In
this matter the plaintiff's claim is for a declaratory order in the
following terms:
“(a)
An order that the defendant be declared the true and lawful owner of
the Mercedes Benz Sprinter, registration number ACQ 0587.
(b)
An order that the defendant surrender the Mercedes Benz Sprinter,
registration number ACQ 0587 together with its registration documents
to plaintiff within 48 hours of the order.
(c)
An order that the defendant pays the costs of suit on an attorney and
client scale.”
The
defendant opposed the claims and contended that the Mercedes Benz
Sprinter (hereinafter referred to as the motor vehicle) is hers. The
defendant avers that the motor vehicle in dispute was purchased by
the plaintiff on behalf of the defendant. She further averred that
the defendant gave the plaintiff a total sum of ZAR120,000 after the
plaintiff had convinced the defendant that it would be better for her
to purchase a Sprinter omnibus instead of a 7 tonne truck she had
intended to purchase.
To
prove that the motor vehicle was indeed hers the defendant stated
that the plaintiff had registered the vehicle in her names.
At
the curtailment of pleadings, the parties agreed that the issue to be
determined at trial was as follows:
“Whether
or not the plaintiff is the true owner of the Mercedes Benz Sprinter,
registration number ACQ 0587.”
It
was resolved that the onus of proof was on the plaintiff to establish
that he was the true owner of the vehicle and not the defendant.
Plaintiff's
case
The
plaintiff was the first to testify before calling three other
witnesses in support of his claims. His testimony was essentially to
the effect that he was employed by the defendant as a driver until
this dispute arose. He had been employed as such for a period of more
than ten years prior to the dispute. He narrated that problems
started when he was involved in a road traffic accident whilst
driving the
defendant's Toyota Quantum on 23 July 2013. The said Quantum motor
vehicle, though belonging to the defendant, was registered in the
names of one F. Ndlovu.
The
plaintiff maintained that the Mercedes Benz Sprinter is his and that
he bought it from one Lethu Phepheta Ncube in October 2012. A written
agreement of sale was entered into between Lethu Phepheta Ncube and
the plaintiff's wife Sanelisiwe Viki Nyamambi.
At
the time the agreement was concluded, the plaintiff was in South
Africa, and his wife signed the agreement of sale on the plaintiff's
behalf.
The
Agreement of Sale was tendered into the record. The agreed purchase
price was US$10,000 and a deposit of US$8,000 was paid to the seller
leaving a balance of US$2,000 which is still to be paid.
The
written agreement of sale tends to confirm the version of events as
chronicled by the plaintiff in his evidence in chief. The plaintiff
further testified that he attended to certain repairs on the motor
vehicle until it became roadworthy. He did the upholstery of the
vehicle and purchased an engine from one Sipho Hadebe and replaced
the one reflected in the registration book of the vehicle. The old
engine was, at the time of the hearing, with the mechanic.
The
plaintiff testified that he paid US$5,000 for the engine and a
written agreement of sale was produced in court to corroborate the
plaintiff's testimony.
The
plaintiff informed the court that the source of funding for the motor
vehicle in dispute was from a sale of a Toyota Hiace motor vehicle
and a loan obtained from his wife's Bank. Documents were tendered
into evidence to support the plaintiff's version. The plaintiff
stated that whilst he was busy fixing the motor vehicle he visited
the defendant whilst driving the motor vehicle. That is when the
defendant proposed that he could register the vehicle in her
(defendant's) names so that he could use the vehicle to ply the
busy Bulawayo – Johannesburg route.
The
defendant gave the plaintiff her identity document in order to use it
to register the vehicle in his name. The plaintiff advised the seller
of the vehicle, Lethu Phepheta Ncube about the arrangement. The
plaintiff stated that that everything was done in good faith. The
plaintiff averred that he paid all the costs for the change of
ownership and related registration expenses, including insurance
fees. Once he had secured all the papers for the permit, the
plaintiff had employed Nkosilathi Mkhizwana to drive the vehicle to
and from South Africa. The plaintiff said the arrangement was that
the defendant would receive a commission in the form of the entire
fee for one trip in every four trips.
The
plaintiff stated that the practice of using other persons' names is
common place in that particular trade or business.
The
plaintiff testified that after he was involved in an accident with
the defendant's Toyota Quantum, the defendant became very bitter
and she expressed displeasure and ordered that the plaintiff should
repair the vehicle. When the plaintiff pointed out that the insurance
should cover the costs of repairs, the defendant swore that she would
fix the plaintiff by claiming ownership of the Mercedes Benz Sprinter
since it was registered in her names.
