(P)
I 54/98

V
C GRIFFITHS vs MOTOR VEHICLE ACCIDENT FUND

LEVY,
AJ 2000/05/10

PRACTICE

SUMMARY
JUDGMENT - Meaning of ownership in terms of the Motor Vehicle Act
analysed.

Failure
to call a witness merely a factor to be considered in weighing up the
evidence.

CASE
NO.: (P) I 54/98

In
the matter between:

V
C GRIFFITH PLAINTIFF

versus

MOTOR
VEHICLE ACCIDENT FUND DEFENDANT

CORAM:
LEVY,
A.J.

Heard
on: 2000.02.29; 2000.03.01 & 02

Delivered
on: 2000.05.10

JUDGMENT

U.:
In
this matter Adv H Geier appears for Plaintiff and Adv L
C
Muller SC for Defendant.

On
25 October 1996 summons was issued out of the High Court by the
Plaintiff who is a widow and who sues in her personal capacity and in
her capacity as mother and natural guardian of her five minor
children claiming that Defendant pay her a total of N$479 333.00
arising from an accident involving a motor vehicle N36661W which
occurred on

22
September 1994. The Defendant is the Motor Vehicle Accident Fund of
Namibia established in terms of Section 2 of the Motor Vehicle
Accident Act, 30 of 1990.

The
Particulars of Claim have been amended on several occasions and the
matter has previously been set down for hearing on 10 March 1998, 14
December 1998, 20 September 1999 and on each occasion postponed
without any evidence having been led.

Different
counsel have acted for Plaintiff from time to time and due to her
impecuniosity different attorneys as well. Plaintiffs present counsel
has informed this Court that once again an amendment of the pleadings
will be moved but he says that this amendment has no bearing on the
present issue. In any event as at this stage the application for the
amendment was not moved.

As
can be expected, in the circumstances of this case, the particulars
of claim have become a clumsy and inelegant document.

In
an effort to expedite this matter and for convenience, the parties
have agreed that this Court should decide the issue of ownership of
the vehicle involved in the accident at a hearing separate from the
other issues. For a decision in this respect the Court must have
regard to the pleadings and to the evidence placed before it. It is,
however, unnecessary to analyse all the pleadings. It will suffice to
set out a resume of such pleadings which are applicable including
Defendant's plea. The letters FNB are used to denote the First
National Bank.

In
her particulars of claim, plaintiff alleges inter
alia that:-

"(4) on
22 September, 1994, First National Bank of Namibia Ltd (hereafter
FNB)

was
the owner of the motor vehicle, N36661W, alternatively Mr R Vogt,

alternatively,
one Jakkals Pretorius.

(5)
On 22 September 1994, the plaintiffs husband Clive Gareth Paul
Griffiths was the
driver of Mercedes Benz registration number
N36661W driving on the main road
between Otjiwarongo and Kalkfeld
when the motor vehicle

(a) tore
apart in two pieces and left the road, alternatively,

(b) commenced
and/or developed tearing and/cracking and/or commenced breaking
up
and left the road and collided with a tree, alternatively,

(c) left
the road and collided with "a tree"

Plaintiff
thereafter alleges that

"6 The
aforesaid accident was caused by the negligence of the owner of the
motor

vehicle.
In so far as the owner was FNB, it is averred that:-

(a)
at all relevant times hereto, one J. Kaufmann and/or one Pikkie Louw
and/or

another
employee or employees of FNB was/were by act or omission negligent,

which
negligence caused the accident;"

In
terms of further particulars subsequently supplied, Plaintiff alleged
that the said Kaufmann was the manager of the finance branch of FNB,
alternatively, the Manager of Wesbank, trading as FNB.

Plaintiff
alleges further that the aforesaid persons were employees of FNB
acting in the course and scope of their employment.

Insofar
as this Court does not have to decide on the issue of negligence, it
is unnecessary to dwell on the allegations made thereanent by
Plaintiff save to say that there is a further allegation that the
owner was negligent in that it handed the motor vehicle to others for
the purpose of sale to third parties, or, permitted the vehicle to be
auctioned to third parties particularly to her husband, whilst the
owner knew or ought to have known that the vehicle contained defects
and was in a dangerous state of disrepair and was unsafe and unfit to
be used on the public road.

