NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela v Mgwenya and Another (525/2023) [2023] ZAMPMBHC 65 (15 December 2023)

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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

CASE NO: 525/2023

(1) REPORTABLE:NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

DATE: 18/12/2023

SIGNATURE

In the matter between:

NMI DURBAN SOUTH MOTORS (PTY) LTD

t/a GARDEN CITY MOTORS MBOMBELA

APPLICANT

and

ZODWA MARIA MGWENYA

FIRST RESPONDENT

ETHEL MGWENYA

SECOND RESPONDENT

JUDGMENT

GUMEDE AJ

1. In this application, the applicant seeks restoration of its vehicle, a Mercedes Benz GLA 200, which is currently in the possession of the respondents.

BACKGROUND

2. It is common cause that on 15 July 2022, the second respondent delivered the first respondent’s vehicle to the applicant for service. On completion of the said service, the vehicle was test driven by one of the applicant's employees. While being test driven, the vehicle was hijacked. A loan vehicle was issued to the second respondent. The applicant contends that the loan vehicle was provided to the second respondent as a courtesy, until the applicant had conducted investigations into the hijacking of the first respondent’s vehicle.

3. The first respondent however denies that the vehicle was provided for a period only until the completion of the applicant’s own investigation and alleges that there was an oral agreement that she could keep the loan vehicle until the South African Police Services (“SAPS”) complete their investigation into the hijacking. She therefore argues that this matter cannot be decided on the papers due to the existence of this factual dispute.

4. She had also raised other various points of law, such as jurisdiction which she abandoned at the hearing of this matter as well as the non-compliance with the regulations governing the administration of oaths, which this court has already condoned.

5. The issue which the court is required to determine, is whether there exists a genuine dispute of fact which will prevent it from deciding this matter on the papers, if not, the court must then decide whether the applicant has made out a case for the return of its vehicle.

GENUINE DISPUTE OF FACT

6. As already indicated, the first respondent contends that she is entitled to keep the loan vehicle until the SAPS completes its investigation. On the other hand, the applicant contends that the vehicle was loaned to the first respondent, only until the applicant had finalized its internal investigation. To that end, the applicant’s version is supported by a contemporaneous communication which was sent by its legal advisor to the first respondent, dated 27 July 2022, stating that the incident of hijack was not attributable to any wrongdoing or negligence on their part and requesting the return of the vehicle by 28 July 2022.

7. The first respondent made various threats of litigation against the applicant in which she demanded the return of her hijacked vehicle. Various correspondence was exchanged between the parties resulting in an impasse.

8. Notably there is no allegation in any of the letters that were written on behalf of the first respondent, which suggests or points to the existence of an oral agreement that she could keep the loan vehicle until the investigations were completed by the SAPS. In one of the letters that was written by a Mr MM Nkosi who represented her at the time, it is simply stated that “it is further our instruction that your company handed a certain Mercedes Benz to our client to use in the meantime while trying to resolve the matter at hand but it was with great disappointment to our client to receive a letter from you company demanding the return of the motor vehicle by no later than 28 July 2022.” One would expect her attorney to put the applicant on terms that it (applicant) was not entitled to demand the return of the vehicle prior to the finalization of the investigation by the SAPS, if indeed the first respondent believed that there existed an oral agreement in that regard.

9. A second firm of attorneys who represented the first respondent (Dube Attorneys) wrote a letter to the applicant on 23 August 2022, requesting the applicant to permit their client to continue using the loan vehicle for a period of 30 days from the date on which the loan vehicle was given to first respondent since their client was struggling to execute her normal duties without a vehicle. It was pointed out to them that the 30-day period for which they were requesting, had already lapsed. They later, on 30 August 2022, advised the applicant that the first respondent had reneged on the agreement to return the vehicle despite having agreed to do so. In her answering affidavit, the first respondent does not deny the fact that her attorneys had communicated to the

applicant that she had reneged on the agreement to return the vehicle after agreeing to do so. She simply justifies her refusal to return the vehicle on the basis that there had been no conclusion of the investigation by the SAPS.

10. I am not persuaded that the so-called dispute of fact, which is raised for the first time in the answering affidavit, is genuine. I will therefore proceed to consider the second question, whether the applicant has made out a case for the return of its vehicle.

11. It is trite that for the applicant to succeed with a claim under rei vindication, it has to prove ownership of the vehicle, that the vehicle exists and is identifiable, that the respondents are in physical control of the vehicle, and finally that the respondents are impeding its possession of the vehicle.

12. In Chetty v Naidoo[1], the Supreme Court of Appeal held that it is inherent in the nature of ownership that possession of the res should normally be with the owner. 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 vindication, needs to do no more than allege and prove that he is the owner and that the respondent is holding the res, the onus being on the respondent to allege and establish any right to continue to hold against the owner.

13. In this case, it is common cause that the applicant is the owner of the loan vehicle. It is also common cause that the respondents are in possession of the loan vehicle. The respondents have not established any right to continue to hold the loan vehicle other than to allege that the applicant had offered the loan vehicle until the SAPS had finalized the investigation into the hijack of the respondent’s vehicle, which allegation has been found to not be supported by [contemporaneous] evidence and has been rejected.

14. The applicant has expressly stated that even if the first respondent has a claim against it for the loss of her vehicle while in its possession, that claim is separate from this application. I agree with that contention. The respondents have not established any right to continue to hold the loan vehicle which belongs to the applicant.

15. In the result, I make the following order:

1. The first and second respondents are ordered to restore the applicant’s full possession, use, and control of the motor vehicle, described as a Mercedes Benz GLA 200 with registration number J[...] 2[...] M[...].

2. If the first and second respondents fail to restore possession as stated in 1 above, the Sheriff of this court is directed and authorized to take possession of the aforesaid vehicle and to deliver it to the applicant.

3. The first and second respondents are ordered to pay the costs of this application.

Z GUMEDE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 18 December 2023 at 10:00.

APPEARANCES

For the applicant: Ms C Smart Instructed by: Barkers Attorneys, Umhlanga Ridge For the Respondents: Mr I Mabaso Instructed by: Bhila Attorneys, Mbombela Date of hearing: 1 September 2023 Date of judgment: 15 December 2023

[1] 1974 (3) SA 13 (A) at 20B-D