THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case No: 519/2015

In the matter between:

ABSA TECHNOLOGY FINANCE SOLUTIONS (PTY) LTD
APPELLANT

and

FULELA TRADE AND INVEST 21 (PTY) LTD t/a
CALTEX THE DOWNS SERVICE STATION
FIRST RESPONDENT

PATRICIA NONHLANHLA KHANYILE
SECOND RESPONDENT

Neutral citation:
Absa Technology Finance Solutions v Fulela Trade and Invest
(519/2015) [2016] ZASCA 127 (26 September 2016)

Coram:
Lewis, Shongwe, Swain, Dambuza and Mocumie JJA

Heard:
14 September 2016

Delivered:
26 September 2016

Summary:  Absolution from the instance erroneously granted – no onus to prove
admitted issue – matter remitted to trial court.

ORDER

On appeal from: Gauteng Local Division, Johannesburg (Satchwell J sitting as court
of first instance).

1 The appeal is upheld with costs.
2 The order of absolution from the instance together with the costs order are set
aside.
3 The matter is remitted to the trial court.
4 The appellant is ordered to pay the respondent’s costs in respect of the application
to supplement the record, such costs being limited to those documents of relevance
to the issues contained in the respondent’s amended plea.

JUDGMENT

Swain JA (Lewis, Shongwe, Dambuza and Mocumie JJA concurring):
[1] The hire of a generator by the first respondent, Fulela Trade and Invest 21
(Pty) Ltd, initially from the supplier, Easytech, and thereafter from the appellant,
Absa Technology Finance Solutions (Pty) Ltd, in terms of a Master Rental
Agreement (MRA), gave rise to a dispute which forms the subject matter of this
appeal.
[2] The appellant instituted action in the Gauteng Local Division, Johannesburg
against the first respondent, based upon an alleged failure by the first respondent to
pay rentals when due. A failure by the second respondent, Dr Patricia Khanyile, in
her capacity as surety and co-principal debtor with the first respondent, to make
payment of the rentals when called upon to do so, was also relied upon. The

appellant sought payment of the amount of R296 422,94 in respect of the full amount
outstanding, as well as the return of the generator and its retention by the appellant,
pending payment by the first and / or second respondent.
[3] After hearing the evidence of the parties, the trial court (Satchwell J) stated
that (paras 18 and 21):
‘The MRA was signed on 14th April 2008. However, neither the documentation nor
the pleadings nor the evidence of Maritz [who testified for the appellant] support acquisition
by ABSA of any rights to the generator prior to the signing of the MRA. There is no evidence
that ABSA was the owner of the generator and was entitled to conclude such an agreement
on 14th April – which is the commencement date of the MRA.
. . .
In short, I am not satisfied that ABSA has shown that it was entitled to conclude this MRA
since it has not even attempted to show any intervening agreement with Easytech which
entitled ABSA (instead of Easytech) to hire out or rent the generator to defendants.’
Thereafter it was concluded (para 27):
‘Accordingly, absent discharge of the onus by Plaintiff, I have decided to grant
absolution from the instance.’
[4] The trial court held it was accordingly unnecessary to deal with any of the
defences raised by the respondents. These defences included an allegation that the
true nature of the MRA had been misrepresented to the second respondent, she had
signed the MRA under duress and the respondents were accordingly entitled to be
released from their obligations in terms of the MRA. In addition, it was alleged that
the MRA had been cancelled, because the generator which had been delivered was
not in accordance with the respondents’ requirements. The present appeal is with
the leave of the trial court.
[5] The trial court recognised that its finding that the appellant did not possess
what it termed locus standi to conclude the MRA, had not been pleaded by the
respondents. However, it decided that this issue was fully canvassed at trial and was
a point of law which it was entitled, and indeed obliged, to deal with and decide.