The
vehicle as a fact was wrecked on the public road on 22 September 1994
and Plaintiffs husband was killed. Plaintiff says she has complied
with the provisions of Motor Vehicle Act No. 30 of 1990 and that she
is entitled to be paid the claim to which I have already referred.

In
reply to a question from Defendant, Plaintiff said that the vehicle
was sold to her husband at an auction by one Mr Vogt acting on behalf
of FNB alternatively Mr Vogt sold such vehicle on his own behalf or
alternatively sold it on behalf of one Mr Jakkals Pretorius. The
vehicle was handed to Plaintiffs husband by Mr Vogt after the auction
but Plaintiffs husband was killed before he could pay the purchase
price.

Defendant
filed a comprehensive plea the effect whereof was to deny all the
relevant allegations made by Plaintiff and in particular it denied
that FNB or any of the other persons alleged by Plaintiff in the
alternative, was "the
owner of the said vehicle at the time of the accident in terms of the
provisions of Act No. 30 of 1990, or otherwise."
Thereafter Defendant alleges in its plea that Plaintiffs husband
became "the legal owner of the said vehicle by virtue of the
auction sale and delivery to him of the said motor vehicle."

During
the hearing of this part of the case a further possible owner
appeared on the scene namely Motor House CC by whom Jakkals Pretorius
was employed but no amendment of the pleadings was asked for although
an application to amend had been filed.

The
Motor Vehicle Accidents Act 1990 in terms whereof Defendant was
established contains a definition clause, wherein a number of words
used in the Act are defined. Section 1 provides:-

"1.
In this Act, unless the context indicates otherwise -"owner"
in relation to,

(a)
a motor vehicle which a motor dealer has in his or her possession
during the course of his or her business and which may in terms of
any law on the licensing of motor vehicles not be driven or used on a
public road except under the

authority
of a motor dealer's licence of which the motor dealer concerned is
the holder, means that motor dealer;

1. a
   motor vehicle which has been received by a motor transport licence
   holder in the course of his or her business of delivering new motor
   vehicles and which has not yet been delivered by him or her, means
   that motor transport licence holder;

   
   

2. a
   motor vehicle which is the subject to a hire purchase agreement,
   means the purchaser under the hire purchase agreement concerned;

   
   

3. a
   motor vehicle under an agreement of lease for a period of at least
   12 months, means the lessee concerned;"

   
   

It
is clear from the words "in relation to ", at the
commencement of the definition that the legislator wished to create
the persons to whom the circumstances in (a)(b)(c) and (d) applied,
"owner" for the purpose of the Act. But for the provisions
in these subsections those persons would not or may not have been
owners. The Legislator did not wish to provide that the Act applied
only to those persons in the definition clause. This contention is
supported by the fact that the so-called definition makes no mention
of ownership of a motor vehicle acquired by a cash sale, or by a
simple credit sale (not the type referred to in the definition
clause), or donation, or by inheritance or by barter or by a prize
won in some contest or lottery.

In
Nkosane v Rondalia Assurance of S.A. Ltd 1976 (4) SA 67 (T) in
respect of similar legislation in South Africa, the Court held that
there was no basis for finding that the words "owner" or
"ownership" bore any meaning other than the meaning
ordinarily

ascribed
to these words in accordance with the common law apart from the
particular context referred to in the definition of owner.

Accordingly
in so far as it may be necessary so to do, I hold that the definition
of owner in Section 1 of the Motor Vehicle Act, Act 30 of 1998, is
not intended to be exhaustive and has no application to the present
inquiry.

The
present inquiry is directed at establishing who the owner at Common
Law was of the Mercedes Benz 200 which Plaintiffs husband drove on 22
September 1994 when he was killed.

The
Minutes of Rule 37 Conference held on 21 February 2000 were handed
into Court. Item 4 of the Minutes relates:

"The
Defendant admits that First National Bank, Wesbank Branch Windhoek,
was the owner of the 1988 Mercedes Benz, from the time it was
repossessed from Mr A Kandolf on or about 25 July 1994 until it
subsequently left the repossession yard of Wesbank."

