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<<innovent>> Rental & Asset Management v Maredi N.O. and Another (2012/31897) [2015] ZAGPJHC 225 (9 October 2015)

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IN THE HIGH COURT OF SOUTH AFRICA            /ES

(GAUTENG  LOCAL DIVISION, JOHANNESBURG)

                                                                                                CASE NO:  2012/31897

                                                                                                DATE:  9/10/2015

IN THE MATTER BETWEEN

<<INNOVENT>> RENTAL & ASSET MANAGEMENT

SOLUTIONS (PTY) LTD                                                                                                      APPLICANT

AND

CLIFFORD TABENG MAREDI N.O.                                                                  FIRST RESPONDENT

(in his capacity as liquidator of Salister Diesels

(Pty) Ltd (in liquidation))

KGASHANI CHRISTOPHER MONYELA N.O.                                            SECOND RESPONDENT

(in his capacity as liquidator of Salister Diesels

(Pty) Ltd (in liquidation))

JUDGMENT

PRINSLOO, J

[1] This is an application in the nature of a rei vindicatio, in which the applicant seeks the return by the respondents, in their official capacities as joint liquidators of a liquidated company Salister Diesels (Pty) Ltd ("Salister") of certain goods, at times described in the papers as "generators" or "gensets" and, at times, described as "diesel engines".

[2] The applicant claims to be the owner of these goods, and, in the notice of motion, also seeks a declarator to that effect.  For identification purposes, and in support of the application for the declarator, a list of the goods is attached to the notice of motion as "annexure A" ("annexure A to the notice of motion").

[3] The application was already launched in August 2012.

[4] The application came before my sister, Masipa, in December 2012 when the issue of ownership was referred to oral evidence.  The relevant paragraph in the order of my learned sister reads as follows:

"The matter is referred to the hearing of oral evidence on the issue as to who is the owner of the items claimed by the applicant and set out in the notice of motion at annexure A ..."

[5] The hearing came before me and ran for six days between 23 May and 30 May 2014.

The case then had to be postponed for the preparation of heads of argument and a transcript of the evidence and also because my term of duty in the South Gauteng High Court had come to an end.

Argument was only heard before me in Pretoria on 15 March 2015.

[6] Mr Cohen appeared for the applicant and Ms Dippenaar, SC, for the respondents.

Introduction and brief synopsis of the case

[7] The applicant company has been trading since 2003.  Its core business is to finance equipment for clients that want to acquire the equipment through a financing mechanism.

In practice, the applicant buys the equipment on the instruction of the client which also selects the equipment.  Upon receipt of the instruction from the client to purchase the equipment, the applicant contacts the supplier of the equipment, informing the latter that the applicant would be paying for the equipment.  The supplier then invoices the applicant.  The applicant then compiles a so called Master Rental Agreement ("MRA") together with a rental schedule based on the invoice from the supplier.  In practice, it may happen that a number of such transactions, between the applicant and the same client, may be concluded subject to the same MRA.

[8] The first witness called by the applicant was Mr Z L S Khuzwayo ("Khuzwayo"), a chartered accountant and the Chief Operating Officer of the applicant.  Khuzwayo, whom I considered to be an impressive and knowledgeable witness, testified that the applicant concludes similar financing agreements, applying this particular structure, worth in excess of R300 million per year.  At the time when he testified before me last year, Khuzwayo had already been involved with more than a thousand of these Master Rental Agreements.

[9] Chronologically speaking, it seems to me, if I understood the evidence correctly, that one of the sales persons employed by the applicant first introduces the transaction to the executive management, which includes Khuzwayo.  The sales person has to motivate the rationale for the transaction and the pricing.  If management approves the transaction it approaches one of a panel of financiers employed from time to time by the applicant for this purpose.  A financing facility for the transaction will then be requested.

[10] It seems to me that the rental schedule is then prepared with the guidance of the financier.  The reason for this is that it is in the contemplation of the applicant and the financier that, once the deal has been concluded between the applicant and the client, the applicant will sell the MRA to the financier.  This will consist of the so-called "rental stream" calculated by the financier on the strength of the invoice from the supplier (no doubt with finance charges built in) and also the equipment bought from the supplier by the applicant.  What the financier buys from the applicant, and pays for, is the present value of the rental stream.  The applicant cedes all its interests and, for example, rights of ownership in the equipment, to the financier which steps in as the lessor.  It stands to reason that the applicant sells the MRA to the financier at a profit, when the purchase price is compared to that paid by the applicant to the supplier.

[11] The panel of financiers approached from time to time by the applicant to facilitate the financing of these agreements, included the FINTECH group, Absa, Wesbank and Sasfin Bank.

[12] In the present case, the financier selected by the applicant was the FINTECH group with the holding company being FINTECH Underwriting (Pty) Ltd ("FUN").  One of the subsidiaries of FUN is Corporate Finance Solutions (Pty) Ltd ("CFS") which also played a role in this intricate, and at times rather confusing, saga.

[13] The client, in this case, was Africa Heritage Investments (Pty) Ltd ("AHI"), a black empowerment company employing, at the time, according to its written motivation for the financing of this transaction, some one thousand employees, and involved in various branches of the economy.  AHI had a number of subsidiaries, including Salister.

[14] Significantly, the supplier of the goods selected by AHI for purposes of this transaction, was none other than Salister.  The goods which Salister was scheduled to supply to AHI, its holding company, was said to be generators or "gensets" which, as I understood the evidence, represent the same product.  The terms are used loosely describing the same product.  Nothing turns on this.  Salister was in the business of manufacturing generators.  Generators are used to generate power when the "normal" electrical power supply has been cut off, or is not available.  The motivation given by AHI for this transaction, which was concluded in 2008, at a time when the country was subjected to wide-spread power cuts and loadshedding, was that the generators would be supplied to all its subsidiaries to ensure a constant flow of power, and to avoid interruptions in the varied business activities of AHI and its subsidiaries.

[15] An integral part of the generator is the diesel engine.  At the time, Salister was importing these diesel engines from Italy.  The engines were supplied under the brand name IVECO.  According to expert evidence which I heard, a genset "could be as simple as an engine with an alternator and a fuel tank or it could be as complex as engine, alternator, fuel tank, metal frame and enclosure, control gear and electrical change over switches".

Expert evidence offered by the applicant, was to the effect that the engine represents some 85% of the value of the genset and, according to the respondents' expert, the value was less, more in the order of 35-40%.

[16] In the course of structuring this transaction, as I explained, Salister, as the supplier, invoiced the applicant for 68 gensets to the value of some R5,7 million.  The invoice is dated 26 November 2008.  The goods are described as "IVECO genset".  They range in power capacity from 30 kva to 150 kva.  Different quantities are invoiced for the different categories or calibres.

[17] It appears that the applicant moved rather swiftly to sell the MRA to FUN because it invoiced the latter, already on 4 December 2008, for a total amount of R5,6 million (round figures) and, presumably after it received that payment, paid Salister, on 17 December 2008, the smaller amount of R5,061 million (round figures).  Khuzwayo could not explain the discrepancy between the amount of some R5,7 million invoiced by Salister and the payment of only R5,061 million.  He thought that there may have been some credit notes involved.  Nothing turns on this.

It appears, on the weight of the evidence, that the applicant first collected the money from FUN before paying Salister.  There is some evidence that, on occasion, it first pays the supplier before collecting the money from the financier.  In my view, nothing turns on this either.

[18] The rental schedule, to which I have already referred, which forms part of the MRA, incorporates the terms and conditions which apply to the MRA, and provides, for example, that the quarterly rental, payable quarterly in advance, comes to some R413 000,00 and the rental period would extend over sixty months from 1 December 2008 to 30 November 2013.  Of course, after the cession of the applicant's rights to FUN, the rental would be payable to the latter.  This is recognised in the MRA.

[19] The rental schedule provides that the goods will be kept at the address of AHI at 325 Rivonia Boulevard, Rivonia Sandton.  However, the evidence indicated that, by agreement between AHI and Salister, the goods remained at the latter's business premises because all the gensets had not yet been "manufactured" in the sense that the imported IVECO diesel engines still had to be converted into gensets with the addition of alternators, fuel tanks and so on.  Khuzwayo also testified that he understood this to be the position.

[20] The certificate of acceptance ("certificate of acceptance") forms part of the rental schedule.  It is a rather one sided affair, and reads as follows:

"User (read AHI) hereby irrevocably declares to Hirer (read <<Innovent>>, ie the applicant) that the equipment described in this schedule has:

(a)        been delivered and installed in accordance with the conditions of the agreement,

(b)        where applicable been subjected to all operating and/or similar tests which have been completed and the results are to User's satisfaction,

(c)        been inspected, is new and unused and is in good order and condition, free from defect and ready for use in every respect,

(d)        been insured in accordance with clause 5.1 of the Master Rental Agreement,

(e)        User's signature shall constitute an irrevocable authority to Hirer to pay the supplier of the Equipment listed in this rental schedule in order for Hirer to procure that Equipment,

(f)         User confirms that the serial number/s on the goods correspond with the serial number/s on the schedule."

The certificate of acceptance was signed on 2 December 2008 by the two main directors and officials of AHI, Mr P Mariemuthu and Mr M Mawere.  I did not have the privilege of hearing the evidence of either.

Khuzwayo testified that, in practice, the applicant never inspects the goods and relies on the unequivocal terms of the certificate of acceptance which, by agreement between the parties, may not be departed from by the client, to the detriment of the applicant.  In any event, I am of the view that the client would be precluded from doing so on the strength of the Estoppel doctrine.

