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Hirschfeldt v Standard Chartered Bank of Botswana (Civil Appeal No. 4 of 1996) [1996] BWCA 34; [1996] B.L.R. 640 (CA) (1 July 1996)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Civil Appeal No. 4 of 1996 High Court Civil Case No. 1221 of 1994
In the matter between:
BOTIKI HIRSCHFELDT       Appellant
and
STANDARD CHARTERED BANK OF BOTSWANA Respondent
Mr. C. Dahanayake for the Appellant Mr. R. Camp for the Respondent
REASONS FOR JUDGMENT
Coram: Amissah, J.P.:
Schreiner, J.A.:
Lord Allanbridge, J.A.:
LORD ALLANBRIDGE, J.A.:
This civil litigation is concerned with the sale of a
Mercedes Benz 230 motor vehicle which was sold by the appellant
on 7 December 1993. The main issue between the parties was
whether the appellant sold the car to the respondent or to one
of their customers named Paul Shamiso Chitate. A civil proof was
heard before Gaefele, A.J. in the High Court at Lobatse on 10
October 1995 which required to decide this dispute between the
parties. The respondent (hereinafter referred to as "the Bank")
led the evidence of two witnesses, namely, one of their
employees, Mrs. Setlhare, and Mr. Chitate, who both said the
appellant sold the car to the Bank. The appellant was the only
witness on his own behalf and said he had sold the car to Mr.
Chitate. The learned Judge , in a Judgment, dated 27 October
1995, decided that the Bank had proved its case and that the car
had been sold by the appellant to the Bank and accordingly

2
entered judgment for the Bank.
The appellant appealed that judgment to this Court. We heard the case on 10 July 1996. Counsel for the appellant submitted that the Court a quo had misdirected itself as to the true nature of the sale transaction which was one between the appellant and Mr. Chitate. He also submitted that there was a fictitious purchase by the Bank from Mr. Chitate in order to create security for the Bank. His Heads of Argument included submissions that the pleadings of the Bank did not lay a foundation for refund of the purchase price, that the appellant had not established its case on the balance of probabilities, had failed to establish a contract between the Bank and the appellant and, in any event, the Court a quo had erred in acting upon a "without prejudice" letter which is referred to in the judgment.
After hearing the submissions of Counsel for the appellant and considering them along with the written pleadings and documents in the case, this Court was unanimously of the opinion that Counsel had not put forward any satisfactory grounds for interfering with the decision of the Court a quo. That being so they did not require to hear any submissions from Counsel for the Bank. The appeal was dismissed and the Court indicated that the reasons for this decision would be issued in writing later.
I will now state the Court's reasons for dismissing this appeal. The history of the car in question which is relevant to this case appears to start in South Africa where the appellant purchased it from a Mr. S.M. Ratau. At that time the appellant said he had no reason to believe or suspect it was stolen. He produced in Court a clearance certificate for the car from the

3
South African Police, dated 19 October 1993. He also produced
a Botswana Police clearance certificate for the car for
registration only, dated 25 October 1993. At about the end of
October Mr. Chitate, an insurance broker in Gaborone, who wished
to obtain a Mercedes Benz 230 got in touch with the appellant who
had such a car for sale. Thereafter there were negotiations
between the appellant and Mr. Chitate in about November 1993.
Finally, the Bank provided the necessary finance for the purchase
of the car on 7 December 1993 from the appellant, at a price of
P80,000.00. A few days later the car was taken from Mr. Chitate
and impounded by the Police as it was discovered to be stolen.
Thereafter the Bank, who maintained it had bought the car from
the appellant, asked him for return of the purchase price but he
refused to make repayment. Accordingly, the present action by
the Bank was raised against the appellant.
At this point it is important, as correctly pointed out by
the learned Judge who dealt with this case in the High Court, to
consider some of the terms of the pleadings so as to ascertain
what was agreed between the parties before they went to proof.
A fact which is admitted by one party does not require to be
proved by the other party. This is a legal rule which is
intended to save both parties time and expense in preparation for
the proof. In the case of Gordon v Tarnow 1947 (3) S.A. (A) 525
at 531 Davis A.J.A. states:-
"But this admission in the plea is of the greatest importance for it is what Wigmore (paras 2588-2590) calls a "judicial admission" (cf. the confessio judicialis of Voet (42.2.6) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to

