SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2023-128 281
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED. YES/NO

In the matter between:

CAROL BEHANE Applicant

and

ATE AUTOMOTIVE REPAIRS First Respondent

TRAFFICC (PTY) LTD Second Respondent

VW HATFIELD Third Respondent

ABANDONED VEHICLE AND TRUCK SOLUTIONS Fourth Respondent


COURT ORDER

2
A. The first and fourth respondents are ordered and directed to make available to
and restore applicant’s possession of a Hyundai TQ H1 vehicle with registration number
K[…], license number VSW 282 W and VIN number K […], within 10 (ten) days of this
order, free of any storage costs.

B. Should the first and/or fourth respondents fail to comply with the order in 1 above,
the Sheriff is authorised, and directed to attach the vehicle referred to in 1 wherever it is
found and deliver it to the applicant or her attorneys of record, subject to payment of the
Sheriff’s reasonable costs, which costs shall be part of the costs of suit.

C. The first and fourth respondents are to pay the costs of the applicant, jointly and
severally, the one to pay the other to be absolved, with costs of appearance at Scale A.

D. The matter is postponed sine die insofar as the second and third respondents are
concerned, by agreement between the said parties and the applicant.


JUDGEMENT



INTRODUCTION

(1) This application concerns a motor vehicle purchased by the applicant in
December 2021, being a Hyundai TQ H1 with registration number K[…], license number
V[…] and vin number K[…] (the vehicle).

(2) At the time the application was launched in December 2023 the applicant
sought relief against all four respondents as set out in the notice of motion.
1


1 Caselines 02-14 and 15, paras 1-5.

3
(3) At the hearing of the matter Mr Richards, who appeared for the applicant
requested that the application should be postponed by agreement between the relevant
parties insofar as relief is sought against the second and third respondents . Ms Sheldon
who appeared on behalf of these respondents, confirmed the agreement to postpone.

(4) Mr Richards proceeded to argue the relief sought in prayer 2, being the release
of the applicant’s vehicle by the first and fourth respondents without payment of storage
fees.

RETURN OF POSSESSION OF VEHICLE

(5) The applicant purchased the vehicle and shortly thereafter it broke down. A
series of events ensued which are not relevant now. The vehicle was sent to various
businesses for repairs.

(6) During October 2022 the vehicle started losing power and the applicant took the
vehicle to the first respondent’s workshop to be fixed and repaired. She was informed
that there is not anything wrong with the vehicle except that there is a wire loose and it
will cost R1 000-00 (one thousand rand) for labour costs to fix.
2

(7) The facts set out in the previous paragraphs were not denied or admitted in the
answering affidavit filed on behalf of the first and fourth respondents.3

(8) The said answering affidavit was deposed to by Mr Rowell, a director of the
fourth respondent.
4

(9) Mr Rowell relied on a confirmatory affidavit
5 by Mr Antonie Lombaard of the first
respondent, supported by a resolution of the first respondent in his favour.6

2 Founding Affidavit (FA), paras 26-27, Caselines 02-4.
3 First and Fourth Respondents’ Answering Affidavit (AA), Caselines 02-9, paras 2-3.
4 AA, Caselines, paras 1 and 2, 02-9.
5 Annexure “AV1b”, Caselines 02-22.

4

(10) It is clear from the facts in Mr Rowell’s affidavit and the so- called confirmatory
affidavit, that Mr Rowell does not have personal knowledge of what transpired between
the applicant and the first respondent. The confirmatory affidavit does not in a proper
manner confirm material facts related to the applicant and the f irst respondent and has
no cogency, as found in the Drift Supersand
7 matter in respect of a similarly worded
confirmatory affidavit.

(11) Both the first and fourth respondents employed the same attorney in
representing them in this application. Mr Rowell further gives evidence on behalf of both
first and fourth respondents and refer to them as the respondents.
8 His evidence on
behalf of the first respondent constitutes hearsay evidence as it is not properly
confirmed as required by law.

