Gobel Franchises CC v Kadwa and Another (A570/2006) [2007] ZAWCHC 7; 2007 (5) SA 456 (C) (15 February 2007)

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[2007] ZAWCHC 7
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Gobel Franchises CC v Kadwa and Another (A570/2006) [2007] ZAWCHC 7; 2007 (5) SA 456 (C) (15 February 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL DIVISION
Case no A 570/2006
In the matter between
GÖBEL
FRANCHISES CC
Appellant
and
ZUBAIR GOOLAM HOOSEN KADWA
First respondent
JAMES
McMILLAN
Second respondent
JUDGMENT DELIVERED ON 15 FEBRUARY 2007
_____________________________________________________
BLIGNAULT J
:
Introduction
[1] Appellant,
Göbel Franchises CC, is a close corporation which carries on
business as a dealer in motor vehicles,
inter alia,
under the
name of Cape Saab at 282 Durban Road, Tygerberg, Western Cape
Province. It is appealing to a Full Bench of this Division
against a
judgment in terms of which it was ordered to pay the sum of
R170 000,00 plus interest to first respondent, Mr Zubair
Goolam
Hoosen Kadwa.
[2] First
respondent’s claim against appellant arose from an agreement of
sale concluded on 22 March 2002 in terms of which appellant
sold a
1995 Toyota Land Cruiser motor vehicle (“the Toyota”) to him for
a purchase price of R170 000,00. First respondent
paid the
purchase price to appellant on 22 March 2002 and took delivery of the
Toyota. On 13 June 2002 an official acting on behalf
of the
Controller of Customs and Excise in Durban (“the Controller”)
detained the Toyota in terms of section 88(1)(a) of the
Customs and
Excise Act 91 of 1964 (“the Act”). First respondent maintained
that he had been evicted and that appellant breached
its warranty
against eviction. He accordingly claimed payment of the sum of
R170 000,00 plus interest from appellant.
[3] Second
respondent, Mr James McMillan, is an adult male residing at 2 Alzia
Street, Glenvista, Johannesburg. He was joined by
appellant as a
third party to the action. Appellant alleged in its third party
notice that it had purchased the Toyota from second
respondent on 4
October 2001. In the event of it being held liable to pay the sum of
R170 000,00 to first respondent, appellant
alleged, it would
suffer damage in that amount for which second respondent would be
liable to it. Second respondent defended appellant’s
claim against
him.
[4] The
Court below (Ndita J) upheld first respondent’s claim against
appellant and granted judgment in his favour with costs.
She also
ordered appellant to pay second respondent’s costs.
[5] The
Court below granted appellant leave to appeal to this court against
the whole of the judgment. Appellant’s case on appeal
is that the
Court below:
(i) should have dismissed first respondent’s claim against
appellant; and
(ii) should have ordered first respondent to pay the costs of both
appellant and second respondent.
The
detention of the Toyota
[6] The primary facts in regard to the detention of the Toyota are
not in dispute. First respondent, an adult male who resides in
Durban, KwaZulu Natal, came to Cape Town to purchase the Toyota from
appellant after he had seen an advertisement in a magazine.
A
written agreement of sale was concluded on 22 March 2002. He paid
the full purchase price in cash and took delivery of the Toyota
that
same day. First respondent soon experienced a number of mechanical
problems with the vehicle and he took it to a Toyota dealer
in Durban
for an inspection. In the course of this inspection he was told that
it might be difficult to find certain parts for the
vehicle as it was
a
‘grey import’.
This, he understood, meant that the
vehicle had not been imported into South Africa by Toyota South
Africa, the authorised Toyota
dealer in South Africa.
[7] On 13
June 2002 first respondent took the vehicle to the office of the
Department of Customs and Excise in Durban. There he was
handed a
detention notice which informed him that the vehicle was being
detained in terms of section 88(1)(a) of the Act. The notice,
signed
by Ms Bobette Lourens on behalf of the Controller, read as follows:
‘
The
vehicle mentioned hereunder is hereby detained in terms of section
88(1)(a) read with section 87 of [the Act] to establish whether
such
goods/materials are liable to forfeiture.
Description of Vehicle:
Toyota Landcruiser
VX
Limited Edition
Colour
of Vehicle : Silver Grey
Chassis
Number : HDJ810009094
Engine
Number : IHD0018349
The vehicles must remain in
the owner’s possession.
