Rahim v Minister of Justice

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Botha JA, Van Wyk JA and Hoexter AJA
• Judgment Date: 01 September 1964
• Citation: 1964 (4) SA 630 (A)
• Hearing Date: 11 May 1964
• Court: Appellate Division

H Van Blerk, J.A.:

This appeal concerns a claim for a refund of money paid in error by the messenger of the court, Durban, to the appellant in respect of a judgment debt due to him by one Hoosen.

In 1957 Hoosen acquired an International Lorry on the hire-purchase system and had it registered in his name. In terms of the hire-purchase agreement the ownership in the vehicle vested in the seller, to whom Hoosen had to pay monthly instalments in respect of the purchase price. The hire-purchase agreement was ceded to the Trans-Drakensberg

Van Blerk JA

Bank, Ltd. (for convenience sake referred to as the Bank) which by reason of the cession became the owner of the vehicle and entitled to payment of instalments falling due under the agreement. In October, 1958, the Bank instituted proceedings in the Magistrate's Court, Durban, against Hoosen in respect of arrear instalments. Judgment was obtained A and Hoosen's right, title and interest in the vehicle were attached, and sold in execution by the messenger of the court, Durban, to the Bank for one shilling. Van den Bergh, a temporary deputy messenger, effected the attachment without seeing the vehicle, and Lombard, the senior deputy messenger, also without seeing the vehicle, conducted the sale in execution on about 18th February, 1959. As a result of these proceedings B the vehicle was removed from the possession of Hoosen and the Bank became the full owner of it. A few days after the sale Lombard in his capacity as messenger by a formal cession ceded Hoosen's right, title and interest in the vehicle to the Bank in order to enable it to take delivery. But apparently the Bank never removed the vehicle. Thereafter C van den Bergh in pursuance of a warrant of execution lodged with him by the appellant attached the same vehicle where it was in the Central Garage in Durban. The warrant was issued in respect of a judgment debt due by Hoosen to the appellant. After the attachment the vehicle was removed from the Central Garage to the messenger's store room where it D was sold in execution by Lombard, on about 8th April. Allowing for the 14 days provided for in Rule 38 (10) of the Magistrates' Courts Act, it was attached not later than 25th March. That is about five weeks after he had sold Hoosen's right, title and interest in the vehicle to the Bank. Although at the time of the attachment the vehicle was still registered in Hoosen's name it was in fact the property of the Bank. And E that was the case when it was sold in execution. Of the proceeds of the sale the messenger paid to the appellant R84.25, the amount awarded to him in terms of a distribution account which had to be drawn as there were other judgment creditors of Hoosen who were entitled to share in the proceeds.

F On 23rd April the messenger ascertained that the vehicle was the property of the Bank, who successfully claimed from the Minister of Justice, the respondent in this appeal, the value of the vehicle. The latter thereupon instituted proceedings in the magistrate's court against the appellant for a refund of the sum of R84.25. The action is based on the condictio indebiti. In the particulars of claim it is G alleged that the amount of R84.25, not being the proceeds of property owned by Hoosen, was not due to the appellant and that the messenger when he sold the vehicle laboured under the reasonable but mistaken impression that it was the property of Hoosen. In the alternative the claim is based on unjust enrichment. In his plea the appellant H specifically denies that respondent is entitled to avail himself of either of the two grounds upon which he bases his claim.

The magistrate rightly held that an indebitum was proved as there was no money owing by the messenger to the appellant. The appellant could not compel the messenger to pay over to him proceeds of the sale of property belonging to the Bank. It is also clear on the evidence that the money had been paid in the erroneous belief that it was part of

Van Blerk JA

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