4
contradict it." I have examined the pleadings of both parties in this case. The important admissions for the appellant contained therein are: -
1.     
The appellant admitted that he sold the car for a sum of P80.000.00.
2.     
The appellant admitted that he was not the owner of the car at the time of sale.
3.     
The appellant admitted that the car was stolen. This is a vital admission and I will quote the terms of paragraph 7 of the Plaintiff's Declaration and Defendant's answer to it. They are as follows:-
"During or about December 1993 and at Gaborone the Defendant admitted to officials of the Plaintiff that he had not had title to the said vehicle and that he had accordingly not been able to sell the vehicle to the Plaintiff, and that the true owner thereof was entitled to repossess the vehicle.
Reply AD Paragraph 7
"The contents are admitted but the Defendant avers that at the time of the sale of the Vehicle to a customer of the Plaintiff the Defendant in the bona-fide and reasonable, mistaken belief that the vehicle was not a stolen one proceeded with such sale to a customer of the Plaintiff." (my underlining).
In their pre-trial Minutes the parties stated that they
could not narrow the issues any further than as reflected in the
pleadings. From a close reading of these Minutes it is quite
clear that there was no dispute between the parties that as a
matter of law the purchaser of a stolen vehicle is entitled to
repayment of the price from a seller who had been unable to give
him a good title of ownership. The real issue between the
parties was one of fact, namely, whether it was the Bank itself

5 or the customer of the Bank, Mr. Chitate, who had bought the vehicle from the appellant.

This dispute on a matter of fact between the parties was one to be decided by the learned Judge who heard the evidence provided that he did not err in law in reaching his decision on such a matter of fact. This Court of Appeal cannot interfere with his decision as we did not hear the evidence of the witnesses. On the evidence which I have also read, I am quite satisfied that he was fully entitled to reach the conclusion that he did. It was for him to decide matters of fact where there was no agreement regarding them between the parties.
The first witness for the Bank, Mrs. Setlhare, was the head of the leasing department who explained that the Bank would buy a car for a customer and then lease it to him. In this case she said the Bank had bought the car from the appellant. She produced the cheque of the Bank, dated 7 December 1993, made payable to the appellant, which she said was paid to him. She also produced the blue book or registration book of the vehicle which shows the first owner as the appellant and the second owner as the Bank with a transfer from one to the other taking place on 7 December 1993. I interject here to say that when the appellant gave evidence he admitted that he was asked to sign the registration book on that date and did so. An examination of the photostat copy document shows his signature. Mrs. Setlhare also said that after buying this particular vehicle from the appellant, the Bank leased it to Mr. Chitate. She produced the lease (PI) which appears to show that Mr. Chitate signed it as lessee and it was also signed on behalf of the Bank as lessor.

6 In terms thereof the lessee undertook to pay 48 monthly rentals at fixed instalments.
The second witness was Mr. Chitate. He in effect confirmed the evidence of Mrs. Setlhare and, as more fully stated in the learned Judge's reference to this witness' evidence in his judgment, stated quite clearly that the Bank had bought the vehicle from the appellant in order to lease it to him.
On the evidence of these two witnesses together with the three documents supra provided by Mrs. Setlhare, produced without objection from the appellant's Counsel, there was more than sufficient evidence to entitle the Judge to find that this sale by the appellant to the Bank had been proved, provided that the Judge accepted the evidence of these two witnesses as credible and reliable on essential matters.
When he came to give evidence the appellant attacked the evidence led on behalf of the Bank. He said he had sold the car to Mr. Chitate on the 7 December 1993. Thereafter he agreed that the vehicle was repossessed by the Police as a stolen vehicle but said that he did not know that it was a stolen vehicle until that happened. Such evidence was in accordance with his written pleadings to which I have already referred and was quite properly led by his attorney in Court. In his cross-examination, however, the appellant began to shift his ground and said that he would not admit that the car was stolen and "until the Court says that the car was stolen," he would not pay Mr. Chitate anything, although his defence to this case was that he had sold the car to him. When asked how he explained his answer in the pleadings in said paragraph 7, already quoted by me, he

