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Staegeman v Langenhoven and Others (24065/2010) [2011] ZAWCHC 302; 2011 (5) SA 648 (WCC) (1 July 2011)

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JUDGMENT DELIVERED ON 1 JULY 2011

BLIGNAULT J:

[1] The principal issue in this application is whether the rei vindicatio (vindicatory action) becomes prescribed after a period of thirty years or three years.

[2] Applicant, Mr Ivan Karl Staegemann, brought the application against Mr Cornel Langenhoven as first respondent for the recovery of a maroon - Nissan Almera motor vehicle bearing

registration number CEY 57510 and engine number QG16337154 ("the Nissan"). The application was launched on 3 November 2010.

[3] Applicant cited three other respondents, namely The Standard Bank of South Africa (second respondent), Mr Josef Christoffel du Plessis (third respondent) and the City of Cape Town (fourth respondent). Second respondent apparently at some stage provided finance for the vehicle to first respondent, third respondent perpetrated the fraudulent scheme that gave rise to this application and fourth respondent will be required to register the Nissan in applicant's name if the application succeeds. No substantive relief is sought against any of these three respondents and they do not oppose the application.

[4] According to applicant he purchased the Nissan on 11 February 2005 from Hertz, a motor vehicle rental company. The Nissan was then registered in his name. He wanted to keep it as his own property or sell it at a profit. Third respondent was his neighbour at the time and offered to assist him in selling the Nissan by showing it to a prospective purchaser. Applicant agreed to this but subject to the condition that he would personally negotiate the sale with such purchaser. To enable third respondent to show the vehicle to the prospective purchaser, applicant delivered the vehicle and its registration papers to him.

[5] Third respondent, however, sold the Nissan to a third party without applicant's consent and appropriated the proceeds of the sale. The third party sold the vehicle to first respondent. He acquired it in February 2006 and is still in possession thereof. The Nissan was registered in his name. It is common cause that first respondent was an innocent purchaser of the vehicle.

[6] Applicant laid a complaint of fraud against third respondent with the South African Police Service. He was subsequently arraigned in the regional court at Blue Downs on a charge of fraud.

[7] On 27 May 2010 third respondent concluded a plea agreement with the prosecutor (representing the Director of Public Prosecutions) in terms of section 105A of the Criminal Procedure Act 51 of 1977 ("the CPA"). In terms of the agreement third respondent pleaded guilty to the charge of fraud and made admissions as to the facts on which his plea was based. These facts are consistent with applicant's allegations in the present application. It was recorded in the preamble to the plea agreement that applicant was satisfied with the proposed sentence. The parties agreed that the following sentence would be fair: Imprisonment for a period of 5 (five) years which would be suspended for 5 (five) years on the following conditions:

(i) that third respondent is not convicted of fraud
committed during the period of suspension;

(ii) that he pays the amount of R72 500,00 to applicant by way of 10 (ten) monthly instalments of R7 250,00 each as from 1 July 2010.

[8] On 27 May 2010 third respondent was duly convicted and sentenced in terms of the plea agreement. He did not, however, pay any money to applicant and the suspended sentence was put in operation. To the best of applicant's knowledge he was incarcerated in Buffelsjagriver Prison, Swellendam.

[9] Applicant said that he was under the impression that he would get the Nissan back after third respondent had been convicted. This did not happen and he was advised that he would have to take legal action to recover the vehicle. His attempts to recover the vehicle from first respondent have, however, not been successful. Hence the present application.

[10] First respondent opposed the application, He did not dispute applicant's original ownership of the Nissan but he raised two substantive defences. The first defence is that applicant's claim to recover the vehicle had become prescribed in that a period of more than three years had elapsed from the date on which he obtained knowledge of his claim until this application was launched.

[11] The second defence is one of abandonment, alternatively waiver. It is based_r first, on the fact that applicant did not attempt to recover the Nissan from the South African Police Service and, secondly, the recordal in the preamble to the plea agreement that applicant was satisfied with third respondent's sentence. Applicant, so runs the argument, elected to receive the agreed monetary compensation for the Nissan thereby abandoning the vehicle and waiving any right to recover the vehicle from first respondent.

