Court name
High Court
Case number
159 of 2012

Slabbert Burger Transport (Pty) Ltd v Autotech Truck and Coach CC (159 of 2012) [2012] NAHC 229 (10 August 2012);

Media neutral citation
[2012] NAHC 229
Miller AJ

NO.: A 159/2012


the matter between:






on: 24July 2012

on: 10 August 2012


MILLER, AJ.: [1] This
matter was heard by me on 24 July 2012, as one of urgency. The
applicant in its Notice of Motion seeks the following relief:

    1. Condoning the applicant’s failure
      to comply with the Rules of this Honourable Court relating to
      forms, service and time periods and permitting this matter to be
      heard as one of urgency in accordance with the provisions of Rule 6

    2. The respondent be ordered to forthwith
      restore to the applicant its peaceful and undisturbed possession of
      the vehicles, to wit-

  1. A Volvo mechanical horse, with
    registration number 256 SBHGP, and

  2. Two interlink trailer combinations with
    registration number 221 BLGP and 222SBLGP respectively.

    1. The respondent be ordered to pay the
      costs of this application, including those costs occasioned by the
      employment of one instructing and one instructed counsel.

    2. Further and/or alternative relief.”

[2] At the conclusion of the hearing I
issued the following orders:


  1. The applicant’s failure to comply
    with the Rules of this Honourable Court relating to forms, service
    and time periods and permitting this matter to be heard as one of
    urgency in accordance with the provisions of Rule 6 (12) (a) is
    hereby condoned.

  2. The relief claimed in paragraph 1.2(b)
    in the Notice of Motion is granted.

  3. Judgment on the remaining relief is
    reserved until 13 August 2012 at 10h00.”

[3] Paragraph 2 of the order was made by
agreement between the parties.

[4] What remains for determination are
prayers 1.2(a) and 1.3.

[5] The matter has its origin in a motor
collision which occurred at about 21h00, on the evening of 05 July
2012. The collision occurred on a stretch of road between the town of
Tsumeb and Oshivelo. The applicant’s mechanical horse with
registration number 265 SBH GP, become damaged in the collision to
the extent that the driver thereof was unable to continue his

[6] Consequently, the mechanical horse
and the two trailers it was hauling to which I shall refer to as “the
vehicle” remained at the scene of the collision with the driver
of the vehicle in attendance. Whether or not it was stationary in a
position which partially obstructed the road or not is in dispute
between the applicant and the respondent.

[7] On the version of the applicant the
vehicle came to a standstill at the side of the road causing no
obstruction. The respondent claims that the vehicle was partially
obstructing the road thus constituting a danger to other road users.
I shall return to this issue at an appropriate time to the extent
that it is necessary to resolve it.

[8] It is not in dispute that at some
later stage during the course of the evening employees of the
respondent arrived on the scene, and removed the applicant’s
vehicle to the respondent’s business premises in Tsumeb where
they remained.

[9] Efforts on the part of the applicant
to secure the release of the vehicle were resisted by the respondent,
who claimed that it removed the vehicles on the instructions and at
the request of the applicant’s driver. Consequently so the
respondent reasoned it had acquired a right of retention and was
prepared to release the vehicle upon payment of the towing costs and
storage fees. The stance adopted by the respondent appears from an
e-mail the respondent send to the applicant on 17 July 2012. I will
refer only to certain excerpts from it; in the form it was drafted.

It is real simple: Your client
failed to cover the recovery cost and services which was tendered.

Also verify yourself of the terms
“retention” before jumping to conclusions or imposing
threats which you can not apply. This create expectations with your
client which may have dire consequences. Come back to business
ethics, and comply with the industries demand, settle what you owe,
and collect and go!!

On evening of 5 July 2012, we was
dispatched to town in accident involved truck of S-your client.”

The next day he called my
assistant and informed him that a truck is on the way and close by to
collect trailer and truck. Upon this my assistant replied that he
must provide proof that the tow-in account was settled and we need to
see funds reflecting on our account before any item may be released.”

This was after another company
was called out to the scene, which could not do the job for they
didn’t possess the proper equipment in size and ability for the

Bottom line; We was dispatched
as per protocol, tendered a service, excellent so, with the drivers
consent, and other parties on the scene, and nobody objected at that
time. Even the next morning Bruwer told me nothing that they did not
approve or required the service, and ask that I can submit the
account to him for payment.”

