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[2010] ZAGPPHC 200
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Barloworld Motor Retail South Africa a division of Barloworld South African (Pty) Ltd Formerly registered as Barloworld Motor (Pty) Ltd t/a Barloworld Toyota Witbank v Prellex 169 CC t/a Motiq Wash and Valet Centre (44839/2009) [2010] ZAGPPHC 200 (18 November 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
No. 44839/2009
DATE:
18/11/2010
BARLOWORLD
MOTOR RETAIL SOUTH AFRICA
a
division of BARLOWORLD SOUTH AFRICAN
(PTY)
LTD formerly registered as BARLOWORLD MOTOR (PTY) LTD t/a
BARLOWORLD
TOYOTA
WITBANK
....................................................................
Plaintiff
and
PRELLEX
169 CC t/a MOTIQ WASH AND VALET
CENTRE
..........................
Defendant
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
In this matter the Plaintiff, Barloworld Motor Retail South Africa,
claims, in addition to the usual order of costs, from the
Defendant,
Prellex 169 CC, trading as Motiq Wash and Valet Centre -
(a)
payment of a sum of R210 141,50, being the value of a motor
vehicle delivered to it in terms of a contract of deposit;
(b)
interest on that amount at the rate of 15,5 per cent per annum from
date of service of the summons to date of payment.
[2]
As is apparent from Plaintiff's Particulars of Claim its case is base
on the allegation -
(a)
that
on 29 December 2006 it, represented by a certain Mr. Fourie, entered
into an agreement with the Defendant, duly represented,
entered into
an agreement on 29 December 2006;
(b)
that
in terms of the agreement the Plaintiff deposited with the Defendant
a Toyota Hi Lux double cab (
"the
vehicle")
to
be kept by the Defendant pending a valet service to be effected upon
the vehicle by the Defendant;
(c)
that
the Defendant would take care of the vehicle and redeliver it to the
Plaintiff upon request;
(d)
that
the Plaintiff did not take care of the vehicle and failed to deliver
the vehicle to the Plaintiff upon request on 29 December
2006.
[3]
As is apparent from the Defendant's plea it would appear to be the
Defendant's case that the terms of an oral agreement concluded
between the Defendant, as represented by a certain Mr. David Lundt,
and the Plaintiff, represented by a certain Mr. Jack van Rensburg
-
(a)
the
vehicle was delivered to the Defendant for a valet service:
(b)
the
Plaintiff will see to the delivery and pick up of the vehicle in
question and the risk of theft and damage will be for the Plaintiff;
(c)
the
vehicle was collected by an unknown employee of the Plaintiff from
Plaintiff's place of business.
Evidence
on behalf of the Plaintiff
[4]
Two witnesses testified on behalf of the Plaintiff.
[5]
Firstly
,
there
is the evidence of Mr. Jackie Roy van Rensburg who was at the time
the General Manager of the Plaintiff.
He
testified that he. on behalf of the Plaintiff, concluded an oral
agreement with a certain Mr. Lundt on behalf of the Defendant
in
terms of which the Defendant would render valet services in respect
of new and used vehicles sold by the Plaintiff to its customers
before delivery of such vehicles to its customers. He concluded the
agreement on the assurance by Mr. Lundt that the Defendant
was
insured against damage or theft of vehicles delivered to it for valet
services. It was, furthermore, agreed that vehicles would
be
delivered to the Defendant together with a written official order.
On
29 December 2006 the vehicle in question, having been sold to a
customer, was in the course of the morning delivered by the
Plaintiff's driver, Mr. Sipho Mavimbela, together with the agreed
official order, to the Defendant for valet services.
When
Mr. Mavimbela returned to the Defendant's place of business some
three hours later to collect the vehicle he was informed by
the lady
at reception that the vehicle had already been collected by another
unknown employee of the Plaintiff. A thorough search
of the premises
of both the Plaintiff and the Defendant revealed that the vehicle was
missing, in all probability stolen.
It,
furthermore, appears from the evidence that vehicles were from time
to time delivered and collected by different drivers employed
by the
Plaintiff all dressed in a short bearing a prominent logo of Toyota.
Mr.
Van Rensburg indicated that he was not aware or was his attention
drawn at the time of the conclusion of the agreement to a
disclaimer
or exemption displayed at the Defendant's premises to the effect that
the Defendant does not accept responsibility for
loss or damage to
motor vehicle from fire, theft or any cause whatsoever.
[6]
Secondly
,
there
is the evidence of Mr. Sipho Mavimbela who confirmed that he had
delivered the vehicle in question to the Defendant's premises
and
that when he later returned to collect the vehicle he was informed by
the lady at reception that the vehicle had already been
collected by
another employee of the Plaintiff. He also confirmed that he was not
the only driver responsible for the delivery
and collection of
vehicles to and from the Defendant.
He,
furthermore, denied that he had ever seen a disclaimer in or at
premises of the Defendant.
Defendant's
evidence
[7]
Firstly
,
there
is the evidence of Mr. David Jansen Lundt who was at the time a
member and owner of the Defendant, who ceased doing business
during
2008.
According
to him he couldn't remember whether any discussions took place
between him and Mr. Van Rensburg on the question whether
the
Defendant was insured against damage to or theft of vehicles of
customers.
He,
however, confirmed that they during June or July 2006 discussed the
prices to be charged for the services to be rendered.
The
procedure to be followed was that the Defendant would be approached
with an official order at the time a vehicle was delivered
for valet
services together with the keys.
Furthermore,
he testified that a disclaimer notice was displayed above the door at
the reception area within view of all customers
to read.
[8]
Secondly
,
there
is the evidence of Ms. Natasha Venter who was at the time employed by
the Defendant at the reception desk as cashier responsible,
inter
alia,
for
the receipt of vehicles delivered to be washed.