[12] In his replying affidavit applicant contended that the prescription period in respect of his claim to recover the Nissan was 30 (thirty) years and not 3 (three) years. As to the defence of abandonment or waiver he said that prior to the conclusion of the plea agreement he had enquired from the state prosecutor about the return of his vehicle as this was not apparent from the terms of the agreement. He was informed that the agreement did not deal with the question of the return of the vehicle and that he would have to pursue his claim in a civil court. He then consulted his attorney and the present application was brought.

[13] The application was heard on 13 June 2011. Mr L J van Rensburg of the firm Van Rensburg & Co appeared on behalf of applicant. Mr E J J Spamer appeared on behalf of first respondent.

Prescription

[14] The first issue is that of prescription. Mr van Rensburg submitted that applicant's claim is the rei vindicatio which is an incident of ownership. He relied on section 1 of the Prescription Act 68 of 1969 ("the Prescription Act") which provides that ownership of a thing can only be acquired by possession for a period of 30 (thirty) years. This section reads as follows:

"1. Acquisition of ownership by prescription.—Subject to the provisions of this Chapter and of Chapter IV, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of thirty years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years."

[15] Mr Spamer, on the other hand, submitted that applicant's claim is a debt which had become extinguished after a period of three years. He relied on section 10(1), read with section 11(d), of the Prescription Act for the contention that such a debt is extinguished by the lapse of a period of three years. He submitted that debt has a wide and general meaning and would include the rei vindicatio. He referred, inter alia, to Desai NO v Desai and Others [1995] ZASCA 113; 1996 (1) SA 141 (A) at 1461 J:

"The term 'debt' is not defined in the Act, but in the context of s 10(1) it has a wide and general meaning, and includes an obligation to do something or refrain from doing something."

[16] It seems to me that the solution of the prescription question is to be found in the basic distinction in our law between a real right (jus in re) and a personal right (jus in personam). The distinction has its origin in Roman law. See Reinhard Zimmerman The Law of Obligations pp 6/7:

"The essential element of an obligation in developed Roman law, therefore, was the fact that the debtor was directly bound to make performance.

(The) remedy, in the case of obligations, was always an actio in personam: the plaintiff was not asserting a relationship between a person and a thing (in the sense that he could bring his remedy against whoever was, by some act, denying the plaintiff's alleged right to the object in question - that was the crucial point in an actio in rem), but rather a relationship between two persons; the plaintiff set out to sue the particular defendant because he, personally, was under a duty towards him, and not because (for instance) he happened to be in possession of some of the plaintiffs property. If one translates this into the language of substantive law, one can say that the law of obligations is concerned with rights in personam, whilst rights in rem are the subject matter of the law of property."

See also C G van der Merwe in LAWSA (first reissue) Vol 27 Things para 232 for a summary of the development of the distinction in Roman law between actiones in rem and actiones in personam to the modern division between the law of things and the law of obligations.

[17] The distinction between a real right and a personal right has consistently been recognized in our case law. See Smith v Farelly's Trustee 1904 TS 949 at 958; Ex parte Geldenhuys 1926 OPD 155 at 164; Lorentz v Melle and Others 1978 (3) SA 1044 (T) 1049 D/E-F; Erlax Properties (Pty) Ltd v Registrar of Deeds [1991] ZASCA 187; 1992 (1) SA 879 (A) at 884I-885A and National Stadium South Africa (Pty) Ltd and Others v Firstrand Bank Ltd 2011 (2) SA 157 (SCA) para [31]:

"[31] The first concerns the distinction between real and personal hghts. Real rights have as their object a thing (Latin: res; Afrikaans: saak). Personal hghts have as their object performance by another, and the duty to perform may (for present purposes) arise from a contract."

[18] Ownership is the most comprehensive real right embracing a wide spectrum of competencies. The rei vindicatio (vindicatory action) is the remedy that is available to an owner for the recovery of the thing from whomsoever is in possession thereof. See Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-E:

It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar and Others, 1910 T.S. 1314 at p. 1319), but there can be little doubt (despite some reservations expressed in Munsamy v Gengemma, 1954 (4) SA 468 (N) at pp. 470H - 471E) that one of its incidents is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g., a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (cf. Jeena v Minister of Lands, 1955 (2) SA 380 (AD) at pp. 382E, 383)."

