Machaka v Mosala (2664/2006) [2006] ZAFSHC 159 (19 October 2006)

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[2006] ZAFSHC 159
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Machaka v Mosala (2664/2006) [2006] ZAFSHC 159 (19 October 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 2664/2006
In the matter between:
MAPITJA JOSEPH
MACHAKA
Applicant
and
POLO ANNA MOSALA
Respondent
_____________________________________________________
JUDGEMENT:
RAMPAI, J
HEARD ON:
31 AUGUST 2006
_____________________________________________________
DELIVERED ON:
19 OCTOBER 2006
_____________________________________________________
[1] The matter came to
this court by way of an application. The relief sought is the return
of a motor vehicle. The car is currently
in the respondent’s
possession. The applicant avers in his founding affidavit that his
claim is grounded on his right of ownership.
[2] The motion is
opposed. The respondent’s ground of resistance is that the said
sedan no longer belongs to the applicant. She
avers in her answering
affidavit that the applicant gave her the sedan. Therefor she
contends that she is not just a possessor but
rather an outright
owner of the sedan.
[3] In his replying
affidavit the applicant reiterates that he is still the owner; that
he never donated the sedan to the respondent
as she alleges; that the
right of ownership was never transferred to the respondent at any
stage and he also denies that during the
abortive negotiations to
settle the matter, he offered to give the sedan to the respondent.
[4] The applicant’s
version was that: he bought the car alone, paid the price alone and
acquired ownership alone. In November
2005 he bought a bigger car
and placed his smaller car at the disposal of the respondent for her
personal and private use. By then
the intimate relationship had
already broken down. From 1999 until March 2005 he and the
respondent were living together as husband
and wife. The
relationship began to crack down. He discovered that the respondent
was using the vehicle for business purposes as
well. Such use of the
sedan was a violation of the comprehensive insurance policy relating
to the sedan. He regarded such business
use as a misuse of his
property. Moreover, he noticed that the respondent was careless in
the manner she used his car. The current
market value of the sedan
was approximately R91 950,00 according to him.
[5] The respondent’s
version was that the applicant purchased the sedan, a BMW 318i during
2000; that he purchased a second sedan,
a City Golf during 2002; that
he traded in the City Golf and purchased yet another sedan, a Nissan
Almera during 2004 and that during
2005 he traded in the Almera and
purchased another sedan, a BMW 5 series. Because she had been using
the Almera all along, the applicant
gave her the BMW 318i instead of
buying her a new car again. In that way, she averred, ownership was
transferred to her.
[6] She and the applicant
were unmarried. However, they were engaged. The applicant had
already paid “bohadi”, in other words
dowry for her. But she
admitted that the relationship broke down. However she averred that
the breakdown took place not in March
2005 as the applicant alleged
but in June 2005. The couple had two minor children. The eldest was
at school. The youngest was
at crèche. She needed a car for her
personal use as well as for transporting the couple’s children to
and from school and crèche.
She denied the allegation that she was
using the sedan for business purposes and she also denied the
allegation that she was careless
in her use of the sedan. She denied
the applicant’s claim that he was the sole owner of the sedan. She
averred that she was the
owner. The respondent’s case, therefor,
is that she has lawful possession of the sedan.
[7] The foundation of the
applicant’s case originates from the
actio
rei vindicatio.
In order to succeed, it is incumbent upon the claimant to prove the
following basic elements of the
actio
rei vindicatio
.
Firstly, that ownership of the
res
vests in him:
GOUDINI
CHROME (PTY) LTD v MCC CONTRACTS (PTY) LTD
[1992] ZASCA 208
;
1993 (1) SA 77
(AD) at 82. See also
CONCOR
CONSTRUCTION (CAPE) PTY LTD v SANTAM BANK LTD
1993 (3) SA 930
(AD). Secondly, that the thing in dispute still
exists and that it is clearly identifiable;
SORVAAG
v PETTERSEN AND OTHERS
1954 (3) SA 636
(CPD) at 639; and thirdly, that the defendant was in
possession of the thing at the time of the initiation of the
proceedings;
GRAHAM
v RIDLEY
1931 TPD 476
and
CHETTY
v NAIDOO
1974 (3) SA 13
(AD).
