Prinsloo v Venter and Others (80848/2014) [2015] ZAGPPHC 1057 (10 December 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

(GAUTENG DIVISION, PRETORIA)

DATE: 10/12/2015

CASE NUMBER: 80848/2014

In the matter between:

PAUL

MICHAEL

PRINSLOO Applicant

And

SONJA

ELAINE VENTER First

Respondent

CHAHENG TRADING (PTY)

LTD

Second Respondent

PIETER

JOHANNES

VENTER

Third Respondent

SHERIFF

OF THE DISTRICT OF WONDERBOOM

Fourth Respondent

JUDGMENT

STRAUSS, AJ:

1. The applicant launched an application during November 2014 seeking an interdict against the first respondent to immediately return a Chevrolet Spark hatchback motor vehicle, a refrigerator, washing machine, tumble dryer and dishwasher, alternatively that the fourth respondent be authorised to attach the mentioned items and control the items until the main application is finalised.

2. An interim order was granted by Makgoba J, on 21 November 2014, with a return date of 22 January 2015 authorising the Sheriff to attach the said goods and the costs were reserved.

3. The rule nisi was extended to 13 April 2015. In the meantime the application had become opposed and the first respondent had filed her opposing affidavit.

4. The matter was therefore enrolled on the opposed motion court roll to be heard on 25 June 2015. On this date Moosa, AJ referred the application for oral evidence in terms of Rule 6(5) of the Uniform Rules, due to disputes of fact, reserving the costs.

5. No issues that were in dispute were set out in the order of Moosa AJ and it seemed to be a general referral for oral evidence to be heard from the parties who had made affidavits in the matter.

6. Throughout the application and up until 4 November 2015 both parties had legal representation. The second, third and fourth respondents

never opposed any of the relief sought in the application and no relief was specifically asked against them, and they would seemingly

abide by the order of the Court.

7. Two pre-trials were held before the Honourable DJP Ledwaba, and due to the request of the applicant and the pre trials held, the matter was set down for oral evidence on a preferent trial date for 1 - 3 December 2015.

8. On 1 December 2015, the matter was allocated to myself for trial. An attorney appeared on behalf of the first respondent, she had only been appointed as attorney of record the previous day as the previous attorneys of the first respondent had withdrawn on 4 November 2015. She sought a postponement of the application on behalf of the 1•1 respondent.

9. The applicant's attorneys had withdrawn the previous day, but the applicant indicated to the court that he was ready to proceed with the matter in person, he could no longer afford the legal fees and storage cost of the goods.

10. After hearing argument in regards to a postponement I refused the postponement due to the fact that the application concerns movable goods with a value in the region of R85, 000.00. I was informed by the applicant that the vehicle has been in possession of the Sheriff since January 2015, at the cost of R350.00 per day for storage costs. Thus, the finalisation of the application was in the interest of justice, and the prejudice to the applicant who is responsible for the storage costs of the said vehicle far outweighs any cost order that could be granted in his favour.

11. No costs were even tendered by the first respondent and a postponement was sought in order for the attorney to prepare and also

to obtain further documentation from further witnesses.

12. I was also informed on the day of the trial that the third respondent, one Mr Pieter Johannes Venter, would not be available as a witness as he passed on two weeks prior to this application being heard.

13. The Court refused the postponement and the attorney of the first respondent then withdrew as attorney of record and she was excused. Therefore, the parties were both unrepresented and proceeded in person in front of the Court.

14. I allowed the matter to stand down until 2 December 2015 in order for the first respondent to be provided with a full set of papers by the applicant and also to enable her to study same and continue with the matter on 2 December 2015.

15. The issues to be decided are whether the applicant and/or the first respondent was the owner of the movable goods as set out in the notice of motion, and whether the applicant is entitled to be given possession of the motor vehicle or whether the first respondent had acquired ownership of the goods and could claim the goods.

16. The applicant's version as set out in the papers and elaborated under oath was as succinctly the following. On 22 July 2014 he saw an advertisement for the motor vehicle in the Junk Mail. He reacted to the aforesaid advertisement and phoned Mr Pieter Venter (3rd respondent) hereinafter referred to as the "deceased".