The
plaintiff testified that when he came back from one of the trips in
South Africa, the motor vehicle was seized by the defendant who used
the Criminal Investigations Department to dispossess him of
possession of the motor vehicle. This happened in August 2013 -
almost a year after he had been in peaceful possession of the motor
vehicle. This event, according to the plaintiff, marked the start of
a long and protracted legal battle to recover his motor vehicle.
The
next witness for the plaintiff was Sanelisiwe Viki Nyamambi. She is
married to the plaintiff. She testified that she is the one who
handed the US$8,000 as a deposit for the vehicle to Lethu Phepheta
Ncube. She said the agreement of sale was prepared by Lethu
Phepheta's wife. She signed the agreement on the plaintiff's
behalf because at the time he was away in South Africa.
The
witness confirmed that when the vehicle was delivered it was repaired
before it was considered roadworthy. She confirmed that she took a
loan from her Bank and contributed a sum of US$1,500 towards the
deposit. She further asserted that it was always known to the
defendant that the motor vehicle belonged to the plaintiff. The
driver was surrendering all the monies at her house when the vehicle
commenced work.
The
third witness called by the plaintiff was Lethu Phepheta Ncube. He is
a mature man who gave the following evidence:
He
confirmed that as far as he was concerned he sold the motor vehicle
to the plaintiff and did not know the defendant at all. He seemed
baffled by the suggestion that the defendant was the owner of the
vehicle. He stated that the plaintiff had told him that he was unable
to pay the balance on the purchase price because the defendant had
taken the vehicle from him (plaintiff) by force. He corroborated the
plaintiff and his witness was not challenged by the defendant at all.
The
plaintiff's last witness was Nkosilathi Mkhizwana. He confirmed
that he was employed by the plaintiff to drive the Mercedes Benz
Sprinter in dispute. When he came back from a trip he would hand over
the takings to the plaintiff or his wife. He confirmed that he
believed that the motor vehicle belonged to the plaintiff. The
evidence of this witness was not contested at all.
Defendant's
case
The
defendant opened her case by giving viva
voce
evidence. She stated that there existed a relationship of trust
between herself and the plaintiff spanning a period of over ten
years. She testified that the motor vehicle in dispute is hers. She
denied that it had been registered in her names for the sake of
expedience. She told the court that she raised the sum of ZAR120,000
which she forwarded to the plaintiff for the purchase of the vehicle.
The
money was handed to the plaintiff in cash and there was no written
proof for the transaction.
The
defendant averred that it was not necessary for her to be involved in
the actual purchase of the vehicle as she trusted the plaintiff; and
the plaintiff had previously conducted various transactions on her
behalf. She confirmed that she was not involved in the change of
ownership of the motor vehicle in dispute.
The
defendant portrayed the picture of a successful businesswoman
operating shops, a bottle store in Plumtree and a commuter omnibus
operator. The defendant advised the court that whatever the plaintiff
did in relation to the Mercedes Benz Sprinter was done on her behalf.
The
gap that exists in the evidence of the defendant is that she does not
explain why from the year 2012 the plaintiff exercised full control
over the motor vehicle without her involvement.
The
next witness called by the defendant was Tshenjelani Ndlovu. She was
called to confirm that the plaintiff was given money amounting to
ZAR70,000 for the purchase of the vehicle. She also stated that the
plaintiff had brought the motor vehicle to the defendant's house in
order to show it to her.
The
last witness for the defendant was Nigion Majohana Moyo. He testified
that the defendant had advised him that she had bought a Mercedes
Benz Sprinter and that a dispute had arisen after the defendant
discovered that the plaintiff was using the vehicle and making trips
to South Africa. The main feature of this witness's evidence is
that the information he gave in court is based on what the defendant
had told her. He did not have an independent knowledge of the details
of the
matter.
Analysis
of evidence
In
this matter, I have to assess the credibility of the witnesses and
assess the probabilities of the plaintiff's version as against the
defendant's account. There are issues that are common cause in this
dispute and they are these:
(a)
The plaintiff purchased the Mercedes Benz Sprinter from Lethu
Phepheta Ncube.
(b)
The plaintiff concluded the entire agreement of sale without the
involvement of the defendant.
(c)
The plaintiff changed ownership of the motor vehicle and proceeded to
register it in the defendant's names.
(d)
The plaintiff effected repairs on the motor vehicle and immediately
started using it, plying the Bulawayo – Johannesburg route.
(e)
The plaintiff employed a driver, Nkosilathi Mkhizwana, who worked for
the plaintiff and surrendered all takings to the plaintiff or his
wife.
