Mboweni v Road Accident Fund (26082/2019) [2025] ZAGPJHC 22 (14 January 2025)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

 

 

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

 

14 March 202314 January 2025

................................... ……………………

SIGNATURE DATE

CASE NO.: 26082/201947971/2017

 

 

 

 

 

 

In the matter between:

 

MATLAKALA ZIPHORIA MBOWENIWESBANK, a division of FIRSTRAND BANK LIMITED ApplicantPlaintiff

 

 

and

 

 

MASEKO: SITEMELA ESSAU First RespondentROAD ACCIDENT FUND Defendant

 

MASEKO: MALETSATSI Second Respondent

 

JUDGMENT

 

FORD AJ:

Introduction

 

[1] This is an application for leave to appeal against the whole judgment and order handed down by me on 22 August 2022. The application is opposed by the respondents.The plaintiff instituted action against the Road Accident Fund for damages suffered as a result of personal injuries sustained in a motor vehicle collision, that occurred on 20 July 2017.

[2] The issue that requires determination in this action, is the plaintiff’s quantum of damages. Merits were previously conceded 100%, in favour of the plaintiff.

[3] The plaintiff brought an application (which was granted) to proceed with the trial in terms of Rule 38(2) of the Uniform Rules of Court.

The facts

[4] On 20 July 2017, the plaintiff was involved in a motor vehicle accident. She was a passenger in a taxi, when the driver collided with another vehicle from behind.

[5] The plaintiff sustained the following injuries in the accident. A right shoulder and right hip injury.

[6] The plaintiff was 45 years old at the time of the accident. She achieved Grade 11 as her highest level of education. Her previous work experience was limited to being a domestic/general worker. At the time of the accident, she volunteered at Legae Mediclinic as a cleaner. She was admitted for approximately a week in hospital following the accident. She never returned to work thereafter.

[7] The plaintiff appointed and filed medico-legal reports by the following experts:

7.1. Dr. S. M. Khanyile: Orthopaedic Surgeon

7.2. Dr. T. Tsineng Occupational Therapist

7.3. Dr. N. P. Manaba Industrial Psychologist;

7.4. Ms. A. Snyman Industrial Psychologist; and

7.5. Mr. M. Barnard: Actuary

 

Dr. Khanyile (Orthopaedic surgeon)

 

[8] Dr. Khanyile assessed the plaintiff and noted that she sustained a right shoulder and a right hip injury following a motor vehicle accident on 20 July 2017. She presently complains of right-sided body pain, with reported effects on the activities of daily living. He noted that her pain can be managed with pain medication and muscle relaxants, but that further operative procedures are warranted. In this regard, he recommended surgery in the form of a right hip replacement.

[9] Dr. Khanyile noted that the pain on the plaintiff’s right side will limit a choice of occupation, that requires standing for prolonged periods and carrying heavy objects. He calculated her whole person impairment at 20%, according to the guidelines set by the 6^th edition AMA (American Medical Association).

Dr. T. Tsineng (Occupational Therapist)

[10] Dr. T. Tsineng concluded that due to the reported pain and prognosis thereof the plaintiff is expected to have difficulties coping with a variety of manual occupations in the open labour market. He stated that her vocational prospects have been negatively affected by the accident, and will continue to be limited in the future, if her pain is not successfully managed. He noted further that the plaintiff will have difficulties coping with any duties which require prolonged standing, walking, stooping, kneeling, squatting and that any activity, which requires optimal fitness and physical stamina, will be difficult, as a result of the physical of the accident under review.

[11] When the plaintiff’s physical findings are considered, so opined Dr. Tsineng, the plaintiff would ideally be suited for sedentary to light work, which can be done whilst mainly seated or where she can equally alternate between sitting and standing. However, the duties should not cause repetitive strain on the right hip, and lower back or require extreme mobility or ambulatory demands. Given the fact that the plaintiff only obtained a grade 11 school qualification, he commented that she does not have any experience in sedentary type of jobs and that her educational level, as well as the lack of experience in office or administrative duties might hinder the chances of her attaining a job of that nature in the future.

