THE
HIGH COURT OF SWAZILAND
Unitrans
Motors (Pty) Ltd
Applicant
Vs
Swaziland
Treated Poles (Pty) Ltd
Respondent
Civ.
Case No. 2388/99
Coram
Sapire, CJ
For
Applicant P.
FLYNN
For
Respondent P.
M.
SHILUBANE
JUDGMENT
04/02/00
The
applicant in this matter is Unitrans Motors (Pty) Ltd. The respondent
is Swaziland Treated Poles (Pty) Ltd. It is appropriate at this point
having indicated who the parties are to dispose of the question as to
the identification of the plaintiff. The respondent has in its
replying affidavit suggested that the plaintiff is not the same
person as referred to in the documents in support of the plaintiffs
claim. There is in the file of record a certificate of changing of
name which clarifies the position beyond
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any
doubt whatsoever and there is no substance in the objection raised by
the respondent on this account.
The
founding affidavit sets forth that the affidavit is attested by the
credit manager of the applicant who has access to all the records of
the applicant relating to financial agreements concluded by the
applicant. It is specifically stated that the applicant changed its
name from Unitrans Motors (Pty) Ltd to Unitrans Motor Enterprises
(Pty) Ltd in April 1998. The copy of the certificate of change of
name is attached marked "JG1".
The
authority of the deponent in so far as that is required is proved by
resolutions which are attached to the affidavit.
The
application was in the first instance brought, for interim relief.
The applicant sought by recovery of the vehicle concerned to protect
his rights pending the outcome of the application for further relief
relating to the Respondent's default in payment of the purchase price
of a vehicle. The form of the prayer was for a rule nisi part of
which was to operate with immediate effect. This if granted would
have required the Respondent to surrender possession of the vehicle
pending the outcome of the application Relief in this form was not
granted and the application was argued eventually for final relief in
terms of the prayers.
The
facts recited are that on or about the 29th March, 1996 and at Illovo
in the Republic of south Africa, the applicant and the Respondent
entered into a written instalment sale agreement in terms whereof the
applicant sold and delivered to the respondent a vehicle described as
"One MAN used 1989 Truck Tractor bearing registration No. SYG
237 T and Chassis No. 71710301030". A copy of the agreement is
attached. The terms of the agreement appear from the schedule of the
instalment sale agreement.
The
deponent alleges that the vehicle was delivered to the respondent and
that the applicant has complied with its obligations in terms of the
instalment sale agreement.
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Reference
is then made to a number of provisions of the agreement, in
particular to the fact that the ownership of the vehicle remains
vested in the applicant ,and the forfeiture provisions, which are
contained in other clauses of the agreement.
The
applicant alleges that the respondent failed to comply with its
obligations in terms of the agreement and falling to the rules of the
instalment. This is a bald statement but supported by details of the
respondent's account.
The
applicant states that on the 18th March, 1999 a letter was
hand-delivered to the respondent at its domicilium citandi et
executandi calling upon respondent to remedy the breach and to comply
with its obligations in terms of the instalment sale agreement. A
copy of the letter is attached for reference marked "JG4".
The
period of the agreement expired on the 14th April, 1999 but the
respondent has remained indebted to the applicant in the sum of E63
079.69 in respect of the arrear instalments and penalty interest.
On
the 18th August 1999 a further letter was sent by the Applicant's
attorneys to the Respondent calling upon it to remedy the breach. A
copy of the letter is annexed hereto marked "JG5". The
respondent did not respondent to the letters and has not made payment
of the amount claimed. The applicant has attached a copy of the
ledger account reflecting the outstanding balance. The applicant has
elected to cancel the agreement and to reclaim return of the vehicle
forming the subject matter thereof.
The
matter was brought as a matter of urgency but it was dealt with on
the normal basis. Essentially therefore the applicant seeks an order
for the return of the vehicle and payment of the arrear instalments
together with interest thereon. The respondent has filed a replying
affidavit to which I will refer later. Before doing so I wish to deal
with certain points of law raised by the respondent in terms of a
notice dated 18th October, 1999. The first of these points is that
the relief sought by the applicant is contrary to the provisions of
Section 17 of the Credit Agreements Act number 75 of 1980. The Court
cannot take cognisance of the provisions of the act and foreign law
in so far as it is applicable to this agreement has to be proved by
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expert
evidence. This has not been done in this case and the point on this
ground must fail.
The
point is further defective in that the applicant has not set forth
the grounds upon which it is said that the relief is contrary to the
provisions of the legislation referred to.
The
second point raised is that there is dispute of fact which the
applicant should have foreseen would arise at the time the
application was launched and which cannot be resolved without oral
evidence. This is not strictly speaking a point of law and in so far
as the conflicting allegations are concerned these will be examined
in relation to the merits of the matter.
