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[1993] ZASCA 59
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Oosthuizen and Another v Standard Credit Corporation Ltd. (385/91) [1993] ZASCA 59; 1993 (3) SA 891 (AD); [1993] 4 All SA 591 (AD) (14 May 1993)
/CCC
CASE NO 385/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ESIAS PHILLIPPUS OOSTHUIZEN
FIRST APPELLANT
WILHELMINUS JOHANNES McDERMOTT
VAN DEN BERGH
SECOND APPELLANT
and
STANDARD CREDIT CORPORATION LIMITED
RESPONDENT
CORAM
: BOTHA, SMALBERGER, KUMLEBEN JJA et NICHOLAS,
KRIEGLER, AJJA
DATE HEARD
: 18 MARCH 1993
DATE DELIVERED
: 14 MAY 1993
J U D G M E N T
2
NICHOLAS, AJA
:
The two appellants, Mr E P Oosthuizen and Mr W J M van den Bergh, were
the respective defendants in two actions brought in the witwatersrand
Local
Division by Standard Credit Corporation Ltd ("Standard Credit"). The actions
were consolidated, together with similar actions
brought against Messrs strydom
and De Kock. At the pre-trial conference all the parties agreed in terms of Rule
33(1) of the Uniform
Rules of Court upon a written statement of facts in the
form of a special case for the adjudication of the court. The actions against
Strydom and De Kock were settled before the trial, but the proceedings against
Oosthuizen and Van den Bergh continued. In the actions,
which were based on
lease agreements relating to mini-buses, Standard Credit claimed the balances
alleged to be owing under the
3
respective agreements. The defence in each case was
that the
lease agreement was illegal as being contrary
to the provisions of the Credit Agreements Act 75 of
1980 ("the Act") and was consequently null and void.
The trial judge (CLOETE AJ) found in favour of Standard
Credit in each case. The judgment has been reported
under the name of
Standard Credit Corporation Ltd v
Strydom & Others
1991(3) SA 644(W), and I shall
refer to it as "the reported judgment". The terms of
the order granted are set out at 654 C-F.
With the leave of the court a
quo
the appellants now appeal to
this court. The issues relate solely to questions of law. I shall accordingly
set out only the facts
which relate to Oosthuizen's case.
A prominent feature in the stated case was a scheme called the "Sampson
Beck Scheme", which was
4
described as follows:
"1. Sampson Beck (Pty) Ltd ('Sampson Beck') is a company incorporated and
registered in South Africa of which one CAREL CHRISTIAAN
VAN DYK ("van Dyk") was
the sole shareholder and director at all material times and in particular,
during
1985.
2.
The
general purport of the scheme operated and administered by Sampson Beck involved
the using of creditworthy clients in order to
obtain finance for mini-buses from
financial institutions, which mini-buses were intended for use by black taxi
operators. The description
of the scheme set out hereunder is intended to
describe the scheme generally, and does not purport to describe the numerous
variations
and exceptions to the general
scheme.
3.
Sampson Beck
either approached members of the public (hereinafter referred to as 'the client'
or 'the clients') or was approached
by the clients, to use the clients' names
for the financing of
mini-buses.
4.
The client
would sign a written application form for credit to the financial institution,
which application form was usually completed
on the client's behalf. Such a form
contained,
inter alia
, the following
information:
the description of the goods
to be leased/purchased; the personal particulars of the applicant and
his
5
credit references. The application form would bear no mention of the
involvement of Sampson Beck or the taxi operator. The application
form would be
presented by van Dyk or a staff member of Sampson Beck to the client for
signature.
5. Thereafter the application form would find its way to the financial
institution, which would be ignorant of the involvement of
Sampson
Beck.
6. Once the financial institution approved the application, the client would
conclude a credit agreement with the financial institution
in terms whereof the
financial institution would either sell or lease the mini-bus to the client.
Simultaneously with the signing
of the credit agreement, the client would sign a
debit order form, which formed part of the agreement, authorising the financial
institution to draw against his bank or building society account the amounts due
in terms of the credit agreement.
7 The client would
conclude a contract with Sampson Beck in terms whereof the client would give
possession and control of the mini-bus
to Sampson Beck in order that Sampson
Beck could make it available for use by a taxi operator nominated by Sampson
Beck and Sampson
Beck undertook to pay to the client a monthly commission and to
make all payments due in terms of the credit agreement to the financial
institution. Copies of typical agreements are annexed hereto marked 'A1' and
'A2'. The
6
sole purpose for the client concluding the credit agreement with the
financial institution was in order to give possession and control
of the
mini-bus to Sampson Beck as aforesaid.
8. The mini-bus would be placed in the possession of a taxi
operator.
9. The initial rental/payment as set out in the credit agreement would be
paid to the financial institution.
10. The financial institution would pay the purchase price of the mini-bus
to the dealer.
11. Sampson Beck would enter into some agreement with the taxi operator in
terms whereof Sampson Beck would make the mini-bus available
to the taxi
operator. A copy of a typical agreement is annexed hereto, marked 'A3'.
12. Sampson Beck would receive payment of rentals from the taxi operator in
terms of the aforesaid agreement, from which it would
pay:
(a)
the rental or
instalment due to the financial institution, either directly or via the bank
account of the
client;
(b)
the client's
commission as aforesaid, on a monthly
basis;
(c)
the insurance
premiums in respect of the vehicle;
and
(d)
an administrative fee
to itself.
13.
The scheme
commenced in about 1983. For several years, by and large, Sampson Beck fulfilled
its obligations towards the financial
institutions and the
clients.
14.
Gradually,
Sampson Beck fell into arrears
with
7
the payment of rentals and instalments, which progressed to a stage where
Sampson Beck was no longer able to meet its financial commitments.
15. The
agreements hereinafter referred to, between the Plaintiff and the Second and
Third Defendants, were, unbeknown to the Plaintiff,
part of the aforesaid
Sampson Beck scheme."
The agreed facts
relating to the case of
Standard Credit Corporation Ltd v Oosthuizen
were
the
following:
"16. The Plaintiff is STANDARD CREDIT CORPORATION LIMITED a company duly
incorporated and registered in accordance with the laws of
the Republic of South
Africa, which has its principal place of business at Standard Bank House, 6
Simmonds Street, Motortown, Johannesburg,
and which carries on business as a
registered general bank through various branch
offices.
17. The Second Defendant is ESIAS
PHILLIPPUS
OOSTHUIZEN, an adult male senior
sales
representative for Metro Cash and Carry, of
Plot
55, Eljeesee, Tarlton, Krugersdorp.