17. He was informed over the telephone that the motor vehicle was at a house in Nanel Street, Faerie Glen. On his arrival at Nanel Street to view the vehicle the house was found empty and he could not find anybody resident there. He phoned the deceased and told him that no one was at the address and the deceased said he would phone him back. Shortly thereafter the applicant received an SMS from one Markie de Wachter with the GPS coordinates of where the vehicle could be located. Markie is his grandchild's grandmother with whom he has relatively little contact due to the fact that they are not on speaking terms. He was also telephoned by his daughter's ex-boyfriend enquiring if he had received the GPS coordinates from Markie. It later turned out that Markie also assisted the deceased with medical care and she was also employed by the 1st respondent in 2013. At the time the applicant said he had no knowledge hereof.

18. He proceeded to the address and saw the vehicle standing outside. He walked around the vehicle, checked the condition of the vehicle and telephoned the deceased and informed him that he was interested in the vehicle and that he would like to purchase it.

19. The deceased informed him that he stays in Rooiberg near Thabazimbi and that the applicant had to proceed to drive to Rooiberg and also bring an amount of R50, 000.00 as deposit for the motor vehicle, and they could then enter into an agreement.

20. He drove through to the deceased's home on 26 July 2014 and paid him an amount of R50,000.00 cash. He was provided with a written

agreement by the deceased to purchase the goods as set out in the notice of motion for an amount of R85.000.He was provided with an invoice that was mailed to him indicating that he had indeed deposited an amount of R50,000.00 in cash, the invoice was dated 22 July 2014.

21. He informed the Court that it was the first time he met the deceased. The deceased spoke incoherently as if he was intoxicated and he had an abnormal gait when he walked he also did not drive properly. It is not in dispute between the parties that the deceased had been involved in an accident 10 years prior to this matter and had in fact suffered brain damage that effected his speech and moods, further injury caused him to not be able to walk in a normal manner, but that he was still able to conduct his own affairs and that he was a businessman who had accumulated quite a substantial amount of wealth during his life time.

22. The deceased informed the applicant that the applicant had to collect the vehicle, the Chevy Spark from the first respondent, a Mrs Venter. The applicant assumed they were married and that there was issues between them as they were staying separately. Their intention was that the applicant could take possession of the vehicle immediately and register it on his name and that he would become the owner and that he would pay the balance of the purchase price in three instalments, of R10, 000.00 per month up until 5 October 2014.

23. The applicant proceeded to the first respondent's address the next day and found the first respondent at the residence. He introduced

himself and said that he was there to fetch the vehicle as he had purchased it from the deceased. The first respondent immediately

responded very negatively and said that this was one of the deceased's schemes again.

She contacted her attorney, Mr Pieter Coetzee, who spoke to the applicant over the phone and told him that it was the 1st respondent's vehicle, that the applicant had no right to the vehicle and that he must sort it out with the deceased.

24. The applicant thereafter phoned the deceased and asked him what was going on. He was once again told by the deceased, which was also confirmed by the deceased's attorney, that he had a valid contract with the deceased, that the deceased was the owner of the vehicle and that he was within his rights to sell the vehicle to the applicant and that the applicant must get the vehicle from the first respondent and that the deceased was not going to reimburse him in respect of the vehicle.

25. The vehicle, when it was sold to the applicant, was registered in the name of a company of which the deceased was the only director. The deceased also informed the applicant that the rest of the movable goods,

i.e. the fridge, tumble dryer, etc. were included in the deal and that he could also take those goods at no extra costs. The applicant

testified that he never saw these goods advertised in the junk mail and never had the intention when he signed the agreement to obtain these goods for himself.

26. The applicant states that he once again drove through to Thabazimbi to go and see the deceased to discuss reimbursement. The deceased convinced him that it was not the first respondent's goods and he provided him with the registration certificate of the vehicle and also the document to effect transfer into his name.

