Singh v BMW Financial Services (SA) (Pty) Ltd and Another (5345/2006) [2007] ZAKZHC 27 (23 October 2007)

IN

THE

HIGH

COURT

OF SOUTH

AFRICA

DURBAN

AND COAST LOCAL DIVISION

Case No. 5345/2006

In the matter between:

KHOOSIAL SINGH Applicant

And

BMW FINANCIAL SERVICES (SA) (PTY) LTD First Respondent

SMG AUTO DURBAN (SA) (PTY) LTD Second Respondent

JUDGEMENT

ROWAN AJ

[1] In this matter the applicant initially sought an order for specific performance.

The claim in its original form was, inter alia, for the delivery of a new BMW X5 4.41 automatic motor vehicle first registered in the year 2006 and bearing a specifically mentioned registration number as reflected in an agreement of sale entered into on the 22 December 2005 between the applicant and the first respondent. In concluding the agreement the applicant dealt directly with the second respondent acting as agent for the first respondent

"for purposes of delivery".

[2] The claim for specific performance was made on the 10th May 2006 when this application was first instituted. It has now transpired, and no doubt inter-alia in view of the intervening passage of time, that it would be impossible for the respondents to comply with such an order. The applicant has consequently amended his relief. He now seeks an order that the agreement giving rise to the sale of the BMW vehicle already mentioned be declared to be of no force and effect. He tenders return of the motor vehicle, which he has had in his possession since 31 December 2005. He also claims payment of various listed amounts as being amounts paid and expenses incurred in consequence of the agreement taking effect.

[3] The argument put forward by Ms Julyan SC for the applicant was that the agreement entered into between the applicant and the first respondent was clear. The motor vehicle purchased was required by the agreement to be a BMW motor vehicle (as earlier described) with “Year of first registration 2006". It was common cause that the vehicle sold and delivered to the applicant was first registered in 2005. Performance, so it was argued, had to be strictly in terms of and in the manner specified in the contract, in forma specifica. Once that vehicle had previously been registered prior to 2006 the respondents did not, or were then unable to, perform strictly in terms of the agreement, and, so it was further argued, a declaration that the agreement was of no force and effect with consequent restitution had to follow.

[4] We know from the undisputed facts of this case that the applicant was ultimately, in April 2006, presented with a Certificate of Registration in respect of this BMW vehicle reflecting that it was "new" and that the "Date of liability for first licensing (Not year model)", which I would accept to be the equivalent of the "Year of first registration", was “2006 -04 -04”. This is reflected in annexure “K” to the applicant’s founding affidavit. At that time the vehicle was still in the possession of the applicant. It was not disputed that by then, and because of the delays in registering the vehicle in his name and the apparent confusion and uncertainty that had arisen therefrom, the applicant had locked the vehicle in his garage where it has remained, not further used, until now.

[5] It has been argued by the respondents that the applicant ultimately “got what he bargained for”. That once the so-called "errors" relating to registration had been attended to and rectified the applicant received the very same vehicle that he had identified, that it was new and that the first year of registration reflected in the Certificate of Registration was 2006. In the alternative it was contended that delivery of the BMW vehicle into the applicant's possession constituted substantial performance by the first respondent under the contract. In elaboration of this argument it was contended that the applicant was only entitled to reject the first respondent's performance if it was seriously or substantially defective. It was further argued by the second respondent, that the defect complained of by the applicant is trivial and does not in any way affect the value of the vehicle.