Moreover, clause 2.6 of the MRA reads:

"The User (read AHI) warrants that all information supplied to the Hirer by the User or anyone on its  behalf concerning  the User's business, in whatever form, is true and correct in all material aspects, in particular all information so supplied to the Hirer during its investigations, prior to the conclusion of this agreement and other financial statements or accounts supplied are correct.  The User further warrants that all such information as may be presented to the Hirer will be true at the relevant time and will remain true and correct in every material aspect."

[21] In April 2005, the applicant and CFS, acting as the undisclosed agent of FUN, entered into an "Agreement of Sale and Cession" ("the 2005 Sale and Cession Agreement").

[22] The 2005 Sale and Cession Agreement is a lengthy affair consisting of some thirty pages of fine print.

It recognises that the applicant intends to enter into Rental Agreements with various Renters from time to time in terms of which the applicant will rent Equipment to such Renters.

It recognises that the applicant and CFS (described as the"financier") have agreed that the applicant will from time to time discount Rental Agreements concluded by and on behalf of the applicant to CFS on the terms and conditions set out in the 2005 Sale and Cession Agreement.

It records that the parties acknowledge that CFS will cede and/or delegate all or any part of its rights and/or obligations under the Sale Assets and the Collateral Securities (which it acquires from the seller) to a third party.

"Sale Assets" is defined as all the right, title and interest of the applicant in the Receivables, and the Equipment, including the right to receive the proceeds of any insurance policies taken out in respect of the Equipment and in the Rental Agreement.

"Collateral Securities" means guarantees and all other security held by or on behalf of the applicant securing the obligations of the Renter under the Rental Agreement.

Perhaps significantly, "Rental Agreement Assignee" is defined as any person to whom CFS may cede and/or delegate any or all of its rights and/or obligations under any Rental Agreement from time to time.

[23] Clause 3.3 provides that after acceptance of the offer by CFS the Seller (applicant) shall have no rights in respect of and no remaining legal interest in the Sale Assets or the Collateral Securities unless and until ownership of the Equipment is transferred back to the applicant in accordance with clause 3.4 or 7.2.2.2.

[24] Clause 3.4.1 stipulates that the applicant shall transfer ownership of the Equipment to CFS on the date when the latter pays the purchase price.  It is clearly in the contemplation of the parties that when the applicant sells the MRA to CFS, the former will be the owner of the Equipment.

Clause 3.4.2 provides that when the Rental Agreement is terminated, ostensibly after having run its full course and full payment has been made by the Renter, the Equipment will be transferred back to the applicant for no consideration.

[25] Importantly, clause 7.2 deals with the remedies of CFS (or the Assignee) in the event of default on the part of the Renter under the Rental Agreement.  This foreshadows the situation of the lessee of the Equipment (in this case AHI) failing to pay the quarterly rental dues to CFS (or the Assignee) having adopted the position of the Lessor or "Hirer" in terms of the MRA.  Clause 8.1 of the MRA provides that the Hirer is entitled to cede without notice all or any of its rights under the MRA including its rights of ownership in the goods and the User (AHI) undertakes to accept the cession and to acknowledge the rights of the Cessionary (which would now be CFS) in terms of that provision and to hold the goods on behalf of the Cessionary.  It also stipulates that in the event of such a cession, AHI shall, if so required by the Cessionary, make all payments direct to the Cessionary.

[26] In terms of clause 7.2.2, and subclauses, the applicant, having sold the MRA to CFS, shall be obliged, in the event of the Renter (AHI in this case) failing to pay its quarterly dues, to pay a so-called "settlement amount" calculated in terms of a prescribed formula, to CFS.  In such a case, and in terms of the provisions of clause 7.2.2.2, the applicant shall, upon notice to CFS, be entitled against payment to the latter, of the settlement amount, to re cession and re delegation of the rights and Collateral Securities from CFS to the applicant, and thereafter to recover and retain the Sale Assets and the Collateral Securities.

[27] This is exactly what happened in the present case: I have pointed out that the applicant, already on 4 December 2008, sold the MRA to CFS for some R5,6 million.  On the same date, the applicant invoiced FUN, which paid the amount.  This was two days after Messrs Mariemuthu and Mawere signed the certificate of acceptance on 2 December 2008.

AHI was not a reliable "Renter".  It already failed to pay the second 2009 quarterly payment, due on 1 April 2009, when it was marked "payment stopped" by the bank.  Later the payment was honoured on 16 April.  The next quarterly payment was not honoured and the debit order was returned by the bank marked "account frozen".

CFS and FUN set the clause 7 proceedings, prescribed by the 2005 Sale and Cession Agreement, in motion.  The applicant initially refused to make the repayment and CFS instituted action.

Ultimately, this action was settled, and the settlement recorded in an agreement between FUN and the applicant dated 28 May 2010.

It was recorded that each party would pay its own costs and that the applicant would make no admissions, but on 1 June 2010, the applicant paid FUN the amount of R2 775 000,00 as a settlement figure in terms of the 2005 Sale and Cession Agreement.  I will refer to this May 2010 agreement as "the Buy Back Agreement".

In terms of clause 5.1 of the Buy Back Agreement, FUN, as "seller", ceded, assigned and transferred to the applicant as "purchaser" its rights, title and interest in and to the MRA together with the Equipment, against payment of the settlement figure which I mentioned.

I have to add that the "purchase price" stipulated in the Buy Back Agreement comes to R3 750 000,00 and not the R2 775 000,00 which I mentioned.

However, attached to the founding papers, is proof of a further payment of R1 500 000,00.  The last mentioned payment was made by the applicant to FUN on 5 May 2010, and the larger payment (R2 775 000,00) was paid on 1 June 2010.  The total payment was R4 275 000,00.  This is exactly in line with Khuzwayo's evidence to the effect that the applicant re-purchased the MRA in the amount of R3 750 000,00 excluding VAT.  If 14% VAT is added, one arrives at the figure of R4 275 000,00 which was indeed paid.

The result of all this is that the applicant ended up in the unenviable position of having paid twice for the equipment which, in the end, as I will explain, turned out to be only IVECO diesel engines, and not the more expensive gensets.  There was the initial payment to Salister in the amount of R5 061 566,94 and the buy back payment of R4 275 000,00 making a grand total of R9 336 566,94.

[28] It is also clear that, against receipt of the buy back payment of R4 275 000,00, FUN, in terms of clause 5 of the Buy Back Agreement, ceded and assigned its rights, title and interest in and to the MRA together with the Equipment to the applicant, which accepted the cession.

[29] Before the Buy Back Agreement was signed, and the re-cession took place, as described, the following happened: when AHI breached the agreement in mid 2009, as described, by failing to pay the quarterly rental, and, obviously, failing to remedy the breach, the Head of Collections at the time at FUN, Mr Jurie Johannes Groenewald, who also gave evidence before me, went to the premises of Salister in the company of his Credit Manager, Mr Martin Coetzee, who did not give evidence.  The purpose of the visit was to locate and identify the Equipment which was the subject of the MRA and, later, of the sale and later assignment of the goods to CFS and FUN in terms of the 2005 Sale and Cession Agreement.

I will later revert, in greater detail, to the evidence of Groenewald, but, for purposes of this synopsis, it is sufficient to state that all the "generators" which initially appeared on annexure "A" to the MRA (this is a list of all the "gensets" purportedly leased to AHI in terms of the MRA and also sold to the applicant in terms of the structure of the transaction) were located at the Salister premises by Groenewald, with the exception of six of those items.  These six "generators" had been sold by Salister (in breach of the contractual arrangements) to companies in Harare, Port Elizabeth, Pietermaritzburg and Paarden Eiland.  Groenewald then approached the purchasers of these six generators and he was able to collect payment on behalf of FUN in an amount of some R660 000,00.

The original consignment of "generators" forming part of the transaction numbered 68.  This number would therefore, in the circumstances, have been reduced to 62.

[30] After the goods were located and identified, and because of the breach on the part of AHI, and, it seems, also because the goods turned out to be engines and not the "gensets" described in the documentation, the goods were repossessed by Groenewald on behalf of FUN (with no resistance from Salister) and removed to a storage concern known as AUCOR, where they were stored at the expense of FUN.  The repossession took place in accordance with the provisions of clause 7 of the MRA.

[31] After the applicant paid FUN on the basis of the Buy Back Agreement, so Khuzwayo testified, the items were removed from AUCOR in Midrand and stored in the warehouse of ATEX Projects Solutions ("ATEX") at the instance and expense of the applicant.

This arrangement is in line with the provisions of clause 7.3 of the Buy Back Agreement which stipulates:

"The Parties –

7.3.1    record that the Equipment is currently in the possession of the Purchaser (read applicant);

7.3.2    agree that the Purchaser shall, with effect from the Effective Date, take ownership of the Equipment and continue to hold possession thereof as the owner of the Equipment; and

7.3.3    agree that the aforesaid retention of possession by the Purchaser shall constitute delivery of the Equipment by the Seller to the Purchaser."

(The seller, of course, being FUN.)

[32] AHI was liquidated in June 2009.

[33] Salister was liquidated, at the instance of a creditor, on 15 February 2011.

[34] In March 2011 the two respondents were appointed as the provisional liquidators of Salister and, on 23 June 2011, they were finally appointed as liquidators.

[35] This is by no means the end of the story: in July 2012 the two respondents, in their official capacities as liquidators of Salister, launched an application for a warrant in terms of section 69(3) of the Insolvency Act, Act no 24 of 1936.  The application was launched in the Randburg Magistrates Court.

Respondents applied for a warrant to take into execution "stationary IVECO diesel engines" described in annexure "A" to the application and situated at the premises of ATEX. 