18, On the 14th May 1985 the Second Defendant
signed a
document called a 'Finance
Application', a copy of which is
annexed
hereto, marked 'B1'. The said application
was
considered and approved by the Plaintiff.
8
19. On the 15th May 1985 the Second Defendant signed a document termed a
'Lease Agreement', as lessee in the space provided therefor
on the face of the
document. A copy of the agreement is annexed hereto, marked 'B2'.
20. The terms and conditions are printed on the reverse side of the lease
agreement and are incorporated herein by reference.
21. Simultaneously with the signing of the lease agreement, the Second
Defendant signed a debit order form, which formed part of the
lease agreement,
authorising the lessor and/or its cessionary to draw against his bank account
the amounts due in terms of the lease
agreement.
22.
The lease
agreement relates to a 1985 Toyota Hi-Ace micro-bus 16 seater motor
vehicle.
23.
The lease
agreement, incorporating the debit order form, duly signed by the lessee, was in
fact delivered to the lessor and was thereafter
signed by the lessor and the
lease agreement was accordingly duly concluded between the
parties.
24.
The lessor
performed its obligations in terms of the agreement of lease by giving delivery
of the vehicle to a person nominated by
the Second Defendant's agent and the
parties are agreed that such delivery constituted performance of the lessor's
obligations.
25.
The initial
rental in terms of the agreement was paid by the Second Defendant to the lessor
and/or the Plaintiff and the initial rental
was refunded to the Second Defendant
by
9
Sampson Beck.
26. On the 21st May 1985 the lessor ceded to the
Plaintiff,
which accepted such cession, all
right, title and interest in and to
the
agreement of lease.
27. Various rentals were paid to the Plaintiff,
either by way of
a debit order or in some
other form, under the account number
allocated
to the transaction, and were in fact
received
by the Plaintiff. The Second
Defendant's
account was accordingly debited each
month
with the appropriate amount representing
the
rentals, and Second Defendant was reimbursed
in some
of these payments by Sampson Beck.
At some stage after the
commencement of the
lease agreement Sampson Beck paid the
rentals
directly to the Plaintiff either by way of
debit
order or in some other form.
28. The Second Defendant
was entitled to receive a
monthly commission from Sampson Beck of
R75,00
per month for the first two years and R100,00
per
month thereafter, in terms of the Second
Defendant's oral contract
with Sampson Beck,
the terms of which were approximately the
same
as 'A1' and 'A2'. He in fact received R75,00
per
month for the first two years and R100,00
per month thereafter until
October 1988.
29. In breach of the lease agreement the Second
Defendant
failed to pay certain rentals on due
date and consequently fell into
arrears,
entitling the Plaintiff (subject to
the
contentions set out below) to an acceleration
of
payments.
10
30, The outstanding balance in terms of the lease agreement is R9
944,66.
31, The Second Defendant is entitled to a reduction of finance charges in
the amount of R997,82.
32. In the premises the Second Defendant is
indebted to the
Plaintiff (subject to the
contentions set out below) in the sum
of
R8 946,84, together with interest thereon at
the rate
of 27% per annum compounded monthly
from the 24th October 1989 to
the date of
payment and costs of suit on the attorney
and
client
scale."
The questions of law
in dispute were stated to
be -
"49. Whether the aforesaid lease agreements are governed by the
provisions of the Credit Agreements Act No. 75 of 1980.
50.
Whether a
contravention of Section 6(6) of the Credit Agreements Act No. 75 of 1980
renders an agreement subject to the provisions
of the said Act invalid or merely
constitutes a criminal
transgression.
51.
Whether
the exemption created by Regulation 4 of the Regulations promulgated under
Government Notice No. R401 dated 27th February
1981, as amended, is applicable
in the case of the Second and Third
Defendants."
11
The question in para 49 is basic to the
decision of the appeal. For present purposes it may
be
reformulated as follows:
"Whether the provisions of the Act applied to the lease agreement which
is Annexure B2 to the stated case."
(Annexure B2 is hereinafter referred to as "the Lease
Agreement." The various annexures to the stated case
are not attached to this judgment.)
S 2(1) of the Act provides:
"2. (1) The provisions of this Act shall apply to such credit agreements
or categories of credit agreements as the Minister may determine
from time to
time by notice in the Gazette: Provided that the Minister shall not have any
power to apply such provisions to credit
agreements in terms of which -
(a)
a person
purchases or hires goods for the sole purpose of selling or leasing them or
using them in connection with mining, engineering,
construction, road building
or a manufacturing
process;
(b)
the State is the
credit grantor."
12
S 3(1) of the Act provides that the Minister
may by regulations in the
Gazette inter alia
"(a) prescribe the maximum period within which the full price under a credit
agreement shall be paid; (b) prescribe the portion of
the cash price or any
other consideration which shall be paid or delivered as an initial payment or
initial rental in terms of a
credit
agreement."
There are accordingly three
parts to the
enquiry:
(a)
Whether the
lease agreement is "a credit agreement" within the meaning of the
Act;
(b)
Whether it is an
agreement in a category as determined by the Minister by notice in the Gazette;
and
(c)
Whether it is an
agreement referred to in para (a) of the proviso to s
2(1).
The answers depend on the application
of the relevant statutory provisions to the facts existing at
13
the time of the conclusion of the agreement. The question whether the
provisions of the Act apply to a particular credit agreement
must be
ascertainable before it is concluded, for it is only when that question has been
determined that the parties are in a position
to decide whether it is necessary
that the agreement should comply with any regulations made by the Minister under
s 3(1) of the
Act. It follows that it is only those facts which are available to
both parties which can be relevant. Facts known to one party only
and not
disclosed to the other do not enter the picture.
I deal in turn with each of the limbs of the enquiry.
(a) One of the meanings of "credit agreement" in s 1 of the Act is "(a) a
credit transaction or a leasing transaction", and "leasing
transaction"
is
14
defined as meaning:
"...a transaction in terms of which a lessor leases goods to a lessee
against payment by the lessee to the lessor of a stated or determinable
sum of
money at a stated or determinable future date or in whole or in part in
instalments over a period in the future, but does
not include a transaction by
which it is agreed at the time of the conclusion thereof that the debtor or any
person on his behalf,
shall at any stage during or after the expiry of the lease
or after the termination of that transaction become the owner of those
goods or
after such expiry or termination retain the possession or use or enjoyment of
those goods."
Plainly the Lease Agreement
was a credit
agreement as defined.
(b) There were published in the Government Gazette of 27 February 1981
Government Notices Nos R401 and R402. In No R402, the Minister,
acting in terms
of
s 2 of the Act, prescribed that the provisions of the
Act should apply to any -
"(2) leasing transaction in respect of any of the goods listed in
Annexure A (to the Notice)."