[6] It was also argued on behalf of the Second Respondent, and I will deal with this argument immediately, that contrary to the express provision in the agreement that the year of first registration was to be 2006, the applicant in fact recognised that the year of registration of the motor vehicle as a new vehicle took place in 2005. Reference in this regard was made to an acknowledgement of this fact in the affidavits and a finance application form, annexure CV2 which reflected the year of registration as 2005. In the latter regard I would mention that the finance application form (annexure CV2) is a tightly pre-typed document which the applicant is merely required to sign. The year of registration as reflected in that document as being 2005 was clearly an error and in contradiction of the first respondent’s own instalment sale agreement specifying the year of first registration as 2006. The overriding feature of this case and which is accepted as being common cause, was that the applicant wanted to purchase a vehicle which was first registered in 2006. The respondents have openly acknowledged this. It is never been their case that the applicant was aware from the outset that this was a vehicle that had already been registered in 2005 and that he, for instance, waived compliance with the specific terms of the instalment sale agreement in this regard. Neither has estoppel been raised against the applicant. My view is that any argument based on the applicant's signature being appended to a document typed up and drawn by one or other of the respondents containing as a very small portion of that document information which was at variance with the main agreement and which is clearly wrong, has no merit.

[7] In weighing the various further arguments presented, consideration has to be given to the fact that the first registration of this vehicle in 2005 had quite clearly been done in error. This had occurred as a result of an administrative bungle at the hand of the second respondent arising from a sale of this selfsame vehicle to another would-be purchaser (Merrick). Although this purchaser had resiled from that agreement and purchased a different vehicle, the process of registration into such purchaser’s name was, wrongly, proceeded with. This occurred on 21 October 2005 by way of what was described as an "oversight” by the second respondent. The error however had been amended and registration in the name of the would-be purchaser was rescinded.

[8] For purposes of pursuing her argument, as I understood it, Ms Julyan was prepared to concede that if that was all that had occurred and the vehicle had gone back into the second respondent's dealer stock without more, that may have had the effect of "wiping the slate clean" as it were, an effective expunging of the record of registration. That would mean that the previous erroneous registration in 2005 could be disregarded vis-a-vis the sale that had taken place to the applicant and which specifically required the first date of registration to be 2006.

[9] But that was not where the matter ended. What happened at the time when the registration record in the name of the would-be purchaser Merrick was expunged was that a sales person or “licensing clerk” in the employ of the of the second respondent, for reasons best known to him or her or the second respondent, then registered this vehicle into the name of the second respondent under a certain registration number (ND 18000). This constituted a deliberate and intentional act of registration. It was not an “oversight”, which is what the first registration was described as, and was never claimed to be so. Indeed, a registration fee was paid by the second respondent and it became the registered owner with an “ownership start date” of 27 October 2005. The fact that the vehicle went back into "dealer stock" and presumably onto the showroom floor for sale as a new vehicle did not alter the fact that it had from henceforth become a vehicle first registered in 2005 against the name of a previous owner.

[10] The representative of the second respondent, Trevor Meyer, in his "opposing affidavit" does say that “the registration of the vehicle during 2005 when the vehicle was and remained part of the dealer stock clearly was as a consequence of an error on the part of the second respondent.” But what kind of error was this? It may be that the second respondent could have done things differently in expunging the record of the sale to the first would-be purchaser. It may be that it could have caused that vehicle to be re-recorded in a dealer register as a new vehicle without it having to be registered with the licensing authority. It may also be that this was not possible because the vehicle was already registered and recorded with the licensing authority following the first error with the would-be purchaser. I do not know if any one or more or other alternatives to the aforementioned possibilities were open to the second respondent and/or the licensing authority. I simply have not been told about this. One thing however remains certain and cast in stone. That is that the second respondent deliberately and intentionally chose to register the vehicle in its name in 2005, even if, in retrospect, this turned out to be a mistake or an error of judgment by one of its employees in so doing.