[6] In this the trial court erred. The respondents in their plea admitted that on 14
April 2008 the first respondent entered into the MRA, which was signed by the
second respondent personally and on behalf of the first respondent. The
respondents then sought to be released from their obligations in terms of the MRA,
on the basis of the defences set out above. It was accordingly common cause and
no part of the dispute between the parties, as defined by the pleadings, that the
appellant and the respondents had concluded a binding lease agreement in the form
of the MRA. This was not a case where the respondents failed to plead an inability
on the part of the appellant to conclude the MRA, but one where the respondents
admitted its conclusion with the appellant. The trial court was not entitled to find that
the appellant had failed to prove it was entitled to conclude the MRA, when its
conclusion was common cause between the parties.
[7] The trial court also concluded that there was no evidence that the appellant
was the owner of the generator and therefore entitled to conclude the MRA. Clause 2
of the MRA, however, provides that ownership of the goods vests in the appellant.
Clause 4.4 stipulates that the goods have been acquired by the ‘hirer’ (being the
appellant) at the ‘user’s’ request (being the first respondent) for the purposes of
renting the goods to the first respondent. It was therefore agreed between the parties
that the appellant was the owner of the goods. In any event, property belonging to a
third party may lawfully be let to another. The lessor is only obliged to give the use
and enjoyment of the property let to the lessee, and once this obligation is fulfilled
the lessee is not entitled to question the lessor’s lack of title. 1 The trial court
consequently erred in concluding that the appellant lacked locus standi to conclude
the MRA, because it had not proved it was the owner of the generator.

1  Hillock & another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 (A) at 516E; Boompret
Investments (Pty) Ltd & another v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A) at
351H-I.

[8] It is unfortunate that the parties have been subjected to the expense and
delay of these appeal proceedings, which will not result in a resolution of the dispute
between them. It will be necessary for the matter to be remitted to the trial court for
determination of the issues between the parties. In the absence of any findings by
the trial court as to the merits or demerits of the witnesses which it had the
advantage of seeing and hearing, this court is not in a position to fairly and properly
evaluate the evidence.
[9] As regards the costs of the appeal, there is no reason why the appellant
should not be entitled to its costs. Although the misdirection by the trial court was
obvious, the appeal was opposed by the respondents. The record placed before this
court by the appellant was however incomplete and despite the respondents’ best
endeavours was not rectified by the appellant. This resulted in the respondents
applying for the record to be supplemented, by the inclusion of a further volume
which was granted without opposition by the appellant. In so far as the costs of this
application are concerned, the respondents should be entitled to their costs, but only
in so far as the documents they sought to introduce into the record, were of
relevance to the issues contained in their amended plea. In addition, the Taxing
Master, in taxing the appellant’s costs of the appeal, should have regard to the
incomplete state of the record filed by the appellant.
[10] Regrettably, it is also necessary to comment upon the manner in which the
trial court dealt with counsel during the hearing. The following extracts from the
record are illustrative:
‘COURT: That is not what I asked. I do not think you and I speak the same language. So, I
tell you what, I am not going to ask you anymore questions but it means you do not solve my
problems. I will ask this question once more. Okay, and if you do not understand, ask your
attorney to translate, okay.’
and
‘COURT: I am going to take the adjournment, because otherwise Mr Du Randt I am going to
be very rude to you. Think about it, perhaps ask your attorney, the word is manners,

m-a-n-n-e-r-s. Do you actually finish somebody’s sentence for them when they are speaking
and the answer is no. So I am going to take an adjournment. You can think about yourself.’
A reading of these passages in context reveals that the remarks directed at counsel
were intemperate and unjustified. Although robust questioning of counsel by a
judicial officer may be justified, gratuitous insults are not.
[11] In the result the following order is made:
1 The appeal is upheld with costs.
2 The order of absolution from the instance together with the costs order are set
aside.
3 The matter is remitted to the trial court.
4 The appellant is ordered to pay the respondent’s costs in respect of the application
to supplement the record, such costs being limited to those documents of relevance
to the issues contained in the respondent’s amended plea.

K G B Swain

Judge of Appeal

Appearances:
For the Appellant:

F Bezuidenhout (with I Tshoma) (Heads of
argument prepared by F Bezuidenhout)

Instructed by:

Jay Mothobi Inc, Johannesburg

E G Cooper Majiedt Inc, Bloemfontein

For the Respondent:

W H Pocock

Instructed by:

Fluxmans Inc, Johannesburg

Lovius Block, Bloemfontein