27. The applicant referred the court to the transfer documents signed by the applicant on 29 July 2015, and also the registration of the vehicle in his name on 30 July 2015. The 151 respondent refused to give the vehicle to the applicant when he contacted her and he there after either tried by way of the police and the Magistrate's Office to get the vehicle. He eventually ended up at his previous attorneys' of record who launched the application as mentioned and the goods were attached by the Sheriff during January 2015. The goods are still with the Sheriff, and the applicant is responsible for storage costs. The applicant now continues with this application and essentially seeks a re vindicatio as the owner of the goods and he admits that he will be liable to pay storage cost to be able to take possession of the goods at the offices of the sheriff.

28. The first respondent's version is the following. She says that during 2013 she was introduced to the deceased and due to the fact that he was in love with her and also a businessman who invested money in various projects, he approached her to invest an amount of money into her business known as Healthco. She always stressed that they would not have a relationship and the romantic feelings only came from the deceased. She testified that her business manufactures and distributes vitamins and other alternative health methods to the general public.

29. She and the deceased after various discussion some of which are contained in emails in the papers, eventually entered into a written agreement on 12 April 2013, in terms whereof the deceased invested a total amount of R1, 1 million into the business of the first respondent. She would conduct her business as a division of Chaheng Pty Ltd. The company of the deceased.

30. The amount of R1, 1 million in terms of the agreement is split up in two amounts, being an amount of R300, 000.00 for financing the business activities and the balance was borrowed to her for a period of six months where after she had to start repaying the R300, 000.00. In paragraph 5 the following is stated in regard to repayment of the R1,1 million:

"Sonja sat tot tyd en wyl die voile gefinansierde bedrag van R1.1 miljoen aan onderskeidelik Piet en aan Chaheng terugbetaal is, of 'n ander datum soos tussen die partye ooreengekom, as 'n divisie van Chaheng handeldryf."

31. Thus, in terms of this agreement the first respondent had to remain in the business as a subdivision of Chaheng to repay the amount of R1,1 million and/or another date agreed between the parties.

32. What transpired, is that certain amounts were paid to the first respondent shortly after signing of the agreement. The Chevy Spark was purchased on 30 April 2013 by a company RZT ZELPHY Pty Ltd for the 1•1 respondent. The first respondent went to a garage and chose the vehicle the financing agreement was signed by the deceased and the negotiations in regard to the motor vehicle and the payment thereof took place via emails between the deceased and the garage. The invoice of the vehicle was made out to this company also a company of the deceased and the registration papers of the vehicle were later changed to Chaheng Pty Ltd but the delivery address was that of the first respondent.

33. This R119, 000.00, which was paid by the deceased towards the purchase of the vehicle, the first respondent says was deducted from the amount of R1, 1 million that the deceased had invested in her business. In the same manner the first respondent purchased goods at Makro which are the other movable goods mentioned in the notice of motion. The 1st respondent went to Makro chose the goods and phoned the deceased and then payment was made directly per EFT for the goods to Makro by the deceased.

34. Thus the deceased and or the company represented by the deceased paid for all the goods as set out in the notice of motion, but all the goods were in the 1•1 respondent's possession and she subtracted the amounts owed for these goods from the amount invested by the deceased. She had thus received goods instead of money as part of the investment made by the deceased in her business.

35. The first respondent indicated to the Court that the business did not make any money, and that she could not for a period of six months conduct her business from the house made available to her by the deceased, due to the fact that another person had to be evicted first and that when she moved in she had to effect a lot of repairs to the premises in order for her to be able to live there. She has not paid back any amounts to the deceased.

36. During November 2013, some disputes arose between herself and the deceased, but they continued with the business, or tried to. There are e­ mails in the papers that showed to the court that still during May 2014 the parties were still discussing insurance on the vehicle and that the deceased was responsible for the insurance. The first respondent admits that the vehicle had been registered in the name of company of the deceased due to the fact that she was busy going through a divorce and that she did not want her husband to be able to claim as part of the accrual half of the goods, and therefore it was agreed that it would be registered in the name of the deceased company. However, in her opposing affidavit it is mentioned twice that the vehicle was registered in the name of Chaheng for tax purposes on the request of the deceased.

