Rousseau v Lombard and Another (M241/2019) [2020] ZANWHC 5 (30 January 2020)

Rousseau v Lombard and Another (M241/2019) [2020] ZANWHC 5 (30 January 2020)

The applicant could not have donated or transferred ownership of the motor vehicle to the first respondent because he was not the owner; the vehicle was subject to an instalment sale agreement with the second respondent, who retained ownership until full payment. The agreement expressly prohibited transfer without...

Source-derived case information.

Citation
[2020] ZANWHC 5
Parties
Applicant: Rousseau Herman; Respondent: Lombard Natasha (nee Henery, nee Van der Merwe); Respondent: Firstrand Bank Limited t/a Wesbank
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 January 2020
Case Number
M241/2019
Procedural Posture
Opposed Motion / First Instance
Outcome
Application granted; the first respondent is ordered to return the motor vehicle to the applicant.
Judges
Nobanda
Legal Topics
Instalment Sale Agreement, Ownership Transfer, Donatio Inter Vivos, Executory Donation, Section 5 General Law Amendment Act
Civil Procedure Land and Property Instalment Sale Agreement Ownership Transfer Donatio Inter Vivos Executory Donation Section 5 General Law Amendment Act

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Parties

Rousseau Herman

Applicant

Lombard Natasha (nee Henery, nee Van der Merwe)

Respondent

Firstrand Bank Limited t/a Wesbank

Respondent

Procedural Posture

Opposed Motion / First Instance

Legal Issues

  1. 1 Whether the applicant donated the motor vehicle to the first respondent.
  2. 2 Whether the applicant had the legal capacity to transfer ownership of the motor vehicle to the first respondent.
  3. 3 Whether the alleged donation complied with section 5 of the General Law Amendment Act.

Ratio Decidendi

The applicant could not have donated or transferred ownership of the motor vehicle to the first respondent because he was not the owner; the vehicle was subject to an instalment sale agreement with the second respondent, who retained ownership until full payment. The agreement expressly prohibited transfer without the bank's written consent, which was not obtained. Any purported donation was executory and, in terms of section 5 of the General Law Amendment Act, required to be in writing and signed, which was not the case. The first respondent failed to prove on a balance of probabilities that a valid donation occurred or that ownership was transferred. The analogy of cession of personal...

Court Disposition

Application granted; the first respondent is ordered to return the motor vehicle to the applicant.

Orders

  • The first respondent is ordered to return to the applicant the Ford Everest 2.2 TDCI XLT A/T Ford with registration JZW 995 NW within 5 days of this order.
  • Alternatively, the Sheriff or deputy is authorised and directed to take control of the said motor vehicle wherever it may be found and return it to the applicant.