15
In No R401, the Minister promulgated regulations in terms of s 3 of the
Act. They provided in Regulation 2 that all credit agreements
entered into in
respect of the goods listed in column 1 of Annexure A should comply with the
provisions in regard to -
"(a) the maximum period within which the full price under such credit
agreements shall be paid, as prescribed in column 3 of that
Annexure;
(b) the portion of the cash price or any other consideration which shall
be paid or delivered as an initial payment or initial rental
in terms of such
credit agreements as prescribed in column 2 of that Annexure."
The lists of goods in Annexure A to No R402 and in Annexure A to R401
were identical. The following is an extract from Annexure A.
16
Column
1
Column
2
Column
3
Portion
of Period of the cash payment
Goods
price
Per cent
Months
from date of delivery
19.
Mechanically
propelled motor vehicles not subject to the provisions of paragraph 20 including
any commercial vehicle irrespective
of whether such motor vehicle is subsequent
to the manufacture thereof equipped, constructed or adapted for the conveyance
of persons,
but excluding tractors, harvesting machinery, agricultural machinery
and imple-ments and irrigation machinery...
30 36
20.
Mechanically
propelled road passenger motor vehicles designed to seat not more than 15
persons including motor-cycles and motor-tricycles
20 42
The subject-matter of the Lease
Agreement, a "Toyota Hi-Ace Micro Bus 16 seater", is covered by item
17
19 of Annexure "A" to the regulations in Notice R401. It is a
mechanically propelled motor vehicle designed to seat more than 15 persons,
and
is hence not subject to the provisions of item 20.
(c) On this limb
of the enquiry, Standard Credit's contention is that the Act did not apply to
the Lease Agreement because it fell
within proviso (a) to s 2(1) of the Act. The
trial judge agreed with this contention (at 652 B), and accordingly found that
the lease
agreements concluded by the respective defendants were not subject to
the provisions of the Act. The appellants challenge this finding.
The narrow question is whether the Lease Agreement is a credit agreement
in terms of
which Oosthuizen hired the vehicle for the sole purpose of
leasing it (in the Afrikaans version "
inqevolge
18
waarvan
").
The phrase
in terms of
is one which is in common use. It was
argued on behalf of Standard Credit that in addition to its ordinary meaning it
has a wide
meaning - namely,
pursuant to
or
in accordance with
,
and that in the proviso it bears the wide meaning. In my opinion, the three
phrases
in terms of
,
pursuant to
, and
in accordance with
are synonyms with slightly different shades of meaning. One or other may be
appropriate depending on the context, but essentially
they do not differ in
meaning. The dictionary meaning of the phrase
pursuant to
is "consequent
on and conformable to", and that of
in accordance with
is "in conformity
with". Similarly
in terms of
contains the idea of "in conformity
with".
The difficulty in the present case as I see
19
it, is not in regard to the meaning of the
expression,
but in regard to what are the possible sources
of
information for determining whether the purpose
stated
in s2(l)(a) is
in terms of
a credit agreement.
One
obvious source is the agreement itself.
Another
possible source is evidence of circumstances
prevailing
at the time of the conclusion of the agreement
from
which a tacit or implied term may be inferred.
There
may be other possible sources, but it is manifest
that
evidence as to a purpose of the lessee which
was
unexpressed and unknown to the lessor at the time of
the
contract, cannot be a source of information relevant
to
the question whether there was a purpose
in terms of
the
agreement. Similarly evidence relating to the
post
contractum
conduct of one of the parties would
be
irrelevant. Compare what VAN DEN HEEVER JA said in
Van
20
der Merwe v Viljoen
1953(1) SA 60(A) at 65 C-E:
"Dit is...duidelik dat 'n hof geregtig is om ['n stilswyende beding] te
presumeer slegs indien hy vrywel noodgedwonge dit moet doen
om die ooreenkoms
vatbaar te maak vir 'n redelike vertolking in die omstandighede. Die uitdrukking
'stilswyende beding' dui reeds
daarop dat dit iets moet wees wat die partye
bedoel net, of geag moet word te bedoel net, maar waaraan hulle geen uiting
gegee het
nie. Gevolglik moet so 'n beding afgelei word van die kontrak self en
die omstandighede wat geheers het by sy sluiting. Om dit af
te lei van wat na
die kontraksluiting plaasgevind het sou wees om aan die partye profetiese gawes
toe te skrywe."
In the judgment
a
quo
CLOETE AJ referred (at
652 C-D) to para 7 of the stated case, from which, he
said, it appeared that the sole purpose of the
defendants in concluding the lease agreements was in
order to give possession and control of the mini-buses
to Sampson Beck so that they could be utilized in the
Sampson Beck scheme. That scheme involved the leasing of
the vehicles. The learned judge said that in his view
21
it did not matter whether each agreement between the defendant and
Sampson Beck was itself an agreement of lease or whether Sampson
Beck was to
conclude an agreement with a taxi driver in respect of each vehicle as agent of
each defendant or as a principal - in
other words, it did not matter whether the
vehicles were leased by the defendants directly or indirectly.
Standard Credit did not at any relevant time have knowledge of the
details or even the existence of the Sampson Beck scheme. And I
do not think
that any agreement concluded after the credit agreement, to which Standard
Credit was not a party, and to which it did
not consent and of which it had no
knowledge, can have any relevance in the ascertainment of the question whether
the purpose to
rehire the vehicle was
in terms of
the credit agreement.
So far as Standard Credit was
22
concerned any subsequent agreement was not only
post contractum
but also
res inter alios acta
.
The stated case does not contain anything to support a finding that the
purpose stated in s 2(1)(a) was in terms of the Lease Agreement.
Indeed, so far
from being in conformity with it, the carrying out of such a purpose would
contravene one of the express terms of
the agreement. Clause 6 of the terms and
conditions printed on the reverse side of the Lease Agreement provided that the
lessee should
not part with the possession of the leased goods. Clause 12.1.2
provided that "An event of default shall occur if Lessee ... commits
any breach
of any of the terms or conditions hereof..." Clause 12 provided further that
upon the happening of any event of default
the Lessor was entitled to
immediately cancel the agreement, obtain
23
possession of the goods and recover from the lessee payment of all
"payables" which were in arrear at the date of cancellation. The
effectuation of
a purpose by the lessee to relet the goods would necessarily involve parting
with the possession of them and hence
a breach of the agreement.
The conclusion is that the Lease Agreement was subject to the
Act.
