IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 538/2017
In the matter between
SONTO CEB’SILE MNISI APPLICANT
AND
SIZWE MSHISHI MALAMBE 1st Respondent
THE COMMISSIONER OF POLICE 2ND Respondent
PUNJAB INVESTMENTS (PTY) LTD 3RD Respondent
THE EXECUTOR OF THE ESTATE OF THE LATE CELUMUSA SIMELANE 4TH Respondent
MASTER OF THE HIGH COURT 5TH Respondent
THE ATTORNEY GENERAL 6nd Respondent
Neutral Citation: Sonto Ceb’sile Mnisi Vs Sizwe Mshishi Malambe And 5Others (538/2017) [2019] SZHC 250 ( 13th December 2019)
Coram: Hlophe J.
For the Applicant: Miss S. Dlamini
For the 1st Respondent: Mr M. Hlophe
Date Judgement Delivered: 13th December 2019.
Summary
Application Proceedings – Converted into a Trial – Ownership of a certain Motor Vehicle in issue between two claimants – Rei vindicatio and its requirements discussed – Whether anyone of the claimants has managed to establish ownership.
JUDGMENT
[1] This Judgement is a sequel to the one I handed down on the 10th January 2019 following the hearing of the earlier part of these proceedings where the issue was the spoliation proceedings by the current applicant against the vindication proceedings brought by the current First Respondent. That part of these proceedings, like the present one, was about the motor vehicle fully described in the papers filed of record as the:-
(i) Description:: Honda Fit
(ii) Registration No: RSD 994 BH
(iii) Engine No: LI5A1301509
(iv) Chassis No: GD317011229
(v) Colour: Sky Blue
(vi) Model: 2003
[2] Most of the underlying circumstances of the matter are contained in the said judgment and are as relevant now as they were then.
[3] After I had heard the argument in the said proceedings, and in terms of the said judgement, I made the following order which led to the current aspect of the matter:-
1. “But for the vindication application, the spoliation application be and is hereby decided in the Applicant’s favour.
2. The motor vehicle in question shall however not be released to any of the parties pending the determination of the vindication application by means of oral evidence.
3. The application for vindication with regards the motor vehicle in question is postponed to the 5th December 2018, for hearing with each party being ordered to avail his or her witnesses.
4. The question of costs shall be determined after the hearing of the vindication application.”
[4] The effect of the above order was to hear oral evidence so as to determine the ownership of the motor vehicle concerned between the two parties namely the applicant and the First Respondent. It will be understood I have had to give these parties the foregoing appellations as a measure to distinguish them from each other for purposes hereof.
[5] For no particular reason than that both parties had moved the respective applications described above, the First Respondent was the first to lead witnesses so as to prove that he was the owner of the said motor vehicle to whom, he prayed, it should be released, whilst the applicant opposed same and instead led her own witnesses to prove she was the owner of the motor vehicle and prayed that it be released to her instead.
[6] The First Respondent led three witnesses; they being AW1 Sizwe Mshishi Malambe; AW2 Lungelo Lukhele and AW3 Cebile Mayenziwe Shongwe. The Applicant on the other hand led two witnesses; they being the Applicant herself, Sonto Mnisi as RW1 and RW2 Nkosingiphile Motsa.
[7] The background facts in the matter are that a certain Celumusa Simelane bought a certain motor vehicle, a Honda Fit, whose full particulars are as described in Paragraph one above. There are allegations and counter allegations on who had asked him to purchase the motor vehicle concerned between the Applicant and the First Respondent, if indeed he had purchased it on behalf of any of the two.
[8] The case of the Applicant is that the late Celumusa Simelane had been given the money to purchase the car from the 3rd Respondent garage by her. The First Respondent contends similarly; claiming that he was the one who had given the said Celumusa Simelane the deposit to purchase the motor vehicle on her behalf from the Third Respondent’s garage.
