Pottie v Kotze

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA, Van Den Heever JA, Hoexter JA and Fagan JA
• Judgment Date: 17 June 1954
• Citation: 1954 (3) SA 719 (A)
• Hearing Date: 01 June 1954
• Court: Appellate Division

Fagan, J.A.:

In November, 1951, the present appellant sued the respondent in the magistrate's court of Delareyville, Transvaal, for £200, being the balance of the purchase price of a tractor which he had sold and delivered to the respondent in July, 1950. The respondent in H his plea, in so far as it is relevant to the issue now before us, raised the defence that the purchase was null and void and no ownership passed inasmuch as at the time of the sale no certificate of roadworthiness existed in respect of the tractor as required by sec. 13 bis of the Transvaal Motor Vehicle Ordinance, 17 of 1931. He tendered the return of

Fagan JA

the tractor, and in a counterclaim based on the same legal ground prayed for the repayment, against such return, of £400 which he had paid on account. The appellant in reply, both in his replication to the plea and in his plea to the counterclaim, admitted that he had not handed a certificate of roadworthiness to the respondent, but said that the respondent had himself obtained a certificate of roadworthiness. From A further particulars which the appellant had himself supplied in answer to questions put by the respondent it was clear that the reference was to a certificate of roadworthiness obtained by the respondent in August, 1951. The respondent excepted to the replication and the plea in reconvention as disclosing no defence to his allegation that the purchase was null and void. The magistrate upheld the exception, and his B judgment was confirmed by the Transvaal Provincial Division, from whose decision the matter is now before us on appeal.

The crisp point is, therefore, whether a sale and delivery of a motor vehicle are null and void if the seller has not previously obtained a finding of roadworthiness as required by sec. 13 bis of the Ordinance.

C The relevent portions of sec. 13 bis, which was added to the Motor Vehicle Ordinance in 1940 and amended in 1942, 1944 and 1947, are sub-secs. (1), (2) and (3), reading as follows:

'(1) Subject to the provisions of sub-sec. (4) every person who desires to dispose of any second-hand motor vehicle or trailer by way of sale, hire purchase agreement, sale under suspensive conditions, barter or gift or in any other manner to any person other than a dealer in motor D vehicles; shall immediately before such disposal produce such motor vehicle or trailer to the registering authority within whose area of jurisdiction he is then resident, and such registering authority shall forthwith cause it to be examined, on payment of such fee as may be prescribed by regulation, by a competent person appointed by such registering authority, with the object of determining whether such motor vehicle or trailer is fit for use on a public road or not.

(2) The registering authority shall obtain a certificate from the person appointed under sub-sec. (1) stating -

(a)

E that such motor vehicle or trailer has been properly examined by him, and

(b)

whether such motor vehicle or trailer is, in his opinion, fit for use on a public road or not.

(3) Subject to the provisions of sub-sec. (4) any person who disposes of a second-hand motor vehicle or trailer by way of sale, hire purchase agreement, sale under suspensive conditions, barter or gift or in any F other manner before a competent person appointed by the registering authority referred to in sub-sec. (1) has found it fit for use on a public road shall be guilty of an offence and liable, on conviction, to a fine not exceeding twenty-five pounds, and in default of payment to imprisonment with or without hard labour, for a period not exceeding two months.'

Sub-sec. (4) exempts the Union Government from the provisions of sub-secs. (1) and (3); further sub-sections require the person who acquires a second-hand motor vehicle from the Government to produce it G for examination and make him subject to the penalties prescribed under sub-sec. (3) if he uses it on a public road before obtaining a finding of its fitness for such use.

Sec. 13 bis and a corresponding provision in the Cape Motor Ordinance have been the subject of several decisions in the Provincial Courts of H the Transvaal and the Cape. In Georgiades v Klompje, 1943 T.P.D. 15, SOLOMON, J., in a judgment concurred in by GRINDLEY-FERRIS, J., construing the section in its original form (but the amendments do not affect the point made by him), said (at p. 18):

'The section does not forbid the entering into a contract for the purchase or the donation of a second-hand car. What it says is that the certificate must be

Fagan JA

obtained immediately before the car is disposed of. The legal preliminary of the disposal does not come within the mischief which this section is designed to prevent; the section is designed to prevent any car changing hands and appearing on the road before it is pronounced roadworthy.'

This reasoning, which seems to equate 'disposal' with 'delivery' and was A so interpreted in the head-note to the case, was accepted in Kruger v Fourie, 1946 T.P.D. 155 (vide p. 158) and...