Lifestyle Transport CC v Minister of Police

• Jurisdiction: South Africa
• Judge: Opperman AJ
• Judgment Date: 17 April 2014
• Docket Number: 14488/13
• Hearing Date: 04 March 2014
• Court: South Gauteng High Court, Johannesburg

Opperman AJ:

INTRODUCTION

[1]

The applicant seeks an order declaring that the applicant is the owner of a Mercedes-Benz truck 2435, with registration no. KNM 604 GP, chassis no. 65813526017255 and engine no. V0030443697 ("the vehicle"), which is in the possession of the first respondent.

[2]

In the alternative, the applicant seeks an order that the first and second respondents be interdicted and restrained from disposing of or alienating the vehicle, pending the outcome of an action to be instituted by the applicant for the return of the vehicle, within thirty days of the granting of such order.

[3]

The first, third and fourth respondents did not oppose the application.

[4]

The second respondent only opposed the application.

SUMMARY OF THE FACTS

[5]

Much of the facts were, at the end of the day, common cause, alternatively the second respondent's version was to be preferred, having regard to the principles enunciated in the Plascon-Evans matter. [1]

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[6]

Admittedly, the applicant's alternative relief is for interim relief and the Plascon-Evans rule will thus not be applicable. In my assessment of the evidence, I will distinguish, insofar as it is necessary.

[7]

The business of the applicant is that of a transport company. In order to fulfil its duties, it purchases trucks from time to time.

[8]

The second respondent carries on business as a transport company. It owns and operates a fleet of delivery vehicles for that purpose. When a vehicle is no longer suitable for use by the second respondent in the course of its transport business, the second respondent sells the vehicle on a second-hand basis.

[9]

The manner in which the vehicles are so sold by the second respondent is that the vehicles are handed, on consignment, to a second-hand motor dealer such as the third respondent. The arrangement between the second respondent and the dealer includes the dealer ascertaining from the second respondent the price that it is prepared to accept for the vehicle from a purchaser thereof. For purposes of administrative and logistical convenience, the vehicle is then physically removed from the second respondent's premises onto the premises of the second-hand dealer. The physical possession (detentio) of the vehicle is handed over to the dealer on the basis that the dealer will not become the owner of the vehicle, but will return the vehicle to the second respondent in the event of the dealer not being able to find a purchaser for that price. If, on the other hand, the dealer is able to achieve the price, then, the dealer would hand the vehicle

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over to the purchaser against payment.

[10]

At the time when the vehicle is physically handed over to the dealer, the second respondent signs the relevant change of ownership form in favour of the dealer and hands the completed form to the dealer. If the vehicle is not sold by the dealer to a third party, then the completed change of ownership form is handed back by the dealer to the second respondent together with the vehicle itself. The second respondent and the dealer embark on this process subject to the condition that ownership of the vehicle will remain vested in the second respondent until such time as the dealer is able to sell the vehicle at the price required by the second respondent.

[11]

The transaction between the second and the third respondent in relation to the vehicle in issue in the present proceedings, was at all times governed by the arrangement set out hereinbefore relating to the second respondent's general modus operandi in respect of the sale of it's vehicles.

[12]

In relation to the vehicle in issue in this application, the second respondent required an amount of R250 000.

[13]

The third respondent was given the vehicle to sell, but never achieved that price.

[14]

The background to the relationship between second and third respondents is that during March 2011, the managing director of the second respondent, Mr Tanzer, was approached by Mr Pickl and Mr Paton who claimed to represent the third respondent. From April 2011 onwards, the

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second respondent began to do business with the third respondent in relation to the sale of second-hand vehicles that the second respondent wished to dispose of.

[15]

During August 2012, Mr Paton agreed with the second respondent that the third respondent, in accordance with the standard arrangements outlined hereinbefore, would sell the vehicle in issue in the present proceedings. Further, the sale of the vehicle was not supposed to take place until the second respondent had invoiced the third respondent in the amount of R250 000.

[16]

On 12 September 2012, Mr Tanzer discovered that the vehicle had been sold to the fourth respondent for R180 000 by Mr Paton. No monies had been paid to the second respondent.

[17]

Mr Tanzer also discovered that the fourth respondent had on-sold the vehicle to the applicant for the sum of R235 000. The tax invoice dated 3 July 2012 purporting to emanate from the second respondent in terms of which the second respondent had sold the vehicle to the third respondent, is not authentic and the second respondent contends that it is a forgery. For present purposes this must be accepted.

[18]

On 15 September 2012, the second respondent discovered that Mr Paton was not a representative of the third respondent but that he had merely acted as a "broker" for the third respondent. It was subsequently established that Mr Paton, had sold the vehicle purportedly on behalf of the third respondent, and Mr Paton had appropriated the proceeds of the sale

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of the vehicle for himself.

[19]

The third respondent has never paid the second respondent anything for the vehicle.

[20]

During the early part of February 2013, the applicant's driver, driving the vehicle, attempted to cross the border into Swaziland. The border officials would not allow the vehicle into Swaziland and the vehicle was returned to the applicant's premises. On 13 February 2013, at the business premises of the fourth respondent, the first respondent seized the vehicle. This was done as Mr Tanzer, acting as a representative of the second respondent, had laid a complaint in respect of the vehicle.

[21]

The first respondent advised that neither the applicant nor the fourth respondent would obtain return of the vehicle and clarity should be sought from the Court.

[22]

On or about 7 December 2012, Mr Paton was arrested for fraud and theft in respect of the vehicle.

OWNERSHIP OF THE VEHICLE

[23]

The Applicant's claim is vindicatory in nature. For the purposes of a vindicatory claim, the applicant is required to establish that it is the owner of the res in question See Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82A; Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A).

[24]

The second respondent contends that it is the owner of the vehicle.

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[25]

It is clear that the second respondent...