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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

(1) NOT REPORTABLE

(2) OF ONTEREST TO OTHER JUDGES

(3) REVISED. 

CASE NO: 19445/2017

10/5/2018

 

 

In the matter between

FRITZDIN CC (IN LIQUIDATION)                                                          APPLICANT  

and

 

POMONA ROAD TRUCK SALES (PTY) LTD                                         RESPONDENT

Actio rei vindicatio - applicant seeks an order for the respondent to deliver to it two trailers - common cause between the parties trailers in possession of the respondent - respondent opposes the application on the ground that it is the owner of the trucks pursuant to an agreement of sale - ownership of trucks in dispute - applicant aware of dispute prior to launching application - motion proceedings not appropriate – difficulties arising from application dispositive to granting relief discussed - application dismissed with costs.

 

 

J U D G M E N T

VAN OOSTEN J:

Introduction

[1] In this application the applicant, a close corporation, presently in final liquidation by order of court issued on 26 July 2016, represented by its duly appointed liquidators, by way of actio rei vindicatio, seeks an order for the respondent to deliver to it two Superlink Top trailers, which it is common cause between the parties, are presently in possession of the respondent. The respondent opposes the application on the ground that it is the owner of the trucks pursuant to an agreement of sale.

The applicant’s case    

[2] The applicant’s case is based on documents and information furnished to Ms Carol-Ann Schroeder (Schroeder), who is one of the five appointed liquidators of the applicant and the deponent to the founding affidavit on behalf of the applicant. She states that one Johann Hoffman (Hoffman) phoned her advising that the respondent had purchased the trailers from one Lindin-André Knoetze (Knoetze), which he added the respondent had paid for in full. He mentioned that he was in the process of arranging for their registration into the respondent’s name. Schroeder requested him to provide details and support of the respondent’s claim in response to which he sent an email dated 16 September 2016, to which copies of two certificates of registration of the trailers, a tax invoice issued by Fritzdin Plant Hire, a letter of authority and an identity document of one Ilse Joubert, were attached. The last mentioned two documents have not been shown to be of any relevance to the application.

[3] Schroeder then embarked upon an investigation of the respondent’s claim. The investigation consisted mainly of an examination of the documents that were attached to the respondent’s email and obtaining information on the identity of Fritzdin Plant Hire as well as the holder/s of the bank account and VAT numbers reflected in the invoice. This brought to the fore that Fritzdin Plant Hire was a company, of which Knoetze was a ‘member’; that the bank account number was that of a bank account in the name of Fritzdin Plant Hire, held at First National Bank; that payment of the invoice amount had in fact been made by the respondent into that account and that the VAT number was that of the applicant.   

[4] Having collated and checked the information Ms Schroeder concluded that the trucks were indeed owned by the applicant, that ‘it is apparent that Knoetze has perpetrated a fraud on respondent’ and that ‘Knoetze, through his fraudulent conduct, purported to transfer ownership of the trailers to Respondent in order to divert funds to himself via Fritzdin Plant Hire’.

The respondent’s case

[5] The answering affidavit on behalf of the respondent is deposed to by Wouter Wolmarans (Wolmarans). Hoffman is neither referred to in the answering affidavit nor is there an affidavit deposed to be him before me. Wolmarans confirms that he on behalf of the respondent purchased the trailers from the applicant represented by Knoetze. The respondent conducts business as a dealership in trucks and trailers in Johannesburg. 

[6] The terms of the agreement which were orally agreed upon, were that the respondent would purchase the trucks from the applicant for a purchase price of R193 800.00, which was payable on the date of delivery of the trucks to the respondent and ownership of the trucks would pass to the respondent upon delivery of the trucks to it. The trucks were delivered to the respondent on 20 April 2016, together with the tax invoice I have referred to and payment in full was effected the next day into the account number reflected in the invoice.

[7] The trucks were, as can be seen from the registration certificates attached to the answering affidavit, registered into the name of the respondent on 7 March 2017.

Discussion

[8] The transaction in terms of which the trucks were purchased, is not in dispute. The applicant was well aware thereof prior to the launching of this application. A clear dispute exists on the papers concerning the true ownership of the trucks. In these circumstances motion proceedings are not appropriate and the applicant, in my view, should have availed itself of the action procedure. For this reason alone the application falls to be dismissed (see Lombaard v Droprop CC and Others 2010 (5) SA 1 (SCA) 11).

[9] I do however propose to deal with certain issues arising from the application which in my view are dispositive to granting the relief sought.

[10] The applicant to succeed in vindicatory proceedings is required to prove ownership of the res, in this case the trucks. The applicant solely relies on the certificates of ownership provided to Schroeder by Hoffman. Both are dated 24 April 2015. As counsel for the applicant readily conceded, certificates of ownership in respect of vehicles do not constitute conclusive proof of ownership. In fact they prove nothing more than what is common cause between the parties, which is that the trucks were, until sold to the respondent, owned by the applicant.

[11] The respondent relies on an agreement of sale in terms of which it became the owner of the trucks upon delivery and payment on 21 April 2016 (Trust Bank van Afrika Bpk v Western Bank Beperk & Andere NNO 1978 (4) SA 281 (A)). The transaction has not been challenged and is supported by documents. The fact that an invoice was issued by Fritzdin Plant Hire and that payment was made into its bank account does not, without more, invalidate the transaction. Had this been the applicant’s case, evidence to that effect should have been produced. The dramatis persona, Knoetze, remains a mere name in this application. No attempts seem to have been made to obtain his version of the transaction. The liquidators of the applicant are armed with statutory powers to obtain information from Knoetze by way of an enquiry in order to investigate the suspicion of fraudulent conduct. That, they have failed to do. The allegations and inferences of fraud now advanced by the liquidators are unsupported and in any event, not capable of being determined in motion proceedings.

Order

[12] In the result I make the following order:

1.    The application is dismissed.

2.     The applicant shall pay the costs of the application.

 

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

 

 

 

COUNSEL FOR APPLICANT                  ADV RM VAN ROOYEN

 

APPLICANT’S ATTORNEYS                   GRANT & SWANEPOEL ATTORNEYS

 

 

COUNSEL FOR RESPONDENT            ADV JA KITCHING

RESPONDENT’S ATTORNEYS              PSN INCORPORATED   

 

DATE OF HEARING                                9 MAY 2018

DATE OF JUDGMENT                            10 MAY 2018

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