Court name
High Court of eSwatini
Case number
Civil Case 197 of 2001

John's Transport (Pty) Ltd v Riberio (Civil Case 197 of 2001) [2003] SZHC 103 (03 November 2003);

Law report citations
Media neutral citation
[2003] SZHC 103
Coram
Shabangu, AJ









IN
THE HIGH COURT OF SWAZILAND


CIVIL
CASE NO. 197/2001


In
the matter between:


JOHN'S
TRANSPORT (PTY) LTD PLAINTIFF


AND
MANUEL RIBERIO DEFENDANT


CORAM SHABANGU
A

J


FOR
THE PLAINTIFF MR C. NTTWANE


FOR
DEFENDANT MR Z. MAGAGULA


JUDGEMENT


3rd
November, 2003


In
this matter I made an order on 24th September, 2003 in which the
plaintiff's claim was dismissed with costs. I stated at the time that
reasons were to be given later, which reasons I now hand down.


It
appears from the facts which appeared common cause during the trial
that on or about 29th April, 1993 at Matsapha the plaintiff which was
represented by one John Ndzabandzaba purchased a certain vehicle
being a 1988 Toyota Hiace Commuter 2200, registered as SD 104 PM with
chassis number 9004345 and engine number 34D46418. This is the
description of the vehicle as it appears in paragraph three of the


2


particulars
of claim. There was a dispute as to who the other party, namely the
seller, of the vehicle was. Whereas the plaintiff contends that the
defendant was the seller, the defendant's contention on the pleadings
and during the trial was that the seller, in fact was not him, but
was a certain company of which he was merely a director. The name of
the company alleged by the defendant to have been the seller was
Matsapha Panel Beaters and Spray Painters (Pty) Ltd. The agreed
purchase price for the vehicle was E32,000-00. What appears from the
evidence even though not pleaded is that the purchase price for the
vehicle was paid by the plaintiff and the vehicle was delivered to
the plaintiff in 1993. Payment of the purchase price of E32,000-00
was made by cheque drawn by the Plaintiff's financier described as
Northcon Finance, drawn in favour of the defendant. It also appeared
to be common cause and not disputed that when the vehicle was
initially delivered to the plaintiff after the conclusion of the
sale, prior to the transfer of registration the vehicle was inspected
and certified by the Police to be one that is not stolen and the
police issued a Police Clearance to this effect in accordance with
the procedures normally applicable to transfer of registration in
respect of a vehicle.


Five
years later from the date of delivery in July, 1998 the vehicle was
seized by members of the Royal Swaziland Police on the basis that it
was a stolen vehicle. The circumstances leading to the seizure of the
vehicle by the Royal Swaziland Police were as follows. The vehicle
was temporarily parked by the driver, a certain Mr Maziya at the
premises of the Royal Swaziland Police in Manzini whilst he went on
errands in town. It appears to have been a sheer coincidence that on
the day in question the Police were scheduled to conduct an
examination or inspection together with members of the South African
Police Services of


3


the
vehicles kept at their premises which had been seized from the
members of the public. From a casual observation of the vehicle the
local police officers who were still preparing for the work of the
day, namely the examination of the vehicles, by counting and
identifying the vehicles which were to be examined, mistakenly
identified this vehicle as being amongst those vehicles which were to
be examined on the day in question. The aforementioned mistake is
said to have occurred because by mere casual observation the
identifying numbers of the vehicle which were reflected on the
windows were not the same. The Police were surprised when they
learned later, perhaps as a result of the Plaintiff's driver coming
to collect the vehicle from their premises, that the vehicle was not
amongst those scheduled for examination on that day. Inspite of this
fact however the Police at that stage decided to seize the vehicle
because of the apparent discrepancy on the identifying features which
were apparent on the windows of the vehicle.


Following
the seizure of the vehicle the plaintiff is said to have gone to see
the defendant demanding his money back alternatively another vehicle.
There is a dispute as to what the defendant's response was on the
aforementioned demand. The defendant says that he told the plaintiff
that the fact that his vehicle had been seized by members of the
Royal Swaziland Police on suspicion that it was stolen was none of
his business because he himself did not sell stolen vehicles. On the
other hand the plaintiff says the defendant kept promising that he
would deliver another vehicle or refund the purchase price.


