IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 2069/04
In
the matter between :
GABRIEL
MNISI APPLICANT
AND
MSHIKASHIKA
NGCAMPHALALA FIRST RESPONDENT
MBALENHLE
MOTORS & SPARES SECOND RESPONDENT
MESABIE
WHEELS AND SPARES THIRD RESPONDENT
MAKHISHI
MATSEBULA FOURTH RESPONDENT
STANFORD
THEMBA FIFTTH RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MR. SIMELANE
FOR
RESPONDENT MR. W. MKHATSHWA
12th
October, 2004
The
applicant one Gabriel Mnisi commenced proceedings by way of an urgent
application before this court on or about 15th July, 2004 against the
respondents, seeking an order in the following terms;
"1.
That the Deputy-Sheriff be and is hereby empowered to attach and take
into his safe custody the vehicle whose particulars appear below,
pending finalisation of these proceedings...
2
2.
Ordering that a rule nisi do hereby issue calling upon the
Respondents to appear and show cause, if any, to this Honourable
Court at a time and date to be determined by the above Honourable
Court why an order in the following terms should not be made final.
2.1
Directing the Respondents to restore to the Applicant the motor
vehicle described above.
2.2
Setting aside the purported sale of the motor vehicle to the first
Respondent as null and void.
3.
Directing that the rule nisi referred to in paragraph two above
operate with immediate effect pending the outcome of these
proceedings.
4.
Directing that the court order together with the Notice of motion,
affidavit be served together by the Acting Deputy-Sherrif.
5.
Directing that Respondents pay the costs of these proceedings on an
attorney and own client scale in the event that the same is opposed.
6.
Granting the Applicant such further and or alternative relief as the
above Honourable Court seem meet."
It
appears from the record that the application came before the Acting
Chief Justice who granted an order in terms of paragraphs one to five
of the Notice of Application. The rule nisi which was issued was
returnable on 13th August, 2004. The issue of costs claimed in terms
of paragraph five of the Notice of Application was reserved. On the
return date of the rule nisi before Mr. Justice Matsebula the first
respondent undertook not to dispose of the vehicle which was the
subject of the proceedings and the rule was discharged. The matter
was eventually heard and argued before me on 31st August, 2004, The
particulars of the vehicle which is the subject of this litigation
are given by the applicant as follows:
Make
: Mercedes Benz 280 SE
Model
: 1989
Type
: Sedan
Registration
No. : SD 559 IN
Engine
No. : DO 989-62-032841
Chassis
No. : ADB 12602262080645
Colour
: Metallic Green
Mr
Simelane for the applicant submitted that the applicant's cause of
action is the rei vindicatio. It is trite that the essential elements
of the cause of action known in our law as the rei vindicatio are
two, firstly that the applicant is the owner of the thing claimed
(whether movable or immovable) and secondly that the respondent is in
possession of the
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applicants'
property at the time of the institution of the proceedings. CHETTY V.
NAIDOO 1974 (3) SA 13(A), JEENA V. MINISTER OF LAND 1955 (2) SA 380.
An applicant or plaintiff who has established the two aforementioned
essential elements is entitled to the relief he seeks which relief
ordinarily is for the return of his property. The respondent may
raise defences which dispute either one or both of the abovementioned
essential elements of the cause of action. The respondent may deny
that the applicant is the owner and if at the end of the proceedings
the court is unable to find that the applicant or plaintiff has
established his ownership over the property the claim would not
succeed. Similarly the respondent or defendant may successfully
defeat the applicants' or plaintiff's claim as the case may be by
disputing that he is still in possession of the thing claimed. In
both the defences outlined above the onus to establish the essential
elements of the cause of action is on the applicant or plaintiff. No
onus shifts to the defendant or respondent other than the evidential
burden.