37. The first respondent on 27 June 2014 by way of her attorney, Mr Pieter Coetzee, cancelled the agreement with the deceased indicating

that the deceased had only performed by paying R960,000.00 and not the full R1,1 million and also indicated that the money was made up out of a cash and the mentioned movable goods. It seems as if the deceased was at that stage claiming the goods back and/or had claimed payment from the first respondent. A sim-swap was also done on the 1st respondent phone by the deceased, which made it impossible for her to conduct the business any further.

38. Her attorney on her behalf requested that the licensing documentation is handed to her in order for the vehicle to be transferred into her name. The attorney disputes in the letter that the deceased is the owner of the goods and stated that in the event of the deceased being so inclined the goods can be sold back to him at its value when purchased.

39. The 1st respondent confirmed that the agreement was cancelled between her and the deceased prior to the first applicant purchasing the vehicle from the deceased nearly a month later.

40. Due to the fact that both parties acted in person I allowed them to hand up further documentation. The first respondent handed up a supplementary affidavit and an affidavit of her domestic servant working for her who was with her when the applicant attended at her house to collect the vehicle. She confirms that the applicant on 29 July 2015 came to the property of the 1st respondent showed her some papers and demanded all the movable goods. That the 1st respondent phoned her attorney and that the attorney spoke to the applicant over the phone and the applicant left and said that he was going to phone the police and lay a theft charge against her.

41. The applicant also handed up an affidavit of Markie de Wagter which she had deposed to on 23 October 2015, to obtain a family violence interdict against one Mr Willem Botha.

42. The first respondent confirmed that Mr Willem Botha is currently her business partner and also the person who was supposed to finance litigation of the matter. He had been assisting her throughout this whole process, he had investigated the matter on her behalf, and had discussion with her attorneys and also had discussions with the applicant, his attorney, and Mrs De Wagter. Mr Botha also made an affidavit in which he sets out his opinion that everybody is lying except the first respondent. In the affidavit he states that the 1st respondent is the owner of the goods and that she has been victimized by the deceased and that the deceased has used the applicant to obtain possession of the vehicle and that the sale of the vehicle to the applicant was a scam and a fraudulent transaction to prejudice the 1st respondent.

43. The same Mr Botha had on date of trial withdrawn his support for the 1st respondent and was only willing to assist her if she made him a 50% shareholder in one of her other businesses, he is in effect blackmailing her and she said that she was shocked by this. She however insists that he is still an honest man and that the court

should believe his affidavit under oath, even though he was not available to testify on her behalf after knowing about the trial

date.

44. The 1st respondent states under oath that the applicant must have known the deceased before and that the applicant in fact never paid any money for the vehicle, but that the deceased had in fact enabled the applicant to purchase the vehicle by paying money into his account. That is why the applicant was requested to discover his bank accounts for a period prior to the purchasing of the vehicle

and also for a period thereafter. Having regard to the bank statements the court could pick up no payment by the deceased and or

an entity owned by him into the account of the applicant. The 1st respondent could also not point out any such payments.

45. Further the first respondent indicated to the court that Markie de Wagter would tell the court that there was such an agreement between the deceased and the applicant and that they set this whole thing in motion to prejudice the first respondent, due to the fact that the deceased was in love with her and she did not reciprocate his feelings. She states that the deceases when she became engaged to another man decided to get her back. She also indicated to the court that she was still waiting for an affidavit and/or there were recordings made of a conversation that took place between the applicant and Mr Botha in regards to this alleged collusion with the deceased.