[12] Dr. Tsineng noted further that the plaintiff’s previous job required light with aspects of medium physical abilities. However, the reported pain, if not successfully managed, may negatively affect her performance. She will always need reasonable accommodation, energy conservation principles, pain alleviating strategies and joint care principles. She will benefit from optimal pain management, rehabilitation, physiotherapy and biokinetics. He concluded further that taking all the findings of the occupational therapist’s assessment together with all the expert findings into consideration, the plaintiff may be considered vulnerable in her ability to secure work in the open labour market. Additionally, that it is likely that her performance would not be acceptable in the open labour market and she will need to find sympathetic employment. Further that she is not an equal competitor in the open labour market when compared to pain free and physically healthy individuals. She will find it difficult to seek gainful employment within the open labour market. It is likely that the plaintiff will always require work of a sympathetic and accommodated nature, hence prolonged periods of unemployment would need to be considered. The accident in question has, according to him, negatively impacted the plaintiff’s occupational progression, job security, her financial security and has ultimately altered her future.

[13] He noted that post accident, the plaintiff experiences pain in her lower back, pain in right hip and difficulty running. She finds it difficult to do daily activities of living, which require prolonged walking and standing.

Dr. N. P. Manaba (Industrial Psychologist)

 

[14] Dr. Manaba recorded that the plaintiff was born at Vaalmansdal and grew up in Kwandebele in Mpumalanga. In 2000 she moved to Ga-Rankuwa and has lived there ever since. She is the tenth of 14 children. Six of her siblings have reportedly passed on, some years ago. She indicated that she is married and has three children and two grandchildren. She lives with her husband, her children and her two grandchildren. The family is reported to be staying in a five roomed house with running water and electricity. The plaintiff reported further that she was very healthy when growing up and was never diagnosed with any chronic illnesses. She had however undergone several surgeries which includes caesarean section when giving birth to her children, for tonsillectomy and she also had fractured her left leg, and had been operated on. The plaintiff reported that she is a traditional healer who completed her initiation in 2013 at Ga-Rankuwa.

[15] The plaintiff told Dr. Manaba that she last had stable income back in 2012 when she was a domestic worker supposedly earning R 2 500.00, albeit, for a brief period of 5 months. Thereafter she reportedly volunteered at Legae Mediclinic, without receiving a salary, for unskilled work on the promise of appointment when a vacancy became available. She also has intermittent income as a traditional healer, which she still accrues, and income in relation thereto – on a productive month – would be R 2 500.00. During other months she would make no income at all.

[16] Dr. Manaba noted that the plaintiff did not suffer any past loss of income as she was not in formal employment, but volunteered at Mediclinic. He notes in respect of future loss of earnings that salary earnings of unskilled workers as obtained from Koch, 2022, be used as a means of determining the plaintiff’s career and earning progression. Owing to her age and lack of meaningful experience in any work, she would according to Dr. Manaba, have earned between the lower and Median bracket for the rest of her working career till age 60 or 65, health permitting.

Ms. A. Snyman (Industrial Psychologist)

[17] In the addendum report of Ms. Snyman, she notes that she telephonically contacted the plaintiff on 6 and 26 September 2024, who reported that she remains unemployed to date. She confirmed that the plaintiff stated under oath that she was working as a volunteer cleaner at Legae Medi Clinic and she did not earn a salary, but that she was promised a job.

[18] Ms. Snyman reported that the plaintiff was unable to provide her with any contact details for the employer at that time, and that she was unable to verify the plaintiff’s aforementioned statement. Regarding the traditional healing venture, as reported to Dr. Manaba, the plaintiff reported that she ceased this venture in 2023 as it was not financially viable, and that she has been living off a disability grant since 2018, as her only source of income.

[19] Ms. Snyman sought to change the postulations advanced by Dr. Manaba, by asserting as follows. The plaintiff was not earning any income at the time of the accident from her volunteer work and would probably at some point in time have decided to seek alternative work, that would have provided her with an income. Although she stated under oath that she was promised a job when the employer has an opening, it cannot be guaranteed that an opening would have become available. Further that the plaintiff would probably have been motivated to rather seek work that provided her with an income as she would probably not have waited indefinitely for an opening to become available.

