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[2010] ZAWCHC 156
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Van Almeniekerk v Stanmar Motors (Pty) Ltd (7244/2010) [2010] ZAWCHC 156 (11 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
7244/2010
DATE
:
11
JUNE 2010
In
the matter between:
ABRAHAM
JOHANNES VAN ALMENKERK
Plaintiff
and
STANMAR
MOTORS (PTY) LIMITED
Defendant
JUDGMENT
LOUW,
J:
In
this matter I am in a position to give more or less a ex
tempore
judgment
and, having come to the end of the circuit today, I will, therefore,
proceed to do so. During 2007, the plaintiff, Mr Almenkerk,
who is a
Belgian national and who lived in Plettenberg Bay at the time, bought
two luxury motor vehicles from the defendant, Stanmar
Motors (Pty)
Limited in George. These sales were negotiated and concluded by the
plaintiff in person and a Mr Jannie Gericke on
behalf of Stanmar.
These were oral agreements.
Arising
from these transactions, the plaintiff claims R200 000 from Stanmar
in respect of the first sale and Stanmar claims R21
000 from the
plaintiff in respect of the second sale.
The
plaintiff concluded an agreement in regard to the first vehicle, a
Mercedes Benz S65L AMG (the S65) on 26 March 2007. Pursuant
to this
agreement, the S65, which was available for sale from Daimler
Chrysler and had already been manufactured in Germany with
certain
non-standard extras, was ordered for the plaintiff at the total
price of 1,74 million (inclusive of VAT).
The
dispute about the purchase of the S65 concerns the amount to be
allocated to the vehicle traded in by the plaintiff on the
S65. This
trade-in vehicle was a 2003 model Mercedes Benz S55 AMG (the S55),
which the plaintiff had bought from Stanmar in 2003.
The S55 was
serviced throughout by Stanmar. At the stage at which the vehicle
was traded in, it had done approximately 100 000
kilometres. The new
vehicle, that is the S65, arrived at Stanmar's premises in George on
5 June 2007. The plaintiff, who testified,
was adamant that he would
not take delivery of this vehicle before the issue of the value of
the trade-in of the S55 was "set".
The
plaintiff and Gericke discussed the issue telephonically and on 18
or 19 June 2007, Gericke said, according to the plaintiff,
that the
plaintiff should bring the S55 in that they would then "make a
plan". Gericke testified that a price on the
trade-in could not
be made until Stanmar's second-hand department had viewed the
vehicle. The S55 being an AMG model, which is
considered to be an
exotic vehicle, did not have a "book value". The
second-hand department would, so Gericke testified,
canvass dealers
across the country to arrive at a trade-in price, which would also
finally depend on the condition of the vehicle
itself.
It
must be borne in mind that Stanmar would have to resell the vehicle
in order to recoup the trade-in value allocated to the
vehicle.
Gericke was not part of the second-hand department. He was involved
only in the sale of new vehicles. He would, therefore,
rely on the
expertise of the second-hand department in determining the trade-in
price to be allocated to a traded in vehicle.
That was his evidence.
The
plaintiff departed for overseas from the George Airport on 20 June
2007. His then wife, Ms Coulier, who testified on his behalf,
brought him to the airport on that day. On their way to the airport,
they went to Stanmar's premises in George, where they saw
the new
vehicle, the S65, and met with Gericke. It is common cause that at
this meeting it was agreed that R300 OOO would be
allocated to the
trade-in of the S55 and that plaintiff would pay the balance of the
total purchase price of 1,74 million, amounting
to 1,44 million in
cash by way of four electronic transfers from Belgium (this was
necessitated by the fact that plaintiff had
a cap of R500 000 on
electronic transfers per transaction).
Over
a period of a couple of days in June 2007, the plaintiff who had
left for Belgium, duly made the required payments on 21,
22, 23 and
25 June 2007. It is furthermore common cause that while the
plaintiff was overseas, he was requested telephontcally
by Gericke
to pay a further amount of R19 000 in respect of the S55, in order
to do minor repairs on that vehicle and for its
"beautification".
This amount was duly paid by the plaintiff. Gericke explained that
this was the usual arrangement
when a vehicle is traded in at a
price and it is then referred to as "less to pay", in
other words a value is allocated
less an amount to be paid in order
to repair the vehicle and render it fit for resale.
The
S55 was finally sold by Stanmar during August 2007 for R307 000. The
dispute concerning the purchase of the S65 is then as
follows. The
plaintiff testified that he had agreed with
Gericke,
that the S55, that is the trade-in vehicle, would be sold by Stanmar
for between R500 000 and R550 000 and that on the
vehicle being sold
for that price (which would be at least R500 000), Stanmar would pay
the balance above the R300 000 already
allocated to the purchase
price of the S65 to the plaintiff.
