Eksteen v ABSA Bank Ltd and Others (4439/2007) [2009] ZAFSHC 111 (30 October 2009)

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[2009] ZAFSHC 111
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Eksteen v ABSA Bank Ltd and Others (4439/2007) [2009] ZAFSHC 111 (30 October 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
CASE
NO:4439/2007
In
the matter between
MARIUS
EKSTEEN PLAINTIFF
and
ABSA
BANK LIMITED
DEFENDANT
NEDBANK
LIMITED FIRST THIRD
PARTY
TOPSY
WILTON SECOND THIRD PARTY
_________________________________________________________
CORAM
:
NXUSANI,
A.J.
_________________________________________________________
HEARD
ON
:
17
JUNE 2009
_________________________________________________________
JUDGMENT
BY
:
NXUSANI,
AJ
_________________________________________________________
DELIVERED
ON
:
30
OCTOBER 2009
JUDGMENT
[1] The action which came before me
concerns a warranty against eviction in a contract of sale. It is
alleged by the Plaintiff
that a breach of the sale occurred.
[2] The Plaintiff purchased a 1999
Toyota Land Cruiser 100 VX on the 12
th
May 2000 at Bloemfontein. The Plaintiff had negotiated with one Dr
G.J. Van Niekerk of East London for the purchase of the vehicle.
[3] The Plaintiff entered into an oral
agreement with the BOE Bank for the sum of R460 000,00. Dr G.J. Van
Niekerk was a customer
of the BOE Bank and was in possession of the
vehicle pursuant to a written instalment sale agreement that he had
with the BOE Bank
during 1999.
[4] The Plaintiff and Bankfin, Absa
Bank Limited trading as such, entered into the instalment sale
agreement on 12 May 2000. The
Plaintiff paid cash in the amount of
R240 000,00 and the balance of the purchase price was to be financed
in terms of an instalment
sale agreement.
[5] The Plaintiff retained the vehicle
for five years and at the end thereof ownership to the vehicle passed
into his name. In
the last quarter of 2005 the Plaintiff decided to
sell the vehicle to one Johannes Stefanus Hugo for the amount of R360
000,00.
The Plaintiff delivered the vehicle to Hugo.
[6] On the 16
th
March 2006 the South African Police Services seized the vehicle
presumably in terms of
Section 20
of the
Criminal Procedure Act, 51
of 1977
. The police seized the vehicle after having formed the
opinion that the vehicle was concerned in or was on reasonable
grounds
believed to have been concerned in the commission of an
offence committed or suspected of having been committed in Japan.
[7] Captain Slabbert of the Vehicle
Identification Section inspected the vehicle on 17 March 2006. When
he inspected the chassis
number he noticed that it had been tampered
with. He then used an electro acid process in order to reveal the
underlying chassis
number that was originally brought onto the
chassis. This process involves the use of acid which is applied to
the surface area
where the number exists. Thereafter, a vehicle
battery was used to apply an electric current through the metal which
then eats
away at the surface metal to reveal the underlying number
originally brought onto the metal.
[8] When Captain Slabbert initially
inspected the vehicle the number which appeared on the chassis was
“HDJ1010012544”
.
After the “electro acid” process, the underlying number which
then appeared, clearly indicated that the last four digits
had been
changed and instead replaced with the digits “
4879
”.
[9] The South African Police Services
enquired of Toyota South Africa to establish whether the altered
chassis number had ever been
issued by it. Toyota South Africa
denied that the serial number had been brought upon the chassis
number by it. There were further
enquiries made through Interpol.
The South African Police established that the vehicle had allegedly
been stolen in Japan and
that the owner of the vehicle did not wish
to travel to South Africa to identify the vehicle. The Plaintiff
admitted that he did
not have any personal knowledge that the vehicle
had in fact been stolen. He accepted that the statements made to the
South African
Police about the theft of the vehicle constituted
hearsay evidence. I return to this aspect later in this judgment.