[20] She opines that in the “but for” the accident scenario, the plaintiff could at least have secured alternative employment that provided her with an income by 2019. Further that it is accepted that the plaintiff would have been limited to employment opportunities in the non-corporate work environment, where she would likely have earned on par with the proposed minimum wage for 2019 of R20 per hour. Working 45 hours per week, this equates to an income of about R900 per week / R46 800 per annum. And given the fact that she had at least 20 years of employment left at the time of the accident (noting that she was 45 years of age at the time of the accident), it is expected that she would still have been able to progress in a straight line to the median of the salaries indicated for semi-skilled workers (a current salary of approximately R83 000 per annum) over a period of about 5 to 7 years, depending on the employment she could secure. This, so Ms. Snyman reasoned, can be regarded as her pre-accident earning potential and only annual inflationary increases would have applied.

[21] She concludes that the plaintiff has been rendered unemployable, for all intents and purposes, and should be compensated for a total loss of work capacity and earnings.

[22] Relying on the opinions of the experts, the actuary Mr. M. Barnard, calculated the plaintiff’s loss of earnings in the amount of R927 314.00 (Nine hundred and twenty-seven thousand, three-hundred and fourteen rand).

Analysis

Loss of earnings

[23] The plaintiff’s uninjured earnings (but for the accident) are estimated by the actuary in the amount of R927 314.00, having applied the conventional 5% for past loss of earnings, and 15% for future loss of earnings.

[24] On the evidence before me, there is no doubt that the plaintiff suffered the orthopaedic injuries as recorded by the relevant experts. The issue to be determined is the extent of such injuries and sequalae on the plaintiff’s earning capacity.

[25] The plaintiff has filed two industrial psychologists’ reports, albeit one (the latter) is filed as an addendum report, these reports embrace two entirely different postulations. I refer to the first report as the “Manaba report” and to the latter, as “the Snyman report”.

[26] The Manaba report advances the proposition, that pre-morbidly the plaintiff worked and continue to earn and income as a traditional healer. This is disputed in the Snyman report, which states that the plaintiff ceased this venture in 2023 as it was not financially viable. These two positions display an irreconcilability only in respect of income. In matters pertaining to loss of earnings, the enquiry spans wider than income and also includes earnings potential. I am prepared to accept, as intimated in both the Manaba and Snyman reports, that the plaintiff holds the potential to earn an income as a traditional healer and has done so in the past, albeit that the nature and extent of such income belies the two reports. I do not accept, as concluded by Snyman, that the plaintiff’s loss of earnings capacity is zero. I am of the view that she retained 50% earnings capacity.

[27] The further difference in the Manaba and Snyman reports, is the question of the plaintiff working in a volunteering capacity at Mediclinic until such time that a post became available. According to Snyman, this was not an indefinite but a specific eventuality, that would have occurred in 2019. Although this proposition constitutes a significant departure from what was advanced in the Manaba report, I am prepared, in light of my finding that the plaintiff retained 50% residual earning capacity, to accept the proposition advanced in Snyman.

[28] It is trite that the deduction of contingencies remains the prerogative of the court, in normal circumstances, however, contingencies are generally applied as deductions of 5% for past loss of earnings and 15% for future loss of earnings¹.

[29] In so far as the plaintiff’s post-accident loss of earnings is concerned, I do not accept the postulation that the plaintiff is unemployable. She is a traditional healer and has worked as such, and retains such potential. Moreover, the experts asserts that the sequela following her injuries are treatable, and if treatable can only but improve her earnings capacity, not worsen it.

[30] In light of the conclusion that the plaintiff retained 50% earning capacity in the post-morbid scenario, I conclude the plaintiff’s loss to be as follows:

A. Uninjured Earnings (As per plaintiff’s pre-morbid scenario)

	Amount	Contingency Deduction	Net Value
Past income	R363 315	5%	R345 149
Future income	R856 358	15%	R727 904
TOTAL PRE-MORBID LOSS			R1,073 053

 

 

B. Injured earnings capacity

	Amount	Contingency Deduction	Net Value
Past income	R181, 657.50	5%	R172,574.62
Future income	R428,179	15%	R363, 952.15
TOTAL POST-MORBID LOSS			R536, 526.77

 

(Total loss of earnings: [A] R1, 073 053 less [B] R536 526.77 = R536, 526,23 less disability grant of R145,740, equals: R390,786.23)