[36] The engines described in annexure "A" to this section 69 application, identified on the list by their engine numbers, are the same as the engines removed, after the search by Groenewald, from Salister and ultimately taken to ATEX at the instance of the applicant.  They are the engines forming the subject of this case.  There were only forty seven engines listed for purposes of the warrant.  They formed part of the original sixty eight engines mentioned in annexure "A" to the notice of motion and other documents attached to the founding affidavit.  I explained that the sixty eight was reduced to sixty two when Salister sold six of them.  I questioned Khuzwayo about the further reduction of the number of engines when he gave evidence.  He said the following:

"In annexure A there are sixty two machines which was the total number of machines collected from Salister.  Nine of those machines were given to Salister on a consignment basis in order for them to sell them.  Three of them were sold to Salister but we only received payment for one of them.  The balance of the forty seven were then left with us."

I pointed out to Khuzwayo that if you deduct twelve from sixty two you get fifty.  Khuzwayo said he did not know what happened to the other three but the forty seven were left.  On the undisputed evidence of Groenewald, these are the engines (or what is left of them) forming the subject of this case.

[37] Section 69 of the Insolvency Act provides that the trustee, once appointed, must take possession of all movable property, books and documents belonging to the estate.  Subsections (2) and (3) read as follows:

"(2)      If the trustee has reason to believe that any such property, book or document is concealed or otherwise unlawfully withheld from him, he may apply to the magistrate having jurisdiction for a search warrant mentioned in subsection (3).

(3)        If it appears to a magistrate to whom such application is made, from a statement made upon oath, that there are reasonable grounds for suspecting that any property, book or document belonging to an insolvent estate is concealed upon any person, or at any place or upon or in any vehicle or vessel or receptacle of whatever nature, or is otherwise unlawfully withheld from the trustee concerned, within the area of the magistrate's jurisdiction, he may issue a warrant to search for and take possession of that property, book or document."

[38] The section 69(3) application was not served on the applicant.  The respondents (as applicants) only addressed the application to Salister.  In other words, they served the application upon themselves.

[39] The warrant was duly issued on 18 July 2012 and the engines were attached at ATEX in Wynberg, and removed to a storage facility of the respondent liquidators, where they are still kept, according to the evidence led during the trial.

[40] In the supporting affidavits to the section 69 application, the liquidators alleged that the units which were being "unlawfully withheld" from them, are not the subject matter of this transaction in that the "serial numbers differ and the description of the units are gensets whilst the items are stationary diesel engines".  The liquidators, for purposes of obtaining the warrant, relied on the evidence of Mr M J S de Kock and Mr T W van den Heever.  Both these persons testified before me, and they were quite unable to rebut the evidence of Groenewald that the engines were properly matched to the documentation forming part of the transaction.  The engines were also not "concealed" or "unlawfully withheld" in the spirit of section 69.  They were, in fact, identified at the Salister premises with the assistance of a Salister employee and removed with the consent of the Salister officials.  There was no secret about where they were being kept.  If all this information had been brought to the attention of the magistrate, and if the application had been served on the applicant, it is fair to assume that the warrant would never have been authorised.

[41] It is under these circumstances, that the applicant launched this application in August 2012, shortly after the warrant was executed.

The relevant prayers in the notice of motion, as it read at the time, are these:

"1.        Ordering the respondents, within five days of service of order upon them to return the generators set out in annexure A hereto to 128, Fifth Street, Wynberg.

2.         Declaring the applicant to be the owner of the generators set out in annexure A hereto."

There is also a prayer for costs on the punitive scale.  The annexure "A" referred to reflects details of the original sixty eight units, based on the evidence and investigations of Groenewald.

[42] So much for the introduction and synopsis of the case.

The amendment

[43] On the second day of the trial, Mr Cohen applied for an amendment of the first two prayers of the notice of motion.

[44] The amendment was aimed at bringing the prayers in line with the evidence, firstly, to provide for the return of engines as opposed to generators (the prayers are still couched in the alternative) because the experts employed by both sides only shortly before the trial confirmed that the items were IVECO diesel engines, not yet converted into generators.  Secondly, the amendment was aimed at providing for the return of only the forty seven units removed in terms of the section 69(3) warrant and not the full compliment of sixty two units contemplated in annexure "A" to the notice of motion, and other documents.

[45] The application was strenuously opposed, mainly on the basis that the applicant was seeking to introduce a new cause of action.  Full details of the arguments appear from the record.  It is not necessary to revisit them.

[46] I granted the amendment in the course of delivering an ex tempore judgment.  The judgment, for some reason, was omitted from the record.

[47] The amended prayers now read as follows:

"1.        Ordering the respondents, within five days of service of order upon them to return the generators alternatively engines set out in annexure A hereto further alternatively, the items uplifted by the respondent in terms of annexure A to the section 69(3) application under Randburg Magistrates Court case no 34370/2012 to 128, Fifth Street, Wynberg.

2.         Declaring the applicant to be the owner of the generators alternatively engines set out in annexure A hereto further alternatively, the items uplifted by the respondent in terms of annexure A to the section 69(3) application under Randburg Magistrates Court case no 34370/2012.

3.         Costs of suit as between attorney and client."

[48] In his closing address at the end of the trial, Mr Cohen indicated that the applicant was now only moving for the second alternative, namely delivery of the forty seven engines attached in terms of the warrant.  He was also no longer moving for the declarator in prayer 2 (I am not quite sure why, because that is the subject of the referral to evidence) and he was only asking for costs against the respondent liquidators in their representative capacity.  Earlier, there was an argument to persuade me to grant costs against the liquidators de bonis propriis.

Brief remarks about the evidence

[49] I will limit this brief overview to the narrow issue of ownership.

(i)         Zakhe Lunga Siphiso Khuzwayo

[50] I have dealt with a substantial portion of the evidence of this witness.  I have also mentioned that I considered him to be a satisfactory witness.

[51] I proceed to mention a few aspects of his testimony which may be relevant for purposes of deciding the issue under consideration.

[52] He testified at some length about the Certificate of Acceptance, which is part of the MRA and which was signed by Mariemuthu and Mawere on 2 December 2008.  This was after Salister had invoiced the applicant on 26 November 2008 and also before the applicant invoiced FUN, having sold the MRA to CFS, on 4 December 2008.  I have quoted the contents of the Certificate of Acceptance.  The witness described the Certificate of Acceptance as "the irrevocable instruction that the client gives to the applicant authorising the applicant to pay the supplier".  As mentioned, the witness also said that in practice the goods are not inspected by the applicant which relies completely on the contents of the Certificate of Acceptance.

It appears from the contents of the Certificate of Acceptance, as quoted, that the AHI representatives "irrevocably declared to the applicant" that the goods had been delivered and installed in accordance with the conditions of the agreement, that they had been inspected as new and unused and were in good order and condition, free from defect and ready for use in every respect.  Paragraph (e) of the Certificate of Acceptance stipulates that the signature of AHI "shall constitute an irrevocable authority to the Hirer (applicant) to pay the supplier of the Equipment listed in the Rental Schedule in order for the Hirer to procure the Equipment".  Paragraph (f) also stipulates that AHI confirms that the serial numbers on the goods correspond with the serial numbers on the schedule.  This, of course, is also the undisputed evidence of Groenewald, to which I have already referred.  The witness testified that he had no reason to doubt the correctness of what was stated in the Certificate of Acceptance.

Khuzwayo testified that once the client (AHI) has signed the Certificate of Acceptance "they cannot come back and claim that the goods were not fit for purpose and therefore not pay us".  This is in line with the provisions of clause 2.13 of the MRA.

[53] He knew that AHI was a holding company of various subsidiaries, one of which was Salister, and that Salister manufactured generators.  He knew that Salister (as selected by AHI) would be the supplier.  Under these circumstances, he did not have personal knowledge as to where the goods were being kept at the time.  He also did not know that they were engines and not generators.  This he only learnt after Groenewald's July 2009 inspection.  This led to the applicant having to settle on the basis of the Buy Back Agreement and make the repayment.

[54] He was familiar with the provisions of the 2005 Sale and Cession Agreement, and the Buy Back Agreement.  He knew that CFS was acting as the undisclosed agent of FUN when entering into the 2005 Sale and Cession Agreement.  This much is also stipulated in clause 2.1 of the Buy Back Agreement.

He testified about the back-payments which had to be made because of the fact that the goods were not completed gensets and, at times, it was also testified that one of the reasons was the default on the part of AHI, in paying the quarterly rental amounts.  He testified that when the back-payment was made, the goods were stored at AUCOR at the instance of FINTECH (obviously, after the repossession was made by Groenewald, with the agreement of Salister).  After the amounts were paid back, the goods were removed, under the auspices of the applicant, to its ATEX storing facility in Wynberg.  He confirmed that Groenewald managed to link the engines to the "gensets" listed in the Rental Schedule.  He was also aware that the items so identified are the same as those removed in 2012, at the instance of the respondent liquidators, on the strength of the section 69(3) warrant.

[55] He testified about how the original sixty two engines became forty seven.  The details I have spelt out.  I have also mentioned that the applicant now only seeks delivery of those forty seven engines, still stored, pending the outcome of this case as I understand it, by the respondents at its facility known as Consolidated Engineers.

[56] He was aware of the allegations initially made on behalf of the respondents that Groenewald only compiled his schedule illustrating the link between the engines and the gensets forming part of the MRA after the attachment of the engines, in 2012, on the strength of the section 69(3) warrant.  This implied fraudulent conduct on the part of Groenewald.  Groenewald's schedule, annexure "ZLSK9" to the founding papers, was in fact compiled after Groenewald's inspection in July 2009 when he identified the engines and "ZLSK9" bears the date 24 July 2009.  This much was conceded later by the respondents and recorded by Ms Dippenaar when cross-examining the witness.

[57] Importantly, he testified that the engines were delivered to the applicant after they were bought back by the applicant for the amount of R3 750 000,00 excluding VAT and when they were delivered to the applicant's ATEX facility at the latter's insistence after being taken from FUN's AUCOR storing facility.  This constituted the necessary payment and delivery to vest the applicant with ownership of the engines.  This goes to the root of the issue before me.  This is also in line with the provisions of clause 5 of the Buy Back Agreement, to which I have already referred.