CLOETE AJ made only passing references to the other two questions: it was
unnecessary for him to deal with them because of his finding
on the first
question. It is now necessary to consider them.
As it stood before the substitution of a new subsection (6) by s 5(b) of
the Credit Agreements Amendment Act 9 of 1985 (which came
into operation in
December 1985), ss (6) of s 6 of the Act provided:
"(6) No person shall be a party to a credit
24
agreement in terms of which the period within which the full price is
payable, exceeds the appropriate prescribed period."
In
terms of the Lease Agreement, the "total collectable"
was payable -
"In 58 rentals of R572.25 each falling due at monthly intervals commencing
15/6/1985 and with a final rental of R572.25 payable on
15/4/1990."
Under item 19 of Annexure A to the
regulations
promulgated in No R.401, the prescribed period
appropriate to the vehicle which was the subject-matter
of the Lease Agreement was 36 months. There was
therefore a contravention of s 6(6) of the Act which
rendered the parties liable to the penalty laid down in
s 23, in terms of which -
"Any person who contravenes or fails to comply with the provisions of
this Act [which by definition includes any regulation or notice
made or issued
thereunder], shall be guilty of an offence and liable upon conviction to a fine
not exceeding R5 000 or to imprisonment
for a period not exceeding two years or
to both such fine and
25
imprisonment."
The question then is whether this had
the result that the Lease Agreement was unenforceable.
The Act does not expressly say that the
effect
of a contravention of s 6(6) is to
invalidate the
transaction concerned. There is, however, "a well-known
rule of construction" to which FAGAN JA referred in
Pottie v Kotze
1954(3) SA 719(A) and which, he said at
724-5 -
"... is formulated as follows in Halsbury's
Laws of England
(Hailsham
ed.), vol. 31, par. 748, pp. 555, 556:
'Every
transaction forbidden by a statute and carried out in violation of it is
prima facie
illegal and therefore void. An act for the doing of which a
penalty is imposed is a thing forbidden.'"
The learned judge of appeal also quoted (at 725 B-D) the
following passage from the judgment of SOLOMON JA in
Standard Bank v Estate van Rhyn
1925 AD 266
:
26
"The contention on behalf of the respondent is
that
when the Legislature penalises an act it
impliedly
prohibits it, and that the effect of
the
prohibition is to render the act null and void,
even
if no declaration of nullity is attached to
the law. That, as a
general proposition, may be
accepted, but it is not a hard and fast
rule
universally applicable. After all, what we have
to
get at is the intention of the Legislature, and,
if we are satisfied
in any case that the
Legislature did not intend to render the
act
invalid, we should not be justified in holding
that
it was. As
Voet
(1.3.16) puts it - 'but
that
which is done contrary to law is not
ipso jure
null
and void, where the law is content with a
penalty
laid down against those who contravene it.'
Then
after giving some instances in illustration of
this
principle, he proceeds: 'The reason for all this
I
take to be that in these and the like cases
greater
inconveniences and impropriety would result
from
the rescission of what was done, than would
follow
the act itself done contrary to the law."
The proper approach to the problem was described by
MILLER JA
in
Palm Fifteen (Pty) Ltd v Cotton Tail Homes
(Pty) Ltd
1978(2) SA 872(A) at 885 D-G:
"The prohibitions contained in para 5(1) [of conditions of establishment of
a township] are reasonably clear. Moreover, they are couched
in negative terms
('no erf...shall be sold,
27
transferred or built upon...') which is generally a factor strongly
indicative of an intention that anything done in breach of the
prohibition will
be invalid. (See Steyn
Uitleg van Wette
4th ed at 201.) This, however, is
no rule of thumb; the subject-matter of the prohibition, its purpose in the
context of the legislation
(or any provisions having the force of law), the
remedies provided in the event of any breach of the prohibition, the nature of
the
mischief which it was designed to remedy or avoid and any cognizable
impropriety or inconvenience which may flow from invalidity,
are all factors
which must be considered when the question is whether it was truly intended that
anything done contrary to the provision
in question was necessarily to be
visited with nullity..."
There can be no doubt as to the
purpose of the Hire-Purchase Act 36 of 1942 ("the 1942 Act") which the Act
repealed and replaced.
Judges who have referred to it speak with one
voice.
In his introduction to the first (1942)
edition of Diemont's
Law of Hire-Purchase
, Mr Justice A
Centlivres, then a judge of appeal, said:
"The Hire-Purchase Act, 1942, is an example of the many attempts made by
the Legislature to protect
28
those whom it regards as incapable of protecting themselves. The Chairman
of the Civil Imprisonment Committee, in giving evidence
before the Select
Committee of the House of Assembly in 1939 on the subject of the Hire-Purchase
Bill introduced during that year,
said:
'There can be no question that the evidence put before us shows very clearly
that very many people are tempted to buy goods that they
cannot afford at all,
because of the easy terms of payment offered to them, or they are tempted to buy
goods at a far higher purchase
price than they can afford to pay', and the
spokesman for the Government at the same Select Committee said that certain
people -
'are losing money which they
cannot afford to
lose and this is the fundamental reason
for
the introduction of this hire-purchase
legislation.
Something must be done to
protect the poorer people from
the
consequences of these transactions.'
The desire on
the part of the Legislature to
protect the purchaser may therefore
be regarded as
the principal reason for passing the Act
but,
although this is so, the Act contains. .
.some
provisions protecting the seller as well."
In
Smit & Venter v Fourie & Another
1946
WLD 9 MILLIN J said at 13,
"It is very easy to see what mischief it was which the Legislature intended
to remedy. It was the
29
mischief of poor persons being enticed into shops and being sold goods of
more or less value at prices which they can ill-afford to
pay and on terms which
are harsh and unconscionable, and it was intended to give protection to such
persons against their own improvidence
and folly."
In
Rex v Ellinas
1949(2) SA 560(T) RAMSBOTTOM J referred
at 566
to s 7 of the 1942 Act, which provided that no
agreement should have
any force or effect unless a
minimum deposit was paid, and said,
"That provision clearly had in view an object of public policy, namely, to
discourage people from buying goods for which they cannot
afford to pay. I have
no doubt that if 1/10th of the purchase price is not paid at the time an
agreement is entered into the agreement
is null and
void..."
In
National Motors v Fall
1958(2) SA 570
(E), DE
VILLIERS JP said at 571 G-H:
"I think it is clear that the Hire-purchase Act, 36 of 1942 and the
clauses therein, relevant to the present enquiry, were passed
with the view to
protecting purchasers of goods under hire-purchase agreements against their own
misplaced optimism in their ability
of keeping up with the payments of the
instalments and so becoming owners of the
30
goods..."