[11] I was not given the benefit in the second respondent’s affidavits or anywhere else of a full and persuasive explanation as to how it became possible to take a vehicle that had been intentionally and deliberately first registered in the name of a person in 2005, and then, thereafter produce a document which effectively told us that same vehicle had first been registered in 2006. It took some four months to achieve this. Why so long, particularly if this had arisen through some straightforward and easily explained error? And if all this took place in the manner described by Trevor Meyer, how was the licensing authority able to get around the fact that the second respondent deliberately and intentionally registered that vehicle in its name in October 2005? We know from the affidavit of Trevor Meyer that he had been negotiating with the applicant during the month of January. He tells us in his affidavit that subsequent to the 21st of January 2006 there were a number of telephone calls made between him and the applicant to discuss various options relating to the vehicle. There is no explanation as to what happened during the period February and March and, as already mentioned, without telling us what steps precisely were taken to rectify this so-called error, we suddenly arrive in his affidavit at the 21st of April 2006 where he tells us that the applicant was advised that “the correct licensing had now been received from the licensing department …".

[12] I have taken cognisance of Annexure TM9(2), the Submission by the Chief Administration Clerk of the licencing department which explains away the erroneous description of the vehicle as “used” when it was in fact “new”. We know that previously however, and following a written application in the form of annexures TM4 by the second respondent to the motor licensing bureau, the vehicle had been registered in the second respondent's name in 2005. As already stated, that is not explained away. The Certificate of Registration document (annexure TM6) springing from this application carries a legacy of three different registration numbers, ND 595676, ND 18000 and ND 164772, and that has been carried over into the Certificate of Registration which registers the vehicle into the name of the applicant, as per the previously mentioned annexure K. The reflection of these registration numbers is also not explained away in the affidavits. The best that the second respondent was able to offer in this regard was through the heads of argument that the other registration numbers on the registration certificate were included erroneously. That may be so, but nonetheless, the sale of the vehicle to the applicant as a 2006 vehicle remains tainted by what had gone before. The applicant sought and required, in terms of his agreement with the first respondent, a 2006 vehicle (not model, but first year of registration) with a clean bill of health to reflect as much. That much is material to the agreement. He did not get that.

[13] As to the legal arguments that have been put forward, the applicant has, as already stated argued for an application of the principles of in forma specifica. The respondents have argued that the applicant got what he bargained for, alternatively that there was substantial performance. The authorities referred to by the applicant (Tulbage Municipality v Waveren Building Contractors (Pty) Ltd 1966(4) SA 618 (A) and AA Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd 2000 (1) SA 639 SCA, relating to an application of the principle of in forma specifica, and their underlying facts and circumstances were substantially different to the present matter. In the cases referred to the court was dealing with specific warranties relating to the content of goods that was to be supplied in terms of a very specific purchase order. The content of the goods did not comply with such warranties and it was, in that context, that the court applied the general principle relating to contracts in forma specifica rather than by way of equivalents. I am not altogether satisfied that the facts of these case and the application of the in forma specifica” principle to them are sufficiently analogous to the present matter.

[14] However, even if I was to approach this matter on the basis of the respondents’ arguments relating to materiality and substantial performance, their case on an underlying factual basis does not in my view improve. The instalment sale sets out the terms of the agreement. In the context of this case, that the year of first registration was a material term, is of no doubt. I would not regard, for instance, the specific numbers contained in the registration number to be a material term of the agreement. Counsel for the applicant was disposed to arguing that even the altering of that registration number would have entitled the applicant to have voided the contract. We had to, she said, apply the strict letter of the agreement. She did point out however that the applicant was not relying on the change of registration numbers, as had ultimately taken place in the Certificate of Registration finally produced in April 2006.

[15] What is of underlying importance in the context of the respondents’ argument is that it has not been explained as to how they (the second respondent and the licensing authorities) came to achieve this and I am not convinced that it was properly done. How would the licensing authorities know whether this vehicle had been used in the interim, perhaps as a demonstration model or for use by one of the employees of the second respondent? Unless the licensing authority had conducted a thorough investigation into the history of this vehicle between the date of first registration in October 2005 and the date to which the second respondent wanted the date of first registration to be changed, in my view the licensing authority simply could not do this. It may well be that this vehicle went straight back onto, or in fact remained on the showroom floor until it was sold to the applicant. I have no reason to doubt this. But the licensing authorities could not merely assume this. My view is that, short of something exceptional which has not been explained and which entitled the licensing authorities to reverse a deliberately and intentionally made act of registration into the name of the second respondent, the second respondent was effectively and inevitably stuck with a vehicle, albeit a new vehicle, first registered in 2005. I do not believe that any amount of reverse engineering or clever paperwork could change this fact. And if it could, I needed to know how and on what basis.