She
confirmed that the vehicle in question was delivered by a driver of
the Plaintiff on 29 December 2006 and that another driver
later
collected the vehicle. She recalled specifically that he identified
the keys which were hanging against the wall amongst
the keys of
other vehicles that had been delivered on that day for valet
cleaning. He had a shirt on bearing the Toyota logo. She
was aware of
the fact that the driver who delivered the vehicle was, as often
happens, not the same person who delivered te vehicle.
[9]
Thirdly
,
there
is the evidence of Mr. Jan Adriaan Conradie who is currently employed
by a business called Tiger Wheel and Tyre conducting
business next to
the premises where the Defendant used to conduct its business. He
confirmed that he took a photograph of a disclaimer
notice situated
in the are which used to be the work area of the Defendant.
Issues
called for adjudication
[10]
As it became apparent in the course of argument, it appeared that the
only basis on which the Plaintiff based its claim solely
on the
principles applicable to contracts of deposit is, leaving aside the
issues pertaining to the disclaimer and the Defendant's
insurance.
[11]
A contract of deposit has been held to be a contract"...
whereby
one person delivers to another a thing to be kept by him gratuitously
or for reward"
and
undertakes to take care of the thing and to restore it on demand
(see:
Minister
of Posts & Telegraphs v Daddy Bros and Johnstone (Pty) Ltd
1965
(3) SA 394
(E) at 396B-D;
LAWS
A, The Law of South Africa, Second Edition, Volume 8, Part 1, para
174),
[12]
It is trite that a depositary is, because of the duty imposed upon
him or her to keep the property under his or her control,
to preserve
it, and in due course to restore it intact,
prima
facie
liable
to compensate the depositor for the loss of or damage to the property
left with him by the depositor unless he or she proves
that he or she
took all reasonable care of the property which the circumstances
demanded, but that it was lost or damaged in spite
of his or her
diligence (see:
Govt
of the RSA (Department of Industries) v Fibre Spinners & Weavers
(Pty) Ltd
1977 (2) SA 324
(D) at 331D)
[13]
In this matter the evidence shows that by virtue of the agreement
concluded between the Plaintiff and the Defendant vehicles
were in
practice delivered by one or other of Plaintiff's employees to the
Defendant together with an official order for valet
services and were
later collected by the same or any other employee. These employees
seem always to be identified by way of a shirt
bearing the Toyota
logo.
[14]
This is exactly what happened on this particular day. The Plaintiff's
employee. Mr. Sipho Mavimbela, delivered the vehicle
in question on
this particular together with an official order and left the key with
the Defendant's employee, Ms. Venter. According
to Ms. Venter another
employee wearing a shirt with the Toyota logo arrived to collect the
vehicle. She delivered the vehicle to
him with the key which he,
incidentally, identified himself where it was hanging on a hook
against the wall together with the keys
of other vehicles delivered
to the Defendant to be washed or valeted. Whether or not this person
was an employee of the Plaintiff
and, if so, whether or not he had
stolen the vehicle is unknown. I cannot see how the Defendant can
under the circumstances be
blamed for having delivered through Ms.
Venter, the vehicle to this person.
[15]
Mr Rome who appeared on behalf of the Plaintiff submitted, relying on
precedents set out in
Amler's
Precedents of Pleadings, Seventh Edition, p. 173
and
Strelitz
(Pty) Ltd v Siegers & Co (Pty) Ltd
1959 (3) SA 917
(E) at 918G,
that
the Defendant should have alleged and proved that the loss of the
vehicle was not occasioned by its neglect.
[16]
In my opinion the allegation and evidence that the vehicle was
returned in the circumstances pleaded and proved by way of evidence
clearly shows absence of negligence.
[17]
The allegation in the Defendant's plea that the vehicle was returned
to an employee of the Plaintiff, albeit an unknown one,
clearly
implies absence of negligence. I cannot in the context of the
circumstances of this matter see any need for the Defendant
to have
explicitly added that in those circumstances the loss of the vehicle
cannot be attributed to any negligence on its part.
It speaks for
itself. An allegation that the vehicle was returned to an employee of
the Plaintiff is a clear allegation that it
had been properly
returned in the ordinary course of events.
[18]
The evidence adduced on behalf of the Defendant supports the
allegations contained in the plea. The evidence showed that the
vehicle was indeed delivered in accordance with a practice followed
in all cases, namely, delivery by an employee
dressed
in a shirt bearing the Toyota logo together with the official order
and the collection later of the vehicle by another person
similarly
dressed. No cross-examination was directed at any of the witnesses in
order to determine or allege any negligence on
the part of the
Defendant or its employees and I am unable to find any such
negligence.
[19]
I am accordingly satisfied that the loss of the vehicle can not be
attributed to any negligence on the part of the Defendant.
In
the result the Plaintiff's claim is dismissed with costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE PLAINTIFF
ADV
GB
ROME
On
the instructions of:
A
D HERTZBERG ATTORNEYS
c/o
RITA JORDAAN ATTORNEYS
418
Palaris Ave
Waterkloof
Ridge Ext 2
PRETORIA
Ref:
W264/Mrs Hodgkinson
Tel:
(011)447 6488/9
ON
BEHALF OF FIRST THE DEFENDANT
ADV
A A LUBBE
On
the instructions of:
ROUX
VAN VUUREN INCORPORATED
c/o
Meg Consultants
First
Floor,
Office
6A Woltemade Building 118
Paul
Kruger Street
PRETORIA
Ref:
ROUX/NV/LP0075
(012)
804 1190
DATE
OF HEARING
16
November 2010
JUDGMENT
DELIVERED ON
18
November 2010