You are required to comply
with the provisions of sections 102 of the said Act on or before 13
July 2002, failing which the goods
will be seized in terms of section
88(1)(c) of the said Act.’
The
Controller is defined in the Act as an officer designated as such in
respect of an area or matter by the Commissioner for the
South
African Revenue Service. According to first respondent he was told
by the officials concerned that he could keep the vehicle
in his
possession but he was not allowed to use it. He stored it in the
backyard of a friend.
[8] First
respondent instructed his attorney, Mr Ayoub Kadwa, to attend to the
matter. On 2 August 2002 his attorney wrote a letter
to appellant
informing him that first respondent was cancelling the sale by reason
of numerous defects in the vehicle as well as
the fact that he had
established that the vehicle was in fact a 1991 model whilst
appellant had sold it to him as a 1995 model.
First respondent’s
attorney tendered the return of the vehicle to appellant and claimed
a refund of the purchase price plus the
cost of fitting an
alarm/immobiliser and travelling costs. Appellant’s attorney
responded on behalf of appellant on 13 August
2002. He rejected
first respondent’s demands.
[9] On 3
October 2002 first respondent’s attorney informed appellant in
writing that the vehicle had been impounded by the Department
of
Customs and Excise and that first respondent had been evicted.
Appellant, he said, had breached his warranty against eviction
and it
was its responsibility to restore possession of the vehicle to first
respondent.
[10] On
23 October 2002 Ms Lourens, acting on behalf of the Controller,
addressed a letter to first respondent in the following terms:
‘
Further
to our Detention notice dated the 13
th
of June 2002 an investigation has been conducted. In order to
expedite this matter we require any/all documentation in terms of
section 102 of the Customs and Excise Act Number 91 of 1964 relating
to the subject vehicle. Please note that the date reflected
on the
detention notice is hereby been extended to the 16
th
of November 2002. The documents are requested in order to prove that
the Customs Duties and VAT was paid.
If the documents are not
produced within thirty days from the date hereof, the vehicle would
be seized in terms of section 88(1)(c)
and would be placed into the
States Warehouse.’
First respondent’s attorney forwarded a copy of this letter to
appellant’s attorneys on 28 October 2002.
[11] The
Toyota was in fact taken to a state warehouse on 1 July 2004 after an
official acting on behalf of the Controller informed
first respondent
that he was required to take it there.
[12] It is
common cause that neither appellant nor first respondent attempted to
furnish any proof to the Controller that customs
duty had in fact
been paid on the Toyota.
Mr Essop’s evidence
[13] First
respondent called Mr Farhaz Essop to give evidence. He is a senior
anti-smuggling officer in the Department of Customs
and Excise in
Durban. Ms Bobette Lourens worked under him in the same department.
They dealt with the problem in regard to first
respondent’s Toyota
in June 2002. His department was approached by first respondent and
informed about the background and that
the vehicle was possibly a
grey import.
He caused the detention notice to be issued.
His department subsequently investigated the matter. He contacted
the International
Trade and Administration Commission (“ITAC”) in
the Department of Trade and Industry and they informed him no import
permit had
been issued for this vehicle. That meant, according to
him, that no customs duty had been paid on the vehicle. He also
contacted
Toyota South Africa and they informed him that they had no
record in respect of the importation of the vehicle. (Whilst
preparing
for the trial in the present matter he discovered that the
queries sent to ITAC and Toyota South Africa contained a wrong
chassis
number. On 8 February 2005, the day before he actually
testified in the court below, he repeated his queries to these two
entities
and both confirmed that they had no record of the Toyota’s
importation.) Essop’s department also sent a query, dated 11 May
2004, to the Trade and Compliance section of Business Against Crime
in order to find out whether the vehicle had been registered
on the
National Transport Information System (“NATIS”). The
documentation received from them revealed that the vehicle had been
registered for the first time in this country in Dundee,
KwaZulu-Natal but it contained no relevant information on the
question whether
customs duty had been paid. Essop confirmed that
the Toyota had not been forfeited in terms of the Act.
