Warren v Pirie (Pty) Ltd

• Jurisdiction: South Africa
• Judge: De Villiers JP and O'Hagan J
• Judgment Date: 24 November 1958
• Citation: 1959 (1) SA 419 (E)
• Hearing Date: 18 November 1958
• Court: Eastern Cape Division

O'Hagan, J.:

The plaintiff issued a summons against the defendant company in the magistrate's court at King William's Town, in which he claimed payment of the sum of £100 alleged to be owing to the plaintiff on a dishonoured promissory note made by the defendant in the

O'Hagan, J.

plaintiff's favour. The defendant filed a plea and an alternative plea in answer to this claim. The main plea, after admitting the making of the note, reads as follows:

'(2) Defendant pleads that he stopped payment of the said promissory note, as he was in law entitled to do, for the following reasons:

(a)

The aforesaid promissory note represents the last payment of the A purchase price of £300 for a second-hand motor vehicle which defendant purchased from plaintiff through plaintiff's agents, Messrs Edworthy's Garage of 25 Taylor Street, King William's Town, from whom he took delivery.

(b)

The said vehicle is still registered in the name of plaintiff.

(c)

As plaintiff has failed to obtain a roadworthy certificate for the said vehicle as is required by sec. 102 (3) of Ord. 19 of 1955, the aforesaid sale is null and void.

Wherefore defendant prays that plaintiff's claim be dismissed with costs.'

B The plaintiff excepted to this plea on the ground that it disclosed no defence to the claim in the summons

'in that failure to obtain a roadworthy certificate in terms of sec. 102 (3) of Ord. 19 of 1955 does not render the sale of the second-hand motor vehicle null and void.'.

C After hearing argument, the magistrate overruled the exception with costs. He held that he was bound by certain cases in the Cape Provincial Division which decided that a transaction involving the disposal of a motor vehicle was wholly invalid if the owner failed to comply with the statutory requirements relating to the obtaining of a roadworthy certificate; and he concluded that these cases were not affected by the D recent decision of the Appellate Division in Pottie v Kotze, 1954 (3) SA 719. From the magistrate's decision the plaintiff now appeals.

In Pottie's case the Appellate Division considered the effect of provisions contained in the Transvaal Motor Vehicle Ordinance of 1931, as amended, which directed a person

'who desires to dispose of any second-hand motor vehicle . . . immediately before such disposal. . . .'

E to obtain what is popularly known as a roadworthy certificate, and which made it an offence to dispose of such a vehicle before a certificate had been obtained. In the case of Georgiades v Klompje, 1943 T.P.D. 15, the Transvaal Provincial Division had held that these provisions did not invalidate a contract to dispose of a vehicle, F entered into before a certificate was obtained, but that they penalised the actual disposal. In the subsequent case of Kruger v Fourie, 1946 T.P.D. 155, the same Court held that the Ordinance rendered delivery of a secondhand vehicle, without a certificate, invalid and ineffective to pass ownership. This principle was applied in a number of subsequent cases in the Transvaal - referred to at p. 724 of Pottie's case.

G The Appellate Division dissented from the view taken by the Transvaal Court that the legislature had intended the sanction of nullity to attach to the disposal of a vehicle in contravention of the provisions I have mentioned; and the case of Kruger v Fourie and those following that decision were, in express terms overruled. At p. 728 of Pottie's case, FAGAN, J.A., stated as his conclusion

H 'that non-compliance with the requirements of sub-secs. (1) and (3) of sec. 13 bis when a second-hand vehicle is disposed of does not render the transaction null and void'.

It is apparent that in using the word 'transaction', the learned Judge of Appeal...