[8] The critical question
which I am called upon to determine is who is the rightful owner of
the sedan which forms the object of
this dispute. The respondent’s
answering affidavit puts in issue the allegation that the applicant
is the owner.
[9] I proceed to examine
the facts. To start with I deal with the first element of the
actio
rei vindicatio
.
The applicant averred and the respondent admitted that alone he
purchased the car; that alone he paid the full price and that alone
he owned the car for about five years. During that period the
ownership of the car vested in the applicant. In the absence of
proof
that the applicant was the owner at the time these proceedings
were initiated his claim cannot succeed. This must be so because
she
obtained possession of the sedan with his aid.
[10] The applicant
contends that he is still the sole owner of the car. The applicant
derived his ownership from a motor vehicle
dealer in 1999. However,
the respondent’s contention is that she derived her ownership from
the applicant himself. The sedan
is a movable. The derivative mode
on which the respondent relies to have acquired ownership is
delivery. The requirements for the
passing of ownership by delivery
include,
inter
alia,
that delivery must be effected by the transferor with the intention
of renouncing and transferring ownership and such delivery must
be
taken by the transferee with the corresponding intention of accepting
ownership.
CONCOR
CONSTRUCTION (CAPE) (PTY) LTD v SANTAMBANK LTD
1993 (3) SA 930
(AD) at 933 A-B per Milne JA.
[11] In the same case,
CONCOR
supra
at 933 f – g Milne JA remarked:
¡°
it
is clear, however, from the passage at 302G-H and the reliance upon
the judgment of Centlivres JA in Commissioner of Customs and
Excise v
Randles, Brothers & Hudson Ltd
1941 AD 369
at 411 that the legal
transaction preceding the delivery may be evidence of an intention to
pass and acquire ownership. Equally,
the absence of such an
agreement may, depending upon the circumstances, be evidence of the
absence of any such intention.”
[12] The respondent
contends that the applicant is no longer the owner of the car. She
avers that prior to delivery he unconditionally
gave her the car last
year, on the 12 October 2005 to be precise. She asserts that by
virtue of such deed of donation ownership
of the car passed from the
applicant to her. Therefor she now puts a defence that she is the
current owner of the car.
[13] The law, as I
conceive it to be, is that donation is never presumed. The onus of
proving that a person gave away his property
in favour of another
rests on the one who makes such a claim.
[14] It is necessary to
analyse the averments in order to the test the validity of the
respondent’s contention. In paragraph 11
of the answering
affidavit the respondent stated that the applicant acquired two motor
vehicles, a Golf and an Almera for her personal
use. It is not her
case that she became an owner of any of those previous motor vehicles
through such personal use. It seems to
me that the applicant bought
and sold motor vehicles at will for respondent’s personal use. I
get the impression that the respondent
had very little say in the
applicant’s decisions to buy and sell the motor vehicles which the
couple used.
[15] When the applicant
decided to trade in the Almera he apparently made a unilateral
decision as one would naturally expect from
an owner. The
respondent’s objection was merely based on considerations of
practical convenience for her and the couple’s children.
Needless
to say the interest of the children in a matter of this nature is not
a relevant issue. Her objection boiled down to possessory
and not
proprietary considerations.
[16] During the period of
five years, between 1998 and 2006 the applicant bought four motor
vehicles. Apparently all was well between
the parties from the
beginning until mid 2005. However, during those happy days, the
applicant did not express his gratitude to
or affection for the
respondent by presenting a car to her as a gift.