Second
respondent’s evidence
[14] Mr
James McMillan, second respondent, testified that the Toyota was
acquired by JMC Electricals CC from Classique Auto Sales
by way of a
lease concluded on 5 December 1997. He was a member of JMC
Electricals and the Toyota was registered in terms of the
Road
Traffic Act in his own name with registration No DRT067GP. The
rights of the lessor of the vehicle were transferred to
Wesbank, a
division of Firstrand Bank Limited, and JMC Electricals paid the
rentals in terms of the lease to Wesbank. On 4 October
2001 the
Toyota was traded in by him to Saab Sandton, a division of appellant,
as part of the purchase price of a Suzuki motor vehicle
which he
purchased from Saab Sandton.
[15] Second
respondent testified that he contacted Classique Auto Sales when he
received a letter of demand from first defendant’s
attorneys in
this matter. They told him that the Toyota had been acquired by them
from Toyota Dundee. He telephoned Toyota Dundee
and they referred
him to Mr Jakes Pandor, the previous owner of Toyota Dundee. Pandor
had apparently sold the Toyota franchise and
moved to Durban. He
(second respondent) telephoned Pandor who informed him that the
Toyota had been imported and sold to Toyota
Dundee. It was
registered at the Dundee motor vehicle registration office. Shortly
before the trial Pandor’s attorney confirmed
this information in a
letter addressed to him.
Relevant
provisions of the Act
[16] In
terms of section 39 of the Act an importer of goods is obliged to
make due entry of the goods and pay all duties due on the
goods.
Section 87(1) of the Act provides as follows;
87 Goods
irregularly dealt with liable to forfeiture
(1) Any goods imported,
exported, manufactured, warehoused, removed or otherwise dealt with
contrary to the provisions of this Act
or in respect of which any
offence under this Act has been committed (including the containers
of any such goods) or any plant used
contrary to the provisions of
this Act in the manufacture of any goods shall be liable to
forfeiture wheresoever and in possession
of whomsoever found:
Provided that forfeiture shall not affect liability to any other
penalty or punishment which has been incurred
under this Act or any
other law, or liability for any unpaid duty or charge in respect of
such goods.
[17] Section
88 of the Act, insofar relevant, provides as follows:
88 Seizure
(1) (a) An officer,
magistrate or member of the police force may detain any ship,
vehicle, plant, material or goods at any place
for the purpose of
establishing whether that ship, vehicle, plant, material or goods are
liable to forfeiture under this Act.
(b) Such ship, vehicle,
plant, material or goods may be so detained where they are found or
shall be removed to and stored at a
place of security determined by
such officer, magistrate or member of the police force, at the cost,
risk and expense of the owner,
importer, exporter, manufacturer or
the person in whose possession or on whose premises they are found,
as the case may be.
(bA) No person shall remove
any ship, vehicle, plant, material or goods from any place where it
was so detained or from a place of
security determined by an officer,
magistrate or member of the police force.
(c) If such ship, vehicle,
plant, material or goods are liable to forfeiture under this Act the
Commissioner [for the South African
Revenue Service] may seize that
ship, vehicle, plant, material or goods.’
[18] Section 89 of the Act provides for the institution of
proceedings by the owner or the person from whom the goods have been
seized,
to claim the goods. Any such litigant must give notice of
such proceedings to the Commissioner within 90 days after the date of
seizure and the proceedings must be instituted within 90 days of such
notice. If no proceedings are instituted the goods shall be
deemed
to be forfeited.
[19] Section
93(1) of the Act provides as follows:
‘
(1)
The Commissioner may, on good cause shown by the owner thereof,
direct that any ship, vehicle container or other transport equipment,
plant, material or other goods detained or seized or forfeited under
this Act be delivered to such owner, subject to-
(a) payment of any duty that
may be payable in respect thereof;
(b) payment
of any charges that may have been incurred in connection with the
detention or seizure or forfeiture thereof; and
(c) such conditions as the
Commissioner may determine, including conditions providing for the
payment of an amount not exceeding the
value for duty purposes of
such ship, vehicle container or other transport equipment, plant,
material or goods plus any unpaid duty
thereon.’
[20] Section
102(1) of the Act reads as follows:
‘102 Sellers of goods
to produce proof of payment of duty
(1) Any person selling,
offering for sale or dealing in imported or excisable goods or fuel
levy goods or any person removing the
same, or any person having such
goods entered in his books or mentioned in any documents referred to
in section 75 (4A) or 101, shall,
when requested by an officer,
produce proof as to the person from whom the goods were obtained and,
if he is the importer or manufacturer
or owner, as to the place where
the duty due thereon was paid, the date of payment, the particulars
of the entry for home consumption
and the marks and numbers of the
cases, packages, bales and other articles concerned, which marks and
numbers shall correspond to
the documents produced in proof of the
payment of the duty.’