The
respondent has filed an affidavit attested to by one Robert Crabtree
who claims to be the director of the respondent and alleges that he
is duly authorised to make the affidavit. Apart from observing again
that nobody needs to be authorised to make an affidavit I am
satisfied that the respondent is properly before the court through
its attorney Mr. Shilubane. In paragraph 4 of his affidavit, Robert
Crabtree, before dealing with the contents of the applicant's
affidavit seeks to place on record that the application is not bona
fide but is prima facie intentionally misleading and clear abuse of
the Honourable High Court. This is meaningless. The bona fides of the
applicant is clear. It has delivered an expensive vehicle to the
respondent for which the respondent has not paid and the applicant
seeks to enforce the provisions of the agreement in terms of which
the vehicle was delivered. I fail to see any lack of bona fides in
this and the intention to mislead the court is entirely absent.
Paragraph
1.2 is an example of the irrelevant obfuscation. resorted to by the
respondent through the mouth of the deponent to the affidavit. He
seeks to make some point out of a misspelling of one word and he
seeks in this way to discredit the deponent to the applicant's
papers. This itself is niggling irrelevant pettiness.
The
second point raised in the succeeding paragraphs is that the
applicant no longer exists. This is completely devoid of any merit as
the applicant is clearly registered in the name under which it has
come to court.
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After
wading through all the irrelevancies raised by the respondent in its
affidavit the basic question to be decided in this case is whether or
not it was the respondent which bought the vehicle or it was Robert
Crabtree himself. The real answer to the applicant's claim against
the respondent is that it was not the respondent which purchased the
vehicle but Robert Crabtree in his personal capacity.
The
agreement itself shows that it was signed by the applicant on the
29th March 1996 whereas the respondent's signature was later added.
There is no doubt however, that it was common cause that it was
Robert Crabtree who signed the agreement above the words which
describe the signatory as warranting his authority. The buyer is
described in the agreement as Swaziland Treated Poles (Pty) Ltd and
there is a company registration number inserted in writing
thereafter.
Prima
facie of the agreement was drawn up with specific details as to the
identity of the purchaser. It is difficult to understand why the
applicant should not have had the correct name of the intended
purchaser inserted. It seems that this defence raised by Robert
Crabtree is of late date as.
(a) The
agreement was foreshadowed by an application for credit dated 18th
January, 1996. The purchaser there was indicated as Tonkwane Estates
Limited of which the respondent is a subsidiary.
(b) JG8
announces the full registration name of the business to be Swaziland
Treated Poles (Pty) Ltd and the name Tonkwane Estates appears closely
thereafter.
(c) In
paragraph 13 of the application it is indicated that the names and
addresses of the directors, members, partners or proprietors are
Robert Crabtree and one Soveig Crabtree.
(d) Furthermore
there is a warrantee given by the same Robert Crabtree that all the
information given in this application is true and correct and
up-to-date.
(e) There
is also a document dated 6 February 1996 being a letter addressed by
Unitrans Motors to the respondent for the attention of Mr. Crabtree.
The letter refers to an application for finance for the purchase of a
used 1989 MAN 30,365 tractor and trailer and clearly refers to the
present
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agreement.
This indicates quite clearly as to who was intended as the purchaser.
(f) It
is also interesting to note that a cheque for E5 000.00 drawn on the
bank account of the respondent was delivered in payment of the amount
then due. I am fully satisfied that when this agreement was signed it
was intended that the respondent should be the purchaser.
Obviously
the respondent being a company had to act through some individual and
it was Mr. Robert Crabtree who was that individual. I am satisfied
that he at all times was not acting in his personal capacity but for
and on behalf of the respondent. It is not necessary to review all
the document which have been referred to by the applicant in further
substantiation of this proposition and I cannot find otherwise than
that the respondent's defence is without foundation.
It
is equally clear that the respondent has breached the agreement and
has remained in breach thereof despite repeated calls upon to make
good the default. In the circumstances the applicant must succeed in
the application and it is ordered that:-
1. the
instalment sale agreement which is annexure JG 1 to the applicant's
founding affidavit is declared to have been cancelled.
2. the
respondent is directed to deliver to the applicant forthwith the
vehicle described as one MAN used 1989 truck tractor bearing
registration number SYG 237 T and Chassis No. 71710301030.
3. the
respondent is ordered to pay the sum of E63 079.69 together with
interest calculated at the rate of 24.5 % per annum in respect of
arrears instalment as from the 18th March, 1999.
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4. The
respondent is further to pay the costs for this application which
costs may be taxed on the scale as between attorney and client.
S.W.
SAPIRE,
CJ
