Marques v Trust Bank of Africa Ltd and Another

• Jurisdiction: South Africa
• Judge: Morris AJ
• Judgment Date: 21 September 1987
• Citation: 1988 (2) SA 526 (W)
• Hearing Date: 17 September 1987
• Court: Witwatersrand Local Division

Morris AJ:

The applicant seeks an order against the respondents in the following terms:

'Directing the first and second respondents to deliver the Mercedes Benz motor vehicle with registration number HCV 257 T to the applicant E forthwith.'

The remaining claims in the notice of motion need not be stated or considered at this stage.

At the outset Mr Josephson, who appeared for the applicant, stated that it was not clear whether the claim was a vindicatory one or one for a F spoliation order. It seems to me that the former is probably the correct interpretation of the claim, but this, too, does not require a decision at this stage.

What had happened is that the car was sold in 1982 to a company called International Task Force (Pty) Ltd (ITF). ITF was placed in liquidation on 28 June 1985. At some stage between that date and 7 November 1985 the G car was dealt with by the first respondent, the applicant alleging (subject to what is to be stated presently) that it was sold to her. She does not specifically allege an act of delivery, which would transfer ownership, but relies on certain documents of registration, annexures G1, G2 and G3, from which a delivery is to be inferred. In any event, there is an averment that the car was in her possession when it was H attached in circumstances to be mentioned later.

On 26 March 1987 the first respondent issued summons out of the magistrate's court, Vanderbijlpark, against ITF claiming:

'(a)

Payment of the difference between the balance outstanding (on a lease agreement) and the value of the goods (the car) be (sic) R50 841,63.

(b)

I Interest at the rate of 28% per annum calculated on R50 841,63 from date of summons to date of payment.'

Simultaneously the plaintiff, first respondent, made an application for the attachment of the car in question and for its delivery to the first J respondent. An order authorising the attachment was made on the same

Morris AJ

A day. It escapes me how an attachment order could be made on a summons claiming not the return of the vehicle but the payment of money. However, the order was made, and it stands until set aside by an order of a competent Court. On the present papers this Court does not qualify for the purpose stated.

I do not propose to deal with other relevant dates in the chronology B because they are not relevant to the order which I propose to make. As to the attachment, however, I discussed the matter with counsel in Chambers but neither of them wished to address further argument on this point. Mr Josephson had, at the commencement of his argument, indicated that there had been some sort of proceedings in the magistrate's court, C where the applicant had intervened in the proceedings, but that it had been agreed that the matter should continue in this Court, proceedings having been instituted on 8 April 1987. It was by no means clear what the terms and effect of the agreement were, and the notice of motion was not amended in any respect.

D In these circumstances, and particularly because there was no application in terms of which the Court was asked to set aside the order of attachment, I proceed to deal with the arguments as they were put forward at the hearing.

Essential to the applicant's case is the question of ownership. This E depends on two points: an agreement of sale and delivery. As regards the former the applicant says this in para 5.5:

'However, the aforesaid transaction was never finalised and it was subsequently agreed that the sale would not be concluded and that I would purchase the vehicle in my personal capacity. After further discussions it was agreed that I would purchase the vehicle for an amount of R23 522,76. The purchase price which was mentioned to my F husband as stated above was reduced to the sum of R23 522,76 after further negotiations with Mrs Van Heerden who was acting on behalf of the second respondent.'

I do not propose to set out the remainder of this paragraph. It was contended by Mr Coetzee, who appeared for the respondent, that the G applicant gives no details of the agreement, apart from mentioning Mrs Van Heerden. This contention appears well founded, and, indeed, I gain the impression that the applicant is not testifying to a transaction to which she was a party. No affidavit was filed setting out the evidence of the applicant's ex-husband. (I remark here that the index filed shows every sign of having been prepared in haste, and that it is of H absolutely no assistance to the Court.)

Mrs Van Heerden has made an affidavit, in para 7.3 of which she specifically denies having had any discussions with the applicant, or that she entered into any agreement with the applicant in terms of which the latter was to purchase the car 'in her personal capacity' (whatever the significance of those words of the applicant may be). I do not ...