[9] The facts of the matter reveal that the motor vehicle concerned was indeed purchased from Punjab Motors garage (the 3rd Respondent). It was purchased by Celumusa Simelane. The purchase price was a sum of E44000.00. It was purchased on credit. The deposit paid was a sum of E15000-00, with the balance meant to be paid in instalments of E5000.00 over six months. Although this court never saw it; it was never in dispute that the receipt for the E15000.00 was in the name of the Celumusa Simelane. Again there does not seem to be a dispute that this receipt was issued on a date in August of 2016. The two subsequent instalments of E5000.00 each paid in 2016,, have receipts dated the 1st November 2016 (Exhibit A) and the 6th December 2016 (Exhibit B). These were both in the name of Celumusa Simelane. It was also not in dispute from the evidence tendered (although this court was not shown a copy of it), that the agreement of sale of the Motor Vehicle was between the late Celumusa Simelane and the Third Respondent garage.
[10] The late Celumusa Simelane died on the 14th December 2016. The contention is that he ingested weevil tablets which brought about his death. Although not a matter of common cause, there are allegations that he committed suicide. Whatever the real reason behind his death, this event brought about a lot of controversies which is what this matter is about.
[11] According to the First Respondent who was the first one to claim the release of the motor vehicle concerned on the basis of the rei vindicatio, he was informed of the desperate state the deceased was in after ingesting the poisonous tablets, by their Mutual friend, one Lungelo Lukhele. Although he found him in a critical state, just about to die, the deceased informed him that the motor vehicle forming the subject of these proceedings was with a certain Malambe from whom he was to fetch it.
[12] According to the Applicant he was told this because the car was his and he had merely bought it through the deceased to add onto his fleet of taxis. He was in fact responding to a request by the deceased who needed a car to keep himself busy which is why he bought it. He said it was purchased in the name of the deceased to overcome the hurdle the First Respondent faced in relation to the Swaziland Revenue Authority, to which he was indebted and such indebtedness could not allow him to register a new vehicle without having settled the debt.
[13] After having obtained the motor vehicle, he said it was found to be smelling weevil tablets as the deceased had vomited therein after ingesting the poisonous substance. He later kept the car because according to him, it was his. It was whilst keeping it that he was called by the Police who ordered him to surrender it because the Applicant herein also claimed it was hers. He had given the receipts confirming the payment of the two instalments towards the purchase of the Motor Vehicle in question dated the 1st November 2016 and that dated the 6th December 2016, to the Police together with the one for the deposit in the sum of E15000.00.
[14] Although the Police had initially returned the motor vehicle concerned to him after he had produced the said documents following their request, they later claimed it back after the Applicant had put pressure on them to take it away from the First Respondent. She claimed that it belonged to her. After having engaged both the Applicant and the First Respondent on the true ownership of the motor vehicle, the Police Officer confiscated the car under the guise they were still carrying out investigations.
[15] He was to learn later that the motor vehicle had been released to some people who had been seen driving it around Matsapha. It was after having laid a complaint with the Commissioner of Police that the vehicle was once again confiscated by the Police who later informed them they would only release it on the basis of a Court Order to whoever they would be ordered to release it to.
[16] The Applicant informed the Court that she had approached Celumusa Simelane, a relative of hers, to assist her purchase a motor vehicle she needed for her sewing business, particularly for sourcing and servicing her customers. She had been introduced to the Third Respondent as the person buying the Honda Fit that was eventually identified. The purchase price was to be payable in instalments, with the deposit paid as a sum of E15000.00 cash which it was agreed was to be paid a few days later. She said she had agreed with the Managing Director of the Third Respondent one Usam Ahsam, that the person to act on her behalf was the deceased. True to the said agreement she had after about four days managed to raise the required amount and gave it to Celumusa Simelane for payment of the deposit towards the purchase price.
[17] She said that the amounts to make the deposit were paid to the deceased in amounts of E7,000.00, E5,000.00 and subsequently, E3,000.00. She later paid the deceased the two respective sums of E5000.00 as borne out on the receipts dated the 1st December 2016 and 7th December 2016. This had delayed because of her precarious financial position for the months of September and October 2016.
[18] The Applicant claims that after payment of the purchase price, she was informed that the motor vehicle she had identified as the one to buy, still had to have its papers sorted. She was thus given a greenish car to use in the interim. It later transpired that this car had not been delivered to her but to the deceased who she said was her agent, except that he did take it to her for her to see it. She however says she allowed that courtesy car to remain being used by the deceased.
