Mazwai v J L Logistics (Pty) Ltd and Another (737/2012) [2015] ZANWHC 77 (19 November 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NUMBER: 737/2012

In the matter between:

LUNGILE GCINUMZI MAZWAI

Plaintiff

AND

J L LOGISTICS (PTY) LTD

1st Defendant

ADAM ABDI RASHID

2nd Defendant

DATE OF HEARING

: 21 OCTOBER 2015

DATE OF JUDGMENT

: 19 NOVEMBER 2015

COUNSEL FOR THE PLAINTIFF : ADV. BOWLES

COUNSEL FOR THE 1ST DEFENDANT : ADV. HITGE

COUNDEL FOR THE 2ND DEFENDANT : ADV. MAREE

JUDGMENT

DJAJE AJ

[1] This is an application for absolution from the instance by the Defendants at the close of the Plaintiff’s case.

Background

[2] The Plaintiff issued summons against the two Defendants for damages arising from a motor vehicle collision that occurred on 29 April 2011. In the particulars of claim the Plaintiff alleges that the collision was as a result of the negligence of both Defendants in that:

“2.1 The 1st Defendant’s employee and the 2nd Defendant failed to maintain proper or adequate control over their respective vehicles, resulting in an impact between these two vehicles, resulting in the 1st Defendant’s vehicle colliding into the Plaintiff’s parked vehicle;

2.2 That the Defendants’ vehicles were driven at speeds in excess of what was reasonable in the circumstances;

2.3 That the Defendants’ vehicles were driven in a manner which failed to take into account the rights of other road users, and more particularly those of the Plaintiff;

2.4 That the 1st Defendant’s driver and the 2nd Defendant failed to apply their brakes timeously or at all, in order to avoid a collision.”

[3] The Plaintiff testified that he is the owner of the Porsche Cayenne (“Porsche”) with registration number […….]

which on the day of the collision was being driven by his wife (“Mrs Mazwai”) with his consent. He further testified that the Porsche was bought by the firm of Attorneys Ledwaba Mazwai (“the firm”) where he is a partner and he in turn purchased the Porsche from the firm for +/- R560 000-00. He then insured the Porsche under his own policy and was responsible for payment of the premiums. As a result of the collision he was then paid an amount of R600 000-00 by the insurance company. He was not present on the day of the collision.

[4] The second witness for the Plaintiff was Alfina Sekgothe (“Sekgothe”) who on the day of the collision was driving behind Mrs Mazwai in a Mercedes ML 500 on their way to Botswana. According to her Mrs Mazwai had parked the Porsche next to the road on the left hand side and they parked 14 paces behind her on the side of the road. Whilst talking to them at their vehicle she saw a truck (1st Defendant’s) travelling from Botswana moving over to its left and then back onto its extreme right where it collided with the Porsche on the side of the road. She however did not see what caused the truck to move to the left side of the road and then back to the right to collide with the Porsche. After the collision she noticed a small car (2nd Defendant) in the middle of the road damaged. During cross examination she told the court that she did not see the collision between the truck and the small vehicle if any, she only heard from a certain lady about what happened.

[5] The last witness to testify was the expert who is an Assessor with Mutual and Federal and his testimony related to the amount paid to the Plaintiff and how it was calculated. He compiled a report after assessing the Porsche and having found that it reached the 70% repair mark recommended that it be written off. The amount claimed by the Plaintiff is the difference between the value of the salvage and the retail amount.

Absolution from the instance

[6] Three issues were raised as grounds for absolution by the Defendants. They are

· Locus standi – Ownership of the Porsche

· Negligence

· Quantum

Locus standi

[7] The submission by the 1st Defendant was that the Plaintiff sued as owner of the Porsche in paragraph 4 of the particulars of claim. However no proof of payment of the Porsche was discovered or whether the instalments were fully paid to the financial institution. The only document discovered was the one showing BMW finance as the title holder and the firm as the owner. It is the 1st Defendant’s case that the Plaintiff has failed to show that ownership of the Porsche passed to him upon full payment to either the financial institution or the firm. In support of the argument that ownership passes if payment is made reference to the following cases was made: Laing v SA Milling 1921 AD 387 at page 394.