The
Plaintiffs first witness was Johannes Jakobus Pretorius (also known
as Jakkals Pretorius) who testified that he had been the manager of
Motor House CC, used car division, in 1994 and that the owner of the
company was one Theo Kleynhans. He said that "all the used car
dealers, go to all the banks, look at their repossession yards. If
there

are
vehicles that they are interested in, they either buy it (sic) or the
bank asks them to sell it on their behalf." (that is, on behalf
of the bank concerned)

During
1994, he frequently went to the repossession yard of FNB, Wesbank
division and there in or about the middle of 1994 he saw a Mercedes
Benz 200 which had a dark blue metallic colour. Subsequently when he
was shown a colour photograph of the Mercedes Benz which features in
this case, he corrected himself and said it was a copper brown
colour. In this judgment, I bear it in mind that he first said that
the Mercedes Benz he saw was dark blue and that he blamed the lapse
of time some six years ago, for his mistake.

It
is well known in the commercial world and certainly among lawyers
that banks including FNB and its Wesbank division, finance the
purchase of motor vehicles by way of hire-purchase agreements or
installments sale agreements wherein they have a clause which gives
them the right to repossess as owner, the sold vehicle under certain
circumstances. It is common cause and was never in issue that in the
present case FNB had repossessed the Mercedes Benz 200, N36661W, and
that for a certain period of time in 1994, it was in the repossession
yard of the Bank (see Minute of Rule 37 meeting). It is this vehicle
which Pretorius, in or about the middle of 1994, saw in the yard. Any
doubt was removed when he testified that the right hand back door of
the vehicle did not fit evenly into the frame, that is, the body of
the vehicle. There were places, he said, where the door was close to
the frame and there were other places where the door was further
away. He said any person in the motor trade could see that the
vehicle had been

involved
in a collision. The ill-fitting door was photographed prior to the
collision by an engineer, Harry Regri. Pretorius looked at the
photograph and confirmed that this was a photograph of the door of
the car he had had in his possession in mid 1994.

When
Harry R-egai, an expert, testified, he confirmed the evidence of
Pretorius and added that the left rear door, also fitted badly in
that it was further from the frame than it should have been.

This
indicated, he concluded, that the vehicle had been hit on the right
side towards the rear. Harry Riegel was a highly qualified engineer
and had examined this vehicle on 19 July 1993, and took colour
photographs thereof. These were handed into Court and supported the
evidence that he and Pretorius gave. It was one these photographs
that Pretorius looked at when he identified the vehicle as the
vehicle which he removed from the repossession yard of FNB. I am
satisfied that for these reasons, and for reasons which will become
apparent later in this judgment, the Mercedes Benz seen by Pretorius
in the repossession yard of FNB and which Pretorius from there was
the same Mercedes Benz examined by Harry Riegel on 19 July 1993.

Pretorius
says that he asked FNB if he could sell the vehicle "on their
behalf and they agreed. He testified that the vehicle was taken from
the yard to the premises of Motor House CC where it was for sale on
behalf of FNB. At the time he dealt with one Kaufmann and "Pikkie"
Louw both of whom were employees of FNB, the former being the manager
of the second-hand car division of that Bank and Wesbank, and the
latter,

the
manager of the repossession yard of Wesbank. He says the agreement
was that he would hold and sell the car "on consignment"
for FNB and he understood thereby that if he made a profit, that is
sold it above the reserve price, such profit was to the credit of
Motor House C.C.

Pretorius
says he was unable to sell the vehicle and it remained on the floor
of Motor House C.C until it was taken to Gerry's Auction and Car
Sales in Independence Avenue to be auctioned for and on behalf of
FNB. It was taken there with six or seven other cars one to three
weeks before the auction sale was held on 15 September 1994. In reply
to a question concerning payment of the purchase price obtained at
the auction he said "payment should be made to the original
owner of the car" which he maintained was FNB.