[58] He knew that the goods would be kept "at the subsidiary", presumably intending to refer to Salister, and gathered as much from the motivation for the credit facility which AHI submitted.  This differs from the AHI address in Rivonia which appears on the Rental Schedule.  In terms of clause 6.5 of the MRA, it is accepted that the goods will be kept at the address mentioned in the schedule, unless AHI, in writing, notifies the applicant to the contrary.  This was not done by AHI.  I will revert to this subject when considering whether ownership was vested in the applicant at the time when the MRA was concluded.

[59] He confirmed that Salister was paid on 17 December 2008, after the sale of the agreement to CFS.  He said this happens in "most instances", namely that the applicant first sells the agreement before paying the supplier.

[60] At one stage he became aware that Salister was having financial problems, and also using different names such as Sunset Bay Trading.

[61] Even after he became aware that the goods were engines and not generators, his research in the market indicated that the engine formed the substantial part of the generator "so if you could get those other few components, add them to the engine you had a genset".  This is in line with the evidence of the applicant's expert, Mr Marcus, to the effect that the engine constitutes some 85% of the value of the genset.

In any event, at the time when it became evident that the goods were engines rather than gensets (in July 2009) ownership was vested in FUN and not in the applicant.  The real status of the goods was only finally confirmed by the experts shortly before the trial.

(ii)        Jurie Johannes Groenewald

[62] He was employed as Head of Collections at "FINTECH", as he called it, from 2002 to 2010.

[63] I have dealt with the crux of his evidence for purposes of deciding the ownership issue.

[64] The "FINTECH group" included a number of different entities within "FINTECH Underwriting Management", which is obviously FUN, and which he described as the holding company of some of the other entities including CFS and another one called Technologies Acceptances.

[65] I have referred to the 2009 inspection and the manner in which Groenewald and his colleague identified the goods.

[66] I have referred to the schedule "ZLSK9", prepared by Groenewald, which demonstrates the engine number and the corresponding GE number (the latter appearing on the Rental Schedule) in respect of each of the items.

[67] The information on "ZLSK9" was transcribed onto annexure "A" to the Buy Back Agreement ("ZLSK2") which is identical to annexure "A" to the notice of motion. 

[68] He says the following about the ownership issue:

"... Master Rental Agreement was discounted to FINTECH Underwriters (that would be FUN).  What the agreement stipulates is that exactly what happened here is that we will discount agreements where the Equipment has already been paid for, where ownership has been transferred.  We will then in terms of our Master Cession Agreement ... the purchase price has been paid like in this instance to Salister and that shows from our perspective it shows that ownership has been transferred from Salister to <<Innovent>>."

[69] He testified about the rather intricate relationship between FUN and its subsidiaries.  I consider it unnecessary to revisit this issue which I dealt with, in some detail, when considering the 2005 Sale and Cession Agreement and the Buy Back Agreement.  It is clear that, although the MRA (including the Equipment) was initially discounted to CFS, it was thereafter assigned to FUN, which also entered into the Buy Back Agreement with the applicant and assigned ownership to the latter, as explained.  The applicant also invoiced FUN after buying the Equipment from Salister and FUN made the payment.

[70] For the sake of brevity, I take the liberty to summarise what transpired when Groenewald, accompanied by Mr Martin Coetzee, inspected the Equipment in July 2009 at the Salister premises, by using extracts from the summary contained in the heads of argument prepared by Mr Cohen: all the "generators" which initially appeared on annexure "A" to the MRA (the Rental Schedule) were located by Groenewald with the exception of six.  I have mentioned that these six generators were sold, in breach of the contractual arrangement, by Salister to companies in different areas and some money was later recouped from these purchasers by Groenewald.

Groenewald testified that he observed numerical numbers which are the engine serial numbers on the engines themselves.  He went, with Coetzee, to an office on the premises where he was helped by a person on a computer, who was able to match the GE numbers, as they appeared on the Rental Schedule affixed to the MRA, to the engine serial numbers.  The Salister representative who assisted Groenewald was Mr Naidu.  Groenewald showed Naidu his documentation, including the Rental Schedules, and Naidu authorised an unidentified person to give Groenewald the information he required from Salister's computer system.  Groenewald made his own notes of what he was told, as well as of the inspection which he carried out.

Groenewald testified that, from the information from Salister's computer, Salister's computer system was able to match the GE numbers as they appear on the MRA schedule with the engine serial number.

The witness observed a number of completed generators on the premises not belonging to FUN.  He identified the engines belonging to FUN which were kept in a different area to the area where the assembled gensets were kept.  He was told by the Salister representative that, as the manufacturing process goes on, so Salister would purchase further parts, such as an alternator, etc, and complete the engine into a generator.

The witness then made a manual list of the serial numbers which he observed on the engines.  He had the <<Innovent>> list in his possession and he added to this the engine numbers.  This is how "ZLSK9" came about.  He was satisfied that he matched up the serial numbers which he observed on the engines with the GE numbers as they appeared on the MRA.  He was therefore able to conclusively identify the engines which formed the subject-matter of the MRA concluded between the applicant and AHI and later discounted to FUN.

Photographs forming part of exhibit "G" illustrate the markers (round stickers) which Groenewald affixed to the engines which he identified.  He was therefore able to match up the GE numbers, as they appeared on the invoices and on the schedule to the MRA with the actual engines which he found at the Salister premises.

[71] Importantly, the engines which the applicant seeks to vindicate from the respondents are the same engines which form the subject-matter of the respondents' section 69(3) application.  These are the engines repossessed by Groenewald, removed to AUCOR, from there to ATEX and later attached by the respondents on the authority of the section 69(3) warrant.

[72] This evidence of Groenewald is uncontested.  I need not dwell on the issue any further.

(iii)       Shane Merriman

[73] When he testified, he had been the Managing Director of the applicant for some three years.  Before that he was employed at the FINTECH group.

[74] This witness gave some rather complicated evidence about the internal structures in the FINTECH group and some other issues involving discounting and cessions.

[75] The witness was not personally involved with this transaction.  Most, if not all, of his evidence is based on speculation and matters that he could not substantiate from his personal experience.

[76] In my view, he said nothing which could advance the adjudication of this issue beyond an understanding and interpretation of the documentation, including the MRA, the 2005 Sale and Cession Agreement and the Buy Back Agreement.

[77] For these reasons, I do not consider it convenient, or necessary, to dwell any further on his evidence.

(iv)       Dean Shane Marcus

[78] He is the expert called by the applicant.  He is a practising electrical engineer and made a very good impression on me as a witness. 

[79] He is employed by AZTEC Electronics and has been there since 2004.  This concern specialises in AC and DC power systems, particularly in stand-by power systems which include generators, batteries and similar equipment.

[80] He was requested to view the engines at the premises of Consolidated Auctioneers in Germiston.

[81] He carried out the inspection and prepared a report for the court.  The engines did not have alternators or fuel tanks or control panels affixed to them.

According to his report, which is part of the record, the diesel engines need only a few additional components in order for them to function as diesel generators or diesel generating sets.

[82] He confirmed his opinion that a diesel engine comprises up to 85% of the total cost of a diesel generator or generating set, depending on the nature and quality of the other components.  The additional work can be done in less than a week.

[83] At a relatively late stage before he gave evidence, he was asked to conduct a further inspection to link the engines referred to in the annexure to the section 69(3) warrant (also containing the engine numbers) to the engines at Consolidated Auctioneers.  This exercise, as I have pointed out, was also conducted by Groenewald.

This witness, Mr Marcus, found forty seven diesel engines at Consolidated Auctioneers.  The serial numbers of forty four of the forty seven engines he found on the annexure to the warrant (exhibit "C45").  Three additional serial numbers are listed on "C45" but these could not be traced to engines at Consolidated Auctioneers.  However, the serial numbers of all forty seven engines which he inspected at Consolidated Auctioneers he found on annexure "A" to the notice of motion.  There were fifteen additional serial numbers on annexure "A" to the notice of motion but those engines he could not trace at Consolidated Auctioneers.  I have already dealt with the "missing" engines leading to the reduction of the sixty two units to forty seven units.

[84] He also testified about his interaction with the respondents' expert, Mr Kioilos and he testified about differences of opinion which he had with this expert.  I consider it unnecessary to dwell any further on the subject.

[85] The applicant called only these witnesses.

(v)        Machiel Johannes Servaas de Kock

[86]      He was the first witness called by the respondents.

[87] He also deposed to a supporting affidavit when the respondents applied for the section 69(3) warrant.

[88] He inspected the engines when they were still at the applicant's storing facility at ATEX.  He was shown the forty seven engines.  Some of them were still in plastic wrapping.  He also testified about the photographs used during the trial (exhibit "G").

[89] His sole mandate was to identify the engines "as per" the Rental Schedule (which, as I have said, contained only the genset numbers).  He failed to do so.  The reason for this is obvious.  He did not have the benefit of the computerised information, obtained by Groenewald from the Salister employee, which illustrated the link between the engine numbers and the genset numbers.

[90] He obviously could not dispute Groenewald's evidence.

[91] It is clear from his evidence that the forty seven engines which he inspected, are those which form the subject of this dispute.

[92] There is no point in dwelling any further on his evidence.

(vi)       Theodore Willem van den Heever

[93] He is a professional liquidator, and a trustee of insolvent estates, and a director of DNT Trust.

[94] The first respondent, Mr Maredi, is a former employee of DNT Trust and the witness assisted him with the administration of the estate.

[95] In cross-examination, the witness was confronted with his earlier suggestion that Groenewald compiled "ZLSK9" only after the goods were attached on the strength of the section 69 warrant, and not already after the July 2009 inspection.  He, albeit somewhat reluctantly, conceded that he was wrong in that regard.

