Durmalingam v Bruce, NO

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Friedman AJ
• Judgment Date: 09 September 1963
• Citation: 1964 (1) SA 807 (D)
• Hearing Date: 09 August 1963

B Friedman, A.J.:

The respondent in these exceptions is the plaintiff in an action which he has instituted against the excipient, who is sued in his capacity as the duly appointed trustee of the insolvent estate of one Harrick Sunder Maharaj, whose estate was C provisionally sequestrated on the 3rd February, 1961, and finally sequestrated on the 27th February, 1961.

In paras. 4, 5, and 6 of the declaration it is alleged that on the 27th September, 1958, a notarial bond was passed in favour of the plaintiff by the said Maharaj through his attorney duly authorised thereto, which D bond was duly registered in the deeds registry at Pietermaritzburg on the 7th November, 1958; that at the time when the said bond was passed and registered no other notarial bond generally hypothecating the movables of the said Maharaj was registered in such deeds registry, and that in terms of the said notarial bond, of which the plaintiff is the E holder, the said Maharaj hypothecated the following movable property belonging to him, namely:

'One public service motor omnibus, Henschell, presently bearing the registration number NT - 676, together with all spares, parts and appurtenances thereto belonging, and the motor vehicle licences and motor carrier certificate presently and from time to time attaching.'

In para. 7 of the declaration it is alleged that the said certificate F authorised the said Maharaj to operate motor carrier transportation from Darnall to Stanger and return.

Paras. 8, 9, 10, 11, 12 and 13 of the declaration read as follows:

'8. Prior to the 3rd February, 1961, the said Maharaj replaced the said Henschell bus with an International bus and the motor carrier certificate held by the said Maharaj which referred to the said Henschell bus was surrendered and a fresh certificate authorising the said Maharaj to carry on motor carrier transportation upon the same G route as that mentioned in para. 7 hereof was issued to him, which certificate referred to the said International bus.

9. The plaintiff and the said Maharaj had a common intention which they intended to express in the said notarial bond that the bond should hypothecate any certificate obtained in substitution for the certificate in regard to the said Henschell bus whether by way of renewal or amendment or otherwise and whether related to the said Henschell bus or to any other vehicle.

10. By mistake the plaintiff and the said Maharaj failed to express the H said common intention in the said notarial bond.

11. In the premises the plaintiff is entitled to rectification of the said bond so as to express the said intention of the parties thereto, and is also entitled to a preference in respect of the proceeds of realisation of the certificate relating to the Henschell bus in terms of Act 18 of 1932.

12. Alternatively if it is held that the plaintiff is not entitled to rectification, the plaintiff alleges that it was an implied term of the said bond that the bond should hypothecate any certificate obtained in substitution for the certificate in regard to the said Henschell bus whether by way of renewal or amendment or otherwise and whether related to the said Henschell bus or to any other vehicle.

Friedman AJ

Grounds relied upon for such implication:

(a)

Both parties contemplated that certificates would be obtained in substitution for the certificate in regard to the Henschell bus NT - 676, whether by way of renewal or amendment or otherwise and whether related to the Henschell bus or to any other vehicle.

(b)

To the knowledge of both parties motor carrier transportation A certificates are always granted in respect of a particular route.

(c)

To the knowledge of both parties motor carrier certificates were and are separate things from the buses referred to therein and capable of being pledged or sold apart from the vehicle and capable of being transferred from one bus to another, either by substitution under sec. 7 (1) (d) of the Motor Carrier Transportation Act or by surrender of existing certificate and the grant of a new certificate in place thereof.

(d)

Both the parties to the knowledge of each other intended the B security of the plaintiff in terms of the bond to continue as long as the said Maharaj operated the service covered by the certificate in existence when the said bond was drawn.

(e)

To the knowledge of each other neither party intended that the said Maharaj would be able to free the certificate from the bond by substituting another vehicle for the said Henschell bus.

13. The defendant disputes the contentions contained in paras. 9 and 12 C hereof and alleged that the said certificate referring to the International bus is not secured by the said notarial bond either in terms of sec. 2 of Act 18 of 1932 or at all.'

Certain further particulars to the declaration were requested and furnished, but it is unnecessary, for the purpose of these exceptions, to set them out. The respondent claims:

(a)

D ...