The provisions of sub-section 102(4) of the Act are also relevant.
They read as follows:
‘
(4)
If in any prosecution under this Act or in any dispute in which the
State, the Minister or the Commissioner or any officer is
a party,
the question arises whether the proper duty has been paid or whether
any goods or plant have been lawfully used, imported,
exported,
manufactured, removed or otherwise dealt with or in, or whether any
books, accounts, documents, forms or invoices required
by rule to be
completed and kept, exist or have been duly completed and kept or
have been furnished to any officer, it shall be presumed
that such
duty has not been paid or that such goods or plant have not been
lawfully used, imported, exported, manufactured, removed
or otherwise
dealt with or in, or that such books, accounts, documents, forms or
invoices do not exist or have not been duly completed
and kept or
have not been so furnished, as the case may be, unless the contrary
is proved.’
[21] The
judgment of the Appellate Division in
Secretary for Customs and
Excise and Another v Tiffany's Jewellers (Pty) Ltd
1975 (3) SA
578
(A) is of some relevance in regard to the nature of the
Commissioner’s discretion in terms of the Act. The court held that
the
Secretary (now the Commissioner) had no discretion in regard to
the forfeiture of the goods once it is clear that a prohibited act
had been committed. See the following passage, at 587G – 588A:
‘
The
wording in sec. 87 (1) indicates that the goods become liable to
forfeiture, wherever they may be, if the prohibited or irregular
acts
have been committed, no matter who commits them, whereas in the other
sections it is the act of the individual who commits the
offence in
relation to particular goods which causes those goods to be liable to
forfeiture. This means that under sec. 87 (1) or
113 (8) it matters
not whether the owner exported or attempted to export the goods in
contravention of the law. No doubt, if circumstances
exist which show
that the true owner is innocent, e.g. where a thief seeks to export
stolen goods, the Secretary will exercise his
discretion in terms of
sec. 93. Hence, for the purposes of this case, even assuming
Tiffany's was in no way party to the wrongful
conduct of Favarolo,
the diamonds were liable to forfeiture.
In the Vincent and Pullar
case [Vincent & Pullar Ltd. v Commissioner of Customs and Excise,
1956 (1) SA 51
(N)], at p. 53, it was held that once the seizure was
not illegal the Court had no discretion. I am in respectful agreement
with
what was there said. This means that once the relevant breach of
the statutory provisions has been proved the goods are liable to
forfeiture and once seized "are deemed to be condemned and
forfeited" (see sec. 89)
.’
This approach was referred to with approval in
Capri Oro (Pty) Ltd
and Others v Commissioner of Customs and Excise and Others
2001
(4) SA 1212
(SCA) paras [19] and [20], at 1220D-1221B.
The judgment of the Court below
[22] The
learned trial judge held that first respondent had been evicted as he
had been deprived of his possession of the Toyota.
The conduct of
the Controller, she held, was lawful. Appellant had been duly
notified by first respondent of the eviction and it
did nothing to
defend the claim. The Controller’s rights to the goods, she held,
were unassailable. First respondent had accordingly
proved all the
required elements for a successful reliance on the breach of the
warranty against eviction. His claim against appellant
succeeded
with costs.
[23] It
appears that appellant did not in the Court below ask for any
substantive relief against second respondent. The learned trial
judge
accordingly did not deal with the merits of appellant’s claim
against second respondent. She held that second respondent
had been
‘unnecessarily dragged into court’
by appellant.
Appellant was accordingly ordered to pay his costs.
The warranty against eviction: Common law principles
[24] The warranty against eviction is one of the obligations imposed
under the common law upon the seller of a thing sold. If the
purchaser is evicted, ie deprived of his possession of the thing
sold, or threatened with eviction, by a person with a better legal
title than the seller, he is entitled to claim compensation from the
seller for the loss suffered by him.
[25] There is no eviction, however, if the third person’s claim is
not a lawful one. The demand, it has been said, has to be one
that
can
‘legally be substantiated’.
