Court name
High Court of eSwatini

David M.Dlamini () [2000] SZHC 16 (03 February 2000);

Law report citations
Media neutral citation
[2000] SZHC 16
Coram
Maphalala, J









1


IN
THE HIGH COURT OF SWAZILAND


CIV.
CASE NO 2050/99


In
the matter between


DAVID
M. DLAMINI APPLICANT


And


XOLANI
SHONGWE RESPONDENT


Coram
S.B. MAPHALALA - J


For
Applicant MR. MABILA


For
Respondent MR. J. HENWOOD


JUDGEMENT


(03/02/00)


Maphalala
J:


This
matter came with a certificate of urgency for an order framed in the
following manner:


1. The
forms and service provided for in the rules of this court to be
dispensed with and the matter be dealt with as a matter of urgency in
terms of Rule 6 (25) (a);


2. That
a rule nisi do hereby issue, calling upon the respondent to show
cause on a date to be fixed by the court why:


2.1.1. The
respondent or any other person who may be found to be in possession
of the vehicle which is a:


995
Honda Ballade Luxline SD 180 BG


Should
not be ordered to restore the vehicle to the applicant.


2.2. That
the respondent should not be made to pay the costs of this
application.


3. That
the rule in paragraph 2 above operates with interim and immediate
effect pending the return date of this application.


4. That
the Deputy Sheriff for the District in which the vehicle is to be
found and is hereby authorised to take whatever steps he deem
necessary to cany into effect order no. 2 above.


5. Further
and/or alternative relief.


2


A
rule nisi was issued by the learned Chief Justice on the 20th August
1999, which reads ipsissima verba thus:


"Wherefore
having heard counsel for the applicant it is hereby ordered that:


1. The
Sheriff or his lawful Deputy is authorised and requested to attach
the motor vehicle, a 1995 Honda Ballade 1601 registered SD 180 BG, in
the possession of the respondent and to hold the same pending the
outcome of this application.


2. The
application is postponed to the 27th August 1999, when the
applicant's claim for vindication of the vehicle will be heard.


3. Respondent
may file affidavit not later than 25th August 1999, at 12.00 noon if
he wishes to oppose this ruling.


4. This
order and founding papers are to be served on the respondent
simultaneously with the making of attachment in (1) above.


5. Costs
are reserved".


Pursuant
to this order respondent filed an opposing affidavit with annexure
joining issue with the applicant. In turn the applicant filed his
replying affidavit.


The
history of the matter briefly put is as follows:


The
applicant who is the registered owner of the motor vehicle in
question entered into a written sale agreement with Car Mart (Pty)
Ltd on the 7th June 1999, and Car Mart (Pty) Ltd was at all material
times represented by one Nathan Blumenthal. The material terms of the
agreement were that Car Mart undertook to sell the vehicle on his
behalf for the sum of E35, 000- 00, Car Mart would find a purchaser
for the vehicle and upon such sale Car mart would be entitled to
charge a 10% commission on the purchase price. The said motor vehicle
was duly delivered to Car mart in accordance with the agreement.
According to the applicant since the 8th June 1999, he has seen the
vehicle around Manzini by someone unknown to him who is employed by
the respondent. On further investigation he found out that Xolani
Shongwe is the respondent herein was the owner of the motor vehicle.
He tried to get hold of Nathan Blumenthal but was told that he was
out of the country. Applicant is of the reasonable belief that Nathan
Blumenthal acting for and on behalf of Car mart had sold the motor
vehicle to the respondent but he has not received any payment in
terms of their agreement. In the circumstances, Car mart has
repudiated. In any event due notice of cancellation was also given to
Car mart in terms of the agreement.


The
other side of the coin as gleaned from the respondent's answering
affidavit is as follows:


The
respondent bought the said motor vehicle from Car mart at an agreed
purchase price of E50, 000 - 00 the said agreement embodied in
annexure X52 attached to the respondent's papers. In that regard
respondent paid a cash deposit of E35, 000 -00 and in addition to
that traded his motor vehicle being a Honda Ballade bearing
registration number SD 862 XM for which he was given value of E3, 000
- 00, which was used to reduce his indebtedness to the applicant to
the sum of E12, 000 - 00. It was further a term of the agreement that
he would settle the balance in instalments of E1, 500-00 per month.
The said motor vehicle was duly delivered to him.