Pretorius
was subjected to a vigorous and searching cross-examination by Mr
Muller who amongst other points he put to the witness, contended that
Motor House CC could reasonably have acquired ownership of the motor
vehicle from FNB and that the vehicle could have been put on the
auction for and on behalf of Motor House CC. Pretorius with equal
vigor denied this. Mr Muller contended that the production of the
books of Motor House CC would have removed any doubt. This may well
be. Entries in a person's books of account may certainly be used in
evidence against such person but Pretorius' attitude was that he did
not have nor does he have now custody of the books of the company. It
would have been permissible for Mr Muller or Mr Geier to have
subpoenaed

the
appropriate person duces
tecum to
give evidence concerning entries in the books of Motor House C.C.
Neither Mr Muller nor Mr Geier did this.

In
his cross-examination Mr Muller tried a further attack. He put it to
Mr Pretorius that Mr Louw, the person in charge of the repossession
yard of FNB and with whom Pretorius spoke concerning this vehicle
when he removed it from the yard, that Mr Louw had apparently
indicated (it is not clear from the questioning to whom the
indication may have been made) that the policy of FNB in 1994 was not
to put its own cars on auction. Specifically Mr Muller put the
question fhus:-

"Well,
when Mr Louw is called, I will ask him that, but my understanding is
that at that stage, the cars were not sold on auction..."

Pretorius
replied to this curtly,

"I
wouldn't know if they sold cars on auction."

(It
should be observed that the question was not "If Mr Louw is
called "but", when
Mr Louw is called")

Despite
this form of questioning, Mr Muller did not call Mr Louw to testify
and nor did Mr Geier call him.

Pretorius
was further cross-examined as to whether he told FNB that the vehicle
had been taken to "Gerry's Auction and Car Sales" to be
auctioned. He said he personally had not done so but he believed that
Mr Kleynhans (the manager of Motor House CC), had done so. Insofar as
the answers of Mr Pretorius in this regard may be hearsay, they were
obtained by Mr Muller by his cross-examination. It was then put to Mr
Pretorius that if Louw and Kaufmann (the manager of Wesbank)
testified that they knew nothing of the car being transferred for
auction, what would Pretorius say. Pretorius shrugged the questions
off and did not retract his statement.

Neither
Mr Louw nor Mr Kaufmann was called to testify by either Plaintiff or
Defendant.

Consequently,
the evidence of Mr Pretorius that Motor House CC endeavoured in or
about the middle of the year 1994, to sell this particular Mercedes
Benz for and on behalf of FNB and that when Motor House CC, failed to
do so, the vehicle was taken to Gerry's Auction and Car Sales to be
auctioned on behalf of FNB, stands uncontradicted.

Mr
Muller argued that an adverse inference should be drawn against
Plaintiff because Plaintiff failed to call these (and other)
witnesses and that the onus
rests squarely on the Plaintiff.

In
SOS
Kinderdorf International v
Effie
Lentin Architects 1993
(2) SA 481 (Nm) at 489, the Court considered the question relating to
the failure to call certain witnesses and made the following
observation:

"Failure
to produce a witness who is available and who is clearly capable of
giving relevant evidence can lead to an adverse inference."

The
Court then referred to certain decided cases in support of that
proposition.

Clearly
the witnesses referred to by Mr Muller were equally available to
either side and none of the witnesses were parties to the action.

A
litigating party is not obliged to call every person, who may support
his case to testify. The fundamental question in litigation is
whether at the conclusion of the evidence, the party who bears the
onus,
has
discharged that onus
on
a balance of probabilities, and the absence of a witness, for one or
other side, is no more than a circumstance which may be taken into
account when arriving at a decision.

In
this case the absence of any of the witnesses has not played any part
in my thinking. While their evidence, had they testified, may well
have influenced me, their absence has not.

Mr
Pretorius says that a week or three weeks before the auction, this
Mercedes Benz with other vehicles, was taken to Gerry's Auction and
Car Sales, to be sold by public auction.

The
scene now shifts to Gerry's Auctions and Car Sales.

Mr
Rolf Ludwig Vogt was called to testify. This witness said he had been
an auctioneer and car dealer since 1^st
June 1994. He testified that on 8 September 1994, he purchased with
Mr Theo Kleynhans (who was owner of Motor House CC) the business
known as Gerry's Auction and Car Sales and he said he held the firm's
first auction involving motor cars on 15 September 1994.