Finally, in
Coetzee v Impala Motors
(Edms) Bpk
1962(3)
SA 539(T), BOSHOFF J made a statement (at 542
B-C) which
was approved and applied by this Court in
Hire-Purchase
Discount Co (Pty) Ltd v Maqua
1973(1) SA 609(A) at 614E,
namely,
"Die hoof oogmerk van die Huurkoopwet is om kopers wat kontrakte sluit wat
deur die Wet geraak word, teen hulself en teen uitbuiting
te
beskerm."
This remains an important purpose of the Act.
That being so, it is in the highest degree unlikely that the Legislature in
enacting
s 6(6) was content with the criminal sanction as sufficing to ensure
compliance with it.
The penalties provided in s 23 may deter some who are minded to
contravene s 6(6). The present case, however, is one where the credit-giver
was
not deterred,
31
and the question is whether the Legislature could
have
contemplated that in such a case the transaction
would
have legal force. In my opinion it could not.
Recognition of the Lease Agreement by the court would
give legal sanction to the very situation which s 6(6)
was designed to avoid. (Cf
Pottie v Kotze
(
supra
)
at 726 in
fin
.) It would leave the lessee bound to a
transaction which the law prohibited. It is only if
the transaction is invalidated that a lessee in such a
case is protected from the consequences of entering into
the contract.
Counsel for Standard Credit referred to s 7(1)
of the 1942 Act, which provided:
"7(1) No agreement in respect of the sale of a movable
shall be of any
force or effect
-(a) Until at least the appropriate prescribed portion of
the cash price of such movable or, if no such portion has been prescribed,
at
least one-tenth of such price has been paid, and
32
(b) unless the period within which the full price is payable, does not
exceed the appropriate prescribed period (if
any)."
(My emphasis.)
He submitted that in enacting s 6(6) of the Act in terms which unlike s
7(1) did not expressly nullify the transaction, the legislature
showed a change
of intention; and that, whereas s 7(1) of the 1942 Act rendered the transaction
of no force or effect, the prohibition
in s 6(6) of the Act was directed against
persons, who if they contravened it committed an offence, and not against the
transaction,
which remained valid.
I do not think the submission well-founded. There is no change in purpose
or policy manifest in the Act, and there does not appear
to be any reason why
the Legislature should have wished to make any change from
33
the position under the 1942 Act. A possible
explanation for
the difference in wording may be the
fact that the Act is
differently structured. The 1942
Act itself dealt with the minimum
deposit and the
period within which the full price was payable.
Under
s 2(1) of the Act these matters were left to be dealt
with by regulation. In these circumstances a provision
in the same terms as s 7 of the 1942 Act would have
been inappropriate.
An indication that the Legislature's purpose
was unchanged is provided by the wording of s 5(2), in
terms of which -
"5(2) No person shall be a party to a credit agreement which does not
comply with a requirement referred to in subsection (1):
Provided that a
credit agreement which does not comply with any such requirement shall not
merely for that reason be invalid
." (My emphasis)
34
(Ss (1) sets out requirements regarding the form and content of credit
agreements). The absence of such a proviso in ss 6(6), which
begins with the
same words as s 5(2) ("No person shall be a party to a credit agreement...")
indicates an intention that an agreement
which contravenes its requirements
shall merely for that reason be invalid.
On behalf of the respondent reliance was placed cm a statement in De
Jager,
Credit Arrangements & Finance Charges
, at 32 that "Greater
injustice would probably flow from nullification than from allowing the term or
contract to remain valid." The
learned author does not provide any justification
for this statement, and none suggests itself.
The conclusion in regard to the second question is therefore that a
contravention of s 6(6) of
35
the Act renders invalid an agreement to which the Act
applies.
The third question is whether the exemption
created by regulation 4(2) of the regulations
promulgated
under Notice No R 401 is applicable to the
Lease Agreement. That regulation provides:
"4(2) In the case of a leasing transaction in respect of any of the goods
listed in items 19 and 20 of column 1 of Annexure A, the
conditions laid down in
regulation 2 shall not apply to such leasing transaction -
(a) if payments in terms of the transaction are amounts allowed to be
wholly or partly deducted from or set off against the taxable
income of the
credit receiver under Part I of Chapter II of the Income Tax Act, 1962 (Act 58
of 1962)."
Counsel for Standard Credit accepted the
correctness of the judgment in
Santam Bank Ltd v Voigt
1990(3) SA 274(E) at 279 B-D, where it was decided that,
in a case where a party seeks to rely on the exceptions
36
contained in reg 4, such party bears the onus of proof.
The
Lease Agreement is a "leasing transaction" as described in reg 4(2), and the
question is whether the condition set out in para
(a) was satisfied. The
"payments" referred to in the regulation are payments in terms of the Lease
Agreement. As at the date of the
agreement those payments were to be made in the
future, and the question whether they would be deductible also related to the
future.
Nevertheless, counsel accepted (correctly, in my view) that the date for
determining whether regulation 4(2) does or does not apply
is the date of the
transaction. In consequence, evidence of any facts which occurred, or any
situation which arose, after that date
is irrelevant.
It is common cause that for the purpose of applying reg 4(2) the Lease
Agreement must be considered
37
not in isolation, but in its setting as a transaction which was part of
the Sampson Beck scheme.
It is apparent from the stated case that it
was contemplated in the Sampson Beck scheme that "the client" would not make
payments
to the financial institution. See para 7 of the stated case
("...Sampson Beck undertook to make all payments due in terms of the
credit
agreement... to the financial institution"); and para 12 ("Sampson Beck would
receive payment of rentals from the taxi operator
in terms of the aforesaid
agreement, from which it would pay: (a) the rental or instalment due to the
financial institution, either
directly or via the bank account of the
client..."). It was also agreed that if the client did make payments he would be
reimbursed
by Sampson Beck, and that he would be indemnified by Sampson Beck in
respect of liabilities
38
incurred by him under the Lease Agreement.
S 11 of the Income Tax Act 58 of 1962
provides:
"11. For the purpose of determining the taxable income derived by any person
from carrying on any trade within the Republic, there
shall be allowed as
deductions from the income of such person so derived
-
(a) expenditure and losses actually incurred in the
Republic in the production of the income, provided such expenditure and losses
are not of a capital nature."
S 23(c) provides that -
"23. No deductions shall in any case be made in respect of the following
matters, namely -
(c) any loss or expense, the deduction of which would otherwise be
allowable, to the extent to which it is recoverable under any contract
of
insurance, guarantee, security or indemnity."