[16] Springing from all this, is my view is that performance of this agreement with that particular vehicle became impossible to achieve once it had been deliberately and intentionally registered in 2005.

[17] Nonetheless, consideration of the aforegoing against the background of the various arguments, viz performance “in forma specifica” or performance “per aequipollens” (which amounts to performance in some other equivalent manner which is equally effective), or, as the respondents have argued “substantial performance”, as well as questions of triviality which do “not in any way affect the value of the vehicle”, have lead me to consider what is stated by Christie in “The Law of Contract in South Africa” 5th edition dealing with “Performance” at page 411. This paragraph provides a most informative analysis of these very issues.

Whether performance, to be valid, must be exactly in the manner specified in the contract (in forma specifica) or may be in some equivalent manner that is equally effective (per aequipollens) is a question which the learned author tells us, “is not always easy”.

[18] The author makes reference to the case of Van Diggelen v De Bruin 1954 1 SA 188 (SWA) 192-193 where Claassen J comprehensively dealt with the issue. It is instructive to take into account the full text of what Claassen J said in this regard. I have underlined those segments which are in my view particularly apposite to this matter:

“In coming to a decision in this case as to whether there must be performance 'in forma specifica' or whether performance 'per aequipollens' will suffice, it seems to me that I should proceed along the following lines.

(1) The Court must gather from the surrounding circumstances what the parties contemplated. It must take into consideration everything which can give a clue to the intention of the parties. It must seek to find out what the parties would have wished if their minds had been specially directed to the question whether the condition was to be fulfilled 'in A forma specifica' or by an equivalent act. See Wessels para.

1335. Hanomag SA (Pty.) Ltd v Otto., 1940 CPD 437 at p. 443; Robertson Municipality v Jansen, 1944 CPD 526.

(2) If however the circumstances afford no clue then there is a presumption that the condition must be performed 'in forma specifica' (Wessels para.

1337. Pothier Oblig. 206). This presumption is rebuttable by the promisor, but it cannot be rebutted where it is clear from the terms of the contract and the surrounding circumstances that performance 'in forma specifica' was stipulated in the contract. Wessels paras. 2638 - 9.

(3) The Court will in cases of doubt be more likely to find in favour of performance 'per aequipollens' if the manner of performing the condition is not material or also where performance 'in forma specifica' is impossible through no serious fault on the part of the promisor. Impossibility should probably be interpreted in the sense it was interpreted in Peters Flamman & Co v Kokstad Municipality, 1919 AD 427.

It is clearly not sufficient for the promisor to tender performance of an equivalent act merely because performance 'in forma specifica' is difficult, inconvenient or expensive. (Yodaiken v Angehrn & Piel, 1914 T.P.D. 260.) The promisor undertakes such a risk (Wessels para. 2668).

(4) The act or performance tendered 'per aequipollens' where such is permissible must in the first instance be an equivalent act to that mentioned in the contract or be of such a nature that it can make no material difference to the promisee. Such seems to be the position if any immaterial difference or inequality can be put right by compensating the promisee in damages.

(5) The Court's paramount concern is always, within the frame-work of the law, to do justice between man and man. It will be guided by the terms and circumstances of the contract under consideration. Thus in cases where the promisor has discharged the onus mentioned in (2) above, there may be circumstances falling short of impossibility, and even where there may have been some fault on the part of the promisor, and where the Court may nevertheless come to the conclusion that the promisor's performance or tendered performance amounted to substantial performance (Cheshire and Fifoot p. 352, 1st. Ed.), or is of such a nature that the promisee can be compensated in damages for any shortfall. (Strachan v Prinsloo, 1925 T.P.D. 709 at p. 717).

