THE HIGH COURT OF SWAZILAND
Case No. 419/95
the matter between:
COMMISSIONER OF POLICE 1st Respondent
ATTORNEY GENERAL 2nd Respondent
MOTORS CORPORATION LIMITED 3rd Respondent
THE APPLICANT Mr. Fine
THE THIRD RESPONDENT Mr. Flynn for third
is common ground that the motor vehicle to which this application
relates, a 1994 Honda Ballade, once belonged to the third respondent
("the company"), which is a motor vehicle dealer in
Germiston in South Africa.
to the applicant Mr. Shabangu, he agreed on 31st March 1994 to buy
the car from a Mr. Xavier Mthethwa for E65 000. In pursuance of this
agreement, he took steps to have the car registered and licensed in
South Africa and then subsequently, after South African Police
clearance on 5th April 1994, to have it registered in Swaziland in
his name on 15th April 1994. He paid for it by cheque.
February 1995 the car was seized by the Royal Swaziland Police. It
has since been detained in police custody.
Shabangu applies for its return. The company, which came to know of
the application, has on its own application been joined as a third
respondent. The other two, the Commissioner of Police and the
Attorney General, have indicated that they will abide by the order of
company opposes the application on the ground that it is the owner of
the car, which was stolen from it on 31st March 1994.
circumstances in which it says that this happened are set out in the
affidavit of its sales manager, Mr. Ivan Reynders, which has been
filed in support of its application to be joined as a respondent and
in answer to Mr. Shabangu's claim.
says that in March 1994, a man called Phakula agreed to buy the car
from the company for E91,425.50 (or rather, I think, the equivalent
amount in rand). Mr. Reynders has deposed that it was a cash sale,
and that it was agreed that Phakula would deposit the purchase price
in the company's bank account. On 30th March, the company received a
statement from its bank that the amount agreed, i.e. E91,425.50, had
been credited to its account.
said that on 31st March 1994 "Phakula was invoiced" by the
company "for the motor car". On 4th April, on Phakula's
instructions by phone, the car was delivered to one Lande, whose
identity document was produced to the company. Subsequently the
company learned from the bank that the cheque had been dishonoured,
and it was established that it was a stolen cheque belonging to the
Ngwelezane Health Ward Committee, which had been drawn clearly
without authority. The matter was then reported to the South African
Reynders has not annexed the invoice or the dishonoured cheque, or a
copy, in support of his affidavit, or a copy of the relevant bank
statements (i.e. the one showing the credit, and a later one showing
the reversal of the credit.) In paragraph 11 of his affidavit, he has
the reverse entry as being in a bank statement of 14th April 1995 but
from the context of that this is quite clearly an error. It should
obviously be a reference to 14th April 1994.
his replying affidavit Mr. Shabangu formally denies most of these
assertions of facts and puts the company "to the proof" of
then. He also asserts in paragraph 12.1, having denied that the car
was stolen from the company, that it - the company - granted credit
to a person or persons who were unknown to Mr. Shabangu who took
possession of the car and became its owner. In paragraph 12.2, he
goes on to say that those persons in turn transferred the ownership
to Mr. Mthethwa who sold the car to him, i.e. to Mr. Shabangu. In
paragraph 12.4, he contends in the alternative that he has been
advised that the company is estopped from asserting its ownership
because by its negligence, Mr. Shabangu was misled into believing
that the person from whom he acquired the vehicle himself (i.e., by
clear implication, Mr. Mthethwa) was the owner or was entitled to
dispose of it. No further particulars are given of the company's
alleged negligence in his replying affidavit.
the same paragraph, Mr. Shabangu says that he has also been advised
that the company was precluded from asserting its rights by
considerations of fairness within the concept of the exceptio doli.
This argument was not developed in any detail by his counsel at this
the company's invoice or a copy, the bank's statements and the
dishonoured cheques have not been annexed, Mr. Reynders has said on
oath that the car belonged to the company, that the agreement with
Phakula was for a cash sale, that the company did not give delivery
until after a cheque for the full amount had been deposited in its
bank account in accordance with the agreement, and that the cheque
was dishonoured. Mr. Shabangu has not sought to cross-examine him on
those things. The replying affidavit shows no basis at all for
asserting that the company ever agreed to sell the car on credit to
anybody. On the contrary, it is apparent from paragraph 12.1 that he
is not in a position to say that. I am satisfied that the company has
that it is the owner of the car, that it never agreed to sell it on
credit terms, and that the vehicle was stolen from it by a fraudulent
has not been shown at all that the company made any kind of a
representation to Mr. Shabangu, still less negligently, or that Mr.
Shabangu relied on such a representation. He had no dealings with the
company and it does not appear at all that he was concerned to do so.
I can see no compelling reasons of fairness why the company should
otherwise be precluded from recovering the vehicle. It is not shown
in my view that it acted in any way negligently. It is open to an
honest trader to accept a cheque in payment in a transaction. It is a
matter of judgment, but if the cheque is dishonoured, there is no
necessary implication of negligence at all on the seller's part. It
is a matter between him and the person with whom he was dealing.
company having proven itself that it is the owner of the car which
was stolen from it, it is entitled to its return. Mr. Shabangu's
application must fail. The costs must follow the event.