[10] In any event the upshot of all of
this was that the South African Police Services decided to declare
the vehicle forfeited
to the State in terms of
Section 31
of the
Criminal Procedure Act. There
were no criminal proceedings
instituted in connection with the alleged theft of the vehicle. The
police formed the opinion that
no person was entitled to lawfully
possess the vehicle.
[11] As a consequence of the seizure
and forfeiture of the vehicle Hugo turned to the Plaintiff for
protection. He told the Plaintiff
that the police had suspected that
the vehicle was stolen and that it had been seized by them.
[12] The Plaintiff approached his
attorney who notified the Defendant of the eviction and called on the
Defendant to assist him
to obtain possession of the vehicle to no
avail.
[13] The Plaintiff alleged in his
Particulars of Claim that the Defendant failed to come to his
assistance and he possessed of no
factual or legal grounds to
challenge the forfeiture of the vehicle to the State.
[14] The Plaintiff’s attorneys wrote
to the Defendant on 17
th
August 2006. In that letter of demand the Plaintiff’s attorneys
advised the Defendant that the South African Police Services
had
seized the vehicle in terms of
Section 20
because the chassis number
and/or the engine number had been altered. They notified the
Defendant that the vehicle was suspected
of having been stolen. They
advised the Defendant that the police were involved in an
investigation to determine the origins of
the motor vehicle. They
requested the Defendant to liaise with Captain Slabbert and provided
all the necessary contact and reference
details to enable the
Defendant to comply with its common law obligations.
[15] The Plaintiff’s attorneys
notified the Defendant that he possessed no defence against the claim
of Hugo for the return of
the purchase price and that he was calling
upon the Defendant to repay the purchase price. In particular the
attorneys requested
the Defendant to assist him to challenge the
forfeiture. They notified the Defendant that unless it reverted to
them by 31 August
2006 by providing information to assist the
Plaintiff to obtain restoration of possession of the vehicle the
Plaintiff would accept
that they were in agreement with the attitude
of the Plaintiff.
[16] The Defendant contends in its
Plea that the Plaintiff should have resisted the seizure and
forfeiture of the vehicle by the
South African Police Services. It
also contends that the Plaintiff did not raise a
virilis
defensio
to the claim of
the South African Police Services. The Defendant also contends that
the South African Police Services attached
and confiscated the
vehicle without proper proof of the theft thereof and without being
in possession of sufficient facts so to
do.
[17] The Defendant also contends that
the vehicle was not a stolen vehicle at the time of the sale of the
vehicle to the Plaintiff
and that he in fact caused the registration
and transfer into his name.
[18] The Defendant issued a third
party notice against Nedbank Limited who in turn issued a third party
notice against Topsy Wilton.
[19] The Second Third Party, Topsy
Wilton did not file a Plea nor did it take any further steps in the
action.
[20] Stefan Carl Buys and Shariff
Abdulla gave notice of their joinder as third parties but they too
have failed to take any further
steps in the action. The Second,
Third and Fourth Third Parties are accordingly in default.
[21] In response to the Defendant’s
Plea, the Plaintiff filed a Replication. The Plaintiff admitted that
he failed to institute
any legal steps to obtain the return of the
vehicle but pleaded that he was in law prohibited from possessing the
vehicle by virtue
of the fact that the engine and chassis numbers
were unlawfully altered; that he had no lawful title to the vehicle
and that his
possession of the vehicle was hit by
Section 68(6)
of
the
National Road Traffic Act No. 93 of 1996
.
[22] The evidence that was led by the
Plaintiff was very brief. He called Captain Slabbert whose evidence
remained unchallenged.
He testified that he performed the electro
acid test on the chassis number. He discovered that the last four
digits had been
tampered with. He also ascertained that the engine
number had been tampered with but was not able to reveal the true
number.
He caused the letter of 22 June 2007 to be written in terms
whereof he notified the recent purchaser Mr Hugo that the vehicle had

been stolen in Japan and that the vehicle had been forfeited to the
State.
[23] Captain Slabbert, however,
admitted that he did not have any personal knowledge about the
alleged theft of the vehicle in Japan.
His evidence insofar as it
relates to any alleged theft is hearsay and accordingly inadmissible.
