Wesbank, A division of First Rand Bank Limited v Musisi and Others; Wesbank, First Rand Bank Limited t/a Wesbank t/a Bikefin and another v Musisi and Another (A335/18; 40193/2017; 58350/2017) [2020] ZAGPPHC 749 (10 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

1) REPORTABLE YES/NO

2) OF INTEREST TO OTHER JUDGES YES/NO

3) REVISED

10/12/2020

APPEAL CASE NO: A335/18

COURT A QUO (GP) CASE NO: 40193/2017

In the matter between:

WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED Appellant

(First Respondent a quo)

And

MOSES AMIRI MUSISI First

Respondent

(First Applicant a quo)

AIDAH MUSISI

Second

Respondent

(Second Applicant a quo)

THWAIBA MUSISI

Third

Respondent

(Third Applicant a quo)

THE HALEEM ACCOUNTANTS

AND AUDITORS (PTY) LTD

Fourth Respondent

(Fourth Applicant a quo)

COURT A QUO (GP) CASE NO: 58350/2017

FIRST RAND BANK LIMITED t/a WESBANK t/a

BIKEFIN First

Appellant

(First Applicant a quo)

VOLKSWAGEN FINANCIAL SERVICES SOUTH

AFRICA (PTY) LTD

Second Appellant

(Second Applicant a quo)

THWAIBA MUSISI

First Respondent

THE HALEEM ACCOUNTANTS AND AUDITORS

Second Respondent

(PTY) LTD

JUDGMENT

MAKHOBA J

1. This is an appeal against the whole of the Judgment and order handed down by Mia AJ (as she then was) sitting in this division as a single Judge under case number 40193/2017 and case number 58350/2017. The two applications were consolidated by the order of the court a quo.

2. The application under case number 40193/2017 was a spoliation application brought against Wesbank for restoration of a BMW 740 motor vehicle and two Harley Davidson motorcycles (hereinafter referred to as the “vehicles”) to the possession of Thwaiba Musisi and the Haleem Accountants and Auditors (Pty) Ltd (hereinafter referred to as the respondents.)

3. The application under case number 58350/2017 was brought by the appellants for the cancellation of the three instalment sale agreements and for the appellants be declared to be entited to exercise all the rights associated with their ownership in respect of the respective

vehicles. In other words, to repossess the vehicles from the respondents.

4. In regard to the first application under case number 40193/2017, the court a quo found in favour of the respondents and ordered that the BMW 740i, the 2015 Harley Davidson Electra Glide ultra-limited motorcycle and the Harley Davidson softail Deluxe Motorcycle to be returned to the purchasers namely Thwaiba Musisi and the Haleem Accountants and Auditors.

5. In respect of the application by the appellants under case number 58350/2017, the court a quo dismissed the application. Leave to Appeal to the full bench was granted by the court a quo on the 26th July 2018.

6. The Respondents brought an application before us on notice of motion. The application is based on the provisions of Section 19(b) of the superior courts Act 10 of 2013. The application was opposed by the appellants and heads of arguments were submitted to us. After hearing the application, we dismissed the application with costs and we reserved the judgment. Counsel for the appellants and the respondents addressed us on appeal and also filed their heads of argument.

Grounds of Appeal

Appellants

7. This is an appeal from the opposed motion court a quo.

8. Counsel for the appellants submitted to us that there is no case made out in the founding affidavit showing that Wesbank associated itself with the spoliation.

9. In addition, on behalf of the appellants, Counsel submitted that the police parted with possession of the vehicles and released same to the possession of Wesbank for safe keeping and preservation of the vehicles and Wesbank is the possessor of the vehicles in good faith.

10. On the cancellation of the instalment sale agreements the appellants argued

that the contracts were cancelled due to fraudulent misrepresentations

made by all the respondents. A further submission by the appellant is that,

on the 16th November 2016, Haleem Accountants defaulted on its

payment pertaining to the first motorcycle and was in arrears in the sum of

R9309.12.

11. It is also submitted that the third respondent allowed her father to use the

motorcycles without the consent of the first appellants and this in itself is a

breach of the instalment sale agreement.

Respondent

12. On the spoliation application on behalf of the respondents it was submitted

that the court a quo made a correct informed decision.

13. The respondents argued that, Wesbank cannot be found to be innocent and

bona fide possessor due to the role played by Angelo Stewart.

14. Respondents further contend that the allegations of criminality by the respondents are based on some unsubstantiated views by Angelo Stewart. Failure to pay one instalment when all other payments were made cannot be material enough to justify a cancellation of the contract.

