Gweru Tourism Promotions (Pvt) Ltd v John Andrew Sadler and Andrew Connolly

### Preamble
1
HH 258-11
HC 2334/10
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GWERU TOURISM PROMOTIONS (PVT) LTD

versus

JOHN ANDREW SADLER

and

ANDREW CONNOLLY

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 25 February and 12 October 2011

Exception

P C Paul, for the excipient

R Fitches, for the plaintiff

GOWORA J: The plaintiff herein issued summons against the two defendants out of this court on 13 April 2010. The plaintiff claim as endorsed on the face of the summons was for relief as follows:

Delivery to the plaintiff of the equipment described in Annexure ‘A’ to the plaintiff’s Declaration;

alternatively payment of the sum of US $34 959.42

Interest thereon at the prescribed rate from date of judgment to date of final payment; and

Costs of suit.

The claim as set in the declaration is summarised as follows. The plaintiff alleges that it is the owner of certain railway equipment, which equipment has been particularised in Annexure A attached to the declaration. For purposes of resolving this application the details of the equipment are not pertinent. The plaintiff alleges that in 2007 the first defendant purported to sell the equipment, wrongfully and unlawfully, to the second defendant. The second defendant is alleged to be in possession of the equipment in question. Demand has been made by the plaintiff to both defendants for the surrender of the equipment in question and the defendants refuse or are unable return the equipment to the plaintiff despite demand. The defendants have also, despite demand, refused to pay to the plaintiff the value of such equipment. Consequently the plaintiff has sued both defendants for payment of the value of the equipment as at the date of its disposal to the second defendant by the first defendant.

Only the second defendant has entered appearance to defend the claim. It is suggested that the first defendant is not within the jurisdiction rendering him outside the reach of the plaintiff. The second defendant, whom I shall refer to hereinafter as the defendant, has also filed an exception to the claim. The substance of the exception is as follows:

Take Notice that the second defendant excepts to the plaintiff’s summons as read with the declaration on the ground that the alternative claim against the second defendant for the payment of US $34 959.42 is bad in law, alternatively that the allegations in support of that claim are vague and embarrassing.

AND IN PARTICULAR-:

There is no averment that when the first defendant purported to sell and dispose of the equipment to the second defendant, the second defendant was aware of plaintiff’s claims to ownership of the equipment. Since the English law of conversion is not part of Roman Dutch law, the fact that the second defendant may now be unable to return the equipment does not entitle the plaintiff to claim damages from the second defendant nor is the second defendant liable for the value of the equipment, whether that value be the value as at the date of the purported sale or any subsequent date.

In any event, the claim for the value of the equipment as at the date of purported sale or any other date is, on the papers, unclear and therefore vague and embarrassing.

It is trite that one of the incidents of ownership is the right of the owner of a thing to claim it from whosoever is in possession of the thing and wherever it may be situate.  In Chetty v Naidoo  1974 (3) SA 13 (AD), JANSEN, J.A. explained the principle thus:

“ ……..that one of its incidents is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res-the onus being on the defendant to allege and establish any right to continue to hold against the owner…….”

Where therefore an owner claims the return of his property or the value thereof, it is incumbent upon the defendant to justify his continued detention of the res against the wishes and claim by the owner for its return. Where movable property has been stolen, or where the owner has been unlawfully deprived of it in some way, and consequent to that it has been alienated in such circumstances that the owner cannot vindicate, he may claim the value of the property from the thief, or the culprit or any person who parted with res with the knowledge of the owner’s claim to the property in question. Where the res has been consumed or destroyed the owner may also claim its value from a possessor who had knowledge of his claim. If the defendant has parted with possession of the res, or if the owner suspects that the defendant has so parted with possession of the same, the plaintiff in seeking redress does not mount a rei vindicatio, he brings an action for its return or the value thereof. The elements that the plaintiff needs to allege differ from the rei vindicatio.

The arguments presented to me do not appear to have a bearing on the initial exception filed by the excipient. The exception and the opposition thereto dealt with the issue as to whether or not the excipient was aware of the plaintiff’s claims to ownership at the date that the first defendant purported to dispose of the property to the excipient. Argument was concentrated on onus and the alternative prayer in the declaration. I believe however that the issues raised in the exception are still pertinent in view of the claim being prosecuted by the plaintiff.