[24] The parties agreed that the value
of the vehicle as at March 2006 was R292 000,00 and as at July 2007
R260 200,00.
[25] The Defendant and the Third
Parties did not lead any evidence and chose to close their cases. I
must therefore decide the
issues in dispute on the evidence of the
Plaintiff.
[26] The first question which ought to
be determined is whether the Plaintiff has taken such preliminary
steps so as to apprise
the seller, the Defendant, of the eviction and
has called upon the seller to intervene so as to protect his
possession.
Joubert (Ed) The Law of South
Africa (first re-issue) Vol 24 para 91
[27] I am satisfied that the Plaintiff
gave the necessary notice to the Defendant and called upon the
Defendant to intervene. This
much is common cause.
[28] The second question which I must
determine is whether the Plaintiff has put up a
virilis
defensio
. If he has not
then the Plaintiff cannot succeed against the Defendant. If the
Plaintiff had not called upon the Defendant to
protect him he would,
in accordance with trite law, still be entitled to demonstrate that
the present possessor of the vehicle
had “a legally unassailable”
claim.
See:
Olivier
v Van der Bergh
1956 (1) SA 802
C
Garden City Motors (Pty) Limited v
Bank of the Orange Free State Limited
1983 (2) SA 104
N
[29] As to what is meant by a
virilis
defensio
, I believe that
the judgment which illuminates the proposition best is that of
Lammers and Lammers v
Giovanoni
1955 (3) SA 385
A.
In an erudite judgment, Shreiner J.A., had the following to say at
392 F – H:
“
Once
the seller is called upon to defend the buyer in his possession but
washes his hands off the whole matter, it does not seem
to me to be
open to him to meet the buyer’s claim by saying that the latter
could or should have resisted the true owner’s
claim more
energetically or skillfully; for it was open to him, the seller, to
have taken steps to protect the buyer and himself.
What those steps
would be in any particular case will depend on the available
procedure; including, in appropriate cases, ie.
where it is the right
of the buyer and not the right of the seller that may provide the
means of resisting the true owner, the
taking of a
procuratio
in rem suam
.”
[30] Instead of demonstrating that the
vehicle had been stolen in Japan, a cost probably out of the reach of
the Plaintiff, he elected
to rely upon the provisions of
Section 68
of the
National Road Traffic Act 93 of 1996
.
Section 68(6)(b)
provides that no person shall “without lawful cause be in
possession of a motor vehicle of which the engine or chassis has
been falsified, replaced, altered, defaced, mutilated or to which
anything has been added, or from which anything has been removed,
or
has been tampered with in any other way”.
[31] The Supreme Court of Appeal dealt
with the provisions of
Section 68(6)(b)
of
The
National Road Traffic Act in
Marvanic Development v Minister of
Safety and Security
2007 (3) SA 159
SCA
.
[32] In a majority judgment Lewis J.A.
held that the Act had introduced a new regime after those cases which
held that stolen vehicles
[and whose chassis may have been interfered
with] were required to be returned to those from whom they were
seized where the State
had not proved on a balance of probability
that their possession was not legal. These cases are:
Minister van Wet en Order en Ander
v Datnis Motors (Midlands) (Edms) Bpk
1989 (1) SA 926
(A)
Choonara v Minister of Law and
Order
1992 (1) SACR 239
Booi v Minister of Safety and
Security and Another
1994 (2) SACR 4650
[33] According to the majority,
Section 68(6) of the Act expressly precluded possession of vehicles
in particular circumstances.
Marvanic
at 162 para 10, F
[34] The majority stressed that it was
possession of a vehicle with false engine or chassis numbers that was
without lawful cause,
a concept quite disparate and discreet from the
concept of
justa causa
possessionis.
[35] Speaking for myself, I prefer the
interpretation brought thereon by Farlam J.A. I am however bound by
the majority decision.