Background

15. On the 22nd May 2017 Moses Amiri Musisi (first Respondent) was arrested at his home by the police. Present at the scene of arrest was Mr Angelo

Stewart an employee of the Wesbank, a Division of First Rand Bank. At the Premises of the first Respondent the police removed a BMW 740i and two Harley Davidson motor cycles. Mr Musisi was detained and released on the 23rd may 2017 without appearing in court as the prosecutor refused to prosecute the matter.

16. It is common cause that the vehicles were released into the custody of Mr Angelo Stewart. The goods were not returned to Mr Musisi’s possession upon his release.

17. In the court a quo the minister of police did not oppose the spoliation application and elected to abide by the court’s decision. The appellants

opposed the spoliation application.

18. In his affidavit Mr Angelo Steward held the view that the respondents misrepresented themselves to the appellants and were also involved in money laundering activities and he has laid charges against them at Johannesburg Central Police Station, Germiston, Sandton and Moffet View Police Stations.

THE LAW

19. Section 19(a) of the Superior Courts Act 10 of 2013

Section 19 reads as follows:

“19 Powers of court on hearing appeals

The Supreme Court of Appeal or a Division exercising appeal jurisdiction may,

in addition to any power as may specifically be provided for in any other law-

(a) dispose of an appeal without the hearing of oral argument;

(b) receive further evidence;

(c) remit the case to the court of first instance, or to the court whose decision

is the subject of the appeal, for further hearing, with such instructions as

regards the taking of further evidence or otherwise as the Supreme Court

of Appeal or the Division deems necessary; or

(d) Confirm, amend or set aside the decision which is the subject of the

appeal and render any decision which the circumstances may require.”

20. The Appellate Division, Supreme Court of Appeal and the Constitutional

Court have in a series of decision laid down certain basic requirements

before the court can allow a litigant to lead further evidence on appeal[1].

21. The requirements may be summarized as follows[2]:

(a) There should be some reasonably sufficient explanation, based on

allegations which may be true, why the evidence which it is sought to lead

was not led at the trial.

(b) There should be a prima facie likelihood of the truth of the evidence.

(c) The evidence should be materially relevant to the outcome of the trial[3].

22. A Court of Appeal will exercise its discretion to receive further evidence on

the hearing of an Appeal only if the circumstances are exceptional[4]. In my

observation relief is refused in the vast majority of cases, and where it has

been granted the evidence in question has related to a single critical issue in

the case[5].

23. It will be wrong on our part to allow the respondents to adduce new evidence if that will boster their case on a disputed issue[6].

24. The evidence sought to be brought before us was to prove that on the 22nd May 2017 which is the date that the first respondent (Moses Amiri Musisi) was arrested it is the same date the vehicles were taken to the appellant’s storage in Burchmores. Again, the respondent wanted to lead evidence to show that the vehicles when impounded they were never taken to SAPS premises.

25. We dismissed the application to lead further evidence with costs for the following reasons:

(a) It was immaterial and irrelevant whether the goods were taken to Burchmores, (appellants storage) or the SAPS storage because it is common cause that the vehicles were impounded by the police and ended up in possession of the appellant. The stickers on the vehicles do not show clearly whether they were put there by the SAPS or the appellant.

(b) By seeking to adduce new evidence the respondents sought to bolster their case and to show the appeal court that the court a quo was correct in its findings in law and fact.

(c) In addition it is trite law that the evidence to be allowed must be of such a nature that it would probably have caused the trial court to come to a different conclusion, that is not the case in this matter before us[7].

SPOLIATION APPLICATION

26. In this application we must determine whether the court a quo was correct in finding that Wesbank (the appellants) associated itself with the spoliator of the vehicles (the SAPS) and was not an innocent third party possessor.

27. The respondents conceded that the SAPS was the spoliator but submitted that the appellants associated themselves with the spoliation and hence the vehicles ended in possession of the appellants.

28. Early in the development of our law spoliation was expounded succinctly by Innes C.J as follows in Nino Bonino v De Lange[8]:

“ It is a fundamental principle that no man is allowed to take the law into his own hands, no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute. It is not necessary to refer to any authority upon a principle so clear. Indeed, it Is not denied by Mr. Nathan that there is abundant authority in support of it; Van der Linden, Voet and other writers are quiet clear on the point. And the spoliation which the Court would in this way set aside need not necessarily consist of acts of violence. It is admitted by Mr. Nathan that acts done secretly, without the consent or knowledge of the person despoiled might also amount to spoliation. The best

definition I have been able to find is one given by Leyser, who states that spoliation is any illicit deprivation of another of the right of possession which he has, whether in regard to movable or immovable property or even in regard to a legal right. He does not make violence or even fraud an essential element, provided that the act is done against the consent of the person despoiled, and illicitly”.