[19] An obligation, on the other hand, is equivalent to a right in personam and its correlative duty in personam. See the following remarks by L T C Harms in LAWSA (second edition) Vol 19 Obligations at paras 217, 218 and 221:

Para 217 "The law of obligations (in the sense of vorderingsreg in
Afrikaans and Forderungsrecht in German) is concerned with rights
and duties in personam

Para 218 "An obligation is a legal or jural bond (jural tie) between two legal subjects in terms of which the one, the creditor, has a right to a particular performance against the other the debtor, while the debtor has a corresponding duty to render the performance."

Para 221 "An obligation is always a relation (bond or tie) between two or more legal subjects. For this reason the creditor's right is called a personal hght (ius in personam). A real right (ius in rem), on the other hand, primarily constitutes a relation between a legal subject and a legal object (thing)."

[20] Turning to the Prescription Act one finds an obvious distinction between the acquisitive prescription of real rights (ownership and servitudes) which is dealt with in chapters 1 and 2 and the extinctive prescription of obligations which is dealt with in chapter 3. The underlying principles were described with great clarity by Prof J C de Wet in para 5 of a memorandum which he prepared for the Law Review Commission for purposes of the redrafting of the 1943 Prescription Act. It has been published in J J Gauntlett J C de Wet Opuscula Miscellanea at 77-78. It is worth quoting the paragraph in full:

"Dit is 'n ou strydvraag of mens by verjahng met een regsinstelling te doen het wat twee vertakkings het, tw verkrygende en bevrydende verjahng, dan wel of hier eintlik twee selfstandige regsinstellings is. Na dit my voorkom het mens hier eintlik met twee selfstandige regsfigure te doen en is selfs die uitdrukkings 'verkrygende' en 'bevrydende' verjaring ietwat ongelukkig en misleidend. Dit is waar dat by albei regsfigure tydsverloop 'n rol speel en dat sekere omstandighede, wat verband hou met die persoon teen wie 'verjaring loop', by albei regsfigure te pas kom, maar tog berus die twee regsinstelslings op verskillende grondslae. In die geval van verkrygende verjaring het mens met saaklike regte te doen, waar dit nie net gaan oor die verkryging van 'n reg deur die een en die verlies van 'n reg deur die ander nie, maar ook met die skyn wat derdes in hulle verhoudings met die een of die ander kan raak. Die ratio vir die verkryging van saaklike regte deur verjaring is die bestendiging van 'n feitlike toestand, wat vir 'n lang termyn bestaan het, en waarop derdes ook kan afgaan in hulle verhoudings met die oenskynlike reghebbende. By bevrydende verjaring het mens meer bepaald te doen met die verhouding tussen skuldeiser en skuldenaar, en dien verjaring in die eerste plek om die skuldenaar te beskerm teen eise wat miskien nooit ontstaan het nie of reeds gedelg is. Die verbintenis is uit sy aard en wese 'n tydelike verhouding wat bestem is om deur voldoening tot niet te gaan, en bowendien 'n verhouding tussen skuldeiser en skuldenaar, waarby derdes slegs onregstreeks betrokke is. 'n Saaklike reg, daarenteen, is 'n verhouding van 'n duursame aard, wat teenoor elkeen en iedereen gehandhaaf kan word, en waarby dit in die verkeer stremmend kan werk indien buitestaners nie met vertroue op die skyn kan afgaan nie."

[21] In my view the scheme of the Prescription Act fits in exactly with this distinction between real rights and personal rights. Real rights are subject to acquisitive prescription and personal rights to extinctive prescription. There are furthermore indicia in the Prescription Act supporting this interpretation. Each of the chapters dealing with acquisitive and extinctive prescription contains a section headed "Judicial interruption of prescription". Section 4(1) (which is in the chapter dealing with the acquisitive prescription of ownership) reads as follows:

"4(1) The running of preschption shall be interrupted by

the service on the possessor of the thing in question of any process whereby any person claims ownership in that thing."

Section 14(1) (which is in the chapter dealing with extinctive prescription) reads as follows:

"14(1) The running of prescription shall be interrupted by

the service on the debtor of any process whereby the creditor claims payment of the debt"

The rei vindicatio is clearly a claim to ownership in a thing. It can not on any reasonable interpretation be described as a claim for payment of a debt.