(12) By 11 November 2022, after the vehicle had again broken down, the applicant
had further dealings with Boss Auto and the third respondent.

(13) During January 2023 the applicant called the first respondent and informed
them that the vehicle had broken down in December 2022, but the second respondent
refused to pay for the repairs as the first respondent had previously repaired the vehicle
and within one month thereafter the vehicle had broken down again. The first
respondent advised that the applicant should tow the vehicle to their workshop and they
will fix it, which she did.
9

(14) On 31 January 2023 the first respondent informed the applicant that they will
not fix the vehicle because it is not their fault that the turbo broke down and sent a
report to the applicant which alleges that the turbo had contaminated oil. 10 Curiously, Mr
Roswell denied the content of paragraph 37 of the founding affidavit, and referred to the

6 Annexure “AV1C”, Caselines 02-25.
7 Drift Supersand (Pty) Ltd v Mogale City Local Municipality 2017 JDR 1611 (SCA) at para [31].
8 AA, para 2, Caselines 02-9.
9 Caselines, FA, para 37, 02-27 and 28.

8 AA, para 2, Caselines 02-9.
9 Caselines, FA, para 37, 02-27 and 28.
10 Caselines, FA, para 38, 02-28.

5
report on the turbo, but admits the content of paragraph 38 of the founding affidavit
where the applicant refers to the report on the broken turbo. The report was prepared by
a business called Turboxtreme. The same report is Annexure “ A4” (Caselines 02-38) to
the answering affidavit.

(15) During March 2023 the applicant made application to the Motor Industry
Ombudsman of South Africa (MIOSA) in an attempt to get the vehicle replaced by the
third respondent. The claim was rejected.
11

(16) On 29 June 2023 the first respondent sent an email to the applicant with a
quote (described by the applicant as an ‘ invoice’) advising that the cost of repairs was
R17 261-00.
12 There was no cost indicated for storage. The email was sent by Mr
Francois Lombaard on a “without predigest” (sic) basis and referred to the attached final
quote with the following note: “ Please note the vehicle will be sent to legal storage by
seventh July 2023”.13

(17) On 3 July 2023 the applicant advised the first respondent that she had reported
the matter to the National Consumer Commission, but that she would arrange to collect
her vehicle.
14 This was admitted in the answering affidavit.15

(18) The applicant then went to the first respondent’s office during the period leading
to 7 July 2023 with members of the South African Police Service to collect her vehicle,
but when she got there, the vehicle had already been sent to the storage without her
consent.
16 These facts are admitted in the answering affidavit by Mr Rowell.17


11 Caselines, FA, para 43, 02-29.
12 Caselines, FA, para 42, 02- 28; Annexure “CB6”, Caselines 02-45; Annexure “CB7”, Caselines 02-
46.
13 Caselines, Annexure “CB6”, 02-45.
14 Caselines, FA, para 45, 02-29.
15 Caselines, AA, para 36, 02-18.
16 Caselines, FA, para 46, 02-29.
17 Caselines, AA, para 36, 02-18.

6
(19) The applicant was informed by the first respondent that the vehicle was already
at storage when she said she had come to collect the vehicle. She was then contacted
by a person from the fourth respondent and was sent a form to sign.18

(20) The applicant refused to sign the form as she has not contracted with them, nor
did she know whether they indeed had the vehicle. The person refused to disclose the
fourth respondent’s address until the applicant has signed the form.
19

(21) A further email from the applicant did not evoke a response from the fourth
respondent.