[17] According to the
respondent’s version, things became sour in June 2005. She says
the following at paragraph 23 of the answering
affidavit:
¡°
I
admit that our relationship has broken down since June 2005 when I
discovered that the Applicant was having an affair with another
female...”
I find it rather
improbable that hardly four months later after the turbulent
breakdown of the relationship the same man who gave
her no car for a
gift during happy times would have done so after the breakdown.
[18] In paragraph 15 of
the answering affidavit the respondent states:
“
...it is clear from the above that
the abovementioned vehicle was given to me and that ownership therein
was transferred from the
Applicant to myself.”
This averment does not
tally with the admissions as set out in paragraph 20 of the answering
affidavit where she said:
“
I admit that the vehicle is fully
paid for. I admit, further, that the Applicant paid for the vehicle.
I also admit that the vehicle
is registered on the name of the
Applicant.
The
Applicant indeed paid the last licence fees in relation to this
vehicle as it is still registered in his name.”
[19] It will be readily
appreciated that annexure “A” to the founding affidavit shows
that the current motor vehicle registration
certificate in respect of
this particular car was issued on the 18
th
May 2006 in the name of the applicant. Moreover, annexure “B”
also to the founding affidavit shows that the current motor vehicle
licence in respect of the same car was renewed on the 18
th
May 2006 in the applicant’s name and that it expires on the 30
April 2007.
[20] This undisputed
documentary evidence cannot be reconciled with the respondent’s
allegation that ownership in the car was transferred
from the
applicant to herself. Such an allegation is obviously untrue – not
only in the light of these annexures but more importantly
in the
light of her admissions to the contrary in response to the
applicant’s averment as set out in paragraph 7 of the founding
affidavit.
[21] Among others, the
applicant states in paragraph 7 of the founding affidavit:
¡°
..I
am the owner of the vehicle.”
The respondent’s
answer to paragraph 7 of the founding affidavit is to be found in
paragraph 20. Nowhere in this paragraph does
the respondent
specifically deny this crucial and assertive averment by the
applicant. In my view her failure to do so strongly
militates
against her contention and bolsters the applicant’s contention.
[22] Paragraph 4 of the
applicant’s founding affidavit reads:
“
The purpose of this application is
to request the Honourable Court for an order ordering the Respondent
to return a certain BMW 318i
motor vehicle with registration number
BZY588FS, which is my property, to me.”
I have to stress the
important words of this passage:
¡°
...BZY588FS,
which
is my property,...”
How does the respondent
react to this important averment? Again she hardly comments on this
material issue raised by the applicant.
On page 46 of the record she
deals with paragraph 3 of the founding affidavit first. From there
she jumps over the important paragraph
4 and deals with paragraph 5.
[23] The respondent had
the car in her possession for hardly for months. During that short
period of time she endured a great deal
of disturbance in her
possession by the person claiming to be the owner. The claimant was
the applicant. It seems more probable
than not that the applicant
was the owner. If the sedan had been delivered to the respondent as
a gift, it is improbable that the
applicant would have despoiled the
respondent at one stage, lost the spoliation case in the lower court
but still persisted in the
high court to regain possession. To avoid
possible delictual claims which could possibly arise from the
business use of the car
he only had to have the car registered in the
name of the respondent so that she could be responsible for the
annual renewal of the
motor vehicle licence fee and to have the
comprehensive insurance policy cancelled so that the risk associated
with any misuse could
be borne by the respondent herself. The fact
that he did none of these things after delivering the vehicle to the
respondent suggests
that he never had any intention to relinquish
ownership. After the alleged donation he continued to act in a way
consistent with
an outright owner’s natural conduct. All this
strongly militates against the presence of any legal transaction
which could have
preceded delivery of the sedan to the respondent.