I
may mention further that it appeared to be common cause on the
evidence that the vehicle the defendant had purchased which was
described as a 1988 Toyota Hiace Commuter 2200 with Chassis number


4


9004345
Engine Number 34D46418 registered SD 104 PM was purchased by the
defendant from the liquidator of Swaziland Meat Industries. The
plaintiff has led evidence which was directed at showing that even
though the defendant had purchased the aforementioned vehicle from
the Liquidator of Swaziland Meat Industries as an accident damaged
vehicle the defendant had in repairing the vehicle joined a portion
of the chassis which had a different chassis number from that of the
vehicle. It was further suggested that the vehicle was so extensively
damaged that a different engine with a different engine number had to
be fitted on the damaged vehicle which was to be later purchased by
the Plaintiff. The argument that was made following on the above on
behalf of the plaintiff was that replacement of the engine as above
stated and the repair to the chassis as alleged not only explains why
the identifying features of the vehicle did not correspond to those
on the registration, but further that when the repairs were done the
defendant knowing that he had replaced both the engine and the
chassis decided to change the identifying numbers of this replacement
parts so that they conform with those in the registration book. The
Plaintiff's attorney further argued that the replacement parts must
have been stolen and that the defendant must not only have known this
but he actually knew the parts to have been stolen. This is the
background which has led to the present proceedings.


The
basis of the plaintiff's claim can more accurately be described as
being the seizure of the vehicle by the Police. At paragraph eight of
its particulars of claim the plaintiff pleads as follows:


"During
July, 1988 members of the Royal Swaziland Police seized the motor
vehicle in question on the basis that it was a stolen motor vehicle
and defendant could not have passed ownership. "


5


In
so far as it is stated in the aforesaid paragraph nine that the
defendant could not have passed ownership, such statement may be
misconceived because in our law a seller does not warrant that he is
able to pass ownership of the res vendita nor does he even warrant
that he is the owner thereof. All that the seller warrants is of
vacua possessio to the purchaser in respect of the res vendita. See
J.

T.
R.
GIBSON, SOUTH AFRICAN MERCANTILE AND COMPANY LAW at page 123 wherein
the learned author states;


"The
seller does not engage to transfer ownership to the buyer by delivery
and cannot be compelled to do so. He undertakes only to give the
buyer a lesser right in the article - namely possession (vacua
possessio)."


See
also the seventh edition at page 118.

In
the case of KLEYNHAN'S BROS V. WESSELS' TRUSTEE 1927

AD
271 AT 282 also quoted with approval by a number of text book and
academic writers; the principle which is rather trite in any event
was formulated thus;


"A
contract of sale with us does not have the effect of a translatio
dominii (transfer of ownership; it is simply an obligation to give
vacua possessio coupled with the further legal consequence of a
guarantee against eviction."


Even
though this principle is trite it becomes necessary to cite same
having regard to the manner which the plaintiff adopted in
formulating its cause of action. It is not only a strangely
formulated cause of action, but it indicates total misapprehension of
the obligations and warranties a seller undertakes and makes in a
contract of sale. What is further clear from the aforestated
principle is that, implied by operation of law in every contract of
sale is the so-called warranty against eviction and the


6


obligation
to give vacua possessio. A consequence of this is as observed in J.

T.
R.
GIBSON supra seventh edition at page 129, that


"
It is thus possible in our law for one person to sell property of
which he is not the owner and without the owner's authority. If,
however, he does so knowing he is not the owner and yet representing
to the innocent purchaser that the property is his, he has
fraudulently misrepresented a material fact, thereby entitling the
purchaser to set the contract aside. If however, the seller is bona
fide and there is no misrepresentation, there is no question of
voidability. The contract is valid and the buyer cannot set it aside.
It is these circumstances that he is protected by the implied
warranty against eviction if he suffers any interference in his vacua
possessio."


The
implied warranty against eviction which is an incident of the sellers
obligation to give vacua possessio is no more than a term implied ex
lege, that is, by operation of law, by which the seller warrants that
the purchaser will not be disturbed, whether by the seller himself or
by a third party, in his vacua possessio, as a result of defective
title. In LAMMERS and LAMMERS V. GIOVANNONI

1955
(3) SA 385 A at 397 the learned judge observed in relation to the
implied warranty against eviction;


"The
seller...

is
not an insurer. His implied warranty is not that the purchaser will
not be vexed by the unlawful acts of others. All he warrants is that
the purchaser will not be lawfully evicted

because
of defective title."


For
a purchaser who has been evicted from the res venditta, to be
entitled to any remedy arising from a breach of the warranty against
eviction he must allege in his pleadings and prove at the trial


"(a) the
purchaser was evicted. This does not necessarily mean a physical loss
but includes a case where an unassailable claim to the goods has been
compromised or delayed. LAMMERS AND LAMMERS V GIOVANNONI 1955(3) SA
385A OLIVIER V. VAN DER BERGH 1956 (1) SA 802 (C).


7


GARDEN
CITY MOTORS (PTY) LTD V. BANK OF THE OFS LTD 1983 (2) SA 104(N).


(b) The
purchaser gave notice to the seller of the proceedings to assist him
in defending the case; and the purchaser conducted an unsuccessful
virilis defenso against the claim. WESTEEL ENGINEERING (PTY) LTD V.
SIDNEY CLOW AND CO LTD 1968(3) SA 458 (T).