Once
the two essential elements of the cause of action constituting the
rei vindicatio have been established as already observed, the cause
of action for the relief claimed is established. However even if it
is common cause that the res is owned by the plaintiff or applicant
and that it is in the possession of the defendant or respondent, the
latter may still defeat the claim by alleging and proving a right to
possess the res inspite of the fact that the two essential elements
of a rei vindicatio have been established. In this latter situation
the onus to establish the right of possession is on the defendant or
respondent, (see CHETTY'S case supra). If the plaintiff or applicant
concedes that it gave the defendant or respondent the right to
possess the res, by for instance a lease, the plaintiff or applicant
must allege and prove a valid termination of the right, (see CHETTY'S
case supra. MATADOR BUILDINGS (PTY) LTD V. HARMAN 1971 (2) SA 21 (C).
The onus resting on the applicant or plaintiff who concedes the right
of a plaintiff to possess the res at some earlier stage must allege
and prove the terms of the agreement such as a lease which creates
the right of cancellation.
In
the present case it is common cause that the vehicle claimed by the
applicant was in the possession of the first respondent at the time
the proceedings were commenced. The applicant has also given evidence
as to how he acquired ownership in the vehicle he
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claims.
The applicant says that he purchased the motor vehicle from Dickxon
Motors CC in Benoni, in the Republic of South Africa. The applicant
goes on to explain that he brought the vehicle to Swaziland following
its delivery to him by the said Dickron Motors C C in Benoni. The
applicant caused the vehicle to be registered in Swaziland into his
name. The first respondent has responded by saying that he has no
personal knowledge of how the applicant acquired the vehicle and that
he can neither admit nor deny same. There is therefore no dispute as
to the applicant's ownership of the vehicle, (see ROOM HIRE CO (PTY)
LTD V. JEPPE STREET MANSIONS (PTY) LTD 1949 (3) SA 1155 (T). This
would prima facie entitle the applicant to the return of his vehicle.
The next question which arises therefore is whether the first
respondent has established a right which entitles him to retain
possession of the vehicle.
The
first respondent is the current possessor of the vehicle which the
applicant is claiming in the present proceedings. The second
respondent is described as "a firm of dealers in second hand
vehicles and spares at Malkerns in the Manzini District." The
second respondent firm is described as being owned by the fifth
respondent who is referred to in paragraph six of the founding
affidavit as Stanford Themba. The fourth respondent a certain
Makhishi Matsebula is described as an adult Swazi male and sales
person of the second respondent based in Manzini, The applicant
alleges in the founding affidavit that he entrusted the
aforementioned motor vehicle on the second respondent who was
represented by the fourth and fifth respondent in order that a sale
would be facilitated. Indeed after describing in paragraphs seven and
eight of the founding affidavit how he acquired ownership of the
vehicle in June 2003 from Dickron Motors CC in Benoni in the Republic
of South Africa, the applicant proceeds to describe the purpose for
which he entrusted the vehicle on the second respondent as follows:
In paragraph nine the applicant says;
"9.
Seeing that my personal needs were not to be fully serviced by a
sedan type of vehicle, I approached the second respondent to enquire
if they can (sic) sell my vehicle as I needed a bakkie. Both fourth
and fifth respondents agree that they can facilitate the sale of my
car and as they are dealers in second hand vehicles, they will be on
the lookout for anyone selling a bakkie. On the strength of that
understanding / duly surrendered my vehicle to them for display. A
copy of the agreement is annexed hereto and marked "CM.4"
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The
first respondent who appears to be the only respondent who has filed
opposing affidavits to the application responds by saying that he
does not have personal knowledge of the contents of paragraph nine of
the founding affidavit and cannot admit or deny same. From what is
stated in paragraph nine of the founding affidavit it does not appear
that the second, fourth and fifth respondents were authorised to
conclude a sale on behalf of the applicant. They were required to
simple facilitate a sale. Annexure G.M.4 is not a very clear document
in the manner it purports to describe the scope and terms of the
authority given to the second respondent firm. Annexure G.M. 4 is
headed Agreement of Selling a car and is dated 3rd June, 2003. In so
far as it may be relevant to these proceedings the first paragraph
reads,
"I,
Mr. Grabriel Mnisi (have bought a car Mercedes to sold (sic) by the
garage Mbalenhle and have agreed to pay a sum of E1000-00 as a
commission for selling my car. Failing to pay would mean I should be
brought before the law to state why I am failing.