(22) The applicant states that she requested the first respondent, to whom she gave
the vehicle, to get same so that she will be able to collect it, but the first respondent
refused to co-operate with her.
20

(23) The applicant states that she will suffer irreparable harm if she is not granted
relief as she is still paying for the vehicle through vehicle finance. She is adamant that
she did not consent to the vehicle being sent to legal storage.
21

(24) In the answering affidavit the respondents, which have made common cause
with each other, admitted that the vehicle would not be released as the applicant had
failed to make payments as requested to do and to honour the enrichment lien held by
the fourth respondent in that the fourth respondent has incurred costs on the applicant’s
behalf which costs accumulates on a daily basis.
22

(25) Insofar as it has already been pointed out that the first respondent’s
confirmatory affidavit has no cogency, there is no clear, convincing evidence by the first

18 Caselines, FA, para 47, 02-30.
19 Caselines, FA, para 48, 02-30.
20 Caselines, FA, para 50, 02-30.
21 Caselines, FA, para 51, 02-30.
22 Caselines, AA, para 40, 02-19.

7
respondent on record. As to the various dealings between the applicant and the first
respondent, the evidence of the applicant is accepted.

(26) The answering affidavit was filed out of time and as a result the respondents
applied for condonation of the late filing.
23 In her replying affidavit the applicant opposed
the granting of Condonation on substantive and valid grounds. Due to the view,
however, that the court takes of the value, or lack thereof, of the evidence and the
recent more accommodating stance the courts take to hear all the parties, it will be
allowed subject to the observations and reservations already set out above as to
relevance and evidentiary value.

(27) The main point of resistance and/or defence raised in the answering affidavit is
a written cession agreement purportedly entered into between the first and fourth
respondents.
24

(28) This cession agreement was signed on 14 July 2023 between the first and
fourth respondents in terms of which the first respondent ceded its claim against the
applicant to the first respondent.
25 Mr Rowell, the deponent to the respondent’s
answering affidavit, further contends that the applicant “correctly asserted in paragraph
42 of her founding affidavit that the vehicle had been in the first respondent’s storage
facility for 6 to 7 months and accumulated storage fees daily, which fees the applicant
failed to pay upon demand.
26

(29) Apart from the fact that the said statements of Mr Rowell are hearsay evidence
and of no evidentiary value, he does not paraphrase correctly what the applicant states
in paragraph 42 of her founding affidavit. The applicant stated that she received an
email dated 29 June 2023 from the first respondents containing an attachment of an

23 Caselines, AA, paras 5.1-5.4, 02-10 to 11.
24 Caselines, AA, para 7, 02-11.
25 Caselines, AA, para 7, 02-11; Annexure “AV3”, 02-26 to 32.
26 Caselines, AA, para 8, 02-11.

8
invoice27 which is not for storage fees, but repairs. The email referred to by the
applicant referred to the attached final quote (for repairs) and added that the vehicle will
be sent to legal storage by 7 July 2023.

(30) Mr Rowell also contended, right at the end of the answering affidavit , that the
applicant will not suffer irreparable harm as she has for almost 7 to 8 months not made
it a priority to secure her vehicle or make payment for repairs to have been done on her
vehicle when the debt on the vehicle was ceded to the fourth respondent.
28 These
contentions of Mr Rowell are not only hearsay, but are contradicted by the facts. The
facts found by the court are:
(30.1) The applicant went to the first respondent’s premises prior to 7 July
2023, whilst the cession is dated 14 July 2023.
(30.2) The applicant only received a quote for repairs on 29 June 2023 as an
annexure to an email warning her that her vehicle will be sent to “legal storage”
on 7 July 2023. When she tried to collect her vehicle prior to 7 July 2023, it was
already removed from the first respondent’s premises.
(30.3) The cession of the claimed enrichment lie n was only entered into on 14
July 2023. The applicant submitted that this was done as an afterthought. The
court agrees.
(30.4) Up to the date prior to 7 July 2023 no agreement was entered into,
either tacitly or expressly, between the applicant and the first respondent, in
respect of storage fees. Annexure “ AV4a”
29 to the answering affidavit is Invoice
No. A 230104 dated 14 July 2023 which indicates the customer ’s name as
“Abandoned”, and not the applicant’s name, and is addressed to the email of the
fourth respondent. It indicates that it is for “Debt seeded” ( sic) and indicate
charges for “strip and quote” in the amount of R6 500-00 and “Storage” in the
amount of R4 000-00. It is again an invoice prepared as an afterthought, as
submitted by the applicant, and never rendered to the applicant. The debt ceded

submitted by the applicant, and never rendered to the applicant. The debt ceded

27 It was already pointed out above that Annexure “ CB7” (02-46) was Quote No. EST 230184 for the
amount of R17 261-00, for the turbo replacement.
28 Caselines, AA, para 39, 02-18.
29 Caselines, 02-33.