Also be inform them that all
items is subject to a storage charge of NAD200,00 per day until the
account is settled and the items removed. All additional movement
with equipment will charge on subsequent and applicable rate.”

[10] To this the respondent raises a
further two points on the papers. The first of these is a submission
made by Mr. Mouton, who appears for the respondent, that the
applicant was no longer in peaceful and undisturbed possession of the
vehicle consequent upon the collision: As a further string to its
bow, it was argued that the respondent was on the facts a negotiurom
. Both submissions have as their common springboard, the
allegation made by the respondent that as a result of the collision,
the vehicle of the applicant constituted a danger to other road users
of the road. As I indicated this fact is denied by applicant. The
probabilities favour in version of the applicant. It appears from the
papers that prior to the respondent arriving on the scene, members of
the Namibian Police had attended the scene, and having done so
departed and instructed the driver of the vehicle to come to the
police station the next day. It strikes me as improbable that they
would have done that if the vehicle had indeed constituted a danger.
On this issue I find in favour of the applicant.

[11] A finding in favour of the
respondent will in any event not have made any difference. The mere
allegation of fact that the vehicle partially obstructed the road,
without more, does not mean that the applicant lost undisturbed
control and peaceful possession of the vehicle. It would have been
more inclined to consider that the applicant lost peaceful possession
if the evidence established for instance that the police had taken
control of the scene and the vehicle in view of the danger the
vehicle’s position on the road posed. There is, however nothing
to that effect on the evidence.

[12] The allegations relating to
negotiurom gestio are an afterthought. The respondent’s
e-mail I referred to earlier does not seek to rely on such a
principle. Nor do the facts support it. If as was contended, the
respondent was a negotiurom gestor intent to protecting the
applicant’s vehicle which obstructed the road, the question
remains why it became necessary, not only to remove the danger, but
instead to tow the vehicle some 40 kilometres to the safety of the
respondent’s premises.

[13] I find that this defence likewise
must be dismissed.

[14] It remains to consider whether the
respondent has a right of retention. The respondent bears the onus of
proof. In Warthog Logistics v Autotech Truck and Coach CC 2011
TDR 0872 (Nm), Damaseb JP
held the following:

The applicant bears the legal and
evidential onus, on balance of probabilities to (1) establish that it
was in peaceful and undisturbed enjoyment of the subject vehicles and
that (ii) same was forcefully removed by the respondent. The
respondent bear the legal and evidential onus in respect of the
improvement lien they rely on to justify the retention of the subject

[15] It is the respondent’s case on
this score that it was instructed to render its services. In
paragraph 16.3 of the answering affidavit it puts its case as

It is in any event submitted that
the driver of the applicant’s truck at the time requested
specialized equipment to have his truck and trailers removed as the
breakdown then present at the scene of the accident i.e. Auto Worx
Panelbeating & Breakdown CC and more specifically a certain
Herman Carstens was unable to perform such specialized duties and
services at the time.”

[16] The respondent’s case is less
clear where Mr. Arangies states the following:

The respondent avers that the
Applicant or some entity on its behalf, being the driver of the
Applicant’s truck at the time and a certain Mr. Herman Carstens
from Auto Worx Panelbeating & Breakdown CC who was at the scene
of the collision at the time, requested the Respondent on the 5
of July 2012 to assist and to tow the Volvo mechanical horse bearing
registration letters and numbers 221SBLGP along with two trailers
bearing letters and numbers 221SBLGP and 222SBLGP from the scene of
the accident to the yard of the respondent in Tsumeb.”

[17] There is a sharp conflict of fact on
this issue. The driver of the vehicle denies having requested or
instructed the respondent to render the services. The applicant
points out that it was standing policy to the knowledge of the driver
that he could not give any such instructions. In addition there is
evidence that the applicant’s Mr. Moerat, had given
instructions to the driver that the latter should stay with the
vehicle at the roadside until the next morning.

[18] On the papers and the probabilities
I consequently am of the view that the respondent fails to discharge
the onus and in the result I make the following additional orders:

  1. I grant prayer 1.2 (a) of the Notice of

  2. The respondent is ordered to pay the
    applicant’s costs on the basis of one instructing and one
    instructed counsel.




INSTRUCTED BY: Francois, Erasmus &


INSTRUCTED BY: Meuller Legal