3


Respondent
in his opposing papers point out that according to the terms of the
standard conditions of consignment sale agreement, the applicant can
only terminate on forty eight (48) hour notice, in terms of Clause 7
of the agreement. Furthermore, Clause 9 of the said agreement
contains a non-variation clause in terms of which the applicant would
have to give notice of cancellation in writing. That it is noteworthy
that no such written cancellation is annexed to the applicant's
founding affidavit.


Respondent
maintains that although the vehicle still belongs to the applicant
until he had paid for it in full, he is in legal possession of the
vehicle, having acquired such possession from the applicant's duly
authorised agent.


It
appears from the papers that negotiations between the parties were
conducted at divers times though no solution was found hence the
presence suit.


The
matter came on the contested roll of the 22nd October 1999, where the
court heard submissions and reserved judgement.


The
arguments advanced on behalf of the applicant are two-fold. Firstly,
it was submitted that the applicant is entitled to the recovery of
his motor vehicle in terms of the res vindicatio. That it is a trite
principle of law that an owner is entitled to recover his property
from anyone who retains possession without his consent. The court was
directed to the case of Chetty v Naidoo 1974 (3) S.A. 13 (A) in
support of this proposition. It was argued under this point that the
applicant has satisfied all the requirements for relief under the res
vindicatio viz, that the applicant has proved that he is the owner of
the motor vehicle and secondly, that applicant has proved that the
motor vehicle is in the respondent's possession. (see Kleyn and
Barraine Silberberg and Schoeman's Law of Property (3rd ED) page
273). The respondent has no right to retain possession of the motor
vehicle. The applicant has shown in his papers that he terminated his
agreement with Car Mart. That consequent to the said termination any
right which the respondent might have had to the motor vehicle was as
a logical consequence, extinguished.


The
second leg of the applicant's case is based on the contention that
the respondent acquired possession of the motor vehicle wrongfully.
Car Mart who at all material times hereto the authorised agent of the
applicant acted ultra vires its scope in negotiating and concluding a
sale, which it was not authorised to do. The legal submission here is
that a principal cannot be bound by the acts of his agent, which were
beyond the agent's authority (see Willie's Principles of South
African law (8th ED) page 592, Gibson - South African Merchantile and
Company Law (7th ED) page 206). That in the instant case the
applicant has not ratified any of the agent's (Car mart) unauthorised
actions. An act which is done ultra vires by an agent can only be of
force and effect only when the principal has ratified it (see Collen
v Rietfontein Engineering Works 1948 (1) SA. 413 (A)).


On
the other hand it was argued on behalf of the respondent by Mr.
Henwood that the applicant appointed Car Mart (Pty) Ltd to inter alia
sell his motor vehicle on his behalf for the sum of E35, 000 - 00 in
terms of the consignment sale agreement. It was a specific term of
the consignment sale agreement that any profit or consideration in
excess of E35, 000 - 00 was remuneration to Car Mart.


As
agent Car Mart (Pty) Ltd bound the applicant as principal to the
agreement with the respondent. It was argued that the applicant has
failed to show that he terminated the agency agreement


4


by
giving 48 hours written notice in terms of Clause 8 of the agreement.
The applicant's agent did not act ultra vires or without due
authority in that he carried out his mandate fully and properly but
failed to account to the applicant as principal for the funds he
received. The sum of E35, 000 - 00 was paid by the respondents to the
applicant's agent therefore in so far as the applicant is concerned
the required funds were received by his agent as required in terms of
the agency agreement. Mr. Henwood went further and argued that the
applicant was estopped from alleging that his agent had no authority
to bind him because in concluding the instalment sale agreement with
the respondent the agent was at all material times acting within the
scope of his authority in that he realised the sum of E35, 000 - 00
cash required by the applicant and sought to keep the balance for
himself as remuneration in terms of the sale agreement. To buttress
the latter assertion it was submitted on behalf of the respondent
alleging that his agent acted beyond the scope of his authority by
concluding an instalment sale agreement as the nature of such a sale
is normal and justified by the usages of the agents trade. The court
was referred to the cases of Nel vs S.A. Railways and Harbours 1924
AD 30 and that of

Kakn
vs Leslie 1928 EDL 416 at 418 to support this view. The final salvo
by the respondent is that the applicant continues to accept payment
of E1, 500 - 00 per month from the respondent as evidenced in
annexure X53 at page 37. As a result of which he is estopped from
denying the agreement. The respondent therefore is a lawful possessor
of the vehicle concerned.