[96] In a word, he was quite unable to rebut the evidence of Groenewald as far as the findings at the 2009 inspection are concerned.

[97] The manner in which the forty seven engines are linked to the gensets listed on the MRA Rental Schedule, as advanced by Groenewald, is therefore undisputed and has to be accepted.

(vii)      Alexander Simeon Michael Kioilos 

[98] He was instructed by the respondents to prepare a report in relation to the engines stored at Consolidated Auctioneers.  On balance, he testified that the value component of the engine in the genset would be less than the 85% postulated by Marcus, although it seems to depend largely on the number of additional features and the value thereof.  In the end, he agreed with Marcus that the value component of the engine could be "between 30 and 85%".

[99] Through no fault of his own, the witness could not contribute anything of substance with regard to the ownership issue.

[100] That concludes a brief overview of the evidence.

The case of Absa Bank Ltd v <<Innovent>> Rental & Asset Management Solutions (Pty) Ltd (the present applicant) Gauteng Local Division, Johannesburg case no 17212/13

[101] This matter came before my sister Windell J and she gave judgment on 9 February 2015.  It is, as yet, unreported.

[102] The judgment was attached to the respondents' heads of argument but received no attention before me during the hearing.

[103] The case is in many instances similar, and in some instances identical, to the present matter: the applicant (here I shall refer to it as "<<Innovent>>" because it was the defendant in that matter) had a "Main Cession Agreement" with Absa.  This was, for practical purposes, the same type of agreement as the 2005 Sale and Cession Agreement which <<Innovent>> has with the FINTECH group.

The case involves the MRA which <<Innovent>> had with AHI.  It was the same MRA applicable to the present case, entered into on 3 November 2008.  In that case there were two rental agreements subject to the MRA.  They were entered into on 3 November 2008 and 19 December 2008 respectively.  They also involved the rental of IVECO gensets (generators) from <<Innovent>>.  No less than 226 generators were involved (204 and 22 respectively).  Absa, accepting the offers to take cession of the agreements, paid <<Innovent>> amounts of some R19,3 million and R2,05 million respectively in November 2008 and January 2009. 

[104] Again, AHI only made two quarterly payments in respect of the first Rental Agreement and one quarterly payment in respect of the second Rental Agreement before it was liquidated on 2 June 2009.

There was also a dispute about whether the "goods" were generators or engines, and, on the evidence, the learned Judge, quite correctly, held that they were engines.

The motivation supplied by AHI to obtain this credit facility was, for practical purposes, identical to the one submitted in the present matter which I received as exhibit "E".  There was also the allegation that some 204 new IVECO genset generators were required for the subsidiaries of AHI to overcome the negative effects of loadshedding.

[105] The sole witness in that case was one Mr Endres who was employed by Salister for twenty five years but left the company in 2010.  At the time of the 2008 transactions, he was overseas but stayed in touch with his office.  He was in charge of the sales.  When he returned to work on 26 November 2008 one of the Salister directors, Mr Moodley, asked him to do a pro forma invoice for a quantity of KVA diesel generator sets.  He asked Moodley for the order, which the latter could not produce.  Endres then refused to prepare an invoice.  An invoice for 204 generators eventually produced (presumably by somebody else) was not a Salister invoice and it was false.  The court also held, correctly in my view, that the "goods" were, on the probabilities, non existent.  This fact, together with the fact that the subject of the "sale" was engines and not generators, inspired Absa to demand that <<Innovent>> should buy back the Rental Agreements in terms of provisions similar to the 2005 Sale and Cession Agreement with FINTECH, which is applicable in the present matter.  <<Innovent>> refused to buy back the agreements and offered some defences based on the liquidation of AHI which I do not find necessary to deal with.

[106] The action instituted by CFS against <<Innovent>> before the buy back was agreed upon also received some attention during the trial.

[107] The learned Judge held, correctly in my respectful view, that some of the warranties contained in the "Main Cession Agreement", very similar to those contained in the 2005 Sale and Cession Agreement, had been breached and ordered <<Innovent>> to re pay Absa an amount of some R18,5 million.

[108] The present case appears to be distinguishable from the Absa case in, at least, the following respects:

1.         This is not the "buy back" case.  The "buy back" case, in the present matter, was settled and <<Innovent>> made the repayment.

2.         In the present case there was, indeed, an "order" in the sense that it is common cause that <<Innovent>> transacted with Salister for the delivery of the goods, was invoiced by Salister and made payment.

3.         More importantly, in this case, by hook or by crook, (no pun intended) the Equipment in fact existed, although in the form of engines as opposed to generators.  This much appears from the undisputed evidence of Groenewald and, later, of Marcus.

4.         The issues which had to be decided in the Absa case are not the same as those in the present case, which only involves the question of ownership of the goods.  In Absa, it was the "buy back" case, involving the breach of the warranties and certain defences raised by <<Innovent>>.

Nevertheless, I find myself in respectful agreement with the following words of the learned Judge in paragraph [54] of the judgment:

"When the contract is ceded back to <<Innovent>> the claim it will have against the liquidated estate of AHI, can never be more than the claim Absa would have had against AHI.  The rights that were ceded are the only rights <<Innovent>> is entitled to.  Ownership of the goods is not a matter that affects the liquidated estate.  As this is a rental agreement, the lessor remains the owner of the goods and will merely say to the liquidator give me back my goods.  The liquidated estate remains totally unaffected."

[109] What does appear from the Absa case, is that the Salister and AHI officials were, to put it very mildly, less than honest: the goods did not exist.  According to their erstwhile employee their invoicing was false and their motivation for the credit facility was equally false because they only had a handful of subsidiaries and could never have required so many generators to help their subsidiaries to overcome the effect of loadshedding.  The latter remark would also apply to the present case where exhibit "E", the credit application, is identical.  It is not surprising that the respondents elected not to call any of the AHI or Salister officials to give evidence in the matter before me.

[110] I turn to the question of ownership.

Did the applicant acquire ownership of the engines from Salister?

[111] It was never contended that Salister was not the owner of the engines before this transaction got underway.

[112] It is obvious that AHI would have reached an agreement with Salister that the latter would sell the goods to the applicant.  It is specifically provided for in the MRA that AHI would select the supplier.

[113] The uncontested evidence of Khuzwayo was that this particular structure of a transaction of this nature was adopted in hundreds of similar transactions.  It also happened in the Absa case, to which I have referred.

[114] The uncontested evidence of Khuzwayo is that he knew that the "goods", in his words, would be "kept at the subsidiaries".  Through an oversight, the notification required by clause 6.5 of the MRA if the goods are not to be kept at the address mentioned in the Rental Schedule (the Rivonia address of AHI) was never delivered by AHI.  In my view, nothing turns on this.  Khuzwayo also knew that the gensets were assembled or manufactured by Salister.

[115] The requirements for transfer of ownership are dealt with concisely in Wille's Principles of South African Law 9th edition page 520.  I quote the relevant passages:

"In principle, two requirements must be satisfied for the transfer of ownership: the parties must, in the first place, intend to transfer ownership and comply with the other aspects of the real agreement (animus or mental element), and secondly, they must simultaneously effect conveyance by delivery (movables) or registration (immovables) (corpus or physical element).

The real agreement is distinguishable from the contractual agreement that gives rise to the obligation to transfer.  The requirements for a valid real agreement are as follows.  The property must be res in commercio, ie capable of being held in private ownership.  The transferor must be capable of transferring ownership.  The transferee must be capable of acquiring ownership.  At the moment of transfer, the transferor must have the intention to transfer ownership ... and the transferee must have the intention to accept ownership. (Note: I am aware that Khuzwayo, at some stage, in cross-examination, said that the applicant did not really intend acquiring ownership, but was merely facilitating the movement of the goods from Salister to CFS.  In view of the wording of the MRA, and the circumstances of the case, this cannot be correct.)  In the case of a sale of movables, ownership does not pass, notwithstanding delivery, unless the purchase price is paid or security or credit for its payment is given."

[116] I quote some extracts from clause 2 of the MRA which goes under the heading "Acquisition of Goods" (the "User" is AHI and the "Hirer" is the applicant):

"The User acknowledges and where applicable, warrants that:

2.1       the goods have been or will be purchased by the Hirer at the special request of the User and solely for the purpose of renting the goods to the User;

2.2       the goods and the supplier thereof have been selected by the User;

2.3       the User rents the goods voetstoots and no warranties whatsoever whether at common law or otherwise, in connection with the goods or their use, have been given to the User by the Hirer or any other party;

2.4       no representations of any nature whatsoever in connection with the goods are mady by or on behalf of the Hirer;

2.5       the Hirer shall at all times be and remain the owner of the goods and neither the User nor any other person on its behalf shall at any stage before or after the termination of this agreement acquire ownership of the goods; (emphasis added)

2.6       the User warrants that all information supplied to the Hirer by the User or anyone on its behalf concerning the User's business, in whatever form, is true and correct in all material aspects, in particular all information so supplied to the Hirer during its investigations, prior to the conclusion of this agreement and other financial statements or accounts supplied are correct.  The User further warrants that all such information as may be presented to the Hirer will be true at the relevant time and will remain true and correct in every material aspect.

2.7       All risks including the risk of destruction or loss of the goods shall pass to the User on signature of this agreement ...

2.8       The User shall be obliged to take whatever steps that may be necessary to prevent the destruction or loss of the goods ...

2.9       The User has no authority to order or purchase the goods on behalf of the Hirer or to act as an agent for the Hirer except that the User shall be deemed to accept the goods on behalf of the Hirer when the goods are delivered by the supplier to the User and the User acknowledges that the goods are delivered by the supplier thereof on behalf of the Hirer.  (Emphasis added.)

...