29. In Jivan v National Housing Commission[9] the court said the following “ where possession has passed to a new possessor who became such in good faith, the status quo ante cannot be restored by remedial action against the disturber of the status quo.” Further in par G the court said the following……...the fact that the property in question is, and was, in the peaceful possession of a third party from a date some weeks prior to the launching of this application, excludes the possibility of granting a spoliation order to the applicant against respondent”. It is clear from Jivan v National Housing Commission[10] that in a spoliation matter the person who had come into possession of the property claimed by the applicant is entitled to hold it against the applicant if indeed he is an innocent third party.

30. There is ample authority in which the courts held that a spoliation order cannot be made where possession has passed to a bona fide third party[11]. Therefore a spoliation order cannot be granted against a third party where possession has passed in good faith to the innocent third party who is not the spoliator.

31. In his founding affidavit[12]Mr Angelo Sterwart says the original signed affidavits annexures “S 8” to “S 12” were submitted to the investigating officer and are identical to the unsigned affidavits and that the contents thereof are true and correct. I therefore accept that the unsigned affidavits must be considered as the originals for the purpose of this matter.

32. In par 41 of his affidavit Mr Stewart set out the circumstances under which vehicles were impounded by the SAPS and he further explains his presence on the scene[13].

33. Counsel for the respondents had difficulty in explaining to us in what way did Mr Angelo Stewart associate himself with the SAPS when the vehicles were impounded. It is common cause that the vehicles were impounded by the police and were later handed over to the appellants.

34. It is clear that Mr Angelo Stewart was present when the vehicles were confiscated in order to safeguard them. I will expound on the other reason why Mr Stewart was on the scene later but definitely I am of the view that his presence when the vehicles were confiscated was innocent.

35. I am therefore of the view that, the court a quo erred in finding that Mr Angelo Stewart’s presence when the vehicles were impounded associated himself and therefore the plaintiff with the spoliation[14].

36. I therefore agree with the submission to us by counsel for the appellant that the court a quo erred in finding that Wesbank was not a bona fide third party in receipt of the goods[15]. Thus, therefore the spoliation application ought to have been dismissed by the court a quo.

CANCELLATION OF SALE AGREEMENTS

37. The appellants gave written notice to the respondents on the 29th and 30th May 2017 that due to the material fraudulent misrepresentations, the respective agreements were void from inception and had the true facts been disclosed to the appellants the respective agreements would never have been entered into by the appellants.

38. The terms and conditions of the contracts stipulate that the respondent must inform the appellant of any change of address in writing[16]. Failure to pay the instalment and misleading statements may lead to the cancellation of the contract[17].

39. In Sim Road Investments CC v Morgan Air Cargo (Pty) Ltd[18] the SCA held that it has been settled law for many decades that a material representation renders a contract voidable at the instance of the misrepresentee.

40. The court a quo in dismissing the appellant’s application for cancellation of the sale agreements stated as follows[19]: “(the appellants) rely on five unsigned statements made by Mr Angelo Stewart which purport to be affidavits but have not been signed or commissioned. Their evidential value is limited”. I am of the view that the court a quo erred in this regard because Mr Angelo Stewart had explained that the original statements have been handed over to the police when he opened criminal cases against the respondents.

41. In my view, the court a quo should have considered Mr Angelo Steward’s unsigned affidavits as evidence. These unsigned statements are encapsulated in Mr Stewart’s founding affidavit.

42. Mr Angelo Stewart set out the misrepresentation by the respondents as follows:

(a) The first respondent is the one who runs the business of the fourth respondent even though he is not a qualified accountant and is not registered with SAICA.

(b) The first respondent could not produce any proof that he had clients and the business was conducted as a professional accountant firm.

(c) The second respondent was not involved in the business of the fourth respondent.

(d) The third respondent was a medical student at Stellenbosch University and was in no way involved in the business of the fourth respondent. Moreover, the salary she purportedly received from the fourth respondent was paid back to either the first respondent or the fourth respondent and paid back via ATM withdrawals and internet transfers.

(e) The vehicles were kept at the premises of the first respondent and were exclusively used by the first respondent.

(f) first respondent credit record was bad and hence he could not enter into any contract and he used second, third and fourth respondents to achieve his goals.

43. The respondents did not respond to these factual damning allegations against them. Even their counsel when addressing us did not respond to these allegations but submitted to us a general denial of allegations.