 

[31] In the result, I make the following order:

Order:

1. The issue of general damages is postponed sine die;

 

2. The defendant is ordered to pay the plaintiff an amount of R358,390.04 (three hundred and fifty-eight thousand, three-hundred and ninety rand, and four cents) for loss of earnings, which payment shall be made directly into the plaintiff’s attorneys’ trust account;

 

Beneficiary: Johan Cilliers & Associates

Bank: First National Bank

Account number: 6209 8866 878 B

Branch code: 210 314

REF: J CILLIERS/MAT61

 

3. The defendant is ordered to pay the plaintiff in addition to the amount reflected above, an amount of R 37 560.00 (Thirty-seven thousand, five hundred and sixty rand) in respect of past medical expenses;

 

4. The defendant will not be liable for interest on the above amount provided that same is paid within one hundred and eighty (180) days, failing which interest at the prescribed rate per annum will be payable calculated from the date on which this order was made.

 

5. Subject to the discretion of the Taxing Master, the defendant to pay the plaintiff's proven costs for future accommodation in hospital/nursing home or treatment of or rendering of a service or supply of goods to the plaintiff resulting from the injuries sustained by the plaintiff as a result of a motor vehicle collision which occurred on 20 July 2017 by issuing the plaintiff with a certificate to this effect, as contemplated by Section 17(4) (a) of the Road Accident Fund Act 56 of 1996;

 

6. Defendant to pay the plaintiff’s taxed or agreed party and party costs on a High Court scale up to the date of making this order. In the event that the costs are not agreed, the plaintiff agrees as follows:

 

5.1 The plaintiff shall serve the notice of taxation on the defendant;

5.2 The plaintiff shall allow the defendant Fourteen (14) days to make the said payment of the taxed costs; and

5.3 Should payment not be effected timeously; the plaintiff will be entitled to recover interest at the prescribed rate per annum on the taxed or agreed costs from date of allocatur to date of final payment.

 

7. The above costs will also be paid into the attorneys trust account, which costs shall include the following:

 

6.1 The costs of counsel including all preparations and drafting of heads of arguments, consultation with plaintiff and attorney and appearance fees on High Court Scale A;

 

6.2 The costs of obtaining all medico-legal reports, reservation and reasonable taxable preparation fees (subject to prayer 6.3 below), if any, for all the experts of the plaintiff:

 

6.2.1 Dr. S. M. Khanyile: Orthopaedic Surgeon

6.2.2 Dr. T. Tsineng Occupational Therapist

6.2.3 Dr. N. P. Manaba Industrial Psychologist;

6.2.4 Ms. A. Snyman Industrial Psychologist; and

6.2.5 Mr. M. Barnard: Actuary

 

6.3 No reservation fees shall be paid to experts for the trial as the trial proceeded in terms of Rule 38(2);

 

6.4 The reasonable travelling costs incurred for attending all the medico-legal examinations by the plaintiff's as well as reasonable transportation costs for attending court proceedings, subject to the discretion of the Taxing Master;

 

6.5 The costs of the preparation set of trial bundles and to upload them on CaseLines.

 

7 No payment of any kind shall be made until such time that a copy of the Contingency Agreement and requisite affidavits have been filed with the Judge’s Registrar and uploaded on CaseLines.

 

 

The applicant’s submissions

The applicant claims that I erred in failing to find that the applicant and the first respondent concluded a valid agreement, being the written credit agreement attached to the particulars of claim. Further, that I erred in finding that the agreement concluded between the applicant and the first respondent is invalid, “because no valid transfer of ownership, which is integral to the subsequent transfers, had taken place between first defendant and Emotion Cars or between Emotion Cars and the plaintiff.²”

The applicant submitted that, as a matter of law the transfer of ownership is not a requirement for a valid agreement. In this regard it relies on the dictum in case of Frye’s (Pty) Ltd v Ries³, where the Appellate Division, as it then was, said “There can be no doubt that neither a sale nor a lease is void merely because the seller is not the owner of the property sold or leased.”

