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[2011] ZAGPPHC 174
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Eyer v Three Lions Parts CC (A672/2010) [2011] ZAGPPHC 174 (22 September 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: A672/2010
DATE:22/09/2011
IN
THE MATTER BETWEEN:
RIAAN
EYER
..........................................................................................................
APPELLANT
…
.............................................................................................................
(Plaintiff
in court a quo)
AND
THREE
LIONS PARTS
CC
.................................................................................
RESPONDENT
(Registration
no
2000/029575/23)
.....................................................
(Defendant in court a quo)
JUDGMENT
J.W.
LOUW. J
[1]
The appellant took his Willys 4x4 Jeep to the respondent on 4
September 2008 for certain repairs to be carried out on the vehicle.
He had stopped at the respondent's premises two weeks before and had
explained to one Ian, who was apparently in charge of the
respondent's business, that he was experiencing problems with the
vehicle's brake lights which were not working, that there were
problems with its carburetors and that the battery was not charging.
[2]
An appointment was then made for 4 September 2008 for the respondent
to carry out the necessary repairs. The appellant dropped
the vehicle
off at the respondent's premises at about 08:00. At about 09:50 he
was telephoned by Ian who told him that the vehicle
had burnt out.
Ian explained to him that they were on their way with the vehicle to
an auto electrician and that they were at that
stage in Richards
Drive. The appellant immediately drove there, where he found the
burnt out vehicle, the fire brigade as well
as Ian and one of his
workers who had been driving the vehicle when it caught fire.
[3]
The appellant thereafter instituted an action against the respondent
in the Randburg magistrates court. The cause of action
was depositum.
It was alleged in the appellant's particulars of claim that the
secondhand replacement value of the vehicle was
R80 000.00. and
payment of this amount together with interest was claimed.
[4]
The appellant gave evidence himself and also presented the evidence
of a Mr Jenkinson, an expert in premature and other automotive
failures. His expertise was not challenged and he testified as to the
cause of the fire which destroyed the vehicle.
[5]
The appellant thereafter closed his case. Respondent then applied for
absolution from the instance on three grounds. Firstly,
that the
appellant had failed to prove that it had concluded a depositum
contract with the defendant. Secondly, that the appellant
had failed
to prove that the damage to the vehicle was caused by the conduct of
the respondent. Thirdly, that the appellant had
failed to prove the
quantum of his damage.
[6]
The magistrate in his judgment dealt only with the third ground, i.e.
the issue of quantum. He found that the appellant had
not proved the
value of the vehicle prior to the fire and granted absolution from
the instance. This is an appeal against that
finding.
[7]
It has not been argued on behalf of the respondent that the
magistrate should have upheld the application for absolution in
respect of the first two grounds. If the argument had been raised, it
would, in my view, not have succeeded. The terms required
to be
pleaded for the claim based on depositum were set out in the
appellant's particulars of claim and were admitted by the respondent.
The onus would then have been on the respondent to prove that the
damage occurred without the respondent's fault. See: Stocks &
Stocks (Pty) Ltd v T J Daly & Sons (Pty) Ltd 1979(3) SA 754 (A);
Mercurius Motors v Lopez 2008(3) SA 572 (SCA).
[8]
Returning to the issue of quantum. The only evidence in this regard
was that of the appellant. No expert evidence was tendered.
The
appellant's evidence in chief and in cross-examination may be
summarised as follows:
(a)
He purchased the vehicle from a Mr Zeeman on 20 August 2006 for an
amount of R35 000,00. It was a private transaction. Mr Zeeman
was not
a trader in motor vehicles. The appellant regarded the price of R35
000.00 as a bargain.
(b)
He thereafter had the following repair work carried out during the
period 2006 to 2008:
Reconditioning
the gearbox and torque converter R 5 130,00
Settings
on carburettor
...............................................
R
684.00
Service
.........................................................................
R
102,51
New
Goodrich tyres
....................................................
R
5 072,68
Propshaft
and gearbox repair
....................................