Annexure
G.M. 4 then proceeds to give the particulars of the vehicle and the
price at which it ought to be sold is fixed at E35,000-00. After
stating that the vehicle is sold together with the spare wheel, wheel
spanner and radio it is signed by the applicant who is described as
the owner and the fourth respondent one Makhishi Matsebula appears to
have also signed on the line space provided for the "garage".
After being advised by the fourth respondent that the vehicle had
been sold for E25,000 the applicant says he notified the fourth and
fifth respondents that the money was insufficient and that the
respondents should obtain a "bakkie" for him. He says at
that point he was given a cash receipt which was issued to first
respondent on behalf of second respondent. The receipt that was given
to the applicant makes reference to a deposit of E7000 and a balance
of E18,000 which balance is described as payable in ten days time.
There is also an annexure GM5 which is reflecting that the sale was
concluded at 12 p.m. on 31st August, 2003 between the first
respondent and second respondent. However the said annexure "GM5"
does not appear to have been signed by the first respondent. A
certain Mr Gina appears to have signed as the buyer. Indeed at
paragraph twenty one of the answering affidavit it is mentioned that
the vehicle's purchase price was paid for by one Thomas Gina who is
described by the first respondent as having done this as a loyal
subject under
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his
(the first respondents') chieftaincy. Even though there is space
provided for inserting the buyer, seller and the Garage on the last
page of the "agreement" the names of the parties on this
last page do not appear to correspond with the description of the
parties at the opening section of the said agreement. The seller as
identified on the last page though not sufficiently legible is
certainly not Mbalenhle Motors. Similarly the buyer as reflected on
the last page appears to be the said Gina instead of the first
respondent. The same confusion exists with regard to Annexure G.M. 11
which significantly purports to be a sale of the same vehicle
purportedly concluded an hour earlier than 12.00 noon at which time
Annexure G.M.5 was purportedly signed. A further complicating factor
is that not only do G.M. 5 and G.M. 11 purport to be agreements of
sale in respect of the same vehicle but the purported agreements sell
the vehicle at different prices and terms. There is an ambiguity as
already observed above as regards the identity of the parties.
A
further difficulty in the way of the first respondent arises from the
fact that the capacity to conclude a sale or any contract on the part
of the said Mbalenhle Motors is doubtful. Mbalenhle Motors which also
purports to be a party to annexure "GM4", "GM5"
and "GM 11" is not shown on the papers to have legal
personality on its own so as to have contractual capacity. It appears
to be a thing, namely a business owned by the fifth respondent. A
thing in our law is not a bearer of rights and duties. It is only
persons, both natural and artificial persons who are bearers of
rights and or duties and therefore possess the capacity to contract.
This is so trite that one does not need to cite authority to support
the legal proposition I am making. From all the above, namely the
ambiguity within annexures G4, G5 and G11 individually and between
such documents and the fact that the document described as a deed of
sale does not appear to have two identifiable persons as persons to
the sale, it seems to follow that logic dictates that the so called
contracts are void ab initio. This conclusion would entitle the
applicant to the relief he claims in paragraph 2.2. of the Notice of
Application. Infact it is not a question of setting aside the sale
because there was no sale at all. The result is that there is no
basis or right shown which entitles the first respondent to retain
possession of the vehicle. In the circumstances the application is
granted and the respondent is ordered to restore to the applicant the
motor vehicle described as a 1989 Mercedes 280E, registered SD 559 IN
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with
engine number DO989-62-032841 and Chassis No: ADB12602262080645,
metallic green in colour. The respondents are also ordered to bear
the costs of this application.
ALEX
S. SHABANGU
ACTING
JUDGE