46. The affidavit of Markie Wagter in which she obtained the mentioned protection order sets out in detail that Mr Willem Botha, according to Ms De Wagter, was intimidating her and wanted her to make an affidavit against either the deceased and/or the applicant and confirmed that there was such an arrangement or agreement between them. She sets out in this affidavit that she was not present when any agreement was made in regards to the vehicle between the applicant and the deceased. She states that any information she has would be hearsay and is also based on what other people had told her. She had on numerous occasions told Mr Botha that she did not want to get involved and that she is not going to make an affidavit in this matter on anyone's behalf. She felt threatened by Mr Botha and therefore obtained an interdict against him.

47. Before this interdict was obtained by Ms De Wagler the first respondent also obtained an interdict against the deceased and the applicant during November 2014, in the magistrate's court. She felt intimidated and harassed due to the fact that the applicant insisted on the vehicle being delivered to him. She felt threatened by the deceased because he had made attempts to fetch the vehicle and/or other goods from her premises. Further, that the deceased had also in SMS messages told her in no uncertain terms that he wants his goods back.

48. The first respondent claims as her defence that she could not start to make repayment on the investment due to the fact that the deceased had stopped the business himself and had caused her damage. She also alluded to the fact that on 1 June 2014 the deceased had informed her that she had to leave the property in Nanel Street, and also leave all the movable goods behind, including the Chevy Spark.

49. Mr Morne Viviers, an agent of Mr Pie! Venter, the deceased, also indicated to her that he was there to fetch the Chevy Spark and that if she did not want to cooperate then he will know what to do next. Thus, she since June 2014 refused to hand over any of the goods to the deceased and/or any of his agents acting on his behalf.

50. The first respondent claims that the goods are hers due to the fact that she entered into an agreement with the deceased and that she could repay him only once the business started making money and only once they would sit down and arrange such repayment. Up until then she did not have to repay him and even now she is not able to repay him, but the goods were purchased and they were hers. She denies that the goods remained the property of the Pty Ltd until she reimbursed the deceased in the full amount he invested in her company, she says the goods became hers and that she could repay the deceased only when they had sat down and made such an arrangement.

THE

LAW

51. The issue of ownership of a motor vehicle is dependent upon those procedures that are specifically laid down in the Road Traffic Act and Regulations. The term owner is defined in s 1 of the Act to mean, in relation to a vehicle:

"(a) the person who has the right to the use and enjoyment of a vehicle in terms of the common law or a contractual agreement with the title holder of such vehicle;

(b) any person referred to in paragraph (a), for any period during which such person has failed to return that vehicle to the title holder in accordance with the contractual agreement referred to in paragraph (a); or

(c) a motor dealer who is in possession of a vehicle for the purpose of sale, and who is licensed as such or obliged to be licensed in accordance with the regulations made under section 4, and 'owned' or any like word has a corresponding meaning.

Title holder is also defined in s 1 of the Act. The term mean, in relation to a vehicle:

(a) the person who has to give perm1ss10n for the alienation of that vehicle in terms of a contractual agreement with the owner of such vehicle; or

(b) the person who has the right to alienate that vehicle in terms of the common law, and who is registered as such in accordance with the regulations under section 4.

52. An owner of a vehicle as reflected in the registration papers is not a mere figurehead. He is an active party who cannot be bypassed when the vehicle's ownership is changed. It is so that the change of ownership from title holder to the owner as well as from owner to the third party may take place on the same day or simultaneously. It may so happen that an owner would have paid off the amount owing to the title holder, but had not yet demanded that the latter amended or caused to be amended the registration papers to reflect him as both title holder and owner. However, whenever that vehicle is to be transferred into the name of the third party there must be definitely be a transfer, first from the title holder to the owner, who in turn transfers such vehicle to the new owner and/or title holder as the case may be. To act otherwise would be contrary to the traffic laws. rules and regulations and would be unlawful or illegal. The owner of a thing has a right to possess it, to use it and enjoy it, to destroy it and to alienate it. If any of these things are in any way infringed he has appropriate legal remedies like in the case of rei vindicatio.

53. In South African law the importance of the action of rei vindicatio flows from Chetty v Naidoo 1974 (3) SA 12 (A) 208 - D. It is inherent in that nature of ownership that possession of the res should normally with the owner and it follows that no other person may withhold it from the owner unless he is vested with some rights enforceable against the owner. The owner in instituting a res 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.