YORK
AND CO PUT V. J0NES(2) 1962 (1) SA 72 (SR)


(c) If
no notice was given or no virilis defensio was conducted, the
claimants' title was unassailable.


LAMMERS
supra, GARDEN CITY MOTORS supra"

See
AIMLER'S PRECEDENTS OF PLEADING, 1st edn, by

L.T.
CHARMS at page 311."


In
the present case it is clear from both the pleadings and the evidence
that the plaintiff was evicted in the sense that it physically lost
the vehicle to the Police who seized the vehicle. However there is
clearly no allegation in the pleadings that the plaintiff gave notice
to the defendant requiring the latter's assistance in defending his
title to the vehicle. There is also no allegation that the plaintiff
put up a virilis defensio. This is a clear indication that there was
no intention on the part of the plaintiff to base its cause of action
on the breach of warranty against eviction. Indeed even during the
trial no evidence of a notice requiring the defendant to assist the
plaintiff in defending his title to the vehicle was tendered at all.
The only evidence which might come close to this was evidence of a
demand the plaintiff allegedly made to the defendant for either a
return of the purchase price or a replacement of the vehicle. This is
not the same thing as notice calling upon the seller to give
assistance in defending the plaintiff's title to the vehicle. Further
there is no evidence that the plaintiff put up a virilis defensio in
as much as even though there may have been proceedings instituted by
the plaintiff through attorney Leo Gama there is nothing to indicate
that such proceedings were brought


8


to
finality or concluded either for or against the plaintiff. The
plaintiff could not therefore have succeeded on the basis of a breach
of the warranty against eviction.


The
plaintiffs case as pleaded is as follows in so far as same may be
relevant in this proceedings.


"3. On
the 29th April, 1993 at Matsapha Plaintiff duly represented by John
Ndzabandzaba its director entered into an agreement of sale with the
defendant in terms of which the latter entered into an agreement of
sale with the defendant in terms of which the latter sold to the
former the undermentioned motor vehicle for a sum of E32,000-00, 1988
Toyota Hiace Commuter, 2200 Chasis Number 9004345, Engine Number
34D46418 Registration Number SD

1
04
PM. ...


4.3 Delivery
of the motor vehicle to plaintiff would be effected on payment of the
purchase price.


5. At
the time the agreement of sale referred to above was entered into
defendant represented to plaintiff that he was entitled to sell the
motor vehicle and could pass ownership in same and that it was not a
stolen motor vehicle.


6. When
making the representation defendant knew it to be false in that he
knew he could not pass ownership in the motor vehicle as it was a
stolen one.


7. When
defendant made the representation he intended plaintiff to act
thereon and to pay him the purchase price of the motor vehicle as it
was material to the sale agreement


8. Plaintiff
was induced by the representation to purchase the motor vehicle on
the terms of the agreement referred to in paragraphs 3 and 4 hereto
and on the 29th April, 1993 he took delivery of the motor vehicle.


9. During
July, 1998 members of the Royal Swaziland Police seized the motor
vehicle in question on the basis that it was a stolen motor vehicle
and defendant could not have passed ownership in it.


9


10. As
a result of Defendant's representation as aforesaid Plaintiff
suffered damages in the sum of E45,564-44 being the amounts paid by
plaintiff to his financiers. Alternatively, as a result of
Defendant's representation he has been unjustly enriched at the
expense of the plaintiff in the sum of E32,000 being the sums
received by the Defendant in respect of the purchase price of the
motor vehicle.


11. Notwithstanding
demand to pay the aforesaid sums Defendant fails and/or refuses to do
so. "


Whatever
may be said for or against the soundness of the plaintiff's cause of
action as pleaded, the said plaintiff's case simple cannot succeed
because;


(a) There
is simple no evidence of the alleged misrepresentations attributed to
defendant. In other words there is no evidence that defendant stated
at any stage when the sale was concluded that "he could pass
ownership in the vehicle and that it was not a stolen vehicle."
Such representation was not expressly made nor does the law imply
same. There is no basis upon which such a term could be consensually
implied on the evidence. Further there is no evidence to support the
allegation that defendant knew that he could not pass ownership or
that the vehicle was stolen. Indeed there was not even evidence that
the vehicle was stolen. All that the evidence presented on behalf of
the plaintiff said was that a different chassis with a new chassis
number was welded into the old chassis of the vehicle and that the
portion of the chassis which was joined and welded to the original
might have been stolen.


(b) On
a balance of probabilities I am not satisfied that the vehicle had at
the time of its delivery in relation to its identifying features,
(e.g. the engine and chassis number) the discrepancies


10


which
led to its seizure by the Police five years after its delivery by the
defendant, particularly if one has further regard to the fact that it
is common cause the vehicle had been checked for such discrepancies
by Police in 1993.


In
the circumstances and on the basis of the aforegoing the plaintiff's
claim was dismissed with costs.


Alex
S. Shabangu


Acting
Judge