44. Mr Pretorius for the appellants submitted to us that where a disputing party necessarily possesses knowledge of the facts averred and has the ability to show that the facts averred are untrue or inaccurate, but fails to do so and instead rests their case on bare or ambiguous denials, no bona fide dispute of fact arises. Counsel referred us to the decision of Wightman t/a JW Construction v Headfour (Pty) Ltd and Another[20].

45. In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another[21] the court said the following:

“[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirements because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied”.

46. In view of the fact that the respondents did not cogently refute the assertions of misrepresentation by the respondents I am obliged to accept the allegations against them.

47. I therefore conclude that there is enough irrefutable evidence that the 1st, 2nd, 3rd and 4th respondents misrepresented themselves to the appellants and appellants are accordingly entitled to cancel the contracts. The court a quo should have granted the order as prayed for.

48. Counsel for the appellants asked us to consider awarding costs against the respondents in regard to an application to lead evidence during the proceedings for the application for leave to appeal. Mr Pretorius submitted to us that it was an irregular step by the respondents to bring such an application before court.

49. I am of the view that the court a quo erred in reserving costs for later determination in a similar application before it when the respondents applied for leave to appeal, because the court a quo did not entertain the application at all but simply ignored the application. I therefore do not make any costs order in this regard.

50. In the premises I make the following order:

50.1 The application to lead further evidence in terms of section 19(b) of the Superior Courts Act 10 of 2013 is dismissed with costs.

50.2 The appeal against the spoliation application is upheld, the order of the Court a quo is set aside and is replaced with the following order:

The Spoliation Application is dismissed with costs.

50.3 The appeal against the dismissal of the application for cancellation of the sale agreement is upheld and the order of the court a quo is set aside and replaced with the following order:

The application is granted with costs.

D MAKHOBA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION

I agree

JW LOUW

MA LUKHAIMANE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION

[1] StaatsPresident v Lefuo [1990] ZASCA 6; 1990 (2) SA 679 (A) at 692 B; Loomcraft fabrics cc v Nedbank Ltd 1996 (1) 812 (A) at 824 I – 825D sec also Rail commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC) at 388 C-E and 389 A-B

[2] S v De Jager 1965 (2) SA 612 (A) at 613 C-D. The summary was cited with approval in Road Accident Fund v Le Roux 2002 (1) SA 751 (w) at 753 H-J see also Moor v Tongaat-Hullet Pension Fund [2018] 3 All SA 326 (SCA) at paras 35-37

[3] See Simpson v Selfmed Medical Scheme 1995 (3) SA 816 (A) at 825C-826J; Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC) at 388C-390D; De Aguiar v Real People Housing (Ptd) Ltd 2011 (1) SA 16 (SCA) at 20E-21B

[4] S v Sterrenberg 1980 (2) 888 (A) at 893 F-G; S v Swanepoel 1983 (1) SA 434 (A) at 447C-H; S v Venter 1990 (2) SACR 291 (NC); S v Majola 1982 (1) SA 125 (A)

[5] Examples are R v Carr 1949 (2) SA 693 (A); S v Nkala 1964 (1) SA 493 and S v Njaba 1966 (3) SA 140 (A)

[6] See Stock v Stock 1981 (3) SA 1280 (AD) in lobelo and others v Kukama and others on par 19 the full court held that “It is trite law that any fresh evidence to be allowed on appeal is required to be of such a nature that it would probably have caused the trial court to come to a different conclusion.”

[7] See Lobelo and others v Kukama and others supra at para (19)

[8] 1906 TS 120 at page 122

[9] 1977 (3) SA 890 (W) this decision was quoted in approval by the full bench in Builder’s Depot CC v Testa 2011 (4) SA 486 (G S J)

[10] Supra page 148D

[11] Burnhan v Neumeyer 1917 TPD630; Louw v Herman 1922 CPD 252; Chitiz v Loudon and Another 1946 WLD 375. Chitiz was followed by FS Steyn J in Jivan’s case. In Bank Van die Oranje – Vrystaat v Rossouw 1984 (2) SA 644 (C) 648H-649B the cape Full Bench followed Jivan cases.

[12] Volume 2 of 8-page 199 par 99.

[13] Volume 2 of 8 page 199 par 41

[14] Volume 7 of 8 par 12 page 678

[15] Jivan v National Housing Commission supra and other decisions listed above.

[16] Volume 1 of 8 page 29 par 7, page 40 par 7

[17] Volume 1 of 8 page 30 par 13; page 40 par 11

[18] (24/10) [2011] ZASCA 81 (27 May 2011) at para [22]

[19] Volume 7 of 8 page 680 par 17

[20] 2008 (3) SA371 (SCA)

[21] Supra at par 13