Counsel for Standard Credit sought to rely on
the statement in
Caltex Oil (SA) Ltd v Secretary for
Inland Revenue
1975(1) SA 665 (AD) at 674 D-F that
"The expression 'expenditure actually incurred' in
39
section 11(a) does not mean expenditure actually paid during the year of
assessment, but means all expenditure for which a liability
has been incurred
during the year, whether the liability has been discharged during that year or
not. (
Port Elizabeth Electric Tramway Co v Commissioner of Inland
Revenue,
at p. 244)".
Regulation 4(2)(a) refers,
however, to "payments", which
connotes payments actually made and
does not include
unpaid liabilities. Payments of rentals due under
the
Lease Agreement made by a third party would not be
deductible from the taxable income of the credit
receiver. And if any payments should in fact be made by
the lessee, they would not be deductible if they were
"recoverable under any contract...of indemnity". There
was some debate during the argument as to the meaning of
"recoverable". In its ordinary sense the word means
"capable of being sued for". (cf
Shell Southern Africa
Pension Fund v Commissioner for Inland Revenue
1982(2)
40
SA 541(C) at 545). It was argued on behalf of Standard Credit, however,
that in the context of s 23(c) of the Income Tax Act it means
in fact
recoverable. It was submitted further that the appellants bore the onus of
proving that any payments made by them were in fact recoverable
from Sampson
Beck or Van Dyk in that sense; and that they failed to place any facts in this
regard before the court a
quo
.
It is unnecessary to decide whether in the context of s 23(c)
"recoverable" bears the meaning for which counsel for Standard Credit
contended.
I shall assume that it does.
In regard to the onus, it was submitted that because the effect of s
23(c) is to create an exception to the general rule stated in
s 11(a), it was
for the appellants to prove it. This submission rests on a
41
misconception of the relation between s 11 and 23 of the Income Tax Act.
S 11(a) provides positively and in general terms in the case
of a person
deriving income from the carrying on of a trade within the Republic, what
expenditure and losses shall be allowed as
deductions from income so derived in
order to determine his taxable income. S 23 prescribes what deductions may not
be made in the
determination of taxable income. It is generally appropriate to
consider whether or not a deduction is permitted by s 11 (a) and
whether or not
it is prohibited under s 23(c). (Cf
CIR v Nemojim (Pty
)
Ltd
1983(4) SA 935(A) at 946 E - 947 A). This is the appropriate procedure to follow
in considering whether the condition set out in
para (a) of reg 4(2) has been
satisfied. This refers to payments which are allowed to be deducted under Part I
of Chapter II of the
Income
42
Tax Act. Part I includes both sections 11 and 23. Standard Credit
therefore bears the onus of showing not only that a deduction is
allowable under
s 11(a), but that it is not prohibited under s 23(c).
The facts set out in the stated case afford no basis for a finding that
as at the relevant date Sampson Beck would not honour its
indemnity or that the
contemplation that it would do so was unfounded. It is irrelevant that Sampson
Beck was ultimately unable to
meet its financial commitments.
I am accordingly of the view that the condition in para (a) of reg 4(2)
was not satisfied.
Thus, all three of the questions raised in the stated case are answered
in favour of the appellants and the appeal will accordingly
be upheld.
The following order is made:
43
(a)
The appeal is
allowed with costs.
(b) The order of the court a
quo
is set aside and the following order
is substituted:
"The Plaintiff's claims are dismissed with
costs."
NICHOLAS, AJA
SMALBERGER, JA –
CONCURS
E N T KUMLEBEN, JA
:
I have had the advantage of reading the judgment of Nicholas AJA. I shall
refer to it, with abiding respect, as the "other judgment".
As it states,
the
2
question to be decided in the first place is whether the provisions of
the Act apply to the Lease Agreement. It is common cause that
this agreement,
being a "leasing
transaction", was a "credit agreement" as defined in the Act; that the
agreement failed to comply with the regulations prescribing
the maximum period
within which full payment under the Lease Agreement was to be made and the
portion of the total rental which was
to be paid initially; that, but for
proviso (a) to s 2(1), the provisions of the Act would apply to the Lease
Agreement and that,
if they applied, there was a contravention of s 6(6) of the
Act.
For ease of reference I quote s 2(1):
"The provisions of this Act shall apply to such credit agreements or
categories of credit agreements as the Minister may determine
from time to time
by notice in the Gazette: Provided that the Minister shall not have any power to
apply such provisions to credit
agreements
in terms of
which -(a) a
person purchases or hires goods for the
3
sole purpose of selling or leasing them or using them in connection with
mining, engineering, construction, road building or a manufacturing
process; (b)
the State is the credit grantor."
(The
words I have underlined I shall refer to as the
"phrase".)
The enquiry, involving the interpretation and
application of
proviso (a), is whether Oosthuizen in
terms of the Lease Agreement hired the vehicle for the
sole purpose of leasing it to someone else.
The court a
quo
answered this question affirmatively and held that
the Lease Agreement was not subject to the provisions of the Act. The essential
reasoning leading to this conclusion may - with some amplification on my part -
be thus summarised. (i) The purpose for which the
goods, the subject of a credit
agreement, are purchased or hired is an objective fact. (ii) It is the
sole
purpose at the time the agreement
4
was concluded that is to be determined. (This is naturally on the
assumption that a specific purpose had at that stage been decided
upon and,
since it is to be the "sole" purpose, that such purpose was the exclusive one.)
(iii) It is the intended purpose of the
purchaser or lessee, and none other,
which is pertinent. (iv) S 2(1) does not import the requirement that, before or
at the time
of the conclusion of the credit agreement, such purpose is to be
conveyed to the seller or lessor, or agreed to by him.
The other judgment joins issue on (iv) above. In it the view is taken -
by virtue of or with reference to the words "in terms of [the
credit agreement]"
- that the purpose of the purchaser or lessee which is unexpressed or unknown to
the seller or lessor is irrelevant
and cannot be taken into account: such
purpose must feature as an express or tacit term of the
5
credit agreement or must be evident from other facts ("possible sources")
known to the seller or lessor.
The phrase construed and applied in its
strictest
connotation would require the purpose to be an
express
or tacit term in the agreement itself. I
have
difficulty with such a construction in reference to
s
2(1). Ordinarily the purpose for which a thing, say
a
motor vehicle, is purchased or hired has no bearing
upon
the formation or validity of the contract and is of
no
interest or concern to the other contracting party.
This the legislature must be taken to have known.
