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[2010] ZAWCHC 478
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Leeuw v Dos Santos (A 38/2010) [2010] ZAWCHC 478 (17 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No. A3 8/2010
In
the matter between:
GARY
LOUBSER LEEUW
…..........................................................................................................
Appellant
/ Plaintiff
and
ANTONIO
CANDIDO DOS SANTOS
…....................................................................................
Respondent
/ Defendant
JUDGMENT
DELIVERED ON 17 SEPTEMBER 2010
FITZGERALD
AJ
By
notice dated 7 September 2010, respondents erstwhile attorneys
withdrew as his attorneys of record in terms of Uniform Rule 16(4).
It has been confirmed that respondent is aware thereof and of today's
appeal. There is accordingly no appearance for the respondent
before
us.
In
his particulars of claim in the Magistrate's Court for the district
of Bellville, appellant claimed damages in the amount of
R19 928,28
being the alleged reasonable and necessary costs of repairing his
motor vehicle in consequence of a collision with the
motor vehicle
driven by the respondent.
In
paragraph 4.1 of the request for further particulars appellant was
asked whether the damage to his vehicle was sustained in the
front or
back thereof. In reply to this request respondent was
referred
to the quotation of Bernie's Coachworks which was annexed.
A
perusal of the quotation of Bernie's Coachworks indicates, inter
alia, that a left front door and left rear door were supplied
and
fitted to appellant's motor vehicle.
In
contrast to the supply and fitting of a left front and left rear door
to appellant's motor vehicle -and which involved both labour
and the
supply of parts - the left parking headlamp, left front fender liner,
front bumper and left rear taillight were removed
and refitted but
not replaced.
I
have dealt in some detail with the nature of the repairs set out in
the quotation of Bernie's Coachworks because, during the course
of
the cross-examination of appellant's wife, the driver of his motor
vehicle at the time, it was pertinently put to her that if
indeed the
collision had occurred in the manner postulated by her then no damage
could have been sustained inter alia to the front
bumper of the motor
vehicle.
More
particularly, appellant's wife testified that the motor vehicle
driven by the respondent reversed into the left rear passenger
door
while she was driving past. Appellant's wife was unable to explain in
cross-examination how, if indeed the collision occurred
in the manner
described by her, damage occurred inter alia to the front bumper of
the motor vehicle. Indeed, it was suggested to
her in
cross-examination that the respondent's version of the collision was
that he had already reversed into the road and that
she collided with
the tow bar at the rear of his vehicle. I point out in this regard
that on the version put in cross-examination
it appears that
defendant was probably also not keeping a proper lookout and would,
in those circumstances, arguably be contributory
negligent, inter
alia, on the further ground that he performed an inherently dangerous
manoeuvre by reversing into the path of
oncoming traffic.
In
any event, based essentially on the inability of appellant's wife to
be able to provide any explanation as to how damage was
allegedly
caused to the front of the motor vehicle, the court a quo at the
conclusion of appellant's case granted absolution from
the instance.
The
appellant has appealed the finding of absolution from the instance.
Included amongst the grounds of appeal is the allegation
that:
"5.
Die Landdros het fouteer deur te bevind dat die getuienis van Rykie
Leeuw, die eiser se getuie, in verband met die plaasvind
van die
botsing en waar die impak van die botsing op eiser se voertuig was
ten strydig is met die kwitansie van Bernie's Coachworks".
In
my view there is merit in the appeal.
The
court a quo made reference in its judgment to various authorities
including what is described in the judgment as
Eckhard's
Principles of Civil Procedure in the Magistrate's Court
.
5
th
edition
by T.M. J. Patterson.
In
his judgment upholding the application for absolution the court a quo
stated, inter alia, as follows:
"As
I have already stated, the court has a discretion here and if you
look at what the author Jim J Patterson, if the court
has got a doubt
and cannot determine which party is telling the truth, the court has
to order absolution from the instance".
The
court a quo also expressed the view that it
"should
agree with the representative of the defendant that this dispute
point is not explained away by the plaintiff, since
the plaintiff has
failed to put evidence before this court as to this dispute about the
damage. The court is of the opinion that
there is no prima facie
evidence from the evidence of Rykie Leeuw that the court can state
that it's [sic] prima facie evidence
as far as damage is concerned on
the other parts of the vehicle from the plaintiff's side".
As
is apparent from a mere analysis of the quotation of Bernie's
Coachworks, the repair work relevant to the front of appellant's
motor vehicle was confined to the removal and refitting of certain
parts, including the front bumper. No parts were, however, supplied,
and I infer therefrom that no impact damage to the front of the motor
vehicle occurred.
The
fact that there was also a supply and refitting of both the left
front and left rear door also does not, in any way detract
from the
evidence of appellant's wife that the actual point of impact was on
the left rear passenger door.
Although
she stated that she did not observe any damage in addition to that
sustained to the rear passenger door it is difficult
to accept that
the damage at the point of impact would have been confined solely to
the area representing the left passenger rear
door.
The
approach to be adopted by a court in determining whether absolution
from the instance should be granted at the conclusion of
the
plaintiffs case is well established. In
Gordon
Lloyd Page and Associates v Rivera and Another
2001
(1) SA 88
(SCA) at 92E
Harms
JA with reference to
Claude
Neon Lights
v
Daniel
1976
(4) SA
at
409
G-E
stated
inter alia that
"
| w | he n absolution from the instance is sought at the close of
plaintiffs case, the test
to
be
applied
is not whether the evidence led
by
plaintiff
establishes what would finally
be
required
to
be
established,
but whether there is evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not
should, nor ought
to) find for the plaintiff...".
Applying
this approach, and bearing in mind that in the present matter the
issue of quantum was separated by agreement from the
merits, it does
not seem upon a proper analysis of the quotation of Bernie's
Coachworks that it can be said that there is no evidence
upon which a
court applying its mind reasonably, could or might find for the
plaintiff.
It
may well be in the context of the evidence of quantum that a
representative of Bernie's Coachworks, or some other expert, is
able
to explain why, if indeed there was impact damage to the left rear
passenger door of the plaintiffs vehicle there was also
damage to the
left front passenger door and why, more particularly, it was
necessary to refit but not replace the front bumper.
In
the premises I would recommend that the appeal be upheld and that the
order of absolution granted by the court a quo be set aside.
I
accordingly recommend that the following order be granted:
1.
The appeal is upheld.
The
order of the court a quo granting absolution from the instance is
set aside and replaced with an order that absolution from
the
instance be refused with costs.
The
matter is referred back to the court a quo for the further
prosecution of the trial.
Respondent
is directed to pay the costs of this appeal.
FITZGERALD,
AJ
TRAVERSO,
DJP:
I
agree and it is so ordered.
TRAVERSO, DJP