[19] For some undisclosed reason she said that her relationship with the deceased deteriorated. He would not pick up her phone calls. She by now wanted the deceased to give her the receipts for the amounts paid towards the purchase price, with which he was refusing. This had on a certain day, seen her go to Manzini where her motor vehicle was operating as a pirate (illegal) taxi by the deceased. This was done allegedly next to Evukuzenzele Hypermarket in Manzini. The deceased avoided meeting her such that she had to wait for him for almost the whole day. She was to later learn from one of the pirate taxi operators that one of deceased’s friends was communicating with the deceased about her being there and that she was being referred to as a ghost. She said that she upon realizing what was happening decided to go back to Mbabane and report her predicament to the Mbabane Police.
[20] It was only after a few days from then that she said she learnt of the deceased having allegedly committed suicide, allegedly because of debts he could not manage, possibly hers included as well.
[21] She was advised by the Mbabane Police to go with her relatives to the family of the deceased and explain about the fact that the Honda Fit in question was hers. This was in December 2016. She was told that they were still in mourning and were not in a position to talk about the deceased’s affairs at that point. It was upon her learning that the car had been taken by the First Respondent and his friend, one Lungelo Lukhele, RW2, that she insisted on the car being impounded or confiscated by the police until the matter was resolved.
[22] The motor vehicle was later taken by the Police to Mbabane where it was kept pending their investigating. It was eventually released to the family of the deceased by the Mbabane Police. It would appear that upon determining that it was still a garage vehicle which was not yet fully paid up, the family took it straight to the garage. She said she received a call from the Managing Director of the garage, Usam ahsan, who informed her that the deceased had died without her car having been fully paid up. She was told that since the car was hers, she had to pay the outstanding E19000.00 to take ownership of it. She made arrangements about when those outstanding instalments were going to be paid. Her paying those outstanding instalments on the 18th March 2017 and 5th April 2017 was in line with that arrangement. The receipts bearing these payments as sums of E5000.00 and E14000.00 respectively was handed into court as exhibits “D” and “E”. Otherwise the garage had allegedly released the motor vehicle to her as its owner, whilst the payment of the said amount was awaited.
[23] It was in answer to this when the applicant moved the spoliation proceedings claiming she had been despoiled of the motor vehicle in question. She had moved that application exparte and without citing and serving the First Respondent and the family of the deceased. Somehow the First Respondent got to know about that application and decided to join the fray, hence his filing the application to intervene in the proceedings and asked that the motor vehicle be released to him as its owner.
[24] The judgement I handed down as reflected in paragraph 1 herein, was a sequel to those facts therefore. I am on record having found or concluded, in terms thereof, that the motor vehicle in question would have to be released to its true owner after that question would have been answered by a court of law, in line with the order I made whose terms are captured above. I referred the matter to oral evidence to determine that question. This judgement is a result of that application therefore.
[25] The version of the applicant in claiming that the vehicle belonged to her, was supported by the testimony of Nkosing’phile Motsa, RW2, who testified under oath saying that he was an employee of Punjab Motors (PTY) LTD. He said that he had been employed by that company (the Third Respondent) in October 2014 as an Administration Clerk. His duties he said, entailed assisting customers in the conclusion of sale agreements with the Respondent company.
[26] He said that he remembered a day when the current applicant had come to the shop in the presence of some two males, namely Celumusa Simelane and one Big Boy. He said they had claimed to be looking for a cheap car; a Honda Fit which was to be bought by the applicant. After they had met his boss Usman Ahsan, he was informed they had purchased the car forming the subject matter of these proceedings for the applicant. The identity document of Celumusa was however the only one taken.
[27] The motor vehicle had never been purchased for the First Respondent, Malambe. The name of Malambe having been purchased a motor vehicle by the deceased only cropped up after the latter’s death and when the said First Respondent arrived at the Third Respondent’s business premises in the company of Lawyer Martin Internash Dlamini who demanded that Usman Prepare him a document at that point confirming that the car was purchased by Celumusa on behalf of the First Respondent which was refused by Usman.
[29] I note that notwithstanding this issue being heatedly contested, Lawyer Martin Internash Dlamini was never brought as a witness to shed some light. It is in fact worth mentioning that this witness’s testimony contradicts that of Sonto Mnisi, which makes it highly unreliable as evidence. He for instance alleged that Celumusa’s mother had come to his work place to report Celumusa’s death in December 2016 contrary to the version by Sonto who said that she was the one who had gone to the third respondents garage to make such a report in January of 2017. She further alleged that Ntombi, Celumusa’s mother, had come there with two other people making their team one of three people yet according to Usman Ahsan’s affidavit filed of record, only two people were there, they being Ntombi and her brother with no third person.