2.13     The User shall have no claim against the Hirer, nor shall it be entitled to cancel the agreement if after having signed the schedule and Acceptance Certificate it subsequently transpired that the goods or any part thereof are for any reason unacceptable to the User."  (Emphasis added.)

[117] This whole transaction (and later dispute) flows from the MRA.  It was never contended that the terms of the MRA are not binding or are open to attack for any reason.  Pacta servanda sunt ("ooreenkomste moet nagekom word – agreements are to be observed" – Hiemstra & Gonin Trilingual Legal Dictionary 2nd edition page 251).

[118] When these contractual provisions are tested against the requirements for transfer of ownership the following, in my view, is clear:

1.         The property (the engines in this case) is capable of being held in private ownership.

2.         The transferor was capable of transferring ownership (Salister owned the engines, and there is no evidence to the contrary, then invoiced the applicant after having been selected by its holding company to be the supplier and received payment shortly thereafter).

3.         The transferee (applicant) was capable of acquiring ownership.

4.         The transferor (Salister) had the intention to transfer ownership.  (There is no evidence to the contrary.  Nobody from Salister testified.  The transfer of the ownership fits in with the structure of the whole scheme.  Salister invoiced the applicant and received handsome payment, in the sense that the weight of the evidence suggests that the prices quoted are those rather applicable to generators than to engines.)

5.         The transferee (applicant) had the intention to accept ownership.  This must have been the case, on the overwhelming probabilities, because the applicant had the firm intention to discount the MRA to the FINTECH group.  For that to happen, and in terms of the 2005 Sale and Cession Agreement, the applicant had to warrant that it had full title to the goods and the authority to sell them (see the warranty in clause 5.1.1.3 of the 2005 Sale and Cession Agreement).

6.         For the reasons mentioned, the parties intended to transfer ownership.

[119] I turn to the question of delivery.

[120] Wille, from page 469, recognises the following forms of delivery of movables:

            -           clavium traditio (handing over means to control)

            -           traditio longa manu (delivery with long hand)

            -           traditio brevi manu (delivery with short hand)

            -           constitutum possessorium

            -           attornment

            -           cession of right of vendication.

[121] Mr Cohen submitted that the certificate of acceptance (quoted earlier) which was signed by Mr Mawere on 2 December 2008 (before the MRA was sold to CFS) declaring that the gensets had been delivered and installed in accordance with the conditions of the agreement confirmed that AHI had agreed with Salister to accept delivery of the gensets at Salister's premises.  It is true that there is no direct evidence to this effect, particularly the absence of testimony by any of the AHI or Salister officials, but, on the probabilities, I am inclined to accept the submission: it is common cause that the goods remained with Salister.  The warranties contained in the Certificate of Acceptance are binding on the respondents.  The Certificate of Acceptance is part of the Rental Schedule which forms part of the MRA.  In any event, I am of the view that the respondents are prevented, by the doctrine of estoppel, from presenting a case which is not in line with what was stated in the Certificate of Acceptance.  It is clear that the applicant relied exclusively on the contents of the Certificate of Acceptance and acted accordingly.

[122] Mr Cohen argued that delivery was therefore effected by AHI agreeing that the gensets would be stored at Salister until such time as AHI instructed their removal.  In accepting delivery of the gensets, by agreeing that they would remain at the premises of the manufacturers, Salister, AHI acted as the agent of the applicant.  The legal mode of delivery is known as constitutum possessorium.

Wille, at 528, deals with this subject in the following terms (I quote only what I consider to be the relevant portions):

"Constitutum possessorium is in a certain sense the reverse of traditio brevi manu.  The transferor retains physical control of the thing but acknowledges that the transferee henceforth owns the thing and that he or she retains it on behalf of the latter in terms of a new legal relationship (causa detentionis) between them.  Constitutum possessorium thus envisages the transfer of ownership, not only without change to the physical condition under which the property is held, but also with the transferor continuing to hold the property.  Transfer is effected on the basis of intention without an external manifestation of the change of ownership.  Constitutum possessorium differs from traditio longa manu in so far as the transferor continues to hold the property on the basis of a (new) legal relationship in terms of which the transferee is the owner, who eg leases or re-sells the thing to the transferor.  Traditio longa manu envisages no more than that the transferor continues to hold as a 'custodian' while the necessary arrangements are made by the transferee to remove the goods concerned.

Constitutum possessorium, for practical reasons, renders it unnecessary for the transferor first to deliver the thing to the transferee only to re acquire physical control in a different capacity thereafter.  By a simple change of mind, the transferor relinguishes ownership and constitutes him or herself as possessor ..."

[123] Hiemstra & Gonin, at 178, describes constitutum possessorium as follows:

"Lewering (traditio) deur die vorming van die bedoeling om voortaan namens die oordrag ontvanger te besit ('n sestiende eeuse frase) / transfer of possession (traditio) where A with the intention of transferring his ownership in a thing to B declares that he will henceforth hold the thing for B (a sixteenth century phrase)."

[124] Mr Cohen, in the alternative, argued that if it was not delivery by constitutum possessorium, it was delivery through attornment (also, as I pointed out, recognised by Wille).

Wille says the following about attornment at 530:

"Attornment, a method of delivery transplanted from English to South African law, occurs when the property to be transferred is in the physical control of a third party who holds it on behalf of the owner.  Attornment is effected by a tripartite agreement between the parties concerned that the holder will henceforth no longer hold the property on behalf of the transferor but on behalf of the transferee.  For example, if A wants to transfer ownership to B in respect of his motor vehicle left with a panel-beater for repairs, delivery is effected by attornment by means of an instruction by A to the panel-beater to hold the motor vehicle henceforth on behalf of B and by an agreement between the panel beater and B that the former henceforth holds the motor vehicle on B's behalf ..."

(All the references in the footnotes in the work by Wille are omitted.)

[125] There is perhaps not sufficient evidence to establish all the requirements for attornment.  I make no pronouncement on the issue.  At the very least, however, I am satisfied that delivery through constitutum possessorium has been established.  It must be borne in mind that the goods were acquired for the benefit of AHI (and, indirectly, for the benefit of its subsidiary, Salister, who was nominated by AHI as the supplier and received a handsome payment in excess of R5 million) and it was never the intention that the goods would be delivered to the transferee (the applicant) in the more conventional sense of the word eg by brevi manu or longa manu.  By the nature of the transaction, delivery had to take one of the other recognised forms, such as constitutum possessorium or attornment.

[126] Moreoever, it was in the contemplation of the parties to the MRA that the applicant could cede the rights it acquired in terms of the MRA and assign those rights, including its rights of ownership in the goods to any other person, and could even do so without prior notice to AHI and AHI would accept the cession and acknowledge the rights of the cessionary.  The first portion of clause 8.1 of the MRA, under the heading "Cession and Assignment" reads as follows:

"8.1      Hirer is entitled to cede without notice all or any of Hirer's rights under this agreement including its rights of ownership in the goods or any of them either absolutely or as collateral security to any other person or persons ..."   (Emphasis added.)

[127] Before I turn to submissions made on behalf of the respondents to the effect that the applicant is not the owner of the engines, I make the following remarks:

When the respondents applied for the section 69 warrant, their case was simply (and only) that they were not aware of any documentation to the effect that Salister had ever disposed of the forty seven engines, then in the possession of the applicant.  On that basis, they applied for the section 69 warrant without bothering to notify the applicant, despite the fact that they must have been in possession of the MRA, because De Kock, on whose testimony they also relied, was not able to marry the serial numbers on the engines to the genset numbers on the schedule to the MRA.  I have quoted extracts from the supporting affidavits which the respondents offered when applying for the section 69 warrant.  It is not necessary to repeat those allegations.  The crisp issue on which the respondents approached the magistrate has been restated above.

Shortly after they took possession of the engines on the strength of the warrant, and in August 2012, the respondents received the founding affidavit.  This fully explains the true state of affairs, including the essence of Groenewald's evidence, that the engines were the subject of the MRA and also the same engines which were attached on the strength of the section 69 warrant.  They had the MRA (if they did not have it before, which I suspect to be the case) as well as the Salister invoice.  All this was attached to the founding affidavit.  In addition, they had Groenewald's inventory, "ZLSK9", as well as the Buy Back Agreement.  They saw the allegation in the founding affidavit that the applicant had to re purchase the engines at an amount in excess of R4 million (VAT included).  They would have realised that the re purchase had to take place because of Salister's misrepresentation about the nature of the goods sold.  This misrepresentation was, on the overwhelming probabilities, fraudulent and most probably made with the support of Salister's holding company, AHI.  They did exactly the same in the Absa case, using the same documents and making the same allegations.  They even used an identically worded motivation for the credit.  The respondents also had proof of the applicant's payment to Salister.  They would have realised that it was a generous payment, because the prices quoted by Salister for the "gensets" was more applicable to gensets than to engines.  They would have realised that, because of the (presumed) fraudulent conduct of Salister, and presumably also that of AHI, the applicant had to pay twice for the engines.  They would have seen the allegations in the founding affidavit that FINTECH acknowledged that it had acquired ownership of the goods through the cession from the applicant, and that the goods had been re delivered to the applicant.  Despite all this, they persisted with their opposition to this application, embarking upon lengthy and no doubt expensive litigation.  They preferred to raise all manner of highly technical defences in support of their case that the applicant never, in the first place, and later through the recession, acquired ownership of the goods.

When Groenewald finally testified, two years later (in May 2014) no attempt was made to rebut his evidence.  They even called De Kock as a witness, well knowing that he could do nothing to counter the evidence of Groenewald.