9
by the first respondent to the fourth respondent is declared to be R17 000-00.30
The contradiction in the facts is clear.

(31) Mr Rowell states the maternal terms of the cession agreement in the answering
affidavit and alleges that the fourth respondent complied with the terms of the cession
agreement and that it paid the agreed amount. Reliance is placed on the invoice “ AV4a”
already referred to above and proof of payment.
31 The proof of payment is a largely
redacted ABSA statement of Repossession Solutions (Pty) Ltd, and not the fourth
respondent. The legible part of this statement shows a payment of R 10 500 on 25 July
2023, but the document as uploaded is not legible in respect of the entity who made the
payment.

(32) On the aforesaid basis, Mr Rowell submits that the fourth respondent obtained
all the first respondent’s rights against the applicant and towed the vehicle from the first
respondent’s premises as security for its claim against the applicant for safekeeping into
its storage facility at a daily fee,
32 which, as at 10 April 2024, amounted to R237 000-
00.33

THE APPLICANT’S CASE

(33) The applicant has submitted that the cession agreement is invalid and can not
form the basis of a claim against her. She has denied Mr Rowell’s statement about her
debt which was referred to above and she stated that there never was a time that she
was indebted to either the first or fourth respondents in the amounts alleged by Mr
Rowell. She submitted that the cession agreement was not a valid cession.

(34) Mr Richards, in argument on behalf of the applicant, relied on the facts as set
out above, and emphasised that the applicant only became aware of the cession

30 Caselines, 02 -31, which purports to be an (uncommissioned) “statement under oath” by Anton
(Lombaard) who declares, among others, that an invoice was sent on 29 June 2023.
31 Caselines, Annexure “AV4b”, 02-34.
32 Caselines, AA, para 11, 02-12.
33 Caselines, Annexure “AV4c”, 02-35.

10
agreement when she received the answering affidavit. He emphasised that the vehicle
was already removed by the time the applicant arrived at the first respondent’s
premises. This is common cause.

(35) It was submitted that the applicant relied on the rei vindicatio , which is the claim
of an owner who seeks retur n of the property. It is not dictated by whether the owner
may lawfully possess the property or not. In support of these submissions , he relied on
the matter of Hume.
34

(36) It was then also submitted that a lien is a reference to a right of retention which
arises from the fact that one man has put money or money’s worth into the property of
another.

(37) It is common cause that the applicant is the owner of the vehicle that forms the
subject of this application. It is further common cause that , at the commencement of
these proceedings, the vehicle was in possession of the fourth respondent. It is also
common cause that the vehicle is still in existence. This being so, the rei vindicatio is
the appropriate procedure to vindicate the vehicle.
35

(38) The question then is what the effect is of the fourth respondent’s claim to a lien
as a result of the belated cession agreement between the first and fourth respondents to
which the applicant was not a party, nor was she aware of it?

(39) Further, does an agreement exist between the applicant and the first
respondent in respect of any repairs or storage costs? From the analysis of the facts as
set out above, it is clear that the cession agreement was an afterthought, that there was
no agreement between the applicant and the first respondent as to any repairs (or to
strip and quote) and in respect of storage costs. The invoice issued by the first

34 Hume v Directorate of Priority Crime Investigation and Another 33593/20 [2022] ZA GPP HC
33 (28 January 2022).
35 Concor Construction (Cape) (Pty) Ltd v Sanlambank Ltd 1993 (3) SA 930 (A); Chetty v Naidoo
1974 (3) SA 13 (A).

