Botha v Rondalia Versekeringskorporasie van Suid-Afrrika Bpk

• Judge: Boshoff AJP and Nestsdt J
• Judgment Date: 10 June 1977
• Citation: 1978 (1) SA 996 (T)
• Hearing Date: 24 March 1977
• Court: Transvaal Provincial Division

Nestadt, J.:

The respondent was the plaintiff in the magistrate's court, Springs. It sued the defendant (the appellant) for payment of the sum of E R662,92. The action arose from a collision which occurred on 28 March 1973 between two motor vehicles; one being driven by the defendant and the other, the property of Western Bank Ltd. (hereinafter referred to as the owner) being driven by a certain R. J. J. Smit. The plaintiff sued as cessionary of the owner's rights. The amount claimed represented (according to what is alleged in the summons) the fair and reasonable cost F of repairing the damage sustained in the collision.

At the trial, the facts were not in dispute. They were (without evidence) agreed to be the following:

(a)

The owner had in July 1972 in terms of a written agreement sold the vehicle to the driver's husband, a certain C. J. Smit.

(b)

G Material terms of the agreement (numbered in accordance therewith) were the following:

"3.

It is a condition of this agreement that notwithstanding delivery of the goods to the purchaser the ownership in the goods shall remain vested in the seller, until the purchaser has paid in full the aforesaid purchase price set out in the aforesaid (schedule of goods purchased) and any interest and other amounts which are or which may H become payable in terms of this agreement, and until he has duly fulfilled all his other obligations in terms of this agreement. Upon payment by the purchaser of the full amount of the said purchase price, interest and other amounts, and upon due fulfilment by him of all his obligations in terms of this agreement, the purchaser shall become the owner of the goods.

4.

Notwithstanding the provisions of para. (3) hereof, the risk in the goods shall pass to the purchaser immediately upon delivery of the goods to him. Upon and after delivery of the goods to him, the purchaser shall bear every risk of loss, damage or destruction to the goods of whatsoever kind and howsoever caused, regardless of the absence of fault or negligence on the part of the purchaser.

Nestadt J

5.

The purchaser undertakes that, after delivery of the goods to him, he will keep the goods in a state of good order and repair and that he will be responsible for any damage to the goods and to any A accessories or goods which shall be affixed to the goods. Any addition, renewal or replacement shall, for this and all purposes under this agreement, be deemed to form part of the goods and be subject to the provisions of this agreement. The seller or his agent shall at all times during the currency of this agreement be entitled to inspect the goods and should the goods, in the opinion of the seller, be materially damaged at any time prior to the payment in full of all moneys payable by the purchaser in terms of this agreement, be entitled to the return of the goods, and shall be entitled to put them in good and proper order and repair at the purchaser's expense, who shall make payment of the said cost to the seller, upon demand. The purchaser shall only use the goods with the utmost good care.

11.

The purchaser undertakes that he will: (a) (i) Before delivery of the goods to him, and at his own expense, insure the goods and C kthereafter during the currency of this agreement eep them fully insured in terms of a form of policy approved by the seller with a company nominated by the seller against risks of damage, theft, loss, fire, accident, riots and hail, and third party risks under the Motor Vehicle Insurance Act of 1942, and further undertakes to pay the premiums on due date/s, and to faithfully perform and observe all his obligations in terms of the insurance policy or policies. The purchaser further undertakes to cede and deliver the said policy or D Mpolicies of insurance (except for the insurance in terms of the otor Vehicle Insurance Act, 1942) to the seller. Alternatively, the seller shall, at his option, have the right, at the expense of the purchaser, to insure the goods as aforesaid in the joint names of the seller and the purchaser and to keep the goods insured as aforesaid, and the purchaser undertakes to refund to the seller any premium paid by the seller in respect of the said insurance. It is specifically agreed that the purchaser shall not be entitled to delivery of the goods in terms of this agreement until the goods have been insured as aforesaid. Notwithstanding anything hereinbefore stated, the seller shall be entitled to pay the premiums in respect of any insurance policy (or any renewal premiums) relating to the goods, should the purchaser fail to do so, and the purchaser shall be obliged to refund to the seller, on demand, any amounts so disbursed by the seller. The purchaser shall have no claim of any kind against the seller by reason of any failure on the seller's part to insure either F avalidly or at 11 or to nominate an insured company, or to approve a form of policy.

(ii)

The purchaser hereby irrevocably and in rem suam appoints the seller as its attorney and agent with power of substitution to institute any legal proceedings (or to proceed top arbitration) in the purchaser's name against the insurer of the goods aforesaid to recover any loss or damage which may have been sustained to the said goods."

(c)

G The agreement was at all material times of force and effect. In particular the purchaser has not paid the full purchase price.

(d)

Pursuant to clause 11 (a) (i) the purchaser had insured the vehicle in terms of a standard comprehensive motor vehicle policy issued by the plaintiff in favour of the purchaser. (The policy H was not before Court. There was no agreement as to whether the purchaser pursuant to clause 11 (a) (i) ceded it to the owner.)

(e)

In terms of such policy the plaintiff indemnified the purchaser in respect of damage to the vehicle caused in the collision and in fact caused it to be repaired and (save for the amount of the so-called excess in terms of the policy which was paid by the purchaser) paid for such repairs.

(f)

Such repairs were effected and paid for (by the plaintiff) by 9 April 1973.

Nestadt J

(g)

The cession relied on by the plaintiff was executed in December 1973.

It was further agreed that the only issue was the legal one whether in the A circumstances the owner at the time of the cession had any right of action against the defendant, arising out of the collision, which was capable of being ceded to the plaintiff. An answer in the affirmative would, so it was further agreed, entitle the plaintiff to judgment in the sum of R440 (which was the agreed quantum) plus costs. The magistrate so found and therefore granted judgment in this amount in favour of the plaintiff.

B The argument presented on behalf of the defendant (in support of the submission that the owner had no right of action against the defendant which was capable of being ceded and that the magistrate should therefore have answered the question posed in the negative) must be considered against the background of the following principles:

(i)

C As a general rule an owner of property has title to sue for damages thereto under the lex Aquilia. The principle of res perit domino applies.

(ii)

Such owner's right so to sue is (at least in the Transvaal) unaffected by the fact that the property has been sold by it on D hire-purchase even though the purchaser is contractually bound to indemnify the owner for damage thereto. (Van Wyk v Herbst, 1954 (2) SA 571 (T); Rondalia Finansieringskorporasie van SA Bpk. v Hanekom, 1972 (2) SA 114 (T).)

(iii)

It does not follow that the owner has an exclusive title to E sue. On the contrary, a person such as a purchaser under a hire-purchase contract also has the right to sue. (Lean v Van der Mescht, 1972 (2) SA 100 (O); Vaal Transport Corporation (Pty.) Ltd. v Van Wyk Venter, 1974 (2) SA 575 (T); Smit v Saipem, 1974 (4) SA 918 (AD) at p. 932).

(iv)

Because of the recognition of a right of action of the kind F under consideration to both owner-seller and hire-purchaser (who is in possession) and on the assumption that both have the right to claim as damages the diminution in value caused to the article by the negligence of the wrongdoer, the problem of a duplication of actions against such wrongdoer has G arisen. The "solution' thereto has been the enunciation of the rule that a defendant faced with a second claim will not be condemned to pay twice (Le...