I consider this to be unconscionable conduct on the part of the respondents.  Not one of them was called to give evidence.  At the end of the case a feeble excuse was offered for failure to call the first respondent because of "time constraints".  When I took this up with the counsel of the respondents she disavowed this excuse.  Needless to say, no effort whatsoever was made, as far as I can make out, to call anybody from Salister or AHI to explain their conduct.  Even when they became aware of the Absa judgment, which was delivered before closing argument was heard in this matter, the respondents persisted with their opposition.  Despite the insolvent company having already been handsomely paid for the engines, and having been a direct cause of the applicant being obliged to pay twice for the engines, the respondents still want to retain the engines as well.  I consider this to be a fine example of a practical manifestation of the adage, adding insult to injury.

[128] I now turn to some of the arguments offered on the question of ownership.

[129] It was argued that it was not proved that Salister had the intention to transfer ownership, and that the applicant had the intention of acquiring ownership.  It was added that both parties had gensets in mind, rather than engines.  As to the requirement that there must be such an intention, I was referred to Van der Merwe & Another v Taylor NO and Others 2008 1 SA 1 (CC) at 19A C, paragraph [42].  There, the learned Judge also referred to Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 4 SA 281 (A) at 301H-302A.

In Van der Merwe, at 19E-F, it was pointed out that the requirement of intention, as the mental element, must be established by evidence derived from the circumstances of each case.

In this case, Salister invoiced the applicant for the goods and received payment.  Salister obviously negotiated in consultation with its holding company, AHI, which nominated Salister to be the supplier.

The MRA, in clause 2, extracts of which I have quoted, stipulates that the goods have been or will be purchased by the applicant at the special request of AHI and solely for the purpose of renting the goods to AHI.  It stipulates that the goods and the supplier have been selected by AHI.  Importantly, it stipulates that the applicant shall at all times be and remain the owner of the goods and neither AHI nor any other person on its behalf (which I assume must include Salister) shall at any stage before or after the termination of the agreement acquire ownership of the goods.  It also stipulates that AHI acknowledges that the goods are delivered by the supplier (Salister) on behalf of the applicant.

In Van der Merwe, the learned Judge quoted the following passage, at 19G 20B from Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 2 SA 986 (T) at 1000B 1001H:

"... The intention has to be determined and judged within the context of all the relevant facts ... in other words, one of the factors to be taken into account when an intention as to the annexation of items is formed, or later determined, is how other people are likely to interpret the situation on the basis of factual evidence.  An intention which is totally insulated from and devoid of reality cannot be recognised and given effect to in law."

It is clear, in my view, that other people called upon to interpret the situation (in the words of the learned Judge in Unimark) and being familiar with the circumstances of this case, including the unconditional recognition of ownership on the part of the applicant as it appears in clause 2.5 of the MRA, will have little difficulty in recognising an intention of the parties respectively to transfer and acquire ownership.

I have also expressed the view, earlier in this judgment, that the applicant clearly had the intention to acquire ownership because that is what had to be warranted for purposes of a cession in terms of the 2005 Sale and Cession Agreement.

As to the argument that there was no intention to transfer or receive ownership because the goods were gensets and not engines, I was referred, by Mr Cohen, to a passage from Mackeurten, Sale of Goods in South Africa, 5th edition at 88 where the learned author says that it is not the law that where unascertained goods are delivered and they do not fit the description ownership does not pass.  The buyer is not obliged to reject the performance.  In Christie's The Law of Contract in South Africa 6th edition the following is said at 297:

"When the misrepresentation has not rendered the contract void ab initio, the innocent party has the choice that was thus expressed by Innes CJ in Bowditch v Peel and Magill 1921 AD 561 572 573:

'A person who has been induced to contract by the material and fraudulent misrepresentations of the other party may either stand by the contract or claim rescission (Voet, 4.3, sections 3, 4, 7).  It follows that he must make his election between those two inconsistent remedies within a reasonable time after knowledge of the deception.  And the choice of one necessarily involves the abandonment of the other.  He cannot both approbate and reprobate.'"

In this case, Khuzwayo testified that when he became aware of the true status of the goods, he nevertheless decided to keep the contract intact.  He was advised by the experts, notably Marcus, that the engine constitutes 85% of the value of the generator and that the conversion can be done within about a week, with relatively little expense.  The minimum requirement would be the addition of an alternator and a fuel tank.

As to the question when a misrepresentation would render the contract void ab initio (so that there is nothing to enforce) Christie says the following at 334:

"The distinction is simply that a mistake may sometimes be fundamental in the sense that because of its existence agreement is so completely lacking that it is impossible to say there is any contract at all.  The 'contract' is void ab initio."

This is obviously not such a case, with the engine being capable of conversion into a generator with relative ease and little expense.  In this regard, Mr Cohen also referred to a passage in Mackeurten page 9-2.2.2 where the learned author indicates that there is no bar to things not yet in existence being sold, provided they are capable of existence and have a potential existence.  In the case of a sale of unascertained goods, goods of the class described did not actually exist at the time of the contract but the class must be capable of existence.

It must also be borne in mind, throughout, that there was no evidence from either Salister or AHI, on, for example, issues such as whether or not there was an intention to transfer ownership and related matters.  In the circumstances, the evidence of the witnesses for the applicant, together with the particular circumstances of this case, as also illustrated in the documentation, must carry the day for the applicant.

[130] I add that, although it was not argued before me, it occurs to me that where Salister (and AHI for that matter) clearly acted fraudulently by misrepresenting the true status of the goods, the maxim in pari delicto potior est condicio defendentis may come into play.  Hiemstra & Gonin, page 212 describes the maxim as follows:

"Waar albei die partye ewe onregmatig gehandel het, is die verweerder in die sterkste posisie / in a case of equal wrong (delict) by both parties the defendant is in the stronger position."

Christie says the following about this at 417:

"The in pari delicto maxim does not presuppose the exact equality of the plaintiff's and defendant's guilt, and it is questionable whether it is permissible to attempt to weigh the moral guilt of each party, because guilt is a commodity that does not lend itself to exact measurement.  But when the guilt is all on the side of the defendant the plaintiff's right to recover will be unaffected by the maxim."  (Emphasis added.)

This principle was applied, as the learned author points out, in Van Staden v Prinsloo 1947 4 SA 842 (T) in a contractual matter.  The point that occurs to me is simply that the court should be slow to come to the assistance of the fraudsters (or their liquidators for that matter) who should not be seen to rely on their own fraudulent conduct in order to escape liability.

Often, when this maxim is applied, there is also some overlapping with the maxim ex turpi causa non oritur actio, which is defined as follows by Hiemstra & Gonin at 194:

"Uit 'n skandelike oorsaak ontstaan daar geen regsvordering nie / from a base consideration no action arises."

The authors also refer to the two comparable maxims "pacta quae contra ..." (I do not quote the whole maxim) and "pacta quae turpem ..." – see Jajbhay v Cassim 1939 AD 537 and subsequent cases.

In all the circumstances, I am of the view that this argument offered by the respondents falls to be rejected.

[131] A related argument advanced on behalf of the respondents is based on the so-called nemo plus iuris rule.  The maxim reads nemo plus iuris ad alium transferre potest quam ipse haberet, defined by Hiemstra & Gonin at 238 as "niemand kan meer regte aan 'n ander oordra as hy self het nie / no one can transfer more rights to another than he himself has".

The argument is crafted as follows by Ms Dippenaar:

"If the applicant did not initially acquire ownership of the attached assets from Salister, and based on the so-called nemo plus iuris rule, as the respondents contend, it could not and did not transfer ownership to anyone else and could not later acquire ownership back from FUN as it alleges (for the moment disregarding all the difficulties pertaining to the cession/s the applicant relies on)."

As I read the argument, it is based on the earlier submissions, which I have dealt with, that ownership was not transferred because there was no intention for that to happen in respect of engines as opposed to gensets, the subject of the agreement (gensets) was "non existent" and so on.

I have dealt with all these arguments and rejected them.  The reasons I have given.  It follows from my conclusions, and I find accordingly, that ownership was transferred from Salister to the applicant.  Consequently, the nemo plus iuris rule cannot be applied against the applicant.

Still on the subject of the nemo plus iuris rule, I have a recollection that a further argument was advanced, although I cannot find it in Ms Dippenaar's heads of argument.  As I understood the argument, it is this: the applicant already ceded, or purported to cede the MRA to CFS on 4 December 2008 (that is the date on the applicant's invoice to FUN for the purchase price and also the date of the cession alleged in the founding affidavit).  However, the applicant only paid Salister (to comply with the last requirement for the transfer of ownership) on 17 December 2008, so that the applicant was not yet the owner by 4 December and, in terms of the nemo plus iuris rule, could not legally cede to CFS by that date.

In my view, there is no merit in this argument.  Firstly, if it is to be argued that the cession to CFS was a nullity, it would mean that ownership remained vested in the applicant throughout, so that the applicant's claim for return of the goods is still well founded.  In any event, it was clearly in the contemplation of the parties (and, I must assume, also to the knowledge of Salister) that there would be a cession.  This is provided for in the MRA.  Secondly the MRA was entered into in November 2008 already and the Certificate of Acceptance was signed on 2 December 2008, two days before the cession.  In the Certificate of Acceptance, as already pointed out, it is declared that the goods had been delivered already and there is an irrevocable authority to the applicant to pay Salister in order to procure the equipment.  It was therefore contemplated that payment would take place after signature of the Certificate of Acceptance.  It is true that this does not necessarily mean that payment can take place after the cession, but it is clear that all parties were alive to the fact that the cession would be part of the whole transaction.

Thirdly, the "defence" as I understood the argument and as I attempted to formulate it, was not pleaded in the opposing affidavit.  In paragraph 9.3 of the opposing affidavit the following is stated:

"The applicant on its own version, contends that it divested itself of all its rights in and to the Master Rental Agreement and the assets referred to therein to FINTECH Underwriting (Pty) Ltd ('FINTECH') on 4 December 2008.  This is a different entity to the one alleged by the applicant as having transferred rights back to it.  Such cession is in any event disputed by the respondents."