The applicant submitted further that if the seller is not able to transfer ownership because he was not the owner, the purchaser may have a damages claim based on the breach of the implied warranty against eviction or may claim vaccuo possessio (free and undisturbed possession) failing which he may have a damages claim, but that the agreement itself is not void.

The applicant referred me to section 8 of the National Credit Act, Act 34 of 2005 and particular the fact that the agreement concluded between the applicant and the first respondent NCA was a credit agreement and that section 8(2) of the NCA does not require the passing of ownership for the conclusion or validity of a credit agreement.

It was argued that in this matter, the agreement concluded provides that ownership in the vehicle will pass to the first respondent once he had paid the purchase price. In paragraph 4.1 of the agreement, concluded between the applicant and the first respondent, it expressly states that [the applicant] “We will remain the owner of the goods until you have paid all the amounts due under this agreement.”

It was submitted that I erred in finding that “In the absence of delivery having taken place, the plaintiff could never have acquired ownership and will consequently not be entitled to the relief in this action. This is so because a claim for return of the vehicle is only available to an owner of the vehicle” ⁴ because it is not only an owner of property who is entitled to claim return of property. A lessee and a possessor could have been claimed return of the vehicle.

It was argued that the applicant and the first respondent acknowledged that the vehicle will serve as security for the loan which the applicant granted the first respondent and if the first respondent breaches the finance agreement by failing to repay the loan, the applicant will be entitled to take possession of the vehicle and obtain the agreed relief in such an instance.

The applicant submitted that I erred in finding that “delivery” in any form was prerequisite for the validity of the agreement concluded between the plaintiff and the first defendant. Further, that I erred in finding that the vehicle was not to serve as security for the loan.

The applicant held that my finding of a simulated agreement was incorrect and that my assessment of the first respondent’s elementary handwringing was equally wrong.

The applicant submitted that I erred when stating that in order for the applicant to have succeeded, it had to demonstrate that a valid transfer of ownership was effected. It is submitted that this statement is incorrect in law when considered against Quartermark Investments (Pty) Limited v Mkwanazi and Another⁵, where the court held that the negative system of transfer of ownership applies to movable as well as immovable property and stated that: “As has already been mentioned, a valid underlying agreement to pass ownership, such as in this instance a contract of sale is not required.”

During argument, counsel for the applicant abandoned the ground of appeal mounted in respect of costs.

The applicant sought that leave to appeal be granted to the Supreme Court of Appeal as this case concerns a type of transaction which, as far as could be ascertained (by the applicant), had not been considered by the Supreme Court of Appeal.

Respondents’ submissions

The respondents submitted that the action arose on account of an alleged credit agreement concluded between the applicant and the first respondent wherein the first respondent bought a motor vehicle from the applicant. The respondents contend that at the trial the two matters in dispute were raised. Firstly, the respondents’ denial that the applicant sold the motor vehicle, which forms the subject matter of the action, to the first respondent who denied that he concluded a credit agreement as was alleged by the applicant. Secondly, the applicant’s denial of any liability towards the respondents.

The respondents narrated the chronology as found by me in relation to the vehicle, in particular the fact that the first respondent sold the motor vehicle to e-Motion Cars, who then sold it to the applicant who then sold it to the first respondent, but that absent hereto was the delivery to e-Motion Cars by the first respondent.

The respondents’ referred to the agreement pack which reflects a delivery note whereby the first respondent accepts delivery of the vehicle on behalf of the applicant in relation to its purchase and subsequent sale from e-Motion cars to the applicant and from the applicant to the first respondent.

The respondents submitted that it is the first respondent’s unchallenged testimony that during the relevant time periods he was always in possession of the vehicle. On his interpretation, owing to the fact that he was entitled to possession of the motor vehicle because of the authority granted to him by the second respondent. And in terms of what I found, that the second respondent was never the owner of the motor vehicle on the basis that she never took delivery thereof.

The respondents contend that the first respondent could never have purchased a vehicle from e-Motion Cars with the applicant acting as the financier when e-Motion Cars was never the owner and [at best] was a third-party party used by Mr. Kriel and Mr. Basson to disguise the nature of the transaction. Further that, the first respondent throughout the relevant time periods always believed the second respondent was the owner of the vehicle and that he never had intention to sell the vehicle, nor did he have the second respondent’s consent to do so.