It seems to me the process of reasoning by which the Court is required to arrive at the true intention of the parties or at what was within the contemplation of the parties is the same process as that by which the Court has to determine whether an implied term is to be read into a contract. Dealing with the question of the implied term STRATFORD, J.A., said in Barnabas Plein & Co v Sol Jacobson & Son, 1928 AD 25 at p. 31:

'The true view appears to me to be that you have to get at the intention of the parties in regard to the matter which they must have in mind, but which they have not expressed.'”

[19] Christie goes on to analyse Claassen J’s synopsis of the law as follows:

To this admirable summary of the law it is only necessary to add a few comments. It will be noted that Claassen J’s rule (1) enjoins the court to look at the surrounding circumstances without reference to the prior necessity of concluding that the wording of the contract is ambiguous or its meaning doubtful. If this is the law it forms an exception to the general rule presently applicable to the interpretation of contracts, and there can be no good reason to make such an exception. Van den Heever JA in Frumer v Maitland 1954 3 SA 840 (A) 849 was of opinion that this exception to the general rule is not warranted, and the question was left open by Jansen JA in Sassoon Confirming and Acceptance Co (Pty) Ltd v Barclays National Bank Ltd 1974 1 SA 641 (A) 646-647. Surely Van den Heever JA is right, and his warning at 849G is also valuable:

“For the court to think what equivalent fulfilment of a condition would probably have satisfied the parties and that consequently they probably intended the fulfilment per aequipollens of such a putative condition, is a dangerous proceeding which may well result in judicial discretion overriding contractual autonomy.”

Subject to these observations the rules stated by Claassen J apply equally to any contractual obligation, whether it be the delivery of movable or immovable property, the performance of an act, the choice of a person to perform an act, the provision of funds in payment or any other obligation.

Further into the paragraph quoted the author states:

Once it is decided in a particular case that performance per aequipollens is not permissible the creditor is entitled to refuse a tender of such performance, however unreasonable that refusal may be,

and it will not avail the debtor to tender a performance that is specious in the sense that it conforms with the surface wording of the contract but not with its true meaning.

[20] Much of what has been said above applies to this matter. I have already

mentioned above what the applicant sought and required, in terms of his agreement with the first respondent, viz a 2006 vehicle which was registered for the first time in that year and with a clean bill of health to reflect as much. I have already found that that part of the agreement constituted a material term. Such a finding would also probably apply to the colour of the vehicle. If the applicant chose a blue vehicle, the respondents could not tender a red one. But if he chose a dark blue and a colour very close to dark blue was tendered, and the surrounding circumstances indicated that colour was not of primary importance to the applicant, then, guided by the terms and circumstances of this contract the principles of performance per aequipollens would probably apply. Equally, a different registration number or chassis number or engine number to that recorded under the agreement would be met with the per aequipollens principle. In the circumstances of this case performance with a different but identical car to that one chosen by the applicant on the show room floor even with different registration or chassis or engine numbers, but first registered in 2006, without a tramelled history, would have been regarded in this matter as amounting to substantial and, in my view, adequate performance. That I believe would do justice between man and man, within the frame-work of the law

as is mentioned by Claassen J above. If the applicant had chosen that specific car because of some peculiar characteristic, that might have been different. That was not the case in this matter. However, performance of that part of the agreement that required the year of first registration to be 2006 without having in the future to explain away an erroneous registration in 2005, was immutable. It cannot be argued that this provision and the performance of the respondents be interpreted per aequipollens. This in my view, is not acceptable or “permissible”.

[21] The applicant is clearly entitled to relief in these circumstances. Albeit that the second respondent is the author of the errors that occurred in this matter leading to the applicant being entitled to relief, the applicant’s relief lies directly against the first respondent who was the seller of the vehicle and the recipient of the monies paid in respect of the purchase price.

