AFRICAN DISTILLERS LTD v MATABELELAND TRACTOR SERVICES (PVT) LTD 1997 (2) ZLR 503 (S)

Flynote

Sale — cancellation — property of a third party — third party claiming restitution — whether buyer obliged to put up vigorous defence before being allowed to recover from seller

Headnote

The appellant bought a motor vehicle from the respondent. An employee of the appellant drove the vehicle to South Africa, where it was impounded by the police because it had been stolen in South Africa some years earlier. The appellant claimed the return of the purchase price from the respondent, which raised the defence that the appellant had failed to conduct a virilis defensio, that is, to resist strongly the true owner's claim.

Held, that, whatever may have been the position under the Roman law, the law today is that the buyer is not obliged to put up any, let alone a vigorous, defence against the true owner on pain of being unable to recover from the seller. If the true owner's claim is shown on a balance of probabilities to be good, a virilis defensio would achieve nothing. As the facts in this case showed that the true owner's claim was clearly good, the appellant was entitled to succeed.