SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG

Case Number: M36/2022
Reportable:  	                              YES / NO
Circulate to Judges: 	                     YES / NO
Circulate to Magistrates:	               YES / NO
Circulate to Regional Magistrates:	  YES / NO

In the matter between:

OLD MUTUAL INSURE LIMITED
REGISTRATION NUMBER: 1970/006619/06			Applicant

And

SMK TOWING							Respondent

ORDER

In the result the following order is made:
1.	The Respondent is ordered to release a RENAULT DUSTER motor vehicle with registration letters and numbers H[...], VIN number V[...] and Engine number H[...] ("the Motor vehicle") to the Applicant's nominated representative within 24 hours of the service of this order;

2.	In the event of the respondent failing, alternatively, refusing to comply with the order in paragraph I above, the sheriff is authorised to take possession of the vehicle wherever it may be found and to forthwith hand possession of the vehicle to the Applicant's nominated representative;

3.	The Applicant having made payment to the Respondent in the amount of R4 980.00, and the balance of the Respondent's invoice, being an amount of R7 920.00 having been paid into the Applicant's attorneys trust account, shall pay the further storage charges (calculated at R450.00 per day from 09 December 2021 until the date upon which this order is granted) into the trust account of the Applicant's attorneys within 5 (five) days of the service of this order to be retained as security pending the final resolution of any legal proceedings to be instituted by the respondent within 30 (thirty) calendar days of the service of this order to claim its alleged fees for the towing, storage, recovery, administration and security in respect of the vehicle;

4.	Should the Respondent fail to institute legal proceedings contemplated in paragraph 3 above within 30 (thirty) calendar days after the service of this order, the amount paid into the trust account of the Applicant's attorneys shall be released to the applicant;

5.	The Respondent is ordered to pay the costs of this application 

JUDGMENT

DJAJE DJP
		
[1]	In this application the applicant is the owner of a motor vehicle that was towed by the respondent at an accident scene in November 2021. The said vehicle is a Renault Duster with registration number H[...] 5[...] Y[...] G[...]. On 8 December 2021 the respondent submitted an invoice in the amount of R12 900.00 to the respondent for services rendered. The respondent disputed the amount and only paid an amount of R4 950.00 to the respondent which the applicant considered to be a fair and reasonable fee payable for towing services.  The outstanding balance was paid as security by the applicant into its attorneys’ trust account pending the outcome of the dispute over the remaining balance. The respondent on the other hand lays a claim of retention over the vehicle and refuses to release the vehicle until the full amount is paid. At the time the application was instituted the amount claimed by the respondent was R48 420.00.

[2]	The applicant in the notice of motion seeks the following relief:
	
“1.	The Respondent is ordered to release a RENAULT DUSTER motor vehicle with registration letters and numbers H[...], VIN number V[...] and Engine number H[...] ("the Motor vehicle") to the Applicant's nominated representative within 24 hours of the service of this order;

2.	In the event of the respondent failing, alternatively, refusing to comply with the order in paragraph I above, the sheriff is authorised to take possession of the vehicle wherever it may be found and to forthwith hand possession of the vehicle to the Applicant's nominated representative;

3.	The Applicant having made payment to the Respondent in the amount of R4 980.00, and the balance of the Respondent's invoice, being an amount of R7 920.00 having been paid into the Applicant's attorneys trust account, shall pay the further storage charges (calculated at R450.00 per day from 09 December 2021 until the date upon which this order is granted) into the trust account of the Applicant's attorneys within 5 (five) days of the service of this order to be retained as security pending the final resolution of any legal proceedings to be instituted by the respondent within 30 (thirty) calendar days of the service of this order to claim its alleged fees for the towing, storage, recovery, administration and security in respect of the vehicle;

5.	Should the Respondent fail to institute legal proceedings contemplated in paragraph 3 above within 30 (thirty) calendar days after the service of this order, the amount paid into the trust account of the Applicant's attorneys shall be released to the applicant;

6.	The Respondent is ordered to pay the costs of this application on the attorneys and client scale;

7.	That such further and/or alternative relief as the honourable Court deems meet be granted to the applicant.”

[3]	The issue of ownership of the vehicle is not disputed herein. What requires determination herein is whether the court can order delivery of the vehicle to the owner against adequate security. In its heads of argument, the applicant referred to the case of Hochmetals Africa v Otavi Mining Co (Pty) 1968 (1) SA 571 (A) where it was held that:

“……..Even where the claim in respect of which the jus retentionis is asserted is made in good faith, the Court has the power to order delivery to the owner against adequate security. Each case will depend on its particular facts and the Court, in exercising its discretion, will have regard to what is equitable under all the circumstances, bearing in mind that the owner should not be left out of his property unreasonably and on the other hand should not be given possession if his object is, after getting possession, to delay the claimant’s recovery of expenses.” 

