South Africa: North West High Court, Mafikeng

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Buzz Trading 201 (Pty) Ltd v Megalane (2019/08) [2008] ZANWHC 49 (11 December 2008)

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[1] The Applicant approached this Court on an urgent basis seeking an order in the following terms:

"1. The application be treated as urgent in terms of Rule 6 (12) of the Uniform Rules of Court, and that the forms and service provided for in the rules be dispensed with;

2.. The respondent shall return to the applicant, within 24 hours from date hereof, and do all things necessary, including the signature of any documents that may be necessary to effect such return, a Toyota Hino 57-450 truck tractor, particulars of which are as follows:

2.1 its VIN number is AHSSIEKP00010542;

2.2 its engine number is E13CTT0546;

2.3 its registration number at was FYB 927 NW,

(hereunder referred to as "the Hino");

3. Should the respondent fail to return to the applicant the Hino within 24 hours from date hereof, and do all things necessary, including the signature of any documents that may be necessary to effect such return, then the Sheriff shall be authorised and obliged to remove the Hino from whomsoever may be found in possession thereof, and take it into the Sherrif s possession, and to return it to the applicant, and do all things necessary, including the signature of any documents that may be necessary to effect such return;

4. The costs of this application be costs in the winding up;

5. Further and/or alternative relief

And that the accompanying affidavit of AYANDA KHUMALO and the annexes thereto shall be used in support therof."

[2] This application was filed with the Registrar of this Court on the 11^th August 2008 for hearing on the 14^th August 2008. On this date, the matter was postponed to the 21^st August 2008 and the following further order per agreement, was made:

"That the respondent is to deliver the vehicle mentioned in the papers to the Sheriff for safekeeping pending a decision by this Court.

[3] On the 20^th August 2008. the Respondent filed his notice to oppose the application together with the supporting affidavits.

[4] On the 21st August 2008. the application was postponed to the 28^th August 2008 to enable the applicant to deliver its replying affidavit.

[5] On the 28^th August 2008. the matter was again postponed to the 4th September 2008 and leave was granted to the Respondent to file a further supplementary affidavit.

[6] On the 4^th September 2008 the application was postponed in order to enable counsel for the Applicant, Ms Zwiegelaar, to file heads of arguments. Counsel for the Respondent, Ms Gutta, had prepared heads of argument in that regard.

[7] On the 11^th September 2008 this matter was removed from the roll and was re-enrolled for hearing on the 23^rd October 2008.

Factual Background:

[8] The director of the Applicant ()"Buzz Trading") Ayanda Semini Khumalo (Mr Khumalo) alleges that he purchased a Toyota Hino 57-450 truck tractor ("the truck") and a trailer on behalf of Buzz Trading from Micromatica (Pty) Ltd trading as Global Truck & Plant Sales ("Global Truck

[9] The purchase price for the said Hino truck and trailer was fully paid to Global Truck on the 17^th March 2008 and was delivered to Buzz Trading. The trailer to the Hino truck was registered in the name of Buzz Trading, but Global Truck omitted to register the truck in Buzz Trading's name. Several attempts by Mr Khumalo to obtain the documents of the Hino truck from Mr Van Biljon of Global Truck drew a blank. According to Mr Khumalo, it was eventually discovered that "both Global and he (Mr Van Biljon) had absconded."

[10] In the meantime, the Respondent, through his attorney laid claim to the Hino truck. It was alleged that:

10.1 The Respondent had left the Hino truck and its trailer with Global

Truck and Plant Sales to facilitate the sale thereof;

10.2 Global Truck was not supposed to hand over the truck and trailer
to the buyer until the debt owing to Westbank has been settled;

10.3 Global Truck, after the sale of the Hino truck and trailer, settled the debt of Westbank in respect of the trailer only but failed to settle the account with regard to the Hino truck. The VAT amount was also outstanding;

10.4 The Respondent claimed the return of the Hino truck from him.

[11] According to the Applicant, he was never informed about this state of affairs when he bought the Hino truck and trailer especially in view of the fact that the Hino truck and trailer were displayed for sale to the public amongst other stock and trade of Global Truck.

[12] On the 31^st July 2008 Messrs Chebukani Ncube (Ncube) and Clement Bongani Khabi (Khabi) who are employees of the Respondent, were using the Hino truck and trailer in the course of their duties.

[13] Khabi and Ncube were confronted by an unknown White male who demanded the keys of the Hino truck, threatening to cause them harm if they refused to give him the keys. They gave him the keys and he drove off with the Hino truck. He refused to give them his identity.

[14] The White male phoned the Applicant and identified himself as Mr Oosthuizen and he gave him the Respondent's contact details. The Applicant later established that Mr Oosthuizen, who is a collector trading under the name "Oosthuizen opsporings" was given instructions by "Dagbreek opsporings" at the instance of Wesbank, to remove the Hino truck from Buzz Trading and deliver same to the Respondent. Mr Oosthuizen confirms in an affidavit that the truck was handed over to the Respondent.