[24] In
CHETTY
v NAIDOO
1974 (3) SA 13
(AD) at 20 A – C Jansen JA observed as follows about
the legal concept of ownership:
¡°
It
may be difficult to define dominium comprehensively (cf. Johannesburg
Municipal Council v Rand Townships Registrar and Others,
1910 T.S.
1314
at p. 1319), but there can be little doubt (despite some
reservations expressed in Munsamy v Gengemma,
1954 (4) SA 468
(N) at
pp. 470H - 471E) that one of its incidents is the right of exclusive
possession of the res, with the necessary corollary that
the owner
may claim his property wherever found, from whomsoever holding it. It
is inherent in the nature of ownership that possession
of the res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested
with some
right enforceable against the owner ...”
[25] For the reasons
advanced above I am of the view that the respondent has failed to
discharge the requisite onus of establishing
that the applicant
unconditionally divested himself of the ownership of the car by way
of a deed of donation. Therefor I have come
to the conclusion that
ownership of the car still vests in the applicant. It never passed
from him to the respondent on the 13
th
October 2005 or at any other time material to these proceedings. I
would therefor find in favour of the applicant that he has
established
the first requirement of the
actio
rei vindicatio
.
[26] As regards the
second requisite, it is not in dispute that the thing in dispute,
that is to say the BMW 318i sedan with registration
number BZY588FS
still exists and that it is clearly identifiable. The car is not a
consumable commodity. The car has not been dismantled
or damaged
beyond repair. Specific performance is possible in this instance
because it has been established that the sedan is still
in existence
and under the respondent’s physical control.
SORVAAG
v PETTERSEN AND OTHERS
supra
I am therefor inclined to find in favour of the applicant that the
second requirement of the
actio
rei vindicatio
has been proven.
[27] The law tells us
that possession of one’s property by another is
prima
facie
unlawful.
KRUGERSDORP
TOWN COUNCIL v FORTUIN
1965 (2) SA 335
(TPD),
CHETTY
v NAIDOO
1974 (3) SA 13
(AD),
SINGH
v SANTAM INSURANCE LTD
1997
(1) ALL SA 525
(SCA) or
[1996] ZASCA 92
;
1997 (1) SA 291
(SCA). I turn now to the
third requisite of the
actio
rei vindicatio.
It
is not for the applicant as the owner to prove that the possession of
the car by the respondent is unlawful. It is also not required
of
the applicant to prove that he has a personal right against the
respondent which entitles him to claim repossession of the BWM
318i
sedan. In principle the onus rests on the respondent to prove that
her continued possession of the sedan is lawful.
[28] The applicant’s
claim was vindicatory. It was for the respondent to aver and prove
the grounds which, in law, would justify
her continued possession of
the car in other words grounds that would justify her refusal to
restore possession to the proven owner.
It is so that the respondent
initially derived her possession from the applicant’s consent. In
my view she no longer has the
right to remain in possession. On her
own version, the applicant gave her notice to quit or to surrender
possession on a few occasions
prior to the institution of these
proceedings. He thereby effectively terminated her right to hold the
car any further. She is
obliged to restore.
[29] In the case of
CHETTY
v NAIDOO
supra
the words of Jansen JA at 20 E- G were paraphrased as follows in the
headnote at 13 B – C:
“Although
a plaintiff who claims possession by virtue of his ownership, must ex
facie his statement of claim prove the termination
of any right to
hold which he concedes the defendant would have had but for the
termination, the necessity of this proof falls away
if the defendant
does not invoke the right conceded by the plaintiff but denies that
it existed.”
In
casu
the respondent denies that delivery conveyed the bare right of
possession.
[30] On the facts as
examined I am satisfied that the respondent was in possession of the
applicant’s car at the time these proceedings
were initiated. I am
of the firm view that she does not have
ius
possidendi
in respect of the BMW 318i sedan any more. The applicant has,
therefor established the third requisite of the
actio
rei vindicatio
.
[31] In actual fact the
respondent’s possession was not really an issue. The issue
revolved around her claim that she was entitled
to retain such
possession forever on account of a donation. I am not persuaded by
the respondent’s version. Her answering affidavit
is lamentably
terse. On the contrary I am persuaded by the applicant’s version.