54. The applicant in essence brings a rei vindicatio or vindicatory action and he needs to prove two facts. namely that he is the owner of the thing and that the thing is in the possession of the first respondent. It does not make any difference whether the possessor is bona fide or ma/a fide. The owner of the movable property found in the possession of a third party may recover it from any possessor without having to compensate him even from a possessor in good faith who gave value for it. Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd [1992] ZASCA 208; 1993 (1) SA 77 (A) at 82 Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A).

55. If the defence is a right to possession (for example a right to possession by virtue of a lease) the person claiming that right must allege and prove the right. Chetty v Naidoo 1974 (3) SA 13 (A)

56. If that right is conceded at any stage of the proceedings, the onus will be on the person claiming rei vindicatio to prove a valid termination of that right. Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C), Schnehage v Bezuidenhout 1977 (1) SA 362 (0)

57. In regards to transfer in Trust Bank van Afrika Bpk v Western Bank Beperk & Andere NNO, the court found that ownership of a thing only passes where the owner delivers it to another with the intention of transferring ownership and the other takes the thing with the intention of acquiring ownership. As Trengrove, AJA put in that case:

" Volgens ons reg gaan eiendomsreg op 'n roerende saak op 'n ander oor waar die eienaar daarvan dit aan 'n ander fewer met die bedoe/ing om eiendomsreg aan hom oor te dra en 'n ander die saak neem met die bedoeling om eiendomsreg daarvan te verkry. Die geldigheid van die eiendomsoordrag staan los van die geldigheid van enige ander onderliggende kontrak."

58. Ownership of movable property does not in our law pass by the making of a contract. It passes when delivery or possession is given, accompanied by an intention on the party of the transferor to transfer ownership and on the part of the transferee to receive it. It is not in dispute between the parties that the applicant was never given possession by the deceased. The applicant was informed that he had to obtain possession of the motor vehicle from the first respondent.

59. Delivery usually occurs either by way of actual delivery (traditio vera) when the goods are physically handed over by one person to another. Or constructive delivery concerns those various methods of transferring ownership by which no physical handing over of the res vendita takes place. This form of constructive delivery will take place if the buyer is placed in possession of a symbol by which the byer gains contrail over the goods. The parties must have either intention to resort to this form of delivery and the symbol must be delivered with the intention that ownership shall pass and the seller must supply the buyer with exclusive control.

ANALYSIS

60. According to the applicant in order to change the ownership of the motor vehicle in issue here, one had the necessity or invariably had to have a change from the title holding of Chaheng into his name as owner. This was done by the applicant on 30 July 2014, after a formal document setting out the particulars of the buyer, a declaration and an identification of the motor vehicle was handed in at the licensing department. Thus, making him owner and title holder.

61. The previous owner of the vehicle was at all times been the company of the deceased Rzt Zelphy Pty then Chaheng Pty with the deceased as the only director. The deceased also certainly viewed himself as the owner of these goods as even prior to the applicant purchasing these goods he made demand for these goods from the first respondent and also told her to leave the goods behind in his house. He also sent an agent to collect these goods. How legal that attachment procedure might or might not have been, is not currently the issue. What is in issue is that the court having regards to the sms sent by the deceased to the 1st respondent finds that the deceased was in fact the de facto and registered owner of the goods, viewed himself as the owner of these goods and wanted the goods back, and could also therefore dispose of the goods.

62. The first respondent denies that he was the then owner due to the fact that she relies on the agreement she had entered into with the deceased. Even after cancellation of the agreement in June 2014 by the first respondent she is still of the opinion that she is the legal owner of the goods and that she may dispose of the goods and/or use the goods.

63. The 1st respondent disputes thus that the registered owner and tile holder Chaheng was the owner of the goods, when the goods were purchased by the deceased, she stated that she became de facto owner, and Chaheng was only owner in name.

