Springs Car Wholesalers (Pty) Ltd v Diamond Panelbeaters and Towing CC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Van der Schyff J |
| Judgment Date | 11 September 2023 |
| Citation | 2023 JDR 3549 (GP) |
| Hearing Date | 22 August 2023 |
| Docket Number | 2022-008554 |
| Court | Gauteng Division, Pretoria |
Van der Schyff J:
Introduction
In this application, which was initially instituted in the urgent court, the applicant seeks the return of two motor vehicles currently in the respondent’s possession. The
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application is brought in two parts. In addition to the return of its motor vehicles, the applicant seeks confirmation that its attorneys of record may continue to hold an amount of R75,817.50 in trust as security for the respondent’s alleged claim, subject thereto that the respondent issues and serves summons against the applicant within twenty court days from the date of the order granted herein. In Part B, the applicant claims the difference between the retail value of the vehicles on the dates the respondent took possession of the applicant’s respective motor vehicles and the retail value of the motor vehicles on the date of their handing over to the applicant.
The respondent opposes the application. The respondent raised points in limine in its answering affidavit. These were not revisited in argument, nor is it addressed in the respondent’s heads of argument. I do not intend to deal with the points in limine raised in the answering affidavit, except to mention that the points in limine, due to their nature, are for the consideration of the court dealing with Part B of the application.
The respondent opposes the relief sought in this application on two grounds. The first is that the applicant’s locus standi has not been admitted. The second is that the respondent submits that it has a salvage lien, and the security tendered by the applicant to permit the court to exercise its discretion and release the vehicles from the salvage lien, is wholly inadequate.
The locus standi issue
It is appropriate to first deal with the locus standi issue raised by the respondent.
The applicant pleaded in the founding affidavit that it is:
‘. . . a private company with limited liability, registered as such [in] accordance with the laws of the Republic of South Africa with registration number 2008/014857/07 and with its principal place of business at 153 North Rand Road, Boksburg, Gauteng. The applicant also trades as Thrifty Car Rental.’
The respondent pleaded as follows in its answering affidavit:
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‘Save to state that the respondent bears no knowledge as to the name, incorporation, registration number, address, and trading names of the applicant, and for that reason cannot admit same, the remaining allegations are admitted.’
In reply, the applicant avers:
‘The respondent is clearly attempting to mislead this honourable court. Annexed through the respondent’s own answering affidavit are several documents and emails clearly showing the applicant’s name, trading name and address.’
The respondent correctly submits that it is trite law that the onus is on the applicant, as the dominus litis party, to allege and prove that it has locus standi. The respondent avers that in not admitting that the applicant is a company with limited liability, registered as such in accordance with the laws of the Republic of South Africa, these aspects remained in dispute. As a result, the respondent contends, the applicant failed to prove its locus standi, and the application stands to be dismissed on this ground alone.
Locus standi is relevant in two contexts. The first relates to the preliminary legal question that must be considered in the judicial process as to whether the parties to the litigation have the necessary standing or legal capacity to act. The applicant must show that it is the rights-bearing entity. [1] Cameron JA held in Sandton Civic Precinct (Pty) Ltd v City of Johannesburg and another [2] that:
‘. . .while in a sense this is technical, and procedural, it also goes to the substance of the applicant’s entitlement to come to court.’
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The second relates to an applicant’s interest in the subject-matter of the litigation. It is trite that locus standi in iudicio concerns ‘the sufficiency and directness of a litigant’s interest in proceedings which warrants his or her title to prosecute the claim asserted’. It should be one of the first things to be established in litigation. The Supreme Court of Appeal dealt extensively with the notion of locus standi in iudicio in Four Wheel Drive Accessory Distributors CC v Rattan NO. [3] The court explained that it is necessary to determine:
‘Whether in the circumstances the plaintiff had an interest in the relief claimed, which entitled it to bring the action. Generally, the requirements for locus standi are these. The plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract, or academic; and it must be a current interest and not a hypothetical one.’
The question is whether a dispute of fact arises as a result of the respondent not admitting the applicant’s name, incorporation, registration number, address, and trading names, or to put it differently, whether the respondent’s inability to admit the correctness of the applicant’s registration as a private company because it bears no knowledge of those facts, equates a denial of the averment pleaded.
In Room Hire CC (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, [4] Murray AJP indicated the principal ways in which a dispute of fact arises. He stated:
‘The clearest instance is, of course, (a) when the respondent denies all the material allegations made by the various deponents on the applicant’s behalf and produces or will produce positive evidence by deponents all witnesses to the contrary. He may have witnesses who are not presently available or who, though adverse to make an affidavit, would give evidence viva voce if subpoenaed. There are however other
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cases to consider. The respondent may (b) admit the applicant’s affidavit evidence but allege other facts which the applicant disputes. Or (c) he may concede that he has no knowledge of the main facts stated by the applicant, but may deny them, putting applicant to the proof and himself giving or proposing to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable, and that certain facts upon which applicant and his deponents rely to prove the main facts are untrue. The absence of any positive evidence possessed by a respondent directly contradicting applicant’s main allegations does not render a case such as this free of real dispute of fact. Or (d) he may state that he can lead no evidence himself or by others to dispute the truth of the applicant’s statements, which are peculiarly within applicant’s knowledge, but he puts applicant to the proof thereof by oral evidence subject to cross-examination.
The last-mentioned instance, viz., (d) has been held by Watermeyer, C.J. . . . Not to be a genuine or real dispute of fact. Whether the respondent is bona fide or not, his contentions are insufficient to render resort to a trial action compulsory. . . . if the dispute is of this last-mentioned kind, and if the respondent desires oral evidence . . . such cross-examination is sufficient safeguard for him, without requiring the case to be sent to trial. In fact, if he does not ask for or declines an offered opportunity for such cross-examination, the court may decide the matter on the affidavits before it.’
The way in which the respondent pleaded to the applicant’s averment that it is a private company with limited liability, registered in terms of the laws of the republic with a registration number and specific address, does not fall into any of the categories mentioned in Room Hire. Although it closest resembles (d), it stops short of requiring the applicant to prove its registered name, registration number, address, etc. It also does not fall into (c), because the respondent does not, in addition to stating that it does not have knowledge of the facts stated by the applicant, deny the allegation made by the applicant.
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If regard is had to the totality of the answering affidavit, the respondent admits that the applicant is the owner of the two motor vehicles in question. By admitting that the applicant acquired full ownership of the vehicles concerned, the respondent implicitly acknowledges that the applicant has the necessary legal capacity to perform juristic acts. The weight of the locus standi issue fades against this admission, and it becomes purely a technical point raised. The applicant’s undisputed ownership of the motor vehicles concerned, substantiates both that it has the necessary capacity to conclude juristic acts, a capacity it has as a juristic person, and it substantiates the applicant’s direct interest in the subject matter of the litigation. The applicant’s claim that it is a juristic person is further substantiated by the letter issued by ABSA Bank, where the applicant is cited as ‘Client - Spring Car Wholesaler (Pty) Ltd.’ It can be accepted as a matter of general knowledge that in order to comply with its obligations in terms of the Financial Intelligence Centre Act 38 of 2001, the bank would have verified the applicant’s identity and proof of address when its account with the bank was opened. In addition, CIPC records are public records, and the applicant provided sufficient information for the respondent to verify the correctness of the averment as pleaded. The applicant’s failure to attach a CIPC certificate to its founding papers, in the context of the facts admitted by the respondent, is not fatal to the application. The applicant proved that it has the necessary locus standi to institute the application.
The factual matrix...
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