Abstract

Some judgments do not instil confidence in the mastery of the legal principles that should have been applied. This is one. The rei vindicatio is the primary remedy for the owner who is reclaiming possession of his property from the defendant. The latter is at litis contestatio in control of the object of the claimant’s ownership. The claimant only needs to prove that he is the owner of the thing in question and that the defendant is currently in control of it – ie it is still in esse as an independent thing. It is not necessary for the claimant to prove that the defendant is in unjustified or illegal possession of the thing. If the defendant does want to rely on an alleged legal justification for his control over the object, then the onus is on him to prove it. In this matter, the bank as applicant alleges that it is the owner of a 2016 Hilux vehicle which is currently in control of the first respondent, a panel beater with some salvage interest as a towing service. The bank provided credit to the second respondent for the purchase of the vehicle in July 2016. However, despite the fact that the latter was in control of the vehicle as tenant for the bank as owner, the bank retained ownership over the vehicle until the last instalment had been paid. Because the ownership of the bank was not contested, the bank was not required to indicate how it had attained ownership over the vehicle. In general, banks do not partake in the sale of vehicles but merely finance the acquisition; in this matter it is not self-evident how the bank had acquired the ownership and by way of which derivative mode of acquisition.  The vehicle was towed by the panel beaters a week after the second respondent had taken delivery of the vehicle in question. It had been standing on the premises of the first respondent for almost seven years and it had been exposed to all the elements – it had thus depreciated daily. The second respondent had since defaulted on all his instalment obligations and his liability had increased monthly with the compound interest due. According to the acting judge, it seemed that the second respondent had abandoned the motor vehicle with no intention to pay. Only the holder of a right can abandon it, and at no point in time did the second respondent acquire ownership of this Hilux. Under the credit agreement, his liabilities cannot be unilaterally abandoned either – apparently abandonment does not come into play at all. Notwithstanding numerous requests by the bank to allow it to repossess the vehicle, the first respondent relied on an alleged lien to justify its continued possession. The so-called lien is alleged to be founded on either a tacit agreement or a salvage lien. Not only is it clear that no agreement ever existed between the bank as owner and the panel beater – irrespective of whether the second respondent, as alleged, had agreed to the tow-in service – but a lien can never be founded on an agreement. A lien is no pledge, and in the absence of a real agreement, no limited real right is acquired by the retentor as lien holder, even when all the requirements for a lien had been satisfied. In this case, none of the requirements for a lien had been met. Any agreement between the second and the first respondent in July 2016 would be res inter alios acta as far as the bank is concerned and such agreement cannot bind the bank as owner. Because the bank is contractually entitled to repossess its property without any damage from the buyer as tenant if the latter has defaulted (as in this case since 2016) the bank as owner cannot be enriched by any prolonged retention of its property by the panel beaters – it may only be impoverished. Notwithstanding the jumble of confusion uttered in the judgment, the court came to the correct decision and ordered the immediate release of the vehicle to the bank. In the process, the acting judge botched the relevant legal principles and even mixed-up the identification of the parties involved in this matter to the extent that this judgment does not encourage trust in the judiciary. Furthermore, the judgment should have been edited and proofread by the acting judge before it was posted and published on SAFLII – unfortunately the editing was badly done. In many instances, the reader cannot even guess what the acting judge intended to say. In the final formulation of the order, the second respondent, who was not even in court, was ordered to return the Hilux to the bank forthwith – although it had been standing on the premises of the panel beaters for almost seven years and was clearly not in possession of the second respondent – and the same second respondent was ordered to pay the cost of the suit. A court does have a discretion to compel a retentor to accept alternative security in the form of a guaranteed amount to cover any realistic proven claim, but in the meantime to discharge the object of the lien to the owner. Once the lien holder has fully quantified and proven his claim, he will be entitled to payment in respect of the improvements or safekeeping regarding the object of the lien to the lesser of either his impoverishment sine causa or the owner’s unjustified enrichment, if applicable. As soon as sufficient security has been tendered by the owner, the lien holder has no basis to continue retaining possession of the property and should discharge it to the owner. Although the bank, in this matter, offered to provide a guarantee that a realistic amount would be available to pay any proven claim by the panel beaters in a subsequent action against the bank, the court order does not refer to it at all, leaving the impression that no guarantee was ordered. It is submitted that, although this fact is not motivated in any sense by the acting judge, it was correct given the circumstances. No claim can be proven by the panel beaters against the bank founded on unjustified enrichment or the actio negotiorum gestorum as action resulting from the unauthorised management of the affairs of another. Due to the fact that the requirement of accessority was not met, there was no room to entertain a lien. Consequently, no guarantee to replace or discharge the unjustified lien could come into play.