These
then are the issues in this matter. I have perused through the papers
before me and carefully considered the submissions advanced from both
sides. It appears to me that the crux of the matter is to determine
whether or not Car Mart (Pty) Ltd who it is common cause were acting
as agents of the applicant in the sale of the motor vehicle to the
respondent acted ultra vires in that they went beyond the ambit of
their authority as given by the agreement. The authorities cited by
Mr. Mabila for the applicant on the principle of res vindicatio are
good in law but with respect, the gravamen of the issue here is
whether Car Mart acted ultra vire or vice versa. This in my view is
the determinant factor in this dispute. For one to unravel the
dispute recourse should be had to be the various agreements and
pieces of correspondence in this case.


The
document in this case is annexure DMD 1 at page 8 of the Book of
Pleading, viz the consignment sale agreement. This is the agreement
which was entered into between the applicant and Car Mart
establishing the principal/agency relationship. From it flows terms
and conditions by either party pertaining to the sale of the said
motor vehicle, more importantly, the authority conferred to Car Mart
as an agent is clearly spelt out. The pertinent potion of the
agreement reads thus:


Consignment
Sale Agreement.


a) I,
the undersigned, do hereby grant to Car Mart subject to the terms and
conditions, and those appearing overleaf (pages 2,

3,
4
and 5) the sole and exclusive.


i) Right
to sell on my behalf,


ii) Right
to purchase the vehicle schedule below for the net amount of E35,

000 - 00.


Any
profit and/or other consideration received by Car Mart in excess of
such amount to be for its own account (my emphasis)..."


5


The
agreement is duly signed by both parties.


This
portion of the agreement clearly established the scope of the agency.
It is common cause or rather it has not been placed into dispute that
the respondent paid a deposit of E35, 000 - 00 to Car Mart, and thus
to that extent Car mart fulfilled its end of the bargain. The issue
of Car Mart having entered into an instalment agreement with the
respondent is neither here nor there. The very agreement permits Car
Mart to procure any other profit in excess of the E35, 000 - 00- The
exact wording reads:


"Any
profit and/or other consideration received by Car Mart in excess of
such amount to be for its own benefit"


There
is nothing ultra vires about what Car Mart did. Further there is no
proof of the cancellation of this agreement or at least the court is
not told the date of which such cancellation took place. The
agreement at Clause 7 states:


"7
the seller agrees that if the vehicle remains on Car mart's floor
after the expiry of the period Stipulated in paragraph 2 above, the
terms of this agreement will continue until terminated by either
party on 48 (forty eight hours) (weekends and public holidays
excluded) notice in writing, during such period of notice Car Mart
may nevertheless elect to purchase the vehicle".


Furthermore,
it appears that the applicant ratified the agreement entered into
between Car mart and the applicant when one look at annexure "C"
at page 45 of the Book of Pleadings being a letter from respondent's
attorney dated the 15th September 1999, addresses to applicant's
attorney. The important paragraph in that letter is paragraph 2,
which reads as follows:


"2
As far as we are aware, an agreement was entered into between our
client and yours in terms of which our client undertook to pay the
balance outstanding in instalment of E1, 500 -00 per month".


It
appears further by letter annexure "B" (page 4) of the Book
of Pleading being a letter from applicant's attorney that applicant
sought a deposit of E7, 000 - 00 from the respondent.


In
this case it is clear that the payment of E35, 000 - 00 was paid to
the agent (Car Mart). It is trite that payment to an agent releases a
third party from obligation with the principal. For this proposition
reliance can be had to the case of Rhodes Motors (Pty) Ltd vs
Pringle-Wood

No.
1965 (4) S.A. 40.


In
the final analysis, it appears that the agent (Car Mart) and the
applicant are engaged in a dispute or that the agent has disappeared
is of no concern to the respondent as he was not a party to the
agreement between the applicant and his agent. He is brought into the
fray yet he was a bona

fide
purchaser. Whatever remedy the applicant has in this matter lies with
his own agent.


6


I
thus dismiss the application with costs.


S.B.
MAPHALALA


JUDGE