On
that day Mr Vogt auctioned the Mercedes Benz which features in this
case. He said it was knocked down to Plaintiffs husband, Mr
Griffiths, for N$45 000,00. At first he said he thought that that was
the price but was not certain. Subsequently he said there was a
reserve of N$45 000,00 on the car that it was sold to Griffiths for
that price.

Mr
Vogt said that at auctions, he only sold for cash or bank guaranteed
cheques. He added that where a customer is financed by a bank that
customer usually entered into a hire-purchase, or, instalment sale
agreement, with the bank but that had nothing to do with the
auctioneer. As between the auctioneer and the customer, it would
still be a cash sale but the bank would pay the auctioneer on behalf
of the purchaser whatever was due to him as a result of the sale.

Mr
Voigt recalled that after the Mercedes Benz had been knocked down to
Griffiths the latter had told him that he had already arranged
finance with the Wesbank branch of FNB. After the sale occurred, it
was too late that evening to ascertain from FNB if this were so, but
the following day, Griffiths telephoned Wesbank from his office and
he, Vogt, spoke to Ms Angela Dreyer, a person in the employ of
Wesbank. Obviously,

unless
Ms Dreyer was called to testify and supported Vogt, this evidence by
Vogt of his conversation with Ms Dreyer, lacked probative value and
would be hearsay as between Plaintiff and Defendant.

Mr
Vogt testified that Ms Dreyer said to him "You can give the
customer the vehicle, the hire-purchase is okay. We will give you
your money. You can give the customer the vehicle."

Mr
Vogt who was an excitable and loquatious witness claimed to have
difficulty with the English language and did appear at times to look
for an appropriate word but I have no doubt that he understood the
questions put to him and when he looked for a word, it was as a rule,
merely to enlarge upon an answer.

The
Defendant called Ms Angela Dreyer. She said she had worked for
Wesbank since May 1992 and in 1994 she was a "financing
consultant" and dealt with applications for finance. Her
superior was Mr Johnny Kaufmann who was the manager of Wesbank.

She
explained to the Court the routine followed when a client applies for
financial assistance to enable the client to purchase certain movable
property. A form is completed the client providing relevant
information. Mr Kaufmann would see the form and approve or
disapprove, after Ms Dreyer had verified certain information. The
client and the dealer are then advised that the application for
finance had been approved. The next step is to obtain an invoice
appertaining to the goods being sold and if it is a vehicle the
particulars

of
the vehicle, such as engine number, chassis numbers and the price
obtained for the vehicle, are taken from the invoice. She would then
draw an instalment sale contract (or hire-purchase) and a delivery
receipt.

The
client is then required to sign all these documents and provides the
bank with proof of insurance, his ID number and his drivers licence.
If there is no insurance, the bank can provide such insurance. When
all this is completed the client takes the delivery note from the
bank to the dealer. There he signs the delivery note and removes the
vehicle. The dealer then gives the delivery note duly signed by the
client to the bank and the bank pays the dealer.

Ms
Dreyer remembered that on 13 September 1994, Mr Griffiths filled in a
form and applied for finance. This form was handed into Court.

Therein
he described the vehicle which he wanted to purchase as a Mercedes
Benz 200 and that the supplier or dealer was Gerry's Car Sales. The
price was given at N$50 000 but the trade price was to be N$45 000.
On the document it appears that the client was prepared to pay a
deposit of N$10 000 00. She said she remembered that Griffiths had a
small piece of paper with him and gave her the details from this
paper.

It
was formally admitted by Mr Geier on behalf of Plaintiff that the
deceased had completed the form and applied for finance on 13 ^th
September 1994 and that Mr Kaufmann approved thereof.