7 procrastinated and came close to suggesting that his then attorney, Mr. Naledi, had made this answer without his instructions. He then went on to say that he had consulted S.M. Ratau, who was the man in South Africa from whom he originally bought the car, but that he could get no money from him because he had used it all. Once again he used the excuse that until it was proved that the car was stolen, he would not sue Mr. Ratau for return of the purchase price. Finally, at this stage of his evidence he went so far as to say that he did not believe that car was stolen.
There was a good deal of cross-examination about what was said or not said by the appellant to Mrs. Setlhare at a meeting he had with her and another representative of the Bank on 11 December 1993. The appellant said she was lying about this matter. He was referred to what was said on his behalf in his second attorney's letter of 20 May 1994, stated to be written "without prejudice". However, whilst the dispute about the meeting and the letter may have assisted the Judge in determining matters of credibility, they cannot and do not assist directly in deciding who was the party to whom the appellant sold the car on 7 December 1993. I should add that I place little or no weight on the complaint about the letter in the fourth ground of appeal as no objection was taken to the letter being used in cross-examination and, in any event the learned Judge states the letter is "important for a proper analysis of the defendant's evidence under cross-examination." It is clear that he used it only to test the defendant's credibility, as was being done at the time of the cross-examination by Counsel for the Bank.

8
Towards the end of the cross-examination the appellant
became even more confused in his evidence. He was forced to
admit that he knew there was a lease involved and that Mr.
Chitate was leasing the vehicle from the Bank. He was then asked
how Mr. Chitate could have bought the vehicle from him when it
also appeared that Mr. Chitate had leased it from the Bank. He
then had to make the somewhat extraordinary suggestion that Mr.
Chitate bought the car from himself, as the appellant, and that
the Bank then bought the car from Mr. Chitate and leased it back
to Mr. Chitate. The cold print of the transcript of the evidence
does not reflect the appellant's demeanour at this part of his
evidence. The Judge, however, in his judgment says:-
"The defendant's case collapsed in the hands of its only witness, in the course and at the end of cross-examination. He nearly palpably broke down and, were it not because he appears to be an intelligent man he seemed to me to have been on the verge of giving up. At the end of it all no evidence was placed before Court to show that the defendant sold the car to Paul Chitate."
On the whole matter I am quite satisfied that the learned
Judge was entitled to find that the Bank had proved its case on
the evidence of its two witnesses and the three exhibits already
referred to, all of which supported the Bank's version of events.
I have taken into account all that Counsel for the appellant
submitted to this Court, including his references to the
evidence. He did not persuade me that the learned Judge
misdirected himself in law in such a way as to justify this Court
in interfering with his conclusion on the evidence. The reality
of the situation was that Mr. Chitate did not wish to buy the car
himself so the Bank bought the car and leased it to him. Such

9 a transaction satisfied the needs of all the parties. The appellant got his price for the car. Mr. Chitate got the use of the car without having to purchase it outright. The Bank had the security of owning the car so that if Mr. Chitate failed to pay the monthly sums due in terms of the lease, the Bank could then repossess the vehicle as the owners of it and, if necessary, resell it. This was the true nature of the whole transaction and there was no "fiction" about it, as suggested by Counsel for the appellant on more than one occasion to this Court.
In all these circumstances this Court had no hesitation in upholding the decision of the learned Judge in the High Court in this case, and dismissed the appeal with costs.
DELIVERED IN OPEN COURT this     day of July, 1996.
LORD W.L.S. ALLANBRIDGE Judge of Appeal
A.N.E. AMISSAH Judge President
W.H.R. SCHREINER Judge of Appeal

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