The
plaintiff testified that the agreement was arrived at in this manner
in order to assist Stanmar, who could not "carry"
the
reduction of the cash component of the purchase price to the full
extent of R500 000 before S55, that is the trade-in vehicle,
was
sold. It was, therefore, agreed, he testified, that the initial R300
000 was to be allocated to the purchase price and that
once the S55
is sold, the balance of R200 000 or more, would be paid into the
plaintiff's bank account. The plaintiff consequently
claims the
payment of R200 000 from Stanmar on this basis.
Mr
Gericke, who has been a motor vehicle salesman at Stanmar for 42
years, vehemently denied that such an agreement was concluded.
He
stated that it was completely unusual and unlikely that he, as a
motor vehicle salesman, would agree to a repayment by the
dealer in
cash in the circumstances alleged by the plaintiff. It would amount,
he stated, to first receiving R200 000 from the
plaintiff and then
repaying a portion of the purchase price. Mr Stan Karandis, who is
presently Stanmar's sales manager and who
was a colleague of Gericke
at the time, also testified that such an agreement was most unusual.
They both explained the way in
which Stanmar dealt with the value to
be placed on trade-ins. They pointed out that the S55, being an AMG
model as I indicated
earlier, was an exotic model and did not have a
book value. That is a price at which the trade would buy-in and
resell a particular
model of car.
The
onus rests on the plaintiff to prove the terms of the agreement he
relies on for the relief he seeks. Both the plaintiff and
his wife,
who was present on the occasion when the plaintiff visited Mr
Gericke on 20 June 2007, that is on the day that he left
for
Belgium, testified that Gericke said that the S55 would be sold for
R500 000, but that he would try for R550 000. 500, trying
for 550,
as Ms Coulier put it. It is common cause that when the plaintiff was
told by Gericke, subsequent to the sale of the
S55, that it had been
sold for only R307 000, he was furious and extremely upset and
berated Gericke with extreme language in
a loud voice. This incident
caused quite a commotion at Stanmar's premises, and Karandis, who
heard the commotion, came from
elsewhere in the building to
investigate and tried to pacify the plaintiff, who was extremely
upset.
It
is clear in my view that the plaintiff genuinely believed that he
had an agreement he contended for and that Stanmar had reneged
on
the agreement he believed he had with it. He believed, he said, from
inquiries made by him, that the S55 was worth at least
R500 000 and
that it could be sold for that price at least.
Now
Mr Gericke who, as I say, denied that he concluded such an
agreement, was a hesitant, but also incautious witness. He had
to
backtrack during his evidence on a number of aspects. Mr
Van
der Berg
,
who appeared for the plaintiff, submitted that Mr Gericke was an out
an out liar. I am satisfied, however, having seen Mr Gericke
give
his evidence, having listened to him and seen him in chief and under
cross-examination that he is an essentially honest
person and I
believe his evidence that he would not have concluded the agreement
contended for by the plaintiff.
It
is common cause that the vehicle, that is the S55, was only brought
in to Stanmar by Ms Coulier, on 27 June 2007, that is a
week after
the plaintiff had departed for overseas and the agreement was
concluded in terms whereof R300 00 was allocated to
the trade-in. By
the time the vehicle was brought in, the plaintiff had already paid
the balance of the purchase
price.
The way in which Stanmar's system of trade-ins worked, in my view,
excluded the kind of agreement contended for by the
plaintiff. In my
view Gericke did not intend to bind Stanmar to the agreement
contended for by the plaintiff.
It
is, therefore, in my view, clear that there was no actual
consensus
between
the parties in the subjective sense on the terms contended for by
the plaintiff. However, the absence of
consensus,
and
given the plaintiff's honest belief that the agreement regarding the
price of the S55 he contended for, had been concluded,
may
nevertheless constitute an agreement, despite as I say that there is
no actual subjective
consensus
between
the contracting parties.
The
question is whether on an application of what is referred to as the
reliance theory and the principles set out in a number
of cases, a
contract did not, nevertheless, come into existence despite the fact
that there was no actual
consensus
between
the parties. I have already referred to my impression of Mr Gericke
as a witness. He is essentially, as I have said, an
honest man, but
he clearly has a tendency to say things he does not really intend to
vouch for. There are a number of examples
in his evidence. The
circle and question mark on Exhibit A34, is an example. Mr Gericke
attributed this circle and question
mark to Mr Bauer, only to
retract once it appeared that it was the plaintiff's attorney, who
had annotated the document.
