Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Van Blerk JA, Holmes JA, Trollip JA, Corbett JA and Hofmeyr JA
• Judgment Date: 27 February 1975
• Hearing Date: 18 February 1975
• Court: Appellate Division

Holmes, J.A.:

This is an appeal against a decision of the Transvaal Provincial Division ordering absolution from the instance in respect of a claim by the plaintiff (now the D appellant) against the defendant (now the respondent) for the return of the appellant's Ford Fairlane motor car which, it was averred, was in the possession of the respondent. The alternative claim which, as it transpired, was the substantial issue between the parties at the trial, was one for delictual damages in the sum of R3 000 on the ground that the respondent, with full knowledge of the appellant's rights in the said car, E "wrongfully and unlawfully disposed of or alienated" it, the appellant being unable to locate it.

It will be seen that the first claim was a vindicatory action - it is my car, you are in possession, I ask for restoration. No more need be said about this claim because, as it transpired, the car was not in the respondent's possession, and F the appellant could not ascertain its whereabouts; and to all intents and purposes the claim at the trial was one for delictual damages on the grounds of the respondent's unlawful alienation of the car.

The plea, in essence -

(1)

denied the appellant's ownership of the car, and denied that the respondent was in possession of it;

(2)

G admitted the respondent's disposal of the car during 1971, but denied unlawfulness;

(3)

averred that, if the appellant was the owner, it was estopped from asserting its ownership because -

(a)

The appellant approved of, acquiesced in or ratified, the respondent's disposal of the car;

(b)

H alternatively, the appellant, by deliberate or negligent words or conduct, misled the respondent, to its prejudice, into the belief that the appellant was not the owner of the car, or that the appellant was approving or acquiescing in or ratifying the disposal of the car.

The factual background may be tabulated as follows:

(i)

The appellant carries on the business of a motor dealer in Klerksdorp in the Western Transvaal.

Holmes JA

(ii)

The respondent also carries on the business of a motor dealer in Lichtenburg, also in the Western Transvaal.

(iii)

On 23 January 1970 the appellant sold one of its new cars - a Ford Fairlane - to G. J. Pretorius of Klerksdorp, a transport A contractor, under a hire-purchase agreement reserving ownership. The price was R4 375, as distinct from the finance charges. There was a cash deposit of R1 500 via a trade-in. The monthly instalments were R144. According to clause 7, failure to pay any instalment entitled the seller inter alia forthwith to B terminate the agreement and recover possession of the car, retaining, as forfeited, all paid instalments.

(iv)

On 24 June 1970 Pretorius, while there was still an unpaid balance, and there were also arrears of instalments, sold the car to the respondent, without the knowledge of the appellant.

(v)

On 4 July 1970 the respondent sold the car to F. C. C van der Merwe, of Warmbaths, without the knowledge of the appellant.

(vi)

On 23 October 1970 a director of the appellant visited the widow of Pretorius (who had died a fortnight earlier) to make enquiries about the car, and other vehicles, and received a report from her.

(vii)

In consequence, the director went to see the licensing authorities about the car.

(viii)

D As the result, on 26 October 1970, the appellant's director telephoned to the respondent at Lichtenburg and informed it that the car which the respondent had acquired from Pretorius was under hire-purchase agreement; and he further said that he was now aware that the respondent had disposed of the car to Van der Merwe; E and he asked for the car to be returned, or for the balance owing to be paid to the appellant.

(ix)

On 30 October 1970 there was a meeting at Klerksdorp between, on the one hand, the appellant's director and his attorney and, on the other hand, two F representatives of the respondent. The latter were then informed that the appellant claimed ownership of the car, and that the appellant intended attaching it unless the outstanding balance was paid. The hire purchase agreement was exhibited to the respondent's representatives. The appellant's director said that he would let the respondent know by telephone on 2 November 1970 what the outstanding balance was.

(x)

G On 2 November 1970, according to evidence on behalf of the appellant, a representative of the respondent telephoned to the appellant. The subject-matter of the conversation is in dispute, but it must have precipitated the events referred to in the next paragraph hereof.

(xi)

H On the following day, 3 November 1970, the appellant obtained an ex parte order in the magistrate's court at Klerksdorp for the return of the car. The respondent and the Estate of Pretorius were cited. The order was served on Van der Merwe, and the car was attached in his possession.

(xii)

On 5 November 1970 the respondent anticipated the return day, and the rule nisi was discharged, and the car was returned to the possession of Van der Merwe. The appellant's attorney stated in evidence in the present case that the reason was that the deceased

Holmes JA

estate of G. J. Pretorius had been incorrectly cited, inasmuch as no executor had at that time been appointed. The learned trial Judge was sceptical about this reason. However, it was not challenged in cross-examination and, indeed, it appears to have been common cause, for it was put to this witness in A cross-examination that there was a conversation at the magistrate's court, after the discharge of the...