Thus,
had it intended that there should be mutual agreement
as
to such purpose as a term of the contract, one
would
have expected this requirement to have been
explicitly
laid down. A
term
of any contract relates to
its
exigible content: see
Design and Planning Service
v
Kruqer
1974 (1) S A 689
(T) 695 C - D. But in
proviso
6
(a) it was never the intention that this requirement should constitute or
amount to a contractual obligation. The legislature had
entirely different
objectives in
mind one of which was to ensure that a purchaser or
lessee acquiring goods for his own use should be protected from the temptation
and hazards of extensive credit terms but not a person thus contracting with the
sole aim of reselling or reletting. Thus, in my
view, it would be incorrect to
conclude that the "sole purpose" is to be agreed upon as a term of the Lease
Agreement.
Nor to my mind can the lesser requirement be inferred from the wording of
s 2(1), namely, that the seller or lessor must at least
have knowledge of the
intended purpose before or at the time of the conclusion of the credit
agreement. If this were the intention,
one would have expected the proviso to
read: "for the
7
sole purpose ['to the knowledge of the seller or lessor' or 'disclosed to
the seller or lessor'] of selling or leasing the goods."
Such an interpretation
would facilitate proof of any sole purpose which might have existed, and perhaps
reduce the likelihood of
a dispute in this regard, but this is insufficient
reason for giving the phrase a meaning which in my view is unwarranted. I say
this since proof of the presence of such a purpose, in the absence of any such
requirement, does not appear to me to present a novel
or insuperable problem. In
other fields of our law, both civil or criminal, intention is to be proved on
the available evidence by
the party on whom the onus rests. In this case the
party seeking to rely on the proviso would be required to prove the purpose for
which the Lease Agreement was concluded. In this regard the
post
contractum
conduct of Oosthuizen, depending upon its acceptability and
cogency, could be material just as say
8
in a criminal trial subsequent conduct may contribute to proof of intent.
For its evidential value, as remarked in the judgment of
the court a
quo
,
the parties would act with foresight if, in the knowledge that certain
regulatory requirements are not satisfied in their credit
agreement, they were
to include in it a statement disclosing the purpose for which the goods are
purchased or hired. But this is
not the same as saying that such a step, or that
knowledge of the intended purpose on the part of the seller of lessor, is a
statutory
requirement implicit in proviso (a) to s 2(1) of the Act. Such a
construction - one that does not require knowledge of the purpose
on the part of
the seller or lessor - does not place him at a disadvantage. In the normal
course without such knowledge there would
be compliance with the provisions of
the Act. However, if there is not and such purpose is proved, it would conform
to the intention
of the legislature if the seller or lessor is
9
entitled to sustain the agreement.
The meaning of the phrase in the context of s 2(1)(a) presents no
difficulty. In the Afrikaans text, which is the official one, "ingevolge"
is its
counterpart. Dictionary definitions confirm that "ingevolge" means "na
aanleiding van" :
HAT
page 445; Die Afrikaanse Woordeboek vol iv page
554. This word was used in its ordinary connotation in order simply to relate or
connect the intended purpose to the transaction concerned: it refers to the
proposed use of the goods consequent upon their being
acquired by sale or lease.
The phrase "in terms of" is to be given the same meaning.
Certain dicta in
Slims (Pty) Ltd and Another v Morris
NO 1988(1)
SA 715 (A) lends support to this view. The conclusions in two of the three
judgments - those
10
delivered by Corbett JA and Botha JA - were based on a consideration of
the provisions of
s 37(5)
of the
Insolvency Act no 24 of 1936
: more particularly
the words "any right under the lease", and in the Afrikaans text "kragtens die
huurkontrak", appearing in this
section. The issue, broadly stated, was whether
a liquor licence acquired by a lessee in conjunction with the lease of the
business
and premises was a right "under the lease". It cannot be questioned
that the words "under" and "kragtens", on the one hand, and "in
terms of' and
"ingevolge", on the other, have similar meanings but the former expressions can
more readily be given the meaning ascribed
to them by Corbett JA. In his
judgment they were held to mean "a right which owes its existence to the lease;
in other words, a right
created by the lease." (744 G - H). (Nestadt JA
concurred in this judgment.) Botha JA, on the other hand, after emphasising that
the meaning of a word
11
depends upon the subject-matter and the context in which
it appears, said in his judgment at 733 B - G:
"In my view the word 'kragtens' is clearly capable of bearing different
shades of meaning. Used as a link word, connecting two concepts,
it is capable
of connoting varying degrees of closeness between the one concept and the other.
In the narrow sense, at the one end
of the spectrum, it may be used to denote a
direct and immediate connection between the two concepts linked by it ('uit krag
van',
'luidens'). In a wide sense, at the other end of the spectrum, it may
connote no more than a loose and indirect relationship between
the two concepts
('ten gevolge van', 'uit hoofde van') .... In this sense the word could, I
consider, be rendered appropriately as
'voortspruitend uit'. It is of interest
to note that in the Afrikaans-English dictionaries the word 'kragtens' is given
inter alia
the following equivalents (apart from 'under'): "by virtue
of', 'in consequence of', and 'pursuant to' (see eg Bosman, Van der Merwe
and
Hiemstra Tweetalige Woordeboek, and Hiemstra and Gonin Drietalige
Regswoordeboek). Similarly, the English word 'under' has different
shades of
meaning. Some of the meanings ascribed to it in the cases are: 'in terms of, 'in
accordance with', 'in compliance with',
'in pursuance of', 'by virtue of', and
'pursuant to'
....
12
(Van Heerden JA concurred in this judgment. Nicholas AJA reached the same
conclusion as regards the result of the appeal but along
a different route. He
however agreed at 729 C - D with the construction Botha JA placed upon
s 37(5).)
Similarly in this case the phrase "in terms of" is in my view to be taken to
mean "by virtue of" or "in consequence of". It then
bears the same meaning as
"ingevolge" and would reflect the intention of the legislature in its use of the
phrase in reference to
proviso (a).
For these reasons therefore I differ from what is said in the other
judgment as to the manner in which the sole purpose of the purchaser
or lessee
may be established. However, on a somewhat different approach to the question
whether the proviso applies to the Lease
Agreement, I agree with the conclusion
that it does not.
13
The relevant facts describing the "Sampson
Beck
Scheme" are set out in the other judgment.
For
convenience - and emphasis - I repeat certain of them:
"The general purport of the scheme operated and administered by Sampson
Beck involved the using of creditworthy clients in order to
obtain finance for
mini-buses from financial institutions, which mini-buses were intended for use
by black taxi operators. Sampson
Beck either approached [clients] or was
approached by the clients to use the clients' names for the financing of
mini-buses. The
client would conclude a contract with Sampson Beck in terms
whereof the client would give possession and control of the mini-bus
to Sampson
Beck in order that Sampson Beck could make it available for use by a taxi
operator nominated by Sampson Beck and Sampson
Beck undertook to pay to the
client a monthly commission and to make all payments due in terms of the credit
agreement to the financial
institution. [Oosthuizen] was entitled to receive a
monthly commission from Sampson Beck of R 75,00 per month for the first two
years
and R 100,00 per month thereafter, in terms of [his] oral contract with
Sampson Beck...."