[22] As already mentioned, the applicant initially and at the time he launched this application, sought specific performance of an identical BMW motor-vehicle to the one he had already taken possession of, but, which was first registered in the year 2006, against a return of the BMW vehicle in his possession. Delivery of a 2006 registered vehicle would probably have been capable of achievement during or about May 2006 when this application was launched. But what is now certain and is common cause in the year 2007, is the fact that such an order for specific performance is at this stage impossible to achieve.

[23] It is has been argued on the behalf of the first respondent, with reference to authority, that the applicant having made an election to enforce the agreement cannot now change his mind “and reprobate the Agreement” and that in any event, it was submitted, the applicant is in possession of the vehicle he contracted for. I have already found that the applicant is not in possession of the vehicle he contracted for. This application, through no fault on the part of the applicant, has taken in excess of a year to reach finality. In the face of the impossibility of performance the applicant has amended his relief. In these circumstances any argument that the applicant is approbating and reprobating, or blowing hot and cold, or that he has unequivocally waived his right to claim cancellation and damages or any other appropriate relief dependent upon a change in circumstances, in my view has no substance. The law clearly recognises a right to claim specific performance with or without damages, and, failing compliance with the order within a prescribed period, cancellation with or without damages. The situation here is hardly any different. This is not a case of claiming performance and in the alternative relying on a prior cancellation of the contract. These alternatives are inconsistent. The alternative remedy sought in this matter, which arises in consequence of impossibility of performance, is not a conflicting remedy and the right to claim it has not been waived.

[24] When the applicant’s counsel commenced her argument in this matter she made it clear that the applicant was not seeking cancellation but merely restitution. Indeed in the supplementary founding affidavit at page 306 of the Court’s papers the applicant asserts his right to claim “restitutio in integrum”. At page 307, the amounts that had been paid by the applicant between the period January 2006 and March 2007 as a result of the contract concluded with the first respondent were stated as follows:

(a) Documentation fee R 590.00

(b) Costs of installing (a tracking device) R 3 185.00

(c) Payments to the First Respondent R119,106.52

(d) Subscription to Netstar R 2 502.00

(e) Insurance for the vehicle to Centre R 14,559.00

Total R139,942.50

It was agreed during the course of argument that the only amounts to which the applicant would be entitled in the event of him claiming restitution, as opposed to cancellation and damages, were the items mentioned in (a) and (c).

Subsequent to the date on which argument was heard in this matter I was advised on 6 September 2007 that the amount received by the first respondent to that date was R160 391.10. I assume that this is the amount that has been agreed on between the respective counsel in this matter. It was agreed that they would revert to me with a figure. To this must be added the “initial payment in cash” as reflected in the Tax Invoice Annexure A at page 27 of the papers of R236 653,91, thus totalling R397 045.01.

The Applicant is in my view entitled to that amount, as well as any further instalment he might have paid in September and/or October, refunded against return of the motor vehicle presently in his possession. He is also entitled to a refund of the R590.00 paid in respect of the documentation fee.

This would give a grand total of R397 635.01 which the applicant must be refunded.

[25] An appropriate award of costs requires close consideration. Various arguments have been tendered in respect of costs. I would say at the outset that despite the suggestion that attorney and client costs orders should be considered I do not think the conduct of any of the parties in this matter warrants that mark of disapproval.

[26] The applicant is clearly entitled to his costs. The first respondent, in order to protect itself against any wrongdoing on the part of the second respondent issued and served a Third Party Notice on second respondent as “First Respondent’s Third Party” in which it claimed a contribution or indemnification from the second respondent. The second respondent did not oppose this leg of the proceedings. The procedure adopted by the first respondent in the circumstances of this case was prudent and appropriate.