It
appears from this document as read with the evidence of Ms Dreyer
that she was under the impression at that stage, that the deceased
was buying the car from "Gerry's Car Sales". Ms Dreyer
testified that she informed Griffiths and Mr Vogt, whom she knew,
that the finance had been approved. This was on the 13^,h
or 14 September 1994. Thereafter, Ms Dreyer says she received an
invoice which was defective. It had written thereon the word
"rebuilt". The policy of the bank in those circumstances
required that the Bank be informed in which respects the vehicle was
rebuilt. She therefore returned the invoice so that it could be
amended. Before doing so she drew up the hire-purchase contract
taking the necessary particulars from the invoice to enable her to do
so. She also drew up the delivery note in anticipation of Griffiths
signing the hire-purchase agreement. The note he would have to take
to the dealer, in this instance the auctioneer, to get delivery of
the vehicle. The delivery note related that the car came from
"Auction Car Sales" not "Gerry's Car Sales". She
said this information she obtained from the faulty invoice. "Auction
Car Sales" was regarded by Ms Dreyer as the business of Mr Vogt
and she must have received the invoice from him because she testified
that "Mr Vogt took it (the invoice) back".

Ms
Dreyer said that she has the authority to tell a client and a dealer
that the vehicle which has been purchased, can be removed from the
dealer's premises by the purchaser, but she says she would not do so
unless all the documents including the hire-purchase agreement or
instalment contract were duly completed and on file. She says she
most definitely did not tell Griffiths nor Vogt, that Griffiths could
remove the vehicle concerned from the premises of Vogt. The
hire-purchase or instalment sale agreement

had
not been signed by Griffiths. He had not brought to her the documents
which he had agreed to bring so that she could finalise the matter
and she had not issued, and given Griffiths a delivery note. This
conflicts with the evidence of Vogt who said she had told him he
could give Griffiths the car and that Griffiths could remove it from
his premises.

At
one stage Ms Angela Dreyer said that FNB did not sell cars by nor
have them sold by public auction. She was not convincing in this
regard. She did, however, say that FNB financed purchasers who had
vehicles knocked down to them at public auctions. Mr Muller conceded
during his argument that the vehicle was knocked down to Griffiths at
the auction on the 15^th
September 1994. It is also common cause that Griffiths never paid
Vogt the purchase price for the vehicle and never completed the
documents with the bank to pay Vogt the purchase price. It is also
common cause that Vogt permitted Griffiths to remove the vehicle on
the day after the auction. In the light of Ms Dreyer's denial that
she authorised the removal of the car, Vogt's statement that he
obtained her permission to permit the removal must be ignored. Ms
Dreyer said that she did telephone Vogt in respect of the car namely
to inform him that finance had been approved. There is evidence that
after the sale she telephoned to his firm in respect of the invoice.
She complained that the invoice recorded that the vehicle had been
rebuilt and she wanted the invoice to be more specific and to state
in what respect it had been rebuilt. It is possible that Vogt
misunderstood Ms Dreyer. There is no doubt that the documentation
concerning the vehicle had not been completed and that if Ms Dreyer
gave Mr Vogt permission as alleged by Mr Vogt, she had no authority
nor the right to do so.

It
is common cause that Griffiths removed the vehicle from the premises
of Gerry's Auction and Car Sales.

Vogt
says that Griffiths wanted to show the car to his wife and wanted to
take it to M&Z Motors for a service. Therefore when Ms Dreyer
told him that Griffiths could remove the car from his premises he had
no objection. To enable Griffiths to drive on the public road he gave
him permission to use his garage number plates as the vehicle did not
have number plates at the auction. Vogt says Griffiths had to return
the vehicle to enable Vogt to get a road-worthy certificate and to
give back the garage number plates.

The
vehicle was not given by Vogt and nor was it received by Griffiths
with the intention of constituting Griffiths the owner thereof.

Where
a sale is for cash, then despite delivery, ownership in the goods
does not pass to the purchaser until the seller has been paid. Where
the sale is a credit sale, ownership passes with delivery. In the
latter case delivery must be made pursuant to the sale agreement with
the intention of constituting the purchaser, owner. Lendalease
Finance Limited v Corp de Mercadeo Agricola 1976
(4) SA 464 (A) at 489G to 490G.

In
deciding whether a sale is for cash or on credit, the sale is
presumed to be for cash unless it is proved that it was on credit.