(f)
The defendant's Toyota Quantum motor vehicle was involved in an
accident whilst being driven by the plaintiff in July 2013.
(g)
A dispute arose when the plaintiff refused to effect repairs on the
defendant's Toyota Quantum motor vehicle.
(h)
The defendant repossessed the motor vehicle in question in August
2013 through the intervention of the Criminal Investigations
Department, Bulawayo. The motor vehicle was reposed from the
plaintiff by the CID and handed to the defendant.
The
plaintiff's testimony is supported by documentary evidence. He
produced the Agreement of Sale signed by his wife and Lethu Phephetha
Ncube. There is no argument that what Lethu Phepheta Ncube stated in
court represents the truth of what transpired. The plaintiff further
produced the loan agreement relating to the loan secured by the
plaintiff's wife. The circumstances under which the vehicle was
registered in the names of the defendant were adequately explained.
During
the trial, it became apparent that the practice of registering
vehicles under another person's name is a very common in the
Cross-Border Transporters Industry.
What
became also clear is that one can only ply the Bulawayo –
Johannesburg route if one is registered as a member of an
organization known as Zimbabwe International Long Distance Taxi
Association. That organization controls its members who queue
officially and load passengers in Johannesburg, South Africa to
Zimbabwe. The relevance of the organization is that the plaintiff
could not have plyed that route without being a member, or,
alternatively, by using someone else's name.
I
find the following to be inconsistencies in the defendant's
version:
(a)
The defendant stated, in her evidence in chief, that she did not pay
for the repairs for the Quantum motor vehicle, but, under
cross-examination, she failed to explain why she issued a letter of
demand, through her lawyers, for the costs of repair.
(b)
The defendant clearly had no knowledge whatsoever about how the motor
vehicle in question was purchased.
(c)
The defendant sought to persuade the court to believe that she put up
a huge amount of ZAR120,000 for the purchase of a motor vehicle she
had never seen, when she testified that previously she went all the
way to Durban, South Africa to identify and purchase a vehicle.
(d)
The defendant produced no document at all to support her case. It is
quite telling that the only documents she sought to rely on were
documents seized from the plaintiff by members of the Criminal
Investigations Department.
(e)
The defendant's assertion that she reported the matter to the
police because she had discovered that the motor vehicle was
undertaking trips to South Africa is in direct conflict with her
earlier contention that the takings from the trips were initially
surrendered to her and for her benefit.
I
am therefore satisfied, that, on the evidence led in court and on
close examination of all the documentary evidence admitted into
evidence, the plaintiff has managed to prove his case on a balance of
probabilities.
In
civil cases, the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof on a
“balance of probabilities”, but that should not be understood as
requiring that the probabilities should do no more than favour one
party in preference to another. What is required is that the
probabilities in the case be such that, on a preponderance, it is
probable that the particular state of affairs existed.
In
the case of Milner
v
Minister of Pensions
1947 2 ALL ER 372…, LORD DENNING expressed the civil standard of
proof as follows:
“It
must carry a reasonable degree of probability but not so high as is
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than
not' the burden is discharged, but if the probabilities are equal
it is not.”
It
is my finding that the plaintiff and the defendant operated on the
basis of mutual trust. They both took each other into the other's
confidence. I make the specific finding that the plaintiff plyed the
Bulawayo-Johannesburg route using the Mercedes Benz Sprinter for a
period extending from about October 2012 to August 2013. The
plaintiff collected all the cash from the trips and handed the
defendant the equivalent of one trip in every four trips. The
defendant accepted the money without question and must have known
that the plaintiff was operating the Mercedes Benz Sprinter for his
exclusive financial benefit, save for the fee she received for
facilitating the arrangement.
I
have established, and it is beyond dispute, that problems only
emerged after the defendant's Toyota Quantum was involved in an
accident in July 2013. It cannot be mere incidence that, that was the
same time the defendant seized the Mercedes Benz Sprinter and laying
claim over it. If indeed the defendant was the owner of the vehicle
in dispute one would have expected to see her involvement in the
purchase of the vehicle and her participation in the repairs to the
motor vehicle. If the vehicle belonged to her, one wonders why she
did not employ her own driver on her own terms and why the driver was
not surrendering the cash from the trips to her.
In
the result, it is ordered as follows:
1.
The plaintiff be and is hereby declared to be the true and lawful
owner of the Mercedes Benz Sprinter bearing registration number ACQ
0587.
2.
The defendant is ordered and directed to surrender to the plaintiff
the Mercedes Benz Sprinter, bearing registration number ACQ 0587
together with its registration documents within 48 hours of this
order.
3.
The defendant is ordered to pay the costs of suit.
