The Appellants Appealed Against an Order Made in the High Court, Pretoria in Terms of Which s1

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THE SUPREME COURT OF APPEAL

REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal

Date: 2 December 2013

Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal.

VAN DER MOLEN v FAGAN

The Supreme Court of Appeal (SCA) today dismissed an appeal by Mr Van der Molen against an order of the majority of the Full Court of the South Gauteng High Court, Johannesburg which had similarly dismissed an appeal by Mr Van der Molen against an order of a single judge that he return a certain Mercedes Benz vehicle to Ms Fagan.

Ms Fagan had relied on the rei vindicatio as her cause of action. She had sold the vehicle to Mr Shameer Amod and delivered the vehicle together with its original registration and licensing documents before Amod had paid the full purchase price. It was a term of the agreement that ownership would only pass to Amod upon payment of the full purchase price. Ms Fagan had delivered the vehicle’s documents to Amod to enable him to source finance with which to pay the purchase price. However, Amod, without her knowledge and before the purchase price had been paid, fraudulently delivered the vehicle to his companion, who in turn sold it to a car dealership. It was from the dealership that Mr Van der Molen had purchased the vehicle. Upon discovering the whereabouts of the vehicle, Ms Fagan successfully sued Mr Van der Molen for its return in the high court.

Before the SCA, Van der Molen argued that ownership of the vehicle had passed from Ms Fagan to Amod upon delivery ie, Ms Fagan had ceased to be the owner thereof. The SCA rejected this argument, holding that Ms Fagan and Amod, who immediately passed it to someone else, had never contemplated transfer of ownership until the full purchase price had been paid. Therefore, ownership had never passed to Amod and those who acquired the vehicle after him. Van der Molen further argued, in the alternative, that Ms Fagan was estopped from asserting ownership of the vehicle because by handing the vehicle’s original documents to Amod she represented that he was its owner, or was entitled to dispose of it, and had also failed to report it as stolen timeously. Ms Fagan’s representation, argued Van der Molen, was the proximate cause of his acting to his prejudice. The SCA held that Van der Molen had not taken transfer of the vehicle by reason of any representation by Ms Fagan and nothing she did could have caused him or the car dealership prejudice. The SCA held that Van der Molen had failed to establish the estoppel defence.