed.
_________________
Date of hearing : 31 March 2011
Date of judgment : 5 April 2011
For the Plaintiff : Mr DG Tobias
Instructed by : Johnson and Partners
For the defendant : Mr PM Govender
Instructed by : Sandra Ramjith & Company
1
Clause
4 of the Agreement
2
See
also annexures H1, H2 and H3 to the applicant’s founding
affidavit
3
See
para 6(d) of the respondent’s answering affidavit
4
United
Building Society v Smookler’s Trustee and Golombick’s
Trustee
1906 TS 623
at 627 – 628; Badenhorst et al
Silberberg and Schoeman’s The Law of Property
5 ed , at
412
5
15(2)
LAWSA 49
6
Silberberg
412
7
15
(2) LAWSA 68
8
Silberburg
413
9
1980
(3) SA 267
(W)
10
1952
(1) SA 49
(C)
11
1972
(3) SA 166
(C)
12
1913
NPD 112
13
Longpan
Salt Co Ltd v Blumenfeld
1922 177, at 181
14
1955
(3) SA 20
(D)
15
A
nnexure
“ABSA 1”