The stamp "posted" on the same
document is another example
On
the evidence of both the plaintiff and Ms Coulier, Mr Gericke said
that he would sell the S55 for R500 000, trying for R550
000. I
accept their evidence. It appears to me that this is a case of Mr
Gericke not wishing to be confrontational in view of
the plaintiff's
strong view that the S55 could be sold for more than R300 000. He
went along, so it appears to me, with the plaintiff's
demand that it
be sold for no less than R500 000 He was, however, clearly not in a
position to give a warranty and to bind Stanmar
contractually to
that price. Nor did he, as I have said, intend to do so.
The
outward appearance was, however, created that he was consenting to
such a contractual term on Stanmar's behalf. In
Sonap
Petroleum SA (Ptv) Limited v Pappadoqianis
1992(3) SA 234, the Supreme Court of Appeal considered the kind of
situation that we have in this case. At 238I to 239A, the
following
is said by
Harms
.
AJA, as he then was:
"The
law as a general rule concerns itself with the external
manifestations and not the workings of the minds of the parties
to a
contract.
South
African Railways & Harbours v National Bank of SouthAfrica
Limited
1924 AD 704
at 715-16 However, in the case of an alleged
dissensus,
the
law does have regard to other considerations. It is said that in
order to determine whether a contract has come into being,
resort
must be had to the reliance theory. Compare Saambou Nasionale
Bouvereniging v Friedman 1979(3) SA 978A at 995-6 and Revneke
&
Van der Merwe 1984 (T) SAR 290."
Further
down to 239I to 240B, the following is said:
"In
my view, therefore, the decisive question in a case like the present
is this, did the party whose actual intention did
not conform to the
common intention expressed, lead the other party, as a reasonable
man, to believe that his declared intention
represented his actual
intention? Compare
Corbin
on
Contracts
,
1 Volume Edition 1952 at 157. And to answer this question, a
threefold inquiry is usually necessary, namely firstly, was there
a
misrepresentation as to one party's intention? Secondly, who made
that representation and thirdly was the other party misled
thereby?
"
The
court then refers to two earlier decisions of that court and
continues:
"The
last question postulates two possibilities, was he actually misled
and would a reasonable man have been misled?"
The
test involves both a subjective and objective element. The first is
whether the plaintiff was subjectively misled as to Gericke's
intention to bind Stanmar. The second is whether, if this was the
case, a reasonable person in his position would have been so
misled.
The latter is then an objective test. I will accept for the purposes
of this judgment that the plaintiff was misled as
to Gericke's
intention to bind Stanmar. I do, however, not believe that a
reasonable man in his position would have been so misled.
It
would have been clear to a reasonable person that Gericke was
discussing the trade-in of a vehicle which he had not seen, in
the
sense that it had been evaluated internally by Stanmar for resale.
There was no book value on this vehicle. Although Gericke
had asked
for the vehicle to be brought in for evaluation, it had not been
done by the time the plaintiff left for overseas on
20 June 2007. In
my view the reasonable person would not have accepted that Gericke
intended to bind
Stanmar
to a trade-in value of at least R500 000 In my view there would have
been a real doubt in the mind of the reasonable person
that Gericke
intended to bind Stanmar to a price of at least R500 000.
At
page 241A-C in
Sonap
's
case, the following is said:
"One
has then to determine whether the misrepresentation had any effect,
i.e. whether the respondent was misled thereby.
If he realised, or
should have realised as a reasonable man, that there was a real
possibility of a mistake in the offer, he
would have had a duty to
speak and to inquire whether the expressed offer was the intended
offer."
The
court refers to a number of authorities and then continues with a
quote from
De
Wet & Yeats
:
Kontraktereq
& Handelsreq
4
th
Edition at 10. where the following is said:
"Verder
bestaan daar geen gegronde rede waarom iemand deur 'n verklaring
verbind moet wees indien die ander moes geweet het
of vermoed het
dat eersgenoemde waarskynlik nie bedoel het wat hy gese het nie."
The
conclusion to which I come on this leg of the case, is that the
plaintiff has not discharged the onus resting on him to prove
the
terms of the contract he relies upon.
I
turn to the sale of the second vehicle. This is a contract which was
concluded on 31 July 2007. The plaintiff and Ms Coulier
visited the
premises of Stanmar in George. The plaintiff wished to purchase a
vehicle for his then wife. They test drove a Mercedes
Benz ML
vehicle. It had a built in GPS navigation system which appealed very
much to Ms Coulier. They returned to the showroom.