In pursuing their argument the Defendant and
the First Third Party contended that the Plaintiff ought in his
virilis defensio
to have applied for a special number [known as a SAPVIN]. Regulation
56 of the National Road Traffic Regulations 2000, creates
a mechanism
whereby an owner whose vehicle has been tampered with or a person
otherwise entitled to possess such a vehicle to obtain
new engine or
chassis numbers from the police in circumstances where there has been
a tampering. A police clearance is apparently
issued to the local
transport authority.
[36] Such a proposition, however,
presupposes that the Plaintiff was the lawful owner or a person
entitled to possess the vehicle.
I am not satisfied that he was so
entitled to do. The fact that there had been a transfer of the
vehicle into his name does not
necessarily mean that he was entitled
to transfer of the property into his name. Take a situation, for
example, where immediately
prior to the transfer or registration of
the vehicle into his name the Plaintiff and the registration
authority found out that
the vehicle had been tampered with. He may
well in such circumstances not have been entitled to utilize the
machinery provided
by Regulation 56.
[37] Professor P. Van Warmelo in a
helpful discussion on the question on the nature of a
virilis
defensio
wrote in
1955 72
SALJ 340
as follows:-
Na ons beskeie mening word daar
somtyds te veel en somtyds te weinig verstaan onder die vereiste van
virilis defensio
.
Dit wil voorkom dat die Romeins-Hollandse reg (en daar is seker geen
rede om van so 'n billike G standpunt afstand te doen nie)
die
koper sowel as die verkoper wil beskerm. Daarom die vereiste dat die
koper 'n verweer teen die eiser moet voer (sodat die verkoper
as
auctor die stappe kan neem om die koper te beskerm); daarom ook die
vereiste van kennisgewing (sodat die auctor van die moeilikheid
weet
en die nodige stappe - indien moontlik - kan neem). Maar virile
defensio wil nie sê dat die koper tot in die laaste
loopgraaf
teen die eiser stand moet hou nie: dit wil slegs sê hy moet
die korrekte stappe neem wat prosessueel vereis is
om die
vermoedelike reghebbende nie onmiddellik alles gewonne te gee nie en
die auctor die geleentheid te gee om stappe te neem
om die vacua
possessio vir die koper te handhaaf.'
[38] In my judgment the Plaintiff did
everything reasonably possible in the circumstances to allow the
Defendant to defend his
possession. He was not required to defend
the claim trench by trench.
Göbel Franchises CC v Kadwa
and Another
2007 (5) SA 456
C at 466 para 38 C to D
[39] The Plaintiff was not obliged to
apply for a SAPVIN number and even if he had there was no guarantee
that he would have been
granted possession of the vehicle.
[40] I am satisfied that the Plaintiff
has put up a
virilis
defensio
and that he has
done everything reasonably possible to permit the Defendant to
protect his possession.
[41] I am satisfied that the Plaintiff
has discharged the onus resting on him. He has claimed R460 000,00
being the purchase price
and interest. I propose to grant judgment
in the Plaintiff’s favour for an amount of R260 200,00 which was
the value of the
vehicle as at July 2007.
[42] I therefore grant an order in the
following terms:
[42.1] The Defendant is ordered to pay
the Plaintiff an amount of R260 200,00 plus interest at the rate of
15.5% per annum a tempore
morae.
[42.2) The Defendant is ordered to pay
the costs of the action.
[42.3] The Defendant is granted an
order as against the First Third Party, Nedbank Limited to indemnify
the Defendant in respect
of R260 200,00 payable by it to the
Plaintiff and an order of costs against the First Third Party.
[42.4] I grant an order in favour of
the First Third Party Nedbank Limited that the Second Third Party,
Topsy Wilton be and is hereby
ordered to indemnify the First Third
Party in the amount of R260 200,00 payable by the First Third Party
to the Defendant and an
order of costs as against the Second Third
Party.
[42.5] Insofar as the parties before
me may be entitled to any orders as against the defaulting Third
Third Party and the Fourth
Third Party I make no orders.
[42.6] Topsy Wilton was in default. I
make no order in its favour.
Dated at
this day of 2009.
NXUSANI
AJ
ACTING
JUDGE
FREE
STATE HIGH COURT
BLOEMFONTEIN
16