[22] The contrary interpretation, furthermore, gives rise to an anomalous situation. If the rei vindicatio were to be extinguished after a period of three years, the owner, in casu applicant, would thereafter be an owner in name only. He would never be able to exercise any of the powers that comprise ownership. The possessor of the thing, first respondent in the postulated scenario, would not be the owner of the thing but de facto he would be able to exercise all such powers except the institution of the rei vindicatio which, as he would not be the owner, would not be available to him.

[23] I am accordingly inclined to the view that applicant's rei vindicatio did not become prescribed after a period of three years. There are, however, two dicta which appear to contradict my opinion in this regard. They need to be considered.

[24] In Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) van der Westhuizen J made certain general remarks in regard to prescription. In para [11] of the judgment he said, inter alia, the following:

"Generally under the Prescription Act, prescription applies to a debt. For the purposes of this Act, the term 'debt' has been given a broad meaning to refer to an obligation to do something, be it payment or delivery of goods or to abstain from doing something."

[25] A footnote to this statement (No 12) contains, inter alia, a reference to Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) para 19. This paragraph reads as follows:

"[19] In my view it is fair to say that the government was aware of the identities of the defendants and of the facts upon which its claims against them rely, more than three years before the present action was instituted. I am also prepared to accept that the vindicatory relief which the government seeks to enforce constitutes a 'debt' as contemplated by the Prescription Act Though the Act does not define the term 'debt', it has been held that, for purposes of the Act, the term has a wide and general meaning and that it includes an obligation to do something or refrain from doing something (see eg Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) at 344F - G and Desai NO v Desai and Others [1995] ZASCA 113; 1996 (1) SA 141 (A) at 146H - J). Thus understood, I can see no reason why it would not include a claim for the enforcement of an owner's rights to property (see also eg Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) at 1141F-G)."

[26] On the face of it this statement in the Barnett judgment is to the effect that the rei vindicatio is a debt that becomes prescribed after a period of three years. The statement, however, requires some analysis. It is apparent from the judgment that the passage in question is obiter as the learned judge (Brand JA) assumed that the claim in question was a debt to which the prescription period of three years was applicable. On that assumption he held that the debt had in any event not become prescribed. For that reason it was not necessary for Brand JA to examine the prescription issue in depth.

[27] The only authority mentioned by Brand JA in regard to the prescription of the rei vindicatio is Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) at 1141F - G where it was said that

"the word 'debt' in the Prescription Act must be given a wide and general meaning denoting not only a debt sounding in money which is due, but also, for example, a debt for the vindication of property."

This statement, by a single judge, is also obiter and, on the face of it, without any analysis of the issue.

[28] I am of the view, therefore, that I am not precluded by any authority from deciding the question of prescription in favour of applicant. His rei vindicatio for the return of the Nissan did not become prescribed.

Abandonment

[29] First respondent's second defence is one of abandonment or waiver. Inasmuch as one is dealing with ownership of a thing and not an obligation, the appropriate legal concept would be abandonment and not waiver. In principle, however, the requirements for abandonment and waiver appear to be not dissimilar.

[30] The nature of abandonment in our law has been described in Reck v Mills en 'n Ander 1990 (1) SA 751 (A) at 757C-E as follows:

"In hierdie verband is dit gewens om daarop te wys dat volgens ons gemene reg word eiendomsreg oor 'n saak deur derelictio verioor wanneer 'n eienaar sy saak prysgee of abandonneer met die bedoeling om nie meer eienaar daarvan te wees nie. Raadpleeg Inst 2.1.47; De Groot 2.1.52, 2.32.3; Vinnius ad Inst 2,1.46 nr1; Van Leeuwen CF 1.2.1.18, 1.2.3.14; Voet 41.1.10; Van der Keessel ad Gr 2.32.3. Sodanige saak is dan 'n res derelicta sonder 'n eienaar (res nullius ). Die persoon wat as occupator Fisieke beheer (detentio, corpus, factum ) daarvan verkry met die bedoeling om eienaar daarvan te wees, word besitter sowel as eienaar daarvan deur occupatio of toe-eiening. Raadpleeg Voet 41.1.2, Groenewegen ad Inst 2.1.47.⁹