[4]	The applicant is making an undertaking to pay the amount of R450.00 per day calculated from 8 December 2021 to the date of the order as security. The amount of R450.00 is the amount claimed by the respondent per day for storage of the vehicle. In essence should the respondent be successful in proving the amount claimed to be at the rate of R450.00 per day, then the amount paid as security by the applicant will be paid to the respondent. The tendered security guarantees the full amount claimed by the respondent. 

[5]	The respondent contended that it is entitled to the amount claimed before releasing the vehicle. It was argued that the applicant’s relief in relation to security and that the respondent institutes legal proceedings to prove the amount claimed is unreasonable. The respondent argued that it will be costly to institute legal proceedings in order to recover its costs.

[6]	It is trite that the court can order release of property to the owner against provision of adequate security. See: Astralita Estates (Pty) Ltd v Rix 1984 (1) SA 500 (C). The court has the discretion to grant the relief sought by the applicant which discretion should be exercised with caution and not to deprive the claimant’s its right to payment. 

[7]	In this matter, the respondent is claiming an amount of R450.00 per day for storage which amount is calculated from 8 December 2021. On the other hand, the applicant disputes the rate charged by the respondent for storage and instead tenders the same amount as security pending the resolution of the dispute relating to the amount payable to the respondent. The amount tendered by the applicant is equal to the amount claimed by the respondent for its services. However, the respondent is required to prove that the amount claimed is reasonable. In the notice of motion, the respondent is required to institute legal proceedings within 30 days of the court order which could include a cost order in its favour. The lien that the respondent has over the vehicle is substituted by the security tendered by the applicant, which will not leave the respondent prejudiced. In my view there is no reason why the vehicle should not be released to the applicant and the amount tendered as security be paid by the applicant as security until the finalisation of the dispute between the parties.

Costs

[8]	The applicant argued that the respondent was invited to consider the tender for security to avoid the matter being brought to court but to no avail. As such the respondent should be ordered to pay the costs of this application. It is trite that costs follow the result and I see no reason why the respondent should not pay the costs. This is a matter that could have been easily resolved between the parties instead of having to litigate for such a long period.

Order

[9]	Consequently, the following order is made:
	
1.	The Respondent is ordered to release a RENAULT DUSTER motor vehicle with registration letters and numbers H[...], VIN number V[...] and Engine number H[...] ("the Motor vehicle") to the Applicant's nominated representative within 24 hours of the service of this order;

2.	In the event of the respondent failing, alternatively, refusing to comply with the order in paragraph I above, the sheriff is authorised to take possession of the vehicle wherever it may be found and to forthwith hand possession of the vehicle to the Applicant's nominated representative;

3.	The Applicant having made payment to the Respondent in the amount of R4 980.00, and the balance of the Respondent's invoice, being an amount of R7 920.00 having been paid into the Applicant's attorneys trust account, shall pay the further storage charges (calculated at R450.00 per day from 09 December 2021 until the date upon which this order is granted) into the trust account of the Applicant's attorneys within 5 (five) days of the service of this order to be retained as security pending the final resolution of any legal proceedings to be instituted by the respondent within 30 (thirty) calendar days of the service of this order to claim its alleged fees for the towing, storage, recovery, administration and security in respect of the vehicle;

4.	Should the Respondent fail to institute legal proceedings contemplated in paragraph 3 above within 30 (thirty) calendar days after the service of this order, the amount paid into the trust account of the Applicant's attorneys shall be released to the applicant;

5.	The Respondent is ordered to pay the costs of this application 

J T DJAJE 
DEPUTY JUDGE PRESIDENT
NORTH WEST HIGH COURT, MAHIKENG

APPEARANCES

DATE OF HEARING			: 19 JANUARY 2023	
JUDGMENT RESERVED 			: 19 JANUARY 2023
DATE OF JUDGMENT			: 26 JANUARY 2023
					
COUNSEL FOR THE APPLICANT	: ADV RILEY
COUNSEL FOR THE RESPONDENT 	: ADV A MUNYAI