In so far as the first issue was concerned it submitted by Mr Paul that the court had to decide whether or not an onus lies on the plaintiff to allege in the declaration mala fides on the part of the second defendant.

It is correct to state that it is a principle of law where a plaintiff seeks to recover the value of his property from a defendant on the ground that the latter had been in possession of it and had parted with possession, it is incumbent upon the plaintiff to allege and prove that the defendant parted with the property with the full knowledge of the plaintiff’s claim to ownership of the same. See Alderson & Flitton ( Tzaneen) Ltd v E.G.Duffey’s Spares 1975(3) SA 41 at 48-G-H. The latter case is also authority for the principle that the owner must also allege knowledge of the plaintiff’s claim to ownership either at the time of acquiring possession or at the time of disposal, consumption or destruction of the res being claimed.

The position taken by the plaintiff is that the question of whether or not the second defendant was aware of plaintiff’s claim of ownership at the time of the former’s acquisition are matters of fact. So too, it is argued, is the question whether or not the defendant is able to return the equipment or certain of the same. It is the plaintiff’s contention that the issues dealt with above require evidence and that therefore they are not issues capable of resolution on the papers.

The plaintiff argues that the declaration as framed is appropriate and that it is for the defendant, to prove or aver, if he is not in possession that he is not. Although the defendant suggests that the prayer as framed in the alternative for the value of the property is bad in law, the plaintiff has suggested that Amler in his book on pleadings suggests that a plaintiff who suspects that the defendant has parted with possession may in addition plead in the alternative for payment for the value of the res.  Silberberg and Schoeman confirm that the owner of property who has been deprived of the same is not without remedy. They state at p 298:

“As the English law doctrine of conversion does not apply in our law, the price of stolen property which has already been sold cannot be vindicated nor things which have been bought with stolen money or negotiable instruments payable to bearer. He is, however, not necessarily without remedy in these circumstances. Though the rei vindicatio is primarily aimed at the recovery of lost possession, a defendant under this action who has fraudulently ceased to possess, may nevertheless be ordered to make good the value of the thing as at the date of trial or judgment.”

Where a party claims in the alternative the value of the thing that he seeks to be restored it is correct that what he is seeking is to be placed in the same position that he would be if the res where restored to him. Restoration can only take place at the time of judgment and it is therefore just that the time for assessing the value of the res be the date of trial or judgment. See Mlombo v Fourie 1964 (3) SA 350 at 357H-358A.

The vindicatory claim is available to the recovery of things which are identifiable and it is a requirement that the thing continue to exist. It is also essential that the defendant be in possession of the plaintiff’s thing as at the date the action is brought or at the date of judgment. It may not only be brought in respect of a fraudulent loss of possession but is also available against a mala fide possessor who ceased to possess through negligence.

According to Silberberg and Schoeman’s The Law of Property the actio ad exhibendum is a personal action which was usually, but not necessarily, instituted in conjunction with the rei vindicatio to compel the possessor of a thing which was to be vindicated, to produce it. In that case the plaintiff is entitled to bring an actio ad exhibendum. If the defendant failed to produce it and was still in possession of the property, he would be ordered to compensate the plaintiff for the value thereof. Also if the defendant had ceased to possess the property fraudulently, an action would be brought to recover the value of the property from him. Where the defendant is no longer in possession of the res the plaintiff must allege and establish that the defendant has either parted with possession of the res or that it has been destroyed. It is a requirement of the actio ad exhibendum that the plaintiff must allege and prove bad faith on the part of the defendant in parting with possession of the res. The leading authority on the principle is to be found in Philip Bros v Wetzler, 1878 Buch, 77.

“I am clearly of opinion that this exception is a good one; for the fact that the goods were in the possession of the defendant, from whom the plaintiff seeks to recover them, is the very essence of the rei vindicatio……as to the pleadings I have no doubt that in an action of rei vindicatio it is necessary to allege possession by the defendant or that he had parted with possession fraudulently or with knowledge of the owner’s claim. Voet, 6.1.22, shows that the plaintiffs could not succeed except as against a possessor whether bona fide or mala fide; and he even goes so far as to say that the defendant shall be absolved even if, after litis contestatio, he ceased to be the possessor. This statement of the law must be taken with the qualifications mentioned by Voet in the 32nd and 33rd paragraphs of the title. In this declaration there is no allegation that the defendant possessed the goods or had parted with them fraudulently or with knowledge of the plaintiff’s claim. The third exception must therefore be allowed.”