See
Westeel
Engineering (Pty) Ltd v Sidney Clow & Co Ltd
1968 (3) SA 458
(T) at 462A and
Garden City Motors (Pty) Ltd v Bank of the Orange
Free State Ltd
1983 (2) SA 104
(N) at 108FG.
[26] In
order to rely upon the warranty against eviction the purchaser is
required, upon eviction or when threatened with eviction,
to take
what is described in Joubert (ed)
The Law of South Africa (LAWSA)
(first reissue) vol 24 para 91 as
‘preliminary steps’,
namely
to give notice of the eviction to the seller and, if the seller does
not intervene to protect his possession, to put up proper
defence (a
virilis defensio
). The meaning and effect of the latter
requirement are in dispute in the present case and will be discussed
more fully hereunder.
[27] Where
the purchaser does not comply with the preliminary steps it is still
open to him to prove that the third person had
‘a legally
unassailable’
claim. See
Olivier v Van der Bergh
1956
(1) SA 802
(C) at 804BC and the
Garden City Motors
judgment
,
supra,
at
107FG.
[28] The
warranty against eviction, I may add, is a term implied by law. The
parties to an agreement of sale may agree, expressly
or tacitly, to
exclude its operation. In the present case the question of such
exclusion was raised by appellant in the Court below
but it was
accepted on appeal that the agreement between appellant and first
respondent did not exclude the operation of the warranty.
Appellant’s
contentions on appeal
[29] Mr P Myburgh appeared for appellant on appeal. His principal
contention was that first respondent had not established that
he had
been lawfully evicted. Mr Myburgh submitted that although first
respondent was physically dispossessed of the vehicle, the
Controller
(as represented by Essop) acted unlawfully and first respondent was
therefore not lawfully evicted. For that reason,
although appellant
was in fact notified of the Controller’s detention of the Toyota
and took no steps to protect first respondent’s
possession,
appellant did not incur any liability by reason of the warranty of
eviction.
[30] In
support of this contention Mr Myburgh submitted that the Controller
could only have detained the vehicle in terms of section
88(1)(a) of
the Act for the purpose of establishing whether the vehicle was
liable to forfeiture under the Act. This depended upon
the factual
question whether customs duty had been paid at the time of its
importation. The Controller, he submitted, acted unlawfully
in two
respects. In the first place he referred first respondent to the
provisions of section 102 of the Act which did not apply
to him. In
the second place, he submitted, the Controller detained the vehicle
in terms of section 88(1)(a) without properly establishing
whether
customs duty had in fact been paid or not. He could only have
detained the vehicle lawfully once it had been shown to have
been
liable to forfeiture.
[31] Mr
Myburgh’s alternative contention was first respondent had failed to
put up a
virilis defensio
. He submitted that first respondent
was required to prove not only that he had given proper notice of the
eviction to appellant
(which was not disputed) but also that he had
conducted a
virilis defensio.
This, he submitted, first
respondent had failed to do. First respondent had merely referred
the matter to appellant and failed to
provide any resistance to the
Controller’s detention of the vehicle. First respondent was
accordingly required to prove that the
Controller’s right to detain
the vehicle was unassailable. The question of the assailability of
his right, according to this argument,
depended upon the question
whether customs duty had in fact been paid at the time of the
importation of the vehicle or not. First
respondent, he submitted,
failed to prove that customs duty had been paid.
[32] I
propose to consider Mr Myburgh’s principal contention first and
thereafter his alternative contention.
Was
the eviction lawful?
[33] Mr
JAB Nel appeared on behalf of first respondent. He disputed
appellant’s contention that the Controller acted unlawfully.
Mr
Nel pointed out that the Controller took reasonable steps to
establish whether customs duty had been paid or not. He contacted
Toyota South Africa and the Department of Trade and Commerce and the
information received by him as a result of these enquiries tended
to
confirm that customs duty had not been paid. It may be, Mr Nel
conceded, that the Controller’s reference to section 102 of
the Act
in the detention notice was not particularly appropriate but this did
not affect the validity of the action taken by him.
He gave ample
notice to first respondent of the imminent seizure of the vehicle and
he was entitled to assume that first respondent
would raise it with
person that sold the vehicle to him. Mr Essop was criticised under
cross-examination for not contacting appellant
but this, Mr Nel
submitted, did not render his conduct unlawful. In terms of section
102(4) of the Act, he pointed out, the onus
was on the person
disputing the detention of the vehicle to establish the facts on
which he relied.
