Bosch v Du Plessis (A240/07) [2009] ZAGPPHC 38 (29 April 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 38
|

|

Bosch v Du Plessis (A240/07) [2009] ZAGPPHC 38 (29 April 2009)

IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE NO: A 240/07
NOT
REPORTABLE
DATE:
29/4/2009
In the matter between:
WILLEM
CHRISTIAAN BOSCH
Appellant
and
JEAN-PIERRE DU
PLESSIS
Respondent
JUDGMENT
MOTHLE
A J
Appellant
instituted action against
the Respondent in the Pretoria Magistrate’s Court for the return
of his motor vehicle BMW 330 registration NRZ 958 GP
(“the
vehicle”)
and/or payment of an amount of R100, 000.00. At the end of the
trial, the Court ordered the Respondent to return to Appellant
the
vehicle (“
in
the condition it appeared on the
photograph”
)
and each party to pay its own costs. Appellant now comes before
this Court on appeal against the judgment and order of the

Magistrate’s Court.
Appellant
alleges in the particulars of claim that he is the owner of the
vehicle and that “
the
Defendants”
(the
Respondent)
are in possession of the vehicle. In the alternative, and if it is
found that the Respondent is no longer in possession
of the said
vehicle, the Appellant alleges that the Respondent disposed of the
vehicle with the knowledge of the Appellant’s
ownership, and that
the value of the vehicle is R100,000.00. He then claims delivery of
the vehicle, payment of the amount of
R100, 000.00 and cost of suit.
The
Respondent in his plea admits Appellant’s ownership of the
vehicle, and further that he is in possession of a vehicle which,

however, is not a complete motor vehicle, but a wreck in the same
condition as it was found on the premises. Respondent further

tenders the vehicle in the same condition as it is to Appellant.
It
may be mentioned that the Respondent had issued a counter-claim,
suing for the costs of storage of the vehicle on its premises,
which
counterclaim was, however, withdrawn.
Appellant
testified and called Conradie as well as
an expert, Mr Cloete as witnesses.
The
Appellant testified that he purchased the vehicle which was damaged
from an accident, from Conradie. He then engaged the services
of
Conradie to repair it. At that time, Conradie was operating a
business of repairing vehicle on the premises belonging to the

Respondent. He further testified that the vehicle which, at the
commencement of the trial was located on the Respondent’s
premises, was no longer in the condition in which it was when
Conradie, was locked out and denied access to the premises. It was

stripped of its parts.
It
is Conradie’s evidence
that apart from certain doors, automotive glass, wheels and bonnet
of the vehicle, he left the vehicle at Respondent’s premises
fully
fitted with an engine, steering wheel, gearbox and drive train,
electrical harnesses and computers, seats and was, for
all purposes,
a fully fitted vehicle which was mechanically sound, having been
started and checked by way of computer. The
outstanding parts of
the vehicle were on the premises and Conradie was about to finalise
the restoration of the vehicle.
The
Appellant further testified that the vehicle was
now a total wreck. As it appears from the photographs which
Appellant handed to Court, it has been stripped of many parts, some

of which were lying around next to the body of what was Appellant’s
vehicle. For that reason, it is no longer in the condition
it was
when the Respondent evicted Conradie from the premises and it is no
longer restorable. He could not accept Respondent’s
conditional
tender to collect the vehicle, subject to the Respondent being
indemnified of any claim on the vehicle.
Cloete,
an expert in the determination of the value of a motor vehicle and
spares, testified that according to the description
of the condition
of the vehicle as explained to him by Conradie, it was worth R100
000.
On
the other hand, the Respondent
,
supported by Rankert Radefit, testifies that the vehicle is in the
condition in which it was when Conradie was locked out and
there is
nothing that was done to the vehicle to result in the state in which
it was at commencement of the trial. The Court
a quo also heard the
evidence of Radefit who was a workshop manager in Conradie’s
workshop. He testified for the Respondent
that he had been working
at the premises for almost two months before Conradie was locked
out. He saw that the vehicle was stripped
of its part to be
repainted. After repainting, the parts were not restored, up to the
time when Conradie was locked out. The
vehicle on the photograph was
in the same condition Conradie left it.
The
dispute between the parties seems to centre on the condition of the
Appellant’s vehicle. It is common cause that Appellant purchased
the vehicle from one Conradie who was conducting business
of
repairing motor vehicles on the Respondent’s premises. It is also
common cause that as at the time of the purchase of the
said motor
vehicle, it was damaged from an accident and
Conradie was to
effect repairs. It is further common cause that the Respondent
locked out Conradie from the premises and thereby
took possession of
all the vehicles that were on that premises, including the
Appellant’s vehicle.
The
Court
a quo accepted the evidence of Radefit and found that the Appellant
had not succeeded to prove that the vehicle was non restorable
and
that the Respondent had a duty of care of the vehicle, to the
Appellant. The Respondent was ordered to return the vehicle
“in
the condition it appeared on the photograph”
It
is contended for Appellant
on appeal that his cause of action was one of
rei
vindicatio
and
in the alternative
actio
ad exhibendum.
It is trite that an owner of a property such as the Appellant is
entitled to reclaim it with
rei
vindicatio.
In
such instance, it is always advisable to claim
actio
ad exhibendum
as alternative relief for damages, in case the property sought is no
longer available or has been disposed of.
Appellant
contends that by the end of the trial it was clear that
“depending
on the Court’s finding as to the condition of the vehicle, he no
longer had to rely on the return of the vehicle
in that it was not
in the same condition it was when the Respondent took possession of
it.
”
Appellant
further
submits that Respondent’s tender of restitution is ineffective in
law in that it was not an unconditional tender, as the Respondent

