Chikondowa v Dhlakama & Anor (HC 4497 of 2012) [2015] ZWHHC 486 (27 May 2015)

1 HH 486-15 HC 4497/12 PARTSON CHIKONDOWA versus FRANCIS B. DHLAKAMA and ZIMBABWE REVENUE AUTHORITY HIGH COURT OF ZIMBABWE BERE J HARARE, 24 July 2013 & 28 May 2015 Opposed Application N. Bvekwa, for the applicant C. Warara, for the respondent BERE J: This matter strikes me as a simple application for res vindicatio which has unnecessarily been complicated by the intransigence exhibited by the first respondent because of his misconception of the law. The applicant issued process in this court on 24 July 2012 seeking to recover a Toyota motor vehicle in the hands of the first respondent who had purchased it at a rummage sale which was conducted by the second respondent. The application has been vigorously opposed by the first respondent. The broad facts which have brought about this case are as follows. In August 2009 the applicant imported the vehicle in issue via the Beitbridge border post. The second respondent confirmed the proper importation of the vehicle and the issuing of a Customs Clearance Certificate to the applicant to confirm his entitlement to the ownership of the motor vehicle. It is not in dispute that whilst the applicant was trying to raise duty for the imported motor vehicle, the vehicle was kept in storage by the second respondent. Subsequently the motor vehicle was erroneously sold to the first respondent at rummage sale. Following the purchase of the vehicle by the first respondent, the first respondent made an abortive application in this court under case number HC 8691/10 to compel the second respondent to issue him with a Customs Clearance Certificate. The second respondent declined to issue the HH 486-15 HC 4497/12 required certificate as it realised that the Certificate had already been issued to the rightful owner of the vehicle and advised the first respondent accordingly. Prior to instituting this action the applicant had made an unsuccessful attempt to recover the motor vehicle from the first respondent who claimed entitlement to the ownership of the motor vehicle and sought to challenge the error allegedly made by the second respondent in selling the motor vehicle to him. It should be noted that whilst the first respondent is vehemently opposed to this application, the second respondent has not opposed it and in case number HC 8691/10 went further to offer unsolicited compensation to the first respondent (who stood as applicant in case). In accepting liability Gershem T. Pasi for the second respondent had this to say in opposing the application filed by the first respondent: “The respondent was for all intents and purposes under a mistaken belief that the importer of the vehicle had not entered the vehicle for consumption into the country when in actual fact the importer had already complied with all the requisite customs formalities. The respondent only became aware of this position when it tried to issue the applicant with a Customs Clearance Certificate whereupon it was discovered that a Customs Clearance Certificate in respect of the same vehicle had already been issued to Partson Chikondowa… Upon realising that this vital error had been made the applicant was advised by the respondent that the vehicle that had been sold to him was sold in error and the respondent cordially advised he applicant to return the vehicle whereupon the respondent would compensate him all expenses he incurred including a full return of the purchase price he had paid. Partson Chikondowa has made representations to the respondent for the return of his vehicle. However, the applicant refused to return the vehicle in question to enable the respondent to return it to its rightful owner. It is respondent’s contention that the applicant has no legal right to hold on to a vehicle which was sold to him in error. The respondent in these circumstances cannot be compelled to issue a Customs Clearance Certificate in respect of this vehicle as one has already been issued”1. When this matter came up for argument Mr Warara for the first respondent raised a preliminary point which had been alluded to in the opposing affidavit, that is, that there were material disputes of facts. I did not find the point compelling enough mainly because the trail of paper work in this case did not support the existence of any disputes of facts which had the effect of disabling this court to deal with and dispose of the matter on the strength of the papers filed. Secondly and more importantly, the first respondent in his opposition to the order desired by the applicant did not seem to take issue with the factual averments. Instead he anchored his main opposition on his alleged innocent acquisition of the motor vehicle. I 1 Gershem Pasi affidavit on p 11 of consolidated record HH 486-15 HC 4497/12 therefore concluded that the alleged disputes of facts were illusory hence my decision to proceed to determine the matter on the strength of the papers filed by the parties. I now proceed to deal with the substantive issues in this matter. THE LEGAL POSITION I cannot put the legal position in any clearer manner than to borrow the eloquent expression by D. Carey Miller when he states: “Roman Dutch law recognises the distinct superior right of ownership, ‘the right to which a thing is ours’. As a right in and to the thing itself the owner’s position is overriding and is facilitated by the right to recover property wherever it may happen to be –ubi, rem mean invenio ibi vindico. As Grotius notes, the right to recover lost possession is the quintessence of ownership ….. ownership consists in the right to recover lost possession. No less in morden law, one finds emphasis