The respondents submit that the first respondent’s intention was to obtain a loan from Mr. Basson.

The starting point in this matter, so the respondents argue, is whether the first respondent could purchase a vehicle that he had not sold nor had the intention to sell? In this regard they narrate the fact that I found, that he could not, and that therefore the applicant needs to seek its relief from Mr. Kriel, Mr. Basson or e-Motion Cars.

The respondents point out that the applicant, from the Summary Judgment proceedings stage, was aware of the part that e-Motion Cars had to play in this matter, as well as the failure of its agent, Mr Kriel, to disclose all the relevant and necessary information to it.

The respondents contend further that in terms of s 17(1)(a) of the Superior Courts Act 10 of 2013, leave to appeal "may only be given" when:- the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration."

In MEC Health, Eastern Cape v Mkhitha⁶, the court noted that:-

"[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there is truly a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success, or there is some other compelling reason why it should be heard.

 

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable or realistic chance on appeal. A mere possibility of success, an arguable case or one that is not hopeless is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal." (Emphasis added).

In Smith v S⁷ the Supreme Court of Appeal, so the respondents contend, also had occasion to consider what "reasonable prospects of success" in section 17(1)(a)(i) meant: "What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed therefore the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound. rational basis for the conclusion that there are prospects of success on appeal" (Emphasis added).

In Fair Trade Tobacco Association v President of the Republic of South Africa and Others⁸ a full bench held that: ''As such, in considering the application for leave to appeal, it is crucial for this Court to remain cognizant of the higher threshold that needs to be met before leave to appeal may be granted. There must exist more than just a mere possibility that another court, the SCA in this instance, will, not might find differently on both the facts and the law. It is against this background that we consider the most pivotal grounds of appeal."

The respondents argued that the latter dictum emphasises a vital point, namely that "Leave to appeal is not simply for the taking. A balance between the rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal dictates that the balance must be struck in favour of the party which was initially successful.” ⁹(Emphasis added)

The respondents submit, what the applicant contends that it has good prospects of success in an appeal, that an appeal court will find that the loan which the first respondent obtained, was a secured loan and that the motor vehicle which the applicant is claiming, was to serve as security for repayment of the loan. Such a contention, as contemplated by the applicant, so the respondents argue, might be plausible in a typical vehicle purchase and finance scenario, but that this transaction was not that. It argues that there are factual links missing. Several actions and/or agreements were sealed as one transaction wherein all the necessary actions do not appear to act in accordance with the different transactions.

With reference to how the agreement giving rise to the sale and re-purchasing of the vehicle came about, the respondents contend that the agreements are read together with its purported intentions, namely that;

the first respondent intended to sell the vehicle to e-Motion Cars for a price to be determined once the vehicle was sold to the applicant, such amount being R88 354.00 which was paid to the first respondent only after the vehicle was allegedly bought by the first respondent;

e-Motion Cars intended to sell the vehicle to the applicant for R121 350.00, which purchase price was paid to it by the applicant;

the applicant intended to sell the vehicle to the first respondent for R120 347.00 with a total cost of instalment sale agreement being R200 952.40.

The respondents reiterated that there was no intention for the first respondent to sell the vehicle to e-Motion Cars. Nor did e-Motion Cars take delivery of the vehicle and enter into a re-seller agreement with the applicant as would normally be the case with motor dealership agreements. Further that the first respondent testified that he never went to e-Motion Cars’ premises, and he was always in possession of the vehicle. Accordingly, e-Motion Cars never had the intention to become the owner and title holder of the vehicle.

The respondents contend that if contracts were genuine e-Motion Cars would have taken possession, and they would have sold the vehicle to the first respondent with the applicant financing the transaction. They submitted that one cannot determine why this did not take place but can only speculate as to what the suite of agreements were supposed to avoid. E-Motion Cars allegedly thereafter sold the vehicle to the applicant. With that transaction, it received approximately R121 350.00 from the applicant.

The respondents submit that the applicant intended to sell the vehicle it allegedly bought from e-Motion Cars to the first respondent. The first respondent, only after this stage received his loan/sale amount as determined by Mr. Kriel, Mr. Basson, and e-Motion Cars in the amount of R88 354.00. 23.It is apparent that the proverbial house of cards is dependent on the sale of the vehicle from the first respondent to e-Motion Cars, so the respondents argued. They submitted further that the evidence in this regard shows that the first respondent never intended for such a sale to happen.