[8] The 2nd Defendant supported the 1st Defendant’s argument on locus standi and just added that there is no chain evidence relating to the passing of ownership.

[9] The Plaintiff submitted that on the issue of locus standi he only needs to show that he has sufficient legal interest in the matter. Further that Plaintiff’s evidence on ownership is that payment to the firm took place in August 2010 and thereafter he had possession of the Porsche. It was submitted on behalf of the Plaintiff that there was an oversight in not having the vehicle

registered in his name.

[10] It is trite that ownership gives rise to legal standing to sue for compensation. In the case of Van Wyk v Herbst 1954 (2) SA 571 (T) it was held that:

“the right to sue under Lex Aquilia was originally enjoyed solely by the owner but that the right was gradually extended to others persons and further that the liability

could be enforced either by the plaintiff as owner or by the purchaser after taking cession of the right of action, as cessionary.”

[11] In Smith v Banjo 2011 (2) SA 518 (KZP) at par 17 it was stated as follows:

“The Plaintiff’s ownership of the motor vehicle establishes a direct interest in the diminution of the patrimonial value of the vehicle”

[12] It stands out in the above cases that ownership is an important element in a claim for damages. The Plaintiff in this matter averred in the particulars of claim at paragraph 4 as follows:

“At all times material hereto the Plaintiff was the owner of a 2005 model Porsche Cayenne Turbo Tiptronic with registration number SLC 121 GP.”

[13] This averment was denied in both the Defendants pleas and the Plaintiff was put to the proof thereof. Ownership has from the beginning of the pleadings been disputed by the Defendants and the Plaintiff as the dominis litis had the duty to establish ownership. The evidence by the Plaintiff was that the Porsche was initially bought by the firm through BMW finance and he thereafter bought it from the firm. The only document discovered is one indicating that BMW Financial Services is the title holder and Ledwaba Mazwai Attorneys is the owner. There are no further documents or evidence as to when ownership of the Porsche passed to the Plaintiff or proof of any payment towards the Porsche by the Plaintiff to the firm. It also appears in the firm’s fixed asset register that there were Porsches vehicle which formed part of the assets of the firm. This document does not assist the Plaintiff to establish ownership of the Porsche. If the Defendants were to take any action against the Plaintiff it would be difficult for them to establish if he was the owner of the Porsche in the absence of any documentary proof. The Plaintiff’s argument that it is sufficient to establish that he has legal interest in the matter cannot stand without substantial evidence. The Plaintiff was not the driver of the Porsche on the day of the collision and was not present at the time the collision happened.

[14] The test for absolution from instance at the end of a plaintiff’s case is well established. It is set out in the following passage from Gordon Lloyd Page & Associates v Rivera and Another 201 (1) SA 88(SCA) at 92E-93A:

“The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

“…(W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required or to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should nor ought to) find for the plaintiff…”

…This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff… As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one… The test has from time to time been formulated in different terms, especially it had been said that the court must consider whether there is ‘evidence upon which a reasonable man might find for the plaintiff’… Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ‘reasonable’ person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.”

[15] In my view the Plaintiff has failed to establish that he is the owner of the Porsche and therefore does not have the right to claim compensation for damages suffered. This directly impacts on whether the Plaintiff has made out a prima facie case against the Defendants. The Plaintiff’s failure to establish ownership affects his locus standi to institute these proceedings against the Defendants. On this point alone the Plaintiff’s claim cannot stand and absolution from the instance should be granted. In the result I will not deal with the merits and quantum of the case.

Order

Consequently, the following order is made:

1. Application for absolution from the instance by both Defendants is hereby granted.

2. The Plaintiff is ordered to pay the costs of suit.

ACTING JUDGE OF THE HIGH COURT