On these facts can it be said that there was ever
14
any genuine - let alone sole - intention on the part of Oosthuizen to
relet the vehicle to Sampson Beck? This question was raised
for the first time
by the court during the hearing of the appeal. In paragraph 2.7 of
the respondent's heads of argument it was submitted that:
"It is common cause that the sole purpose (although unexpressed) for the
appellants' concluding their lease agreements with the respondent
was in order
to give possession and control of the mini-buses to Sampson Beck (Pty) Ltd
in
terms of lease agreements between them and Sampson Beck
". (I
emphasise)
This submission validly flowed from a concession in the
appellants' heads of argument that:
"[D]ie ware aard van die ooreenkoms wat hulle met Sampson Beck gesluit
het en die transaksie wat tussen Sampson Beck en die taxi-operateur
gesluit is,
al die karaktertrekke van 'n huurooreenkoms bevat."
(One infers that this concession was expressly or
implicitly also made in the court a
quo
. ) When this
15
issue was raised by the court during the argument on appeal, Mr Roestorf,
who appeared for the appellants, withdrew the concession.
His opponent, Mr
Gautschi, agreed that he could do so.
As Wessels JA observed in
De Jaqer v Sisana
1930 AD 71
at
81:
"The only tenancy that we know of is under the contract
locatio
conductio
, or letting and hiring. To establish such a contract the defendant
must show that there was a particular
res
or thing let for a specified
time, and that in return for the use or use and occupation of the
res
the
lessee undertook to pay the rent (
merx
)."
It may be that the commission payable to Oosthuizen can
be regarded as the
merx
serving as a consideration for
the use - in the broad sense - of the
res
, the vehicle.
But having said that, the transaction was not a genuine
lease and bears no other resemblance to one. There was
no intention that the vehicle would actually revert to
16
Oosthuizen, or that he or Sampson Beck would
exercise
any of the rights normally accruing by virtue of
a
lease. The true nature of the transaction as a whole
-
the Lease Agreement and the further agreement
with
Sampson Beck - was that Oosthuizen would lend
his
creditworthiness to the scheme in order to obtain
the
vehicle, for which deception he would be paid the
agreed
"commission". It was for this sole purpose that
the
agreement was concluded. This being the case,
any
subterfuge would be disregarded and the maxim
plus
valet
quod agitur guam quod simulate concipitur
would
apply.
As a matter of fact though, the oral agreement
concluded
between Oosthuizen and Sampson Beck (the
"commission
contract") does not even purport to be one of
lease.
It manifests no such intention. According to
the
statement of agreed facts this contract
was
"approximately the same as annexure A1". This
document
is a copy of a commission contract in the form of
a
17
letter concluded with another "client" and reads as follows:
Gewaardeerde Klient,
i/s Toyota Hiace: 10 Sitplek -
Stannic.
Met verwysing na bogemelde ooreenkoms, wil ek u dank dat die voertuig daarin
vermeld aan hierdie firma beskikbaar gestel is vir administrasie
namens
uself.
1.
U
ontvang met ondertekening van hierdie kontrak 'n aanvangskommissie van Drie
Honderd en Vyftig Rand, en daarna maandeliks 'n kommissie
van Een Honderd en
Vyftig Rand vir die oorblywende periode van gemelde ooreenkoms, nl, 58 maande,
t.o.v. die padvaardige voertuig
daarin
vermeld.
2.
Hierdie firma
onderneem om toesig te hou namens u oor betalings aan die finansiele instansie,
Stannic, alternatiewelik sal ek, C C
Van Dyk, dit self
doen.
3. Die drywer van die voertuig
is
verantwoordelik vir onderhoud, reparasies
en
instandhouding van die voertuig, asook vir
betaling
van lisensies, permitte, verkeers-
fooie-en-boetes.
4.
Alle versekering
op die voertuig, asook oproer-en-onlusdekking, is vir rekening van die drywer.
Hierdie firma sal egter toesig hou
dat gemelde premies betaal
word.
5.
Indien gemelde
voertuig vernietig word in 'n brand, of in 'n ongeluk onherstelbaar beskadig
word, of gesteel word en nie teruggevind
word nie, sal hierdie ooreenkoms tot 'n
einde kom. Enige tekort tussen die bedrag verskuldig aan die finansiele
instansie en die
bedrag uitbetaal deur die Versekeringsmaatskappy sal deur
hierdie firma of alternatiewelik deur myself, c C Van Dyk, aan die finansiele
instansie betaal
word.
6. Die drywer van die
voertuig is:
Johannes Putsoeli 42 Maphanga Section
Kathlehong. Germiston. 1401.
Registrasie: KZC 817 T Permithouer: T. G. Mvelase.
1080 Tshongwene Section
Kathlehong. Germiston.
[Signature] [Signature]
18
C C Van Dyk C W Landsberg
SAMPSON BECK
Turning to the third agreement, the contract between Sampson Beck and the
taxi operator, in the
statement of agreed facts it is said that:
"Sampson Beck would enter into some agreement with the taxi operator in
terms whereof Sampson Beck would make the mini-bus available
to the taxi
operator. A copy of a typical agreement is annexed hereto, marked
'A3'."
In this agreement the parties are referred to as lessor and lessee and
one may assume that it did amount to a genuine lease. However,
as pointed out in
the other judgment, this subsequent agreement is
res inter alios acta
as
far as Oosthuizen's purpose is concerned. It cannot be said that in concluding
it Sampson Beck acted as Oosthuizen's agent and
that this agreement therefore
reflects his intention when obtaining the vehicle under
19
the Lease Agreement. It is not clear for what reason it was stated in the
opening paragraph of the commission contract that Sampson
Beck would
"administer" the vehicle on behalf of the client. But this is of no consequence
since it certainly does not reflect the
true position: Oosthuizen had no further
interest or control over the vehicle once it was handed over to Sampson Beck and
the latter
did not thereafter "administer" it as his agent or conclude the
agreement with the taxi operator on his (Oosthuizen's) behalf.
As regards the two further questions calling for decision I respectfully
agree with the conclusion in the other judgment and accordingly
also with the
proposed order allowing the appeal.
20
KUMLEBEN JA