This paragraph is dealt with comprehensively in the replying affidavit, where the provisions of the Buy Back Agreement were, inter alia, analysed.  In any event, it is clear that the MRA was ceded to CFS with the latter acting as the undisclosed agent of FUN.  I will revert to this topic later.

In paragraph 20.3 of the answering affidavit it is pleaded:

"The applicant on its own version, ceded its rights in and to the Master Rental Agreement to a third party on 4 December 2008.  It is accordingly denied that the applicant has the necessary locus standi to seek to enforce any rights."

This, of course, totally ignores the recession which took place on the strength of the Buy Back Agreement.

The only other reference in the opposing affidavit to the nemo plus iuris rule, is in paragraph 23.8 which reads:

"I am advised that based on the nemo plus iuris rule, as Salister at all material times retained ownership of the assets and did not transfer such ownership to any other party, no valid transfer of ownership of the engines took place to any other party, including the applicant and/or FINTECH."

This, of course, only has a bearing on the question of whether ownership was transferred by Salister to the applicant and does not involve the cession to CFS.

Fourthly, and most importantly, the applicant's ownership of the goods was already unequivocally recognised in the MRA signed on 3 November 2008.  I have repeatedly referred to the contents of clause 2.5, and also the recognition, in clause 8.1, that the applicant's rights of ownership would be ceded without further notice to the "User", or AHI.  I am alive to the fact that the acknowledgement of ownership in clause 2.5 comes from AHI and not directly from Salister, but, on the overwhelming probabilities, Salister would have known that it had been nominated by AHI as the supplier and it already invoiced the applicant on 26 November 2008 for the goods, stating that it had "sold" the goods to the applicant.  Salister also, without demure, accepted the 17 December payment from the applicant.  It is clear that Salister acted in concert with its holding company, AHI, and knew how the transaction had been structured.  In the Absa case, which also had its origin in two virtually identical transactions entered into at the same time (November/December 2008) the same modus operandi was followed by Salister and AHI.

The MRA also contains a non-variation clause (clause 15.4) and no attempt was ever made to vary the unequivocal acknowledgement of the applicant's ownership in the goods.

In these circumstances, I see no merit in this "argument" such as it is, and I have concluded that it falls to be rejected.

[132] In the result, I am satisfied that ownership of the engines was transferred from Salister to the applicant in November/December 2008.

Was ownership in the engines transferred back to the applicant by FUN?

[133] I have dealt with this issue at some length when analysing the 2005 Sale and Cession Agreement and the Buy Back Agreement.

[134] FUN is the party that was invoiced by the applicant on 4 December 2008 and would, no doubt, have been the party which made the payment to the applicant.

[135] The "buy back" monies were also paid by the applicant to FUN in May and June 2010.

[136] It is undisputed that CFS acted as the undisclosed agent of FUN when it entered into the 2005 Sale and Cession Agreement with the applicant.  Under those circumstances, FUN was entitled to adopt the rights flowing from the agreement as its own.  Wille says the following on page 999 under the heading "Agent conceals capacity (undisclosed principal)":

"If an agent does not disclose to a third party that he or she is acting as agent, and concludes a contract with the third party as if he or she were the principal in the transaction, the third party may treat the contract as binding on the agent.  The third party may sue the agent, as principal, on the contract, and equally the agent may, as principal, sue the third party on the contract.  When, however, the undisclosed principal discovers that the contract that he or she in fact authorised has been concluded, he or she may adopt it, and may consequently sue the third party on it."  (Emphasis added.)

This, indeed, is what happened in this case, on the undisputed evidence.

In the 2005 Sale and Cession Agreement, there is also a definition of the "Rental Agreement assignee" which would be "any person to whom the financier (read CFS) may cede and/or delegate any or all of its rights and/or obligations under any Rental Agreement, from time to time".

[137] It is therefore clear that the rights of CFS flowing from the cession of 4 December 2008, were ceded or assigned to FUN, alternatively adopted by FUN.

[138] I have already mentioned that clause 4 of the Buy Back Agreement provides that FUN sells the MRA and the Equipment back to the applicant with the effective date being 29 May 2010.

[139] I have also pointed out that, in terms of clause 5 of the Buy Back Agreement, FUN, as from the effective date, ceded, assigned and transferred and made over unto and in favour of the applicant its rights, title and interest in and to the MRA together with the Equipment and that the applicant accepted the benefit of the cession, assignment and transfer.

[140] It is common cause that the applicant paid the purchase price to FUN and that the goods were delivered to the applicant when they were taken, with the blessing of FUN, from AUCOR storage to ATEX storage at the request and under the auspices of the applicant. 

[141] In the heads of argument offered on behalf of the respondents, it was submitted that the various allegations about the structure of the cession arrangement and the relationship between CFS and FUN were not properly proved.  The question of the true "identity" or status of the goods was also raised.  I have dealt with that issue.

It is obvious (and understandable) that the respondents have no personal knowledge of the relationship between CFS and FUN in the FINTECH group.  Groenewald and Merriman testified about this in general terms.

[142] The following is common cause, or cannot realistically be disputed by the respondents:

(1)        The 2005 Sale and Cession Agreement is part of the record.  Therein clear provision is made for the applicant to cede the MRA (and other similar agreements) to CFS.  This is clearly what happened.

(2)        In the 2005 Sale and Cession Agreement, there is clear agreement that, in terms thereof, the applicant shall transfer ownership of the Equipment to the financier (CFS).  There is also clear provision for CFS to cede, delegate, sell, transfer, pledge or hypothecate all or any of its rights and/or obligations flowing from the agreement.  As I have said, there is also a definition of a "rental agreement assignee" to whom these rights of CFS may be ceded or delegated.

(3)        The cession between the applicant and CFS took place.  The applicant invoiced FUN and got payment.

(4)        AHI made some quarterly rental payments to CFS or FUN.  When payments were no longer made, FUN repossessed the goods and initiated the buy back process.

(5)        The applicant initially refused to buy back.  Action was instituted by CFS against the applicant.  This CFS could do, in terms of the 2005 Sale and Cession Agreement, and also as the undisclosed agent – I quoted what Wille had to say on the subject.  Question-marks raised by the respondents about the fact that CFS sued in its own capacity, are without merit.

[143] It is clear that FUN, as it was entitled to do, took over the rights and obligations flowing from the 2005 Sale and Cession Agreement, and obviously did so with the blessing of CFS in terms of the internal arrangements in the FINTECH group, and also in terms of the 2005 Sale and Cession Agreement.  Moreover, as I have said, such an assignment would have taken place in harmony with the legal position and status of an undisclosed principal.  A complaint advanced on behalf of the respondents that the actual cession or assignment between CFS and FUN did not form part of the record and was, in that sense, not proved is without merit.  In view of the common cause facts which I have listed, it is clear, on the overwhelming probabilities, that such an assignment took place.  If it did not, there would have been no need for FUN to act as the seller after the buy back action was settled.

[144] The Buy Back Agreement is part of the record and attached to the founding papers.  I have analysed the agreement, and quoted certain extracts.  I have referred to clauses 4 and 5 dealing with the sale of the MRA and Equipment by FUN to the applicant and a cession by FUN to the applicant, as from the effective date, of its rights, title and interest flowing from the MRA.  I have also mentioned clause 7.3 which records that the Equipment was then already in the possession of the applicant, and that the applicant would take ownership of the Equipment with effect from the effective date.  Also, that retention of possession of the Equipment by the applicant would constitute delivery thereof by FUN to the applicant.  There is no reason whatsoever, that I can see, for doubting, let alone rejecting this evidence.  There was no evidence in rebuttal offered on behalf of the respondents, neither could there have been.

[145] The opposing arguments offered on behalf of the respondents, such as they are, fall to be rejected.

[146] As I have mentioned, it is clear from the undisputed evidence of Groenewald (and later Marcus) that the engines which formed the subject of the 2008 Cession between the applicant and CFS, are the same as those which formed the subject of the MRA, which were repossessed by Groenewald, later stored with ATEX and still later repossessed on the strength of the section 69 warrant.

[147] In the result, I have come to the conclusion, and I find, that ownership in the engines was properly transferred by FUN to the applicant which acquired the ownership.

Conclusion

[148] In all the circumstances I am satisfied that the applicant is the owner of the engines, and entitled to delivery thereof.

[149] This is the issue that was referred to evidence and which came before me for decision.

The costs

[150] The costs should follow the result.

[151] I have mentioned that the applicant initially contended for a punitive costs order de bonis propriis against the respondents.  For the reasons I have mentioned, I am of the view that such a request was not entirely without merit.  Nevertheless, as I have pointed out, the applicant has abandoned that stance and is seeking only costs against the respondents in their representative capacity.  In effect, this would mean that the costs would be paid by the insolvent estate.

The order

[152] I make the following order:

1.         It is declared that the applicant is the owner of the items uplifted by the respondents in terms of annexure "A" to the section 69(3) application under Randburg Magistrates Court case number 34370/2012.

2.         The respondents are ordered to return the items mentioned in 1 above to the applicant at 128, Fifth Street, Wynberg within five days from the date of this order.

3.         The respondents, jointly and severally, and in their representative capacities as liquidators, are ordered to pay the costs.



                                                                        W R C PRINSLOO

                                    JUDGE OF THE GAUTENG DIVISION, PRETORIA

2012-31897

HEARD ON:  23 – 30 MAY 2014 AND 13 MARCH 2015

FOR THE APPLICANT:  S S COHEN

INSTRUCTED BY:  LARRY MARKS ATTORNEYS

FOR THE RESPONDENTS:  E F DIPPENAAR SC

INSTRUCTED BY:  K G TSERKEZIS INCORPORATED


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