[15] The Respondent avers that he had given the Hino truck and trailer to Global Truck for them to sell on his behalf in view of the fact that he was unable to pay the outstanding balance owing to Wesbank. The trailer was fully paid and the outstanding amount was in respect of the Hino truck.

[16] It came to his attention that the Hino truck was still owing at the Bank and that Global Truck had sold the Hino Truck to the Applicant. He approached the Bank and spoke to one Josephine Galetsane (Ms Galetsane) of the Westbank who instructed Mr Willem Labuschagne (Mr Labuschagne) to collect the Hino truck from the Applicant. Mr Labuschagne requested Mr Oosthuizen to remove the car from the Applicant and he accordingly collected the vehicle as aforesaid.

[17] Respondent argues that he is not the one who ordered removal of the Hino truck from the Applicant and submits that the Wesbank gave the instruction to Mr Labuschage to collect it from the Applicant. He further argues that Wesbank is the legal owner of the Hino truck whilst he is the legal titleholder.

[18] He further states that he insured the vehicle and had also installed a tracking device as required by the insurance company and that if the vehicle can be damaged or stolen whilst not in his possession, the insurance company will most likely repudiate his claim.

[19] The Applicant, on the other hand, also claims to have bought the Hino truck and tractor form Global Truck. He paid an amount of R1 million into an account provided by Global Truck. He also intimates that the Respondent was using the truck and had approached an agent of Matrix at the fitment centre to remove the tracking device installed by the Applicant. He also states that he has been subcontracted for the transportation of coal which obligation he is unable to fulfil and that his failure to perform will result in breach of contract with consequential claim for damages.

The Law

[20] To succeed in an application for mandament van spolie. the Applicant must establish on a balance of probabilities, that:

(a)He was in peaceful and undisturbed possession of the thing; and

(b)That he or she was unlawfully deprived of such possession. See LAWSA vol 27 (First Reissue) par 269; See also Bon Quelle (Edms) Bpk v Munisipalieteit van Otavi 1989 (1) SA 508 (A); Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) 309 (SCA).

[21] It is trite law that the purpose of mandament van spolie is to restore the status quo which prevailed prior to the illegal action of dispossession, irrespective of whether or not the dispossessed party was himself or herself in unlawful possession or use of the thing or property at issue. See Yeko v Qana 1973 (4) SA 735 (A).

[22] It is common cause that the Applicant purchased the Hino truck from Global Truck, and was not made aware of the contractual relationship between the Respondent and Global Truck on the one hand and Respondent and Wesbank on the other.

[23] He was in peaceful and undisturbed possession of the Hino truck and trailer and had fully paid the purchase price thereof. It is not the duty of this Court to determine whether or not the transaction between the Applicant and Global Truck was lawful in the circumstances. See Yeko v Qana supra.

[24] Respondent intimates that he was not responsible for removing the truck from the Applicant. This line of argument does not enhance the Repondent's case in any way in that the Wesbank employee at the instance of the Respondent, made arrangements to have the Hino truck removed form the Applicant and it was handed over to the Respondent.

Due process of the law was not followed in that the Applicant was illcitly dispossessed of the property. Compare Wightman t/a JW Construction Head-four (Pty) Ltd and Another 2008 (3) 371 (SCA) at p 3 par [27].

[25] The version of the Respondent clearly indicates that neither he nor Wesbank obtained a Court Order which authorized them to remove the truck from the Applicant. On the Respondent's version there is no real genuine or bona fide dispute of fact in that regard. See Plascon Evans Paints Ltd v Van, Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 I.

[26] I am of the view that the Respondent was not entitled to remove the

Hino truck from the Applicant's possession without having followed due

process of the aw in that regard and consequently find that the

Applicant is entitled to the return of the Hino truck.

Urgency

[27] I have already alluded the fact that the Applicant used the Hino truck in hi: business. He stated that he is suffering debilitating financial loss as a result of being dispossessed of the Hino truck. These factors made it necessary for the Applicant to approach this Court on an urgent basis. I agree that this matter was urgent in the circumstances. Furthermore the costs in this application must follow the result.

[28] I accordingly make the following order:

1. The forms and service provided for in the Rules are dispensed with in terms of Rule 6 (12) of the Uniform Rules of this Court.

2. The Respondent is ordered to immediately restore possession of the Toyota Hino 57-450 truck to the Applicant.

3, Should the Respondent fail to return the Toyota Hino 57-450 truck to
the Applicant as ordered in 2 above, the Sheriff is authorized to
remove the said truck from whomever may be found in possession
thereof and return it to the Applicant and do all that is necessary to
effect such return.

4. The Respondent is ordered to pay the costs of this application.

M M LEEUW

JUDGE OF THE HIGH COURT