11
respondent on 14 July 2023 36 was not based on any agreement between the applicant
and the first respondent. It was also issued as an afterthought to provide a purported
basis for the cession , although the claim ceded was R17 000-0037 and not for the
amount of the belated invoice.

(40) It is therefore found, insofar the cession agreement exists, that it does not bind
the applicant. A person exercising or claiming a lie n is not entitled to storage costs
merely for keeping the property on his premises. No value is added to the property by
merely keeping it safe.
38

(41) The quote provided to the applicant on 29 June 2023 was to repair the vehicle
and not for storage. The first respondent had the vehicle since the end of January 2023
and only provided the quote on 29 June 2023.

(42) In the circumstances, it is not necessary to decide whether the cession is a
binding contract. If it is binding, it is only between the first and fourth respondents.

(43) What is consequently found is that the cession agreement does not bind the
applicant and was entered into under circumstances which cannot serve to frustrate the
applicant’s rei vindicatio relief. She went to collect her vehicle prior to 7 July 2023 which
is the date from which the first respondent state it would be sent for “legal storage”, just
for the applicant to find that the vehicle was not on the first respondent’s premises any
longer.

(44) Mr Richards argued on behalf of the applicant that any agreement between the
applicant and the first respondent was for repairs and not storage. In my view there is
no evidence that the applicant accepted the quote of 29 June 2023 as she decided to
remove her vehicle.

36 Annexure “AV4c”, Caselines 02-35.
37 Annexure “AV4a”, Caselines 02-31 under para 2.
38 Steenkamp v Bradbury’s Commercial Auto Body CC, Case No. 2882/2019, [2020] ZA LMPPHC
9 [23 January 2020] at [18].

12

(45) Ms Crisp who appeared for the respondents, submitted that the applicant
entered into an oral agreement with the first respondent on 23 January 2021 to
assess/diagnose the repairs that need to be done to the applicant’s vehicle and provide
a quotation for acceptance.
39 No evidence to that effect appears in the answering
affidavit and there is no factual basis for these submissions.

(46) Further submissions that were made on behalf of the respondents are
contradicted by the facts as found to be proven by the evidence of the applicant. Mr
Rowell, the deponent to the answering affidavit, has no personal knowledge of what
transpired between the applicant and the first respondent between January and 7 July
2023. The evidence of the applicant in this regard is clear and uncontested.

(47) Ms Crisp also stated that the fourth respondent has instituted action against the
applicant for the debt allegedly owed by her and contended that lis pendens has been
created in this matter. Mr Richards informed the court that such action was instituted
months after this application was brought.

(48) The said aspect was not raised in the answering affidavit , and no evidence was
placed before the court of such action. In any event, one of the requisites for a plea of
lis pendens is that the other matter must be in respect of the same subject matter.
40

(49) This application is for recovery of possession by the owner of her vehicle, whilst
the other action can only be a claim for the alleged storage costs. One of the requisites
for a plea of lis pendens is therefore absent and the respondents’ argument cannot
succeed.

CONCLUSION


39 Respondent’s heads of argument, Caselines 19–17, paras 4.1 and 4.2.
40 Williams v Shub 1976 (4) SA 567 (C).

13
(50) Consequently, an order in terms of prayer 2 in the notice of motion should be
granted in favour of the applicant.

(51) The applicant sought costs in the event that the application is being opposed.
The applicant is therefore entitled to a costs order against the first and fourth
respondents who opposed the relief in prayer 2.

(52) I therefore make the order as set out above.

LM du Plessis
Acting Judge of the High Court
Gauteng Division
Johannesburg

REPRESENTATION
For the applicant: Appearance: Mr F Richards as practicing attorney
with right of appearance.
Attorneys: Mahlabane M Attorneys Inc.
First and Fourth Respondents: Appearance: Ms R Crips
Attorneys: Ruth Crisp Attorneys
Second and Third Respondents: Appearance: Ms MI Sneddon
Attorneys: Jansen van Rensburg and Partners Inc.
Date of Hearing: 26 February 2025
Date of Judgement: 18 August 2025