Similarly, in Vulcan Rubber Works (Pty) Ltd v S.A.R. & H 1958 (3) SA 285 SCREINER J.A dealing with a claim by an owner for delivery of forty two bales of rubber stated at p 289:

“…………Subject to special defences our law gives the owner of property the right to recover it from anyone who is in possession of it. He may moreover recover its value from anyone who has been in possession of it but has parted with possession after he has had notice of the owner’s right (Aspeling, N.O. v Joubert 1919 A.D.167 at pp 170, 171). Those were the two remedies which were available to the plaintiff. If it could prove that the Administration was at the time of the action in possession of the forty-two bales of rubber it could obtain judgment for their delivery. Alternatively, if it could show that the Administration had had possession of the rubber and had parted with possession after it had been notified, as it was on the 30th October 1951, of the appellant’s claim, it could recover the value of the rubber. The two claims can be brought as alternatives in one action, but they are not simply alternative forms of relief, as where a purchaser of property sues for its delivery, or alternatively, for damages.  In such cases the purchaser has to prove no more than that he is entitled to delivery. In the present case, the appellant, if it could not prove that the Administration still had the rubber, had to prove that it was in possession of it after the 30th October 1951. This the appellant could, of course, do by showing that the Administration had been in possession of the rubber in, say, July or August 1951, and had not parted with it before the 30th October 1951.

It will be observed that the declaration does not allege that the defendant Administration was in possession of the rubber at the commencement of the action (July 1952) or at the date of the declaration (September 1952). It only alleges possession by the Administration in July 1951. The declaration was on that ground excipiable. (Philip Bros v Wetzler 1878 Buch 77; South African Railways and Harbours v Natal Industrial Products, Ltd 1949 (2) SA 782 (N).”

My perusal of the authorities leaves me to conclude that the authorities are in agreement that the actio rei vindicatio and the actio ad exhibendum are not alternative claims. They are entirely separate and distinct.

Although the defendant suggests that the plaintiff has not averred that the defendant parted with the property with the knowledge of the plaintiff’s claim to ownership therein, the defendant has not excepted to the declaration on the grounds that it does not disclose a cause of action. The plaintiff has not proceeded under the actio ad exhibendum but under the actio rei vindicatio. It seems that on that score the plaintiff is satisfied that the declaration discloses a cause of action for a vindicatory claim.

A close examination of the heads of argument filed by the defendant appears to suggest that he is unable to return the property. The defendant in raising the exception is arguing based on facts that have not been pleaded for example when he argues that the property may have been consumed or incorporated into another object so that its original identity ceases to exist. It does not seem to me appropriate for an argument to be raised based on a theory as opposed to pleadings on the record. As the plaintiff has argued it is incumbent upon the defendant to plead to the claim. If the property is no longer in his possession he must plead that as this is a factual issue. The plaintiff in my view cannot be expected to guess as to the whereabouts of the property or speculate on what the plaintiff may have done with it.

The plaintiff has suggested that a litigant cannot lawfully except to an alternative claim without excepting to the main claim. The plaintiff has referred this court to Stein v Giese 1939 CPD 336 wherein at 338 JONES J with SUTTON J concurring opined that it was not open to a defendant to except to one of several claims arising out of one and the same cause of action. (See Sugden Baron St Leonards v Kannemeyer 1921 O.P.D 121; Goller and Others v van der Merwe 1903 T.S 157. Dharumpal Transport (Pty Ltd v Dharumpal 1956 (1) SA 700) Put differently a defendant is entitled to except to any set of facts together with the relief claimed in respect thereof as being bad in law. What a defendant cannot do is to except to a declaration on the basis that it does not support one of several claims arising out of one cause of action. An exception taken in this form serves no purpose. An exception is taken in order to avoid the leading of unnecessary evidence. In casu, the exception will not dispose of the main claim, viz, the return of the property claimed by the plaintiff. It follows therefore that a defendant cannot except to a prayer whilst leaving the whole declaration intact.

I find that the exception was not well taken and it is hereby dismissed with costs.

Wintertons, legal practitioners for the excipient

Coghlan, Welsh & Guest, legal practitioners for the plaintiff