[34] I
agree with Mr Nel’s submission that it has not been shown that the
Controller’s actions in respect of the Toyota was unlawful.
He
gave proper notice of the detention to first respondent and he took
reasonable steps to establish whether customs duty had been
paid. If
the customs duty had indeed not been paid then it is difficult to
understand what further investigations would have revealed
that
negative fact. No specific suggestions were made in the course of
the cross-examination of Essop as to what further steps he
could or
should have taken. The Controller was assisted by the onus contained
in section 102(4) of the Act and he gave first respondent
and his
predecessors ample opportunity to establish that a proper importation
of the Toyota took place.
[35] I am
accordingly satisfied that first respondent established that he had
been lawfully evicted.
A
virilis defensio
[36] Mr
Myburgh’s alternative contention raises questions regarding the
meaning and effect of the requirement that the purchaser
must put up
a
virilis defensio
.
[37] The
judgment of Schreiner JA in
Lammers and Lammers v Giovannoni
1955 (3) SA 385
(A) contains an important analysis of the purchaser’s
position upon eviction. There are passages in the judgment which
make it
clear that the purchaser is not obliged to resist the claim
at all costs when he has given proper notice thereof to the seller,
he
is only required to take reasonable steps. See, in particular, at
392F/G-392H :
‘
Once
the seller is called upon to defend the buyer in his possession but
washes his hands of 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
skilfully; 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 would depend on the available procedure; including,
in appropriate cases, i.e. 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.’
[38] The requirement of a
virilis defensio
was discussed in a
helpful note on the
Lammers
judgment by
Prof P van
Warmelo in
(1955) 72
SALJ
340.
He pointed out that the nature
of the required
virilis defensio
to be put up by the
purchaser, would
depend upon the circumstances of the
particular case. The purchaser, according to him, is not required to
defend the claim trench
by trench. He is merely required to take
steps that are reasonably required to allow the seller to defend his
possession of the
thing sold. The following passages, at 343 –
344, reflect Prof van Warmelo’s views:
‘
Dit
bring ons weer tot die geaardheid van die
virilis
defensio
.
Wat beteken dit? Wil dit sê dat die koper die eis van die
vermoedelike reghebbende op alle maniere en tot die bitter einde moet
beveg? Indien wel, kan dit beteken dat hy met baie koste uit die
saak uitkom en sonder die koopsaak, wanneer die verkoper nie die
reghebbende was nie en miskien ’n persoon wat nie juis solvent
genoem kan word nie. Moet ons egter die vereiste van
virilis
defensio
interpreteer in die sin “That today the buyer is not obliged to put
up any, let alone a vigorous, defence against the true owner
on pain
of being unable to recover from the seller”? Dit wil voorkom dat
hierdie woorde miskien die indruk kan skep dat die koper
hoegenaamd,
en onder geen omstandighede nie, ’n
defensio
moet voer nie. So ’n interpretasie sou weer die verkoper, wat
miskien
bona
fide
is en ’n goeie verweer het, op ’n onbillike manier tref.
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 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
virilis
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.’
[39] Prof van Warmelo’s interpretation of the
virilis defensio
requirement is in my view persuasive. It is consistent with the
authorities and it is both logical and equitable. I propose to
apply
it to the facts of this case.
[40] In
the present case, so it seems to me, first respondent did what could
reasonably have been expected of him in the circumstances.
He was
not in possession of any information in regard to the question
whether customs duty had been paid on the Toyota or not.
Such
information could only be provided by the person who was responsible
for the importation of the vehicle. In these circumstances
he acted
reasonably by informing appellant of the problem and leaving it to
appellant to obtain and provide such information. He
did nothing
that prejudiced appellant’s rights to prove that customs duty had
in fact been paid.
[41] In
support of his alternative contention Mr Myburgh placed much reliance
on the judgment of the High Court of Zimbabwe in
Moyo v Jani
1985 (3) SA 362
(ZH). The facts in that case are in some respects
similar to those in the present case. The circumstances of that case
must, however,
be considered carefully as there is a significant
point of difference.