Laing
v
South
Africa Milling Co Ltd 1921
AD. 387 at 389/399

In
any event, in the present case, Mr Vogt repeatedly said that the sale
was a cash sale. I accept his evidence in this regard. He also said
that it was sold for and on behalf of FNB. I accept his evidence in
this regard too. In any event, the only evidence appertaining to
credit was that of Angela Dreyer and I accept her evidence that the
instalment sales contract providing for credit was never signed and
completed. This instalment sale agreement proclaimed FNB as the owner
and seller but inasmuch as it was not completed, it has no
application to this case.

Furthermore
the vehicle was not handed to Griffiths pursuant to the unsigned and
incompleted instalment sale agreement.

I
believe Ms Angela Dreyer that she did not give Mr Vogt permission to
allow Griffiths to remove the vehicle from his premises.

An
auctioneer is the agent of the seller but he does not have implied
authority to vary the cash transaction once the vehicle is knocked
down at the auction.

Mackeurtan
Sale of Goods in South Africa
5^th
Ed. p. 248 Marcus
v
Stamper
and Zautendjik 1910
AD 58 at 82

SWA
Amalgameerde Afslaers (Edms) Bpk v
Louw
1956
(1) SA 346 (A) at 355 A.

In
any event Vogt does not claim to have done so. Griffiths wanted to
show his wife the vehicle and have it serviced. This was the reason
Vogt gave him the vehicle and permitted him to use his (Vogt's)
garage numbers. Vogt did not intend to vary the terms of the auction
sale and did not do so.

I
am therefore of the view that Griffiths did not acquire ownership of
the vehicle when he removed it, still with Vogt's number plates.

The
uncontroverted evidence of "Jakkals" Pretorius is that the
Mercedes Benz was the property of FNB when he took possession
thereof. This is confirmed by the minute of the Rule 37 meeting.
Pretorius said the vehicle was removed from the premises of Motor
House CC to be sold on auction for FNB. Mr Vogt then had possession
and he said he sold the vehicle for and on behalf of FNB.

Mr
Vogt also testified that shortly after the accident on 22 September
1994 wherein Griffiths was killed, Mr Kaufmann, the manager at the
time of the Wesbank Branch of FNB, sent for him.

It
is hearsay evidence what Mr Kaufmann said to Mr Vogt but Mr Vogt says
he maintained that he was not liable to pay FNB damages but he said
as a gesture and in settlement for several reasons he agreed to pay
the equivalent of the purchase price. He says that he gave Kaufmann
three cheques totaling N$43 000 00, two of them being postdated as
his business had only recently started and he was in need of money
and he wanted time to pay. The purchase price of the vehicle at the
auction was N$45 000 and

Mr
Vogt only paid N$43 000 00. Mr Vogt said he received a reduction from
Mr Kaufmann made on behalf of FNB.

It
is only the owner who can reduce the price of an article unless his
agent has specific or implied authority to do so. The fact that a
reduced price was accepted by FNB, is certainly indicative that FNB
was the owner.

"Where
a number of independent circumstances point to the same conclusion,
the cogency of such evidence increases according to a geometrical
rather than arithmetical progression." (per Leon J in New
Zealand Construction Pty Ltd v Carpet Craft 1976
(1) SA 345 at 350G)

In
this case I have referred to the independent circumstances and all of
them point to First National Bank Ltd as the owner of the vehicle
which Plaintiffs husband drove when he was killed.

During
the case I made the observation to counsel that neither the First
National Bank nor anyone else other than the Motor Vehicle Accident
Fund had been joined. Mr Muller responded by pointing out that relief
is only being asked from the said Fund and that a judgment concerning
ownership was necessary and competent. I accept this.

The
Court was asked to make an order whichever way the judgment went, in
respect of costs incurred not only for this stage but in the various
steps up to this appearance. It was

thereupon
agreed that when this judgment is given, the parties will address the
Court as to costs in respect of the previous appearances. The
judgment in respect of costs of all the other stages therefore stands
over for decision after hearing counsel in respect thereof.

The
order of this Court is therefore:-

4. 
   Ownership
   of the Mercedes Benz 200, N36661W driven by Plaintiffs husband on 22
   September 1994, when Plaintiffs husband was killed, vested at that
   time, in First National Bank Ltd., and First National Bank Ltd was
   the owner thereof as required by Act No. 30 of 1990,

   
   

5. 
   Costs
   of this hearing to be paid by Defendant.