64. In this matter the registered owner first Chaheng and then the applicant had never possessed the property. They both at some stage sought possession and or delivery from the first respondent. The first respondent has always been in possession of the goods as she claims ownership of the goods.

65. This court heard evidence that the deceased was the registered owner and tile holder and sought return of the goods. He possessed all the legal rights to sell the goods as he had purchased the goods. It is clear that the deceased authorised the sale of the property to the applicant and also was of the opinion that the goods belonged to him as they were so registered in the name of his company, and the 1•t respondent owed him money. The court thus finds that he as the legal owner only had the authority to sell the goods to any other party including the applicant and/or to decide to leave the goods with the first respondent.

66. The 1st respondent on her own version cancelled the agreement with the deceased, and I find, that such termination also termination her right to possession of the vehicle.

67. The applicants evidence however was clear that his only intention was to purchase the vehicle and when he signed the agreement it was for the vehicle and he only realised later that he had received some other goods in the bargain. His attorney when launching the application requested attachment of all the goods as set out in the agreement. However when the court now has to make a decision in regard to ownership of the goods I can only do so based on the law set out herein above.

68. If regard is to be had to the manner of delivery being constructive delivery as set out above I have to have regard to the intention of the parties when entering into the agreement as to the specific delivery and purchase of the goods.

69. Therefore I find that the second respondent in terms of the written agreement was capable and entitled to transfer the ownership of the motor vehicle by signing the agreement, accepting the payment for the vehicle, handing over all registration papers and title holding of the vehicle. The applicant also viewed the vehicle before making payment and upon making payment made demand for the vehicle. The applicant is currently the registered owner and title holder of the motor vehicle.

70. The intention of the applicant and 2nd and 3rd respondent as to delivery and purchase of the other movable goods is not clear form the evidence or the papers, the applicant just took these goods as part of the bargain and had not entered into a specific agreement in regards to these goods. I cannot read intention into the agreement and cannot therefore finds that these goods were delivered and purchased by agreement in the same manner as the agreement reached in regards to the Chevy Spark.

71. The first respondent refers to affidavits, foul play, conspiracy and perjury and relies on the business agreement annexed to her papers to prove her ownership of the vehicle. The first respondent's version is in no way confirmed by any confirmatory affidavit and/or evidence in this court.

72. Any right that the first respondent had to possess the property is different than any right of ownership. I find that she could not in light of the case law hold and keep possession of the goods against the applicant. Her claim for having a right to the goods is against the deceased and not the applicant in this matter. The first respondent has not acquitted herself of the onus to establish a right to continue to hold the goods against the applicant. As stated previously her version is conjecture and speculative and has not been proven under oath and/or on the papers.

73. I therefore make the following order:

1. The applicant is declared the owner of the following goods:

A Chevrolet Spark hatchback motor vehicle with registration number [.....]; identification number ADMMF48DLV4636576;

2. The fourth respondent is ordered to hand over the abovementioned vehicle to the applicant on his claim thereof.

3. The applicant to pay the Sheriff any costs in relation to the storage of the said vehicle at the offices of the fourth respondent on claiming such vehicle.

4. The first respondent is ordered to pay the applicant's costs of the application on a magistrate's court party and party scale, up until 30 November 2015, excluding any costs for trial and the attendance of the parties on 1, 2 and 3 December 2015 at court.

5. The 1st respondent is declared the owner of the following goods:

one refrigerator, washing machine, tumble dryer and dishwasher as identified in the attachment of the 4th respondent.

6. The fourth respondent is ordered to hand over the abovementioned goods to the 1st respondent on her claim and payment thereof.

7. The 1st respondent to pay the Sheriff any costs in relation to the storage of the said goods at the offices of the fourth respondent on claiming such goods.

____

S

STRAUSS

ACTING

JUDGE OF T GAUTENG DIVISION

GAUTENG

DIVISION PRETORIA

FOR THE APPLICANT: IN PERSON

FOR THE FIRST RESPONDENT: IN PERSON

DATE OF HEARING: 2 DECEMBER 2015

DATE OF JUDGMENT: 10 DECEMBER 2015