[27] Also contained in the papers is an application in terms of Rule 27(1) of the Uniform Rules requesting an extension of time to file a Rule 30(2)(b) Notice requiring the applicant to remove the cause of complaint relating to the Notice of Motion within ten days. This procedure was in my view unduly and overly technical at that advanced stage of the proceedings and ill advised. Although the applicant may have erred in the manner in which he drew his Notice of Motion, the matter had moved beyond a stage where the first respondent would have been materially prejudiced. Any uncertainty with regard to dates for the filing of affidavits and the like could by then have been simply arranged between the parties. If any one of them had proved difficult at that stage the court at the initial hearing would have dealt with it and no doubt made an appropriate costs order. The first respondent is fortunate that I will only order that it pay its own costs in regard to these proceedings.

[28] I was advised that there had been wasted costs arising from the matter having been set down on 20th July 2007 which had been reserved. Counsel agreed at the conclusion of argument that these costs should be regarded as costs in the cause.

[29] Clearly the second respondent must pay for the error of its ways. However, it is also necessary for me to decide, given the respective roles played by the two respondents on how costs should be awarded and equitably apportioned or divided using my discretion. The first respondent also chose to oppose the relief sought by the applicant and aligned itself with the argument of the second respondent. I take that into account in making the costs order that follows.

[30] Finally, I was requested by senior counsel for the applicants that in the event of the applicant being successful, to direct as part of the costs order that such costs include the costs of senior counsel where senior counsel was employed. This I was informed accords with a directive from the taxing master that unless the court directs as such, a successful party reasonably using senior counsel will not be awarded such costs on taxation. In opposing relief of this nature it was to be taken into account that the respondents had both used the services of junior counsel. However, certain of the factors as I understand them relating to allowing the costs of senior counsel depend on a reflection of whether it be considered that the briefing of senior counsel was “not unnecessary” or where the employment of senior counsel could not be said to have been “extravagant or over-cautious”.

This matter involves a substantial sum of money and relatively finely balanced considerations of fact and law. It was not unreasonable or unnecessary or extravagant or over-cautious to brief senior counsel in these circumstances.

[31] All factors considered I am of the view that the following order and costs order would suit the circumstances of this matter and do justice between the parties.

[32] The order I make is:

1. That the agreement concluded between the Applicant and the First Respondent on 22 December 2005 Annexure “A” to the Founding Affidavit, is declared to be of no force and effect.

2. That the Applicant is directed to return to the First Respondent by delivery to the Second Respondent at its premises in Durban, the BMW motor vehicle presently in his possession bearing registration letters and number ND 595676, against payment by the First Respondent to the Applicant of the sum of R397 635.01, as well as any further instalment the applicant may have paid the First Respondent in September and/or October 2007;

3. That the First and Second Respondents jointly and severally, pay the Applicants costs of the application including the reserved costs of the 20th July 2007, such costs to include the costs of senior counsel where senior counsel was employed.

4. That the Second Respondent indemnify the First Respondent in respect of any costs paid by the First Respondent in terms of paragraph 3 of this order.

5. That the Second Respondent pay the costs of the First Respondent’s Third Party proceedings.

6. That there be no order as to costs in respect of the Rule 27(1) and Rule 30(2)(b) proceedings.

_____

ROWAN AJ

ACTING JUDGE OF THE HIGH COURT

DURBAN AND COAST LOCAL

DIVISION

Date of hearing : 28 August 2007

Date of Judgement : 23 October 2007

Counsel for Applicant : J A Julyan SC

Instructed by:

Gounder and Associates

Applicant’s Attorneys

Suite 1600, Nedbank House

30 Albert Street

DURBAN

REF: MR GOUNDER/S214/SD

Counsel for First Respondent : H A de Beer

Instructed by:

Negota SSH

First Respondent’s Attorneys

c/o JH Nicolson, Stiller & Geshan

2nd Floor, Clifton Place

19 Hurst Grove, Musgrave

REF: LS STEMMET/gl/B0231/42

Counsel for Second Respondent : P J Combrinck

John Hudson & Company

303 Florida Rd

Morningside

REF: B LEWIS/sn/