[42] The
plaintiff in
Moyo
had bought a video cassette recorder from
the defendant who was not permitted to sell the recorder without the
payment of duty thereon.
Two months after the sale the recorder was
seized by the customs authorities acting under the relevant
provisions of the Zimbabwean
Customs and Excise Act.
The plaintiff was informed at the time of the seizure
that, if he wished, he could make representations for the release of
the recorder
or institute proceedings for the recovery thereof. The
plaintiff did not take any steps against the Controller. He
instituted an
action against the defendant. The defendant raised a
defence that the plaintiff had a complete defence against the seizure
by the
Controller as he had acquired the recorder bona fide and for
value. The learned judge, Mfalila J, held that plaintiff had been
evicted
from his possession of the video cassette recorder upon its
seizure by customs authorities. He then summarised the rules under
which
a purchaser could proceed against the seller in these
circumstances. These included the rule
‘that he should put up a
spirited defence against the claims of the third party’
.
The learned judge then considered the position of the
plaintiff in that case and he upheld the defence that he had failed
to put up
a
virilis defensio
to the claims and seizure by the
Controller. He pointed out that there had been adequate statutory
machinery available to the plaintiff
for the recovery of his seized
goods. Having failed to use this machinery, he was not entitled to
turn to the seller for redress.
[43] It
seems clear to me that there is a vital point of distinction between
the circumstances of this case and those in
Moyo.
In
Moyo
the purchaser could, in terms of the relevant statute, protect
his own possession of the goods in question by proving to the
Controller
that he his acquisition of the goods was
bona fide
and for value. The South African statute does not contain a
comparable provision. First respondent’s
bona fides
might
have been relevant in regard to a claim under section 93 of the Act
but that is an entirely different matter. First respondent would
only have been able to resist the detention of the Toyota by the
Controller if he could provide proof that the import duty had been
paid. His own
bona fides
at the time of the acquisition of
the vehicle
were accordingly entirely irrelevant. In these
circumstances it seems to me that first respondent did what was
required of him, namely
to give proper notice of the eviction to
appellant.
Was the
Controller’s right to detain the vehicle unassailable?
[44] Mr
Nel submitted in the alternative, I may add, that first respondent
had in any event shown on a balance of probabilities that
the
Controller’s right to detain the vehicle was indeed unassailable.
In view of the conclusion reached above it is strictly speaking
not
necessary for this court to decide that question. Having considered
the issue, however, I propose to deal with it briefly.
[45] In my
view there is merit in Mr Nel’s alternative submission. The
question of the unassailability of the Controller’s rights,
according to this submission, was dependent upon the factual question
whether customs duty had been paid on the importation of the
Toyota
or not. In view of the limited nature of the Commissioner’s
discretion as explained in the
Tiffany’s
case above, it
seems clear that the Controller would have had no discretion to
release the Toyota if customs duty had in fact not
been paid. The
evidence of Essop’s unsuccessful attempts to obtain proof of that
fact is indeed relevant circumstantial evidence
which justifies the
inference that it had not been paid. The drawing of this inference
is strengthened by the fact that second respondent,
despite his
efforts to obtain such proof, was nevertheless unable to provide any
evidence thereof. Appellant itself adduced no evidence
to justify
the inference that the customs duty had in fact been paid. The onus
which rested upon first respondent was only to prove
this element of
his cause of action against appellant upon a balance of
probabilities. He was not required to meet a more stringent
onus.
In the circumstances I am of the view that first respondent
discharged that onus.
[46] For
the reasons set out above I am of the view that the Court below did
not err in granting judgment in favour of first respondent
and
against appellant.
Liability for second respondent’s costs
[47] As
appellant did not pursue the claim which he possibly had against
second respondent in the Court below it is not necessary
for this
court to consider the merits of such a claim. In the circumstances
it appears that second respondent was not only unnecessarily
dragged
through the Court below, he was also unnecessarily dragged through
this court. There are in my view no grounds for interfering
with the
order made in the court below that appellant should pay his costs.
Appellant should also pay his costs relating to the
appeal.
[48] In
the result I would dismiss the appeal and order appellant to pay
first and second respondents’ costs of appeal.
------------------------
A
P BLIGNAULT
HLOPHE
JP:
I agree. It is so ordered.
-----------------------
J
M HLOPHE
BOZALEK
J:
I agree.
-----------------------
L
BOZALEK