THE HIGH COURT OF SWAZILAND
the Interpleader of:
ATTORNEY-GENERAL 1st Applicant
OF POLICE 2nd Applicant
COMMANDER - LOBAMBA POLICE
MUSA MTHETHWA 1st Claimant
MOTORS CORPORATION 2nd Claimant
MUSA MTHETHWA Applicant
COMMANDER - LOBAMBA POLICE
OF POLICE 2nd Respondent
: HULL, C.J.
1st CLAIMANT : MR. FINE
2nd CLAIMANT : MRS. CURRIE
RESPONDENT : MR. MASUKU
an application filed on 19th August, 1993, the first claimant sought
to recover from the police a Honda Ballade motor vehicle registered
under the number RXT 949 T. The basis of his claim, as set out in his
founding affidavit, was that he had bought the vehicle in South
Africa and then registered it in his name.
second claimant, which is a company in South Africa trading in motor
vehicles, also claims ownership of the vehicle and seeks its return.
police and the Attorney-General have interpleaded. On 22nd October, I
ordered the matter to proceed to a hearing between the two claimants
on their respective particulars of claim, as if the second claimant
were the plaintiff and the first claimant the defendant.
second claimant called as its witness Mr. William Francke, who is a
principal in the company.
evidence in chief was that the second claimant had bought the vehicle
from Mercurius Motors (Pty) Ltd. Then in July of 1993 it had sold it
to a Mr. Zikalala. The transaction was to be a cash sale.
buyer was to pay the purchase price into the second claimant's bank
16th July, the second claimant was informed by its bank that the
money had in fact been duly paid into its account. On the strength of
that, it delivered the vehicle to Mr. Zikalala who took it away.
after that, the bank called the second claimant to inform it that the
buyer's cheque had been dishonoured. As far as this is concerned, Mr.
Francke testified that when the bank first informed his company that
the money had been paid, the company had not known whether the
payment had been affected by cash transfer or cheque at that stage.
It was only afterwards, when the bank called back, that it had become
aware that the payment had been by cheque.
cross-examination Mr. Francke said that in delivering the vehicle to
Mr. Zikalala, the company was thereby intending to transfer ownership
Fine was not in a position to call evidence on behalf of the first
claimant, who had been taken into custody between the first and
second days on which this case was heard before me. For reasons that
I have already given, I declined a further postponement.
Fine submitted that the second claimant had not proven a vindicatory
claim to the vehicle. He based his submission on Mr. Francke's
acknowledgement that the company had, on delivering it to Mr.
Zikalala, intended that ownership should thereupon pass to him. He
cited Eriksen Motors Welkom Ltd v. Protea Motors Warrenton and
Another 1973 SA 685 in support of his contention.
the facts of this case, however, I do not think that this submission
succeeds. The reason why the company delivered the vehicle to Mr.
Zikalala was that it believed, as a matter of fact, that he had
deposited the purchase price in its bank account. That was Mr.
Francke's evidence. He was not challenged as to this belief and I
accept his testimony. As a matter of fact, the money had not been
the evidence, this was always intended to be a cash sale. Mr. Francke
has testified to that. I see no reason not to believe him. There is
no suggestion that Mr. Zikalala was a trader himself, with whom the
company had had previous dealings. He was an ordinary buyer. The
company required the price to be deposited in its bank account before
it delivered the vehicle. This was never intended to be a credit
sale. In the event, it made delivery on a misapprehension as to the
is no evidence that the first claimant subsequently acquired legal
title to the vehicle, to the extent that that may be relevant.
Registration, per se, does not establish ownership.
the circumstances, the second claimant is in my judgment entitled to
the orders that it seeks.
there will be orders in terms of paragraphs (a) and (b) of the second
claimant's particulars of claim.