They did not want
to purchase the ML model, but wanted a GL500 Mercedes Benz. There
was one of these vehicles on the floor. It
is not clear whether it
was new or second-hand. The plaintiff and Ms Coullier sat in this
vehicle. It also had a built in navigation
system.
When
I refer to a built in navigation system, I mean a navigation system
which was built in at the time of the manufacture of
the vehicle in
Germany. The vehicle GL500 appealed to Ms Coulier, this is now the
GL500 which was on the floor, but it was the
wrong colour for her.
They then sat down with Mr Gericke. It is common cause that they
told Mr Gericke that the plaintiff wanted
to purchase a new GL500
and that they specified the colour Ms Coulier wanted. It is also
common cause that they told Mr Gericke
that Ms Coulier was impressed
with the factory fitted GPS system she had seen in both the other
vehicles, that is in the ML they
test drove and the GL500 on the
floor.
Mr
Gericke then looked on the system to see what vehicles were
available in that class. He found a GL500 with the correct colour.
He also noticed that it had two extras factory fitted, namely
privacy glass, which is another word for tinted windows, and a
cell
phone kit. It is not clear whether Gericke saw that it was not also
fitted with a GPS navigation system. What is common
cause, however,
is that he did not tell the plaintiff and Ms Coulier that the
vehicle which he had found, was not fitted with
such a system. The
vehicle was then ordered for the plaintiff at a price of R810 000,
which is the standard price for the model.
The
vehicle was in due course delivered to the plaintiff's wife. The
vehicle did not have a factory fitted GPS navigation system.
The
plaintiff was overseas at the time and on his return, Ms Coulier
complained to him about the absence of the navigation system.
The
plaintiff then took the matter up with Mr Gericke and insisted that
he had purchased the vehicle with a fitted GPS system.
I pause to
mention that at the same time he also raised the issue of the R200
000 on the sale of the
S55
Stanmar
has pleaded that once the issue of the missing GPS was raised, an
agreement was then concluded in George between Gericke,
on behalf of
Stanmar, and the plaintiff personally, that Stanmar would order and
install a navigation system and that they would
share the cost of
R50 000 by the plaintiff paying R21 000 and Stanmar R29 000. The
cost of R21 000 was arrived at, because that
is what it would have
cost had the vehicle been ordered with a navigation system and it
was installed in the factory in Germany.
Installing the system
afterwards, the evidence discloses, costs considerably more, in this
case, R50 000.
The
evidence by both Gericke and Karandis on behalf of Stanmar is,
however, that the agreement was concluded between Karandis
on behalf
of Stanmar and the plaintiff, and that this agreement was concluded
in Plettenberg Bay when Karandis went to the plaintiff's
home to try
and resolve the matter. According to Karandis, he discussed the
issue of the funding of the GPS and if I understood
his evidence
correctly, he contends that an agreement to share the costs was then
arrived at. The plaintiff denies that such
an agreement was
concluded.
In
my view Stanmar has not discharged the onus of proving the agreement
it relies upon. The evidence shows that plaintiff and
Ms Coulier
wanted to purchase a GL500 with a factory fitted GPS. Mr Gericke
could have been under no illusion as to what they
wanted. Gericke
did not inform the plaintiff and Ms Coulier that he was ordering a
vehicle without a fitted GPS system. Ultimately
Stanmar delivered
the vehicle without the system. I have no doubt that on the
principles discussed earlier, a contract came into
existence for the
sale and delivery of a vehicle with a fitted GPS navigation system.
Stanmar was, therefore, in breach of this
contract.
Gericke
and Karandis attempted to salvage the position. In fact Karandis
first offered a non-fitted navigation system (a Garmin).
This was
roundly rejected by the plaintiff. Then Stanmar attempted the
solution of sharing the cost of installing the factory
navigation
system. Not surprisingly plaintiff rejected this suggestion. The
contract upon which Stanmar relies, was consequently
not concluded.
It follows that the counterclaim cannot succeed.
I
turn to the costs of the action. Plaintiff was unsuccessful in his
claim, but so was Stanmar with its counterclaim. The two
claims were
heard together and the witnesses who testified did so on both
claims. Although the claim in convention was of a
far larger
amount, it is, in my view, not practicable to attempt to separate
the costs of the two claims. In my view a fair and
just solution
regarding the costs would be for the parties to pay their own costs.
It is consequently ordered that:
The
plaintiff's claim in convention for R200 000 is
dismissed.
The
defendant's counterclaim for the payment of R21 000 is dismissed.
The
parties are ordered to pay their own costs.
LOUW,
J