On the facts I am moved to accept that the applicant’s
temporarily
surrendered possession of his car to the respondent and allowed her
the right to use the car on sufferance.
[32] What he delivered to
her was
vacua
possessio.
There was no tradio in the strict sense to transfer
dominium
in res
.The
arrangement had all the elementary hallmarks of a precarium. A
precarium may be reached tacitly. In such a scenario the user’s
right to use a thing owned by another may be revoked at any time and
the thing used is always recoverable at the will and whim of
the
person granting the use provided reasonable notice is given to the
user concerned.
ELLIS
v VILJOEN
2001 (4) SA 795
(CPD).
[33] The respondent
merely avers that the applicant gave her the vehicle and that
ownership was transferred to her. The averments
were not
sufficiently particularised. Since the relationship was already
virtually dead at the time of the alleged donation, I expected
to
find some explanation as to what prompted him to give her a car at
that time. No reason whatsoever was advanced by her for his
rather
generous change of heart. There are more questions than answers
about her claim. The onus is on the party alleging a donation
to
prove the donor’s motive was pure liberty. See
AVIS
v VERSEPUT
1943 AD 331
and
DE
JAGER v GRUNDER
1964 (1) SA 446
(AD).
[34] A donation may be
revoked on account of gross ingratitude or because it was subject to
a modus and that the donee has breached
the modus. See
BENONI
TOWN COUNCIL v MINISTER OF AGRICULTURAL CREDIT AND LAND TENURE
1978 (1) SA 978
(TPD). As regards donations in general see
COMMISSIONER,
SOUTH AFRICAN REVENUE SERVICES v MARX NO
[2006] ZAWCHC 9
;
2006
(4) SA 195
(CPD).
[35] In my view the
respondent has dismally failed to advance concrete facts in support
of her contention that the applicant donated
the car to her. She has
raised no arguable or plausible case to justify the referral of the
parties to trial for
viva
voce
evidence. This is why I decided to finalise the matter on papers.
There is no genuine dispute. If the applicant genuinely wanted
to
donate the car to her at the time when their relationship was deeply
troubled by mistrust and all the violent storms, he would
probably
have caused the vehicle to be transferred to the respondent so as to
allay her fears and would have singed the official
documentation to
effect such transfer.
[36] As regards the
respondent, she would probably have insisted on having the BMW 318i
immediately registered in her name in order
to guard her back lest
the applicant changed his mind and unilaterally decided to sell it as
he did with the previous cars that he
had allowed her to possess for
her personal use.
[37] Seeing that the
applicant has established all the essential elements of the
actio
rei vindicatio
m
there is no reason why the relieve he seeks should not be granted. I
would therefore grant the application.
[38] The general rule of
cost is that the victorious party is entitled to recover the costs of
litigation from the vanquished party.
Such costs are the sweet
fruits of victory and the sour grapes of defeat. In this instance no
sound reason exists to justify a
departure. The costs must therefor
follow the winner.
[39] Accordingly I make
the following order:
39.1 The application
succeeds;
39.2 The
respondent is directed to redeliver the applicant’s property, the
BMW 318i sedan with registration number BZY588FS to the
applicant
within seven (7) days from the date of service hereof by the court
sheriff.
39.3 The
court sheriff is hereby authorised to attach and to remove the said
motor vehicle from the respondent and deliver it to the
applicant, at
the address chosen by the applicant, should the respondent fail to
comply with this order voluntarily.
39.4 The
respondent is directed to pay the taxed costs of this application to
the applicant.
______________
M.H.
RAMPAI, J
On
behalf of the Applicant: Adv. P. J. J. Zietsman
Instructed
by:
Claude
Reid Inc.
BLOEMFONTEIN
On
behalf of the Respondent: Attorney C. Frade
Instructed
by:
Messrs.
Frade Attorneys
BLOEMFONTEIN
/em