given in the right to vindicate as a concomitant of the right of ownership. Mordern law does not apply special rules or requirements to proof of ownership but as Jansen JA noted in Chetty v Naidoo 1974(3) SA 13(A) at 20 A ‘…. The burden of proof must be governed, primarily by the legal concept of ownership’. In other words, proof of ownership involves proof of the means by which ownership was acquired by the claimant”2. The same legal position is echoed by McNally JA with greater clarity in the Zimbabwean case of Mashave v Standard Bank of South Africa Ltd where the learned Judge of Appeal remarked as follows: “I have said earlier that the Roman Dutch law, as a matter of policy favours the owner as against the innocent purchaser See for instance Chetty v Naidoo 1974 (3) SA 13(A) at 20 A- C. The innocent purchaser’s only defence is estoppel”. Estopel depends upon an allegation that a representation was made by the owner/ claimant. In Aris Enterprises (Finance) (Pvty) v Protea Assurance Co Ltd 1981 (3) SA 274 (A) Corbertt JA (as he then was) said at 291: “The essence of the doctrine of estopel by representation is that a person is precluded, i.e. estopped from denying the truth of a representation previously made by him to another person if the truth of the representation acted thereon to his prejudice (see Joubert, The Law of South Africa vol 9 para 367, and the authorities there cited). The representation may be made in words, i.e. expertly or it may be made by conduct, including silence or inaction, i.e. tacitly ... and in general it must relate to an existing fact...”3 Having attempted to briefly lay down the legal position it remains for me to focus on the case before me. 2 The Acquisition and Protection of Ownership by D Carey Miller, published by Juta and Company, 1986 ed at p 255 and 259 3 1998 (1) ZLR 436 (SC) at 438 HH 486-15 HC 4497/12 It is not in dispute in this case that the whole paper trail in this case which culminated in the issuing of the Customs Clearance Certificate by the second respondent points to the applicant as the legitimate owner of the vehicle in question. The second respondent’s Chief Executive Officer confirms this position beyond any shadow of doubt despite the spirited denial by the respondent. That the second respondent’s officers made a genuine error in selling the motor vehicle to the first respondent is equally beyond doubt. There is no doubt in this case that when the first respondent purchased the motor vehicle in question at the rummage sale, he did not know the existence of the applicant. The first respondent could not possibly have had an opportunity to talk to the applicant about the motor vehicle. If this is the position, there can be no question of the first respondent having to raise the defence of estoppel in an effort to cling onto the motor vehicle. That defence is simply not available to him. The first respondent has no cause of action against the applicant. He is disabled from resisting the applicant’s vindicatory action against him because by operation of law the applicant has a greater right over the motor vehicle than the respondent. It is clear to me that the first respondent’s recourse is only against the second respondent which has always accepted and acknowledged liability to the first respondent because of the genuine error it made in selling the vehicle to the first respondent. The innocence of the first respondent in acquiring the motor vehicle, whilst it cannot be disputed must not be stretched to the extent of clouding the position of the applicant in this case. The truth of the matter is that strictly speaking, when the second respondent’s officers ‘sold’ the motor vehicle to the first respondent on 27 April 2010 the merx was not there anymore as it was now in the hands of the applicant hence the second respondent’s inability to issue a second Customs Clearance Certificate. The certificate issued to the applicant entitled him to claim ownership of the motor vehicle. This position must have been clear to the first respondent from the very beginning as the Customs Clearance Certificate was issued on 27 March 2010, almost a month before the rummage sale. The view that I take is that the applicant’s claim is unassailable and it has always been. This case has taken a long time to complete and the order that I will make will take that into consideration. COSTS: HH 486-15 HC 4497/12 Under normal circumstances I would have been inclined to order the second respondent to pay costs because of the error it made. To its credit, however, the second respondent accepted its error as far back as 2010 and even offered to recompense the first respondent. The first respondent chose to be intransigent. It is precisely because of the attitude of the first respondent that this case ended up spilling into this court, in my view unnecessarily so. It is for these reasons that the burden of costs must be firmly placed on the first respondent’s shoulders. IT IS ORDERED THAT: a) The first respondent be and hereby ordered to surrender a Toyota Caldina Station Wagon motor vehicle with chassis number ET 196-0002209, engine number SE 0258742 to the applicant before close of business today failing which the Deputy Sheriff be and is hereby authorised to retrieve the motor vehicle and give it the applicant. b) In the event that the motor vehicle is no longer available due to effluxion of time the first respondent be and is hereby ordered to pay to the applicant the current market value of the vehicle in issue c) The first respondent pays costs of this application. Bvekwa Legal Practitioners, applicant’s legal practitioners Warara & Associates, 1st respondent’s legal practitioners