demanded to be indemnified of any damages to the vehicle.
The
Court a quo’s
finding is that Appellant should have sued Conradie with whom he had
a contract for the repair of the vehicle. The Court held
that
Conradie, and not the Respondent, had a duty of care towards the
Appellant in regard to the repair and condition of the
vehicle.
It
is clear that Appellant, at least on appeal, no longer relies on the
actio
rei vindicatio as
he contends that the vehicle is no longer restorable. He now seeks
relief in terms of the alternative
actio
ad exhibendum,
and
refers this Court to
Alderson
& Flitton (Tzaneen) Limited v EG Duffeys Spares
1975 (3) SA 41
(T) at 46 and Phillip Robinson Motors (pty) Ltd v NM Dada (Pty) Ltd
1975 (2) SA 420
AD
,
in support of his contentions.
It
is my view that
the
authorities on which Appellant relies do no support his case. As
submitted by Respondent’s counsel, and correctly so, in
an
actio
ad exhibendum
it is necessary for Appellant to prove that Respondent disposed of
the vehicle; at the time of such disposal he knew that Appellant
is
owner of the vehicle and that Respondent acted
mala
fide in
disposing
of the vehicle or any of its parts.
See:
Unimark Distributors (pty) Ltd v Erf 94 Silvertondale (pty) Ltd
1999
(2) SA 986
(T)
.
The Respondent admits that he knew that the Appellant was owner of
the vehicle. However, the requirement of
mala
fide
disposal of the vehicle was neither cited in the pleadings nor
presented as evidence during the trial.
Counsel
for Appellant argues that we should infer
mala
fide
conduct and disposal of the vehicle from the evidence that
Respondent was in possession of the motor vehicle and that that he

disposed of it knowing that Appellant is the owner thereof.
There
are two problems with this argument. Firstly, there is no evidence
of what was disposed of. The photographs which are annexed
as
exhibit
show the body of the vehicle and parts of a vehicle on the floor. No
inventory was presented as to which parts of the
vehicle were
missing. In the absence of such evidence, this Court cannot infer
from the photographs that disposal of the vehicle
or any of its
components occurred, to an extent that the vehicle cannot be
restored, to effect restitution.
In
my view, for a party to successfully claim that there was a disposal
of
property, such property must have been disposed of as a whole
alternatively there has to be substantial or material component
of
that property disposed of, and extent that the restoration of the
property, necessary to effect restitution, is not possible
Radefit’s
evidence concerning the condition of the vehicle at all material
times, contradicts that of Conradie. The Court a quo accepted
the
evidence of Radefit concerning the condition of the vehicle that at
the time of Conradie’s lock out, the vehicle was in
the same
condition as it appeared in the photographs. There is no basis, in
my view, for this Court to interfere with the decision
of the Court
a quo in this regard.
See
R v Dhlumayo
1948 (2) SA 677
(AD).
Secondly,
even if this court may
be inclined to infer that there was a disposal of either the vehicle
or any of its significant components, there is no evidence
to
support how, when and by whom the disposal was affected. These are
essential requirements for
actio
ad exhibendum,
in that Appellant had to prove that substantial or significant
components of the vehicle were disposed of, they cannot be replaced

and that there was either intentional or negligent conduct on the
part of Respondent, to conclude that he acted
mala
fide
.
The “When” part is relevant in establishing the value of the
vehicle. The
actio
ad exhibendum
requires one to prove the value of the vehicle as at the date of
disposal of the property by the Respondent.
See:
Philip
Robinson Motors (pty) Ltd v NM Dada (pty) Ltd supra
In
regard to the claim for damages of R100 000, Appellant led evidence
by Mr Cloete, who was presented as an expert in the determination
of
values of motor vehicles and spares.
He testified that he was giving an opinion of the value of the motor
vehicle prior to it being stripped, based on the opinion
of
“the
previous witness”
regarding
the condition of the
vehicle.
He testified after Bosch and Conradie. His estimate value of R100
000 was not linked to any date of the alleged disposal;
as such date
is neither alleged nor proved.
Again
the authorities cited and relied upon by the Appellant do not
support his contention. In the matter of
Phillip
Robinson Motors (pty) Ltd v N M Dada (Pty) Ltd supra
,
the Court, repeating the need to prove allegations of
mala
fides
on the part of the Respondent in disposing of the property, also
made it clear that the time at which to measure the delictual

damages was the date of the delict, in this instance, when the
vehicle was disposed of, and not, as would be the case in a

vindicatory action, at the date of the trial or of judgment.
It
is
therefore my view that on the
action
ad exhibendum
as relied upon by the Appellant;
no
case has been made out to sustain the Appellant’s claim for
compensation in the form of damages.
The
App
ellant
also appeals against the order by the court that each party has to
pay its own costs. The Respondent did not lodge a counter
appeal on
costs, even though his Counsel argued for costs in the court a quo.
The issue of costs is within the discretion of
the trial court.
Considering the conspectus of the evidence, there is no reason for
this court to intervene with the decision
of the Court
a
quo
in this regard. I will therefore not temper with the cost order of
the Court
a
quo
as I find it fair and reasonable under the circumstances.
In
light of my conclusion above,
I am of the view that this appeal cannot succeed. I find it
unnecessary to deal with other issues such as the validity or
invalidity
of the tender offered by the Respondent or the question
concerning the duty of care of the vehicle.
I
accordingly make
the following order:
The
appeal is dismissed with costs;
­­­­
___________
MOTHLE AJ
I
agree
___________
MURPHY J