The respondents contend that in the main, the finding, from Mr. Kriel’s and Mr Basson’s testimony was that the arrangement was a simulated transaction. Going as far as to confirm that the applicant was unaware of the intention of the first suite of agreements forming part of the simulated transaction. The respondents submit that this act of disguise was to conceal the transactions’ real nature.

Brief analysis

At the trial, the applicant argued [at length] that the second respondent (second defendant in the main action) was not the true owner of the vehicle as she never took delivery of the vehicle. This, notwithstanding the fact that the vehicle was registered in her name. The applicant understood, and I agreed with that submission, that an important element conferring ownership was in fact delivery. In these proceedings, it appears, impliedly so, that the applicant seems to be distancing itself from that position. The argument, at the trial, was sound then, and I see no reason to depart from it now.

In order for ownership of movable property, to pass from one person to the next, there must be an intention on the part of the owner to transfer ownership and there must be an intention on the part of the purchaser (such as in the present instance) to receive ownership, followed by delivery, either actual or constructive, in the absence of delivery there cannot be transfer of ownership. I, with respect, do not read the authorities listed by Mr. Bruwer as suggesting anything otherwise.

The applicant is not able to show, from the evidence led at the trial, that there was an intention on the part of the owner (the first respondent) to transfer ownership to e-Motion Cars, and that there was an intention on the part of the purchaser (such as in the present instance) to receive ownership. Moreover, the applicant was unable to demonstrate whether the parties involved in the transaction took delivery of the vehicle. This is the central issue that this case turns on.

The applicant’s claim in the action, was for the return of a motor vehicle¹⁰. The avenue by which it sought to achieve this was by way of a rei vindicatio which has the objective to restore physical control of the property to the owner, with ownership forming the basis for such a claim. Three requirements must be met for the rei vindicatio to be successfully invoked¹¹.

I found no merit in the applicant’s protestations dealing with my conclusion that the transaction in relation to the vehicle was largely simulated. Nor do the authorities suggest that a court cannot on its own accord assess evidence in relation thereto, in the absence of such an issue first being raised by any of the parties.

My assessment pertaining to the elementary handwriting of the first respondent, must be seen within the wider conspectus of the evidence pertaining to the educational development of the first respondent. Albeit that such finding is not what this matter, in the final analysis, turned on.

Much of the attack against my judgment is based on the fact that I concluded that the conclusion of a credit agreement between the applicant and the first respondent was invalid on account of the fact that no valid transfer of ownership, which is integral to the subsequent transfers, had taken place between the first respondent and e-Motion Cars, or between e-Motion Cars and the applicant and the first respondent, who had no intention of selling his vehicle, further inhibiting a valid transfer of ownership. The attack against this finding is unfortunately not correctly juxtaposed in relation to the requirement of intention as it relates to the intention to transfer ownership and the intention to receive ownership, followed by delivery, which is absent in the transaction.

I agree with Mr. Webbstock and the authorities quoted in relation to prospects of success in an appeal. I find no reason why an appeal court should be burdened with a matter in which the applicant has no prospects of success.

Order

In the result, I make the following order:

 

The application for leave to appeal is refused;

The applicant to pay the respondents’ costs limited to this application for leave to appeal.

 

__________________________

B. FORD

Acting Judge of the High Court

Gauteng Division of the High Court, Johannesburg

 

 

Delivered: This judgment was prepared and authored by the Judge whose name is reflected on 14 March 202314 January 2025 and is handed down electronically by circulation to the parties/their legal representatives by e‑mail and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 14 March 2023January 2025.

 

 

Date of hearing: 14 December18 October 2024 2022

Date of judgment: 14 March January 20253

 

Appearances:

For the plaintiff: Adv. A. P. BruwerH. Worthington

Instructed by: Cilliers 8 Associates IncC.F. Van Koller Inc (Germiston)

For the defendants: Mr. M. Webbstock

Instructed by: JC Van Der Merwe Attorneys (Germiston)No appearance