[30] She further contradicted the version by Usman Ahsan that the E14000.00 was paid in April 2017 yet according to her the same was paid in March 2017. He made further contradictions to the version of Sonto Mnisi when he said that only Celumusa’s identity document was taken for phocopying at the instance of Usman Ahsan yet according to Sonto’s version both Identity documents – that is, hers and that of Celumusa, were taken.
[31] These contradictions and inconsistences only show that the issue of Celumusa having purchased the motor vehicle on behalf of either the First Respondent and/or the applicant is very unreliable. In fact the testimony of this witness is not one to be accorded any credit at all.
[32] I had noted as well that during the First Respondent’s case, the details on how the motor vehicle had been purchased by the First Respondent through the late Celumusa came more from AW2 and AW3 than from the First Responent himself. They were the ones who seemed to be more informed or knowledgible on how the day’s cashing was done which would be very abnormal. Firstly, there is no proof of this because besides each one of them emphasizing that there was in existence a book in terms of which there was a recordal of all such takings or cash receipts. There was however no such document produced in court and there was no reason why that same was not produced if it was there. Secondly the First Respondent never made it appear unequivocal that the day’s takings were paid to him. There was no clear and convincing explanation or response why the receipts were in the name of Celumusa if the motor vehicle was the first respondent’s item and why such documents had to be kept by the deceased concerned instead of the owner of the vehicle.
[33] The same thing seems to prevail in the case of the Applicant as well. She has perjured herself in a number of respects. A glaring example of this; was but one of the many instances when she admitted to having misled the court when she had initially told it that she had been given the receipt for the E15000.00 deposit by Celumusa Simelane together with the agreement, only to turn around later on, under cross examination, to say that the receipt had actually been handed over to the police by the family of Celumusa Simelane. She was forced to apologise for having misled the Court in that regard which she did with ease.
[34] This untruth was underlined when she failed to cause the Police Officer’s to appear in Court and clarify about that agreement and the E15000.00 receipt. The contradictions and inconsistences in the Applicant’s testimony; mean that her version cannot be trusted and therefore like that of the First Respondent falls to be rejected.
[35] The evidence in my view simply indicated that at the very least, the deceased, Celumusa Simelane might have borrowed some money from each one of the contesting parties to enable him buy a car to operate a pirate taxi under the guise he was going to pay it back. At worst, the evidence simply points to a case in which he tricked each one of them he was going to use the money thy had each advanced him to buy a car for pirate purposes so as to share the profits which however did not work, hence his probably having had to kill himself at some point. I am however not making a finding on any of these possibilities it being enough for me to conclude that none of the claimants herein was able to bring sufficient evidence proving that he or she was the owner of the motor vehicle concerned.
[37] Ownership is proved successfully where the one who claims it is able to show that he has a better title to the item claimed. Selberberg and Schoeman’s The Law of Property said the following on the subject:-
“An owner who institutes the rei vindicatio to recover his property is required to allege and prove no more than that;
(a) he is the owner of the thing – the burden rests upon the vindicator, in the absence of an admission on the pleadings of his little, to prove it.
(b) That it was in the possession of the Defendant at the commencement of the action.
[38] If I cannot say that the motor vehicle is owned by either of the claimants it means that it is in reality property that belongs to the estate of the deceased. It by law should be released to the possession and control of the executor or the master if none has been appointed. I make no decision with regards the rights to the motor vehicle as the garage owner may have which remain an issue between him and the executor to be dealt with according to law. It suffices to say that the alleged sale of the motor vehicle between the garage and the applicant in so far as the purchase price incorporated amounts paid by the deceased cannot stand unless it is with the approval of the executor after he would have observed the dictates of the law governing the administration of estates as well as that governing the contract between the garage and the deceased or the executor in his stead.
[40] For the foregoing considerations, I have come to the conclusion that strictly speaking, none of the parties was able to show that he or she was the owner of the motor vehicle concerned. Accordingly, I will dismiss both claims and direct that the motor vehicle is to be forthwith released to the executor for it to be dealt with according to the law governing the administration of estates. Whatever rights the applicant has regarding the amounts she paid to the garage are a matter between them to be resolved according to law.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