R
3 477,00
Replace
oil cooler
........................................................
R
3 972,90
Replace
battery
............................................................
R
550,00
Replace
various parts
..................................................
R
6 571,00
TOTAL
..........................................................................
R25 560.09
(c)
According to the appellant's evidence, the amount which he spent on
repairs was R35 000,00 and if that was added to the purchase
price of
the vehicle, the total amount he spent was "about" R70
000,00.
(d)
At the stage when he took the vehicle to the respondent for repairs,
he was wanting to sell it and was looking at selling it
for a price
of R80 000,00.
He
arrived at that amount by adding a profit of RI0 000.00 for himself
to the amount of R70 000,00.
(e)
The appellant further referred to the fact that he had gone to Auto
Fair in Menlyn, Pretoria where vehicles are displayed for
sale by
their owners on a Sunday to "give an indication what prices
are". He did not say that he put the vehicle on display,
only
that he spoke to the people at Auto Fair and explained to them that
he had spent R70 000,00 and was looking at R80 000,00
for selling it.
He did not say what their reaction was, but that would have been
hearsay evidence anyway.
(f)
He also purchased the Auto Trader magazine to get an idea of what the
market was willing to pay for a vehicle like this. There
were similar
vehicles advertised, but vehicles such as these are custom built. He
could compare his vehicle's V8 engine to another,
but there are
different types of V8 engines. His was a Landrover engine.
(g)
If one wanted to go into detail, he said, one would have, e.g., to
look at what he had spent on new tyres. That is why he got
back, he
said, to what he had spent to determine the value of the vehicle. In
the Auto Trader, the prices of Jeeps varied between
R60 000.00 and
R125 000,00. He thought that R80 000,00 was a reasonable price to
replace his vehicle.
(h)
He also put a "for sale" notice on the spare wheel at the
back of the vehicle. People phoned and asked the price,
and he told
them that it was R80 000.00. He obviously was not able to sell it at
that price before taking it to the respondent
for repairs.
(i)
The appellant could not say what year model the vehicle was. The Jeep
club had told him it was 1960 upwards. He guessed it was
somewhere
between 1960 and 1970.
(j)
He said in cross-examination that the tyres were not in a good
condition when he bought the vehicle. He conceded that all the
work
which had been done to the vehicle was necessary repair work, but he
was not able to tell what value those repairs added to
the value of
the vehicle. He could also not say by how much the vehicle would have
depreciated in value from August 2006 to September
2008. In
re-examination, he ventured an opinion that it would have increased
in value.
[9]
It is trite that in an action for damage caused to an article such as
a motor vehicle, a plaintiff may claim the difference
in value before
and after the damage occurred, or the reasonable cost of repair to
restore it to its original condition. See Heath
v Le Grange 1974(2)
SA 262 (C); Toyi v Morrison 1980(2) SA 705 (TkSC); Ranger v Wykerd &
Another 1977(2) SA 976 (A) at 992C-F.
[10]
Evidence as to the before and after damage value of a vehicle, or the
reasonable cost of repairing the vehicle, must be that
of a person
who is suitably qualified to express an opinion in that regard. The
appellant clearly had no expert knowledge of the
value of Willys
Jeeps of the kind in question. He is a layman in that regard. He was
not equipped to assist the court in determining
the before and after
damage value of the vehicle or the reasonable cost of repairing it.
[11]
The appellant also did not attempt to give any evidence of that
nature. His evidence was that he believed that the replacement
value
of the vehicle was R80 000.00. This opinion he based on what the
vehicle had cost him in respect of its purchase price and
the
necessary repairs, adding a R10 000,00 profit for himself. That is
clearly not evidence of the kind required.
[12]
I mention as an aside that the total costs in respect of the purchase
price and the repair costs were not R70 000,00. The total
repair
costs were, as mentioned above, R25 560,09, not R35 000,00.
Furthermore, it does not follow from the fact that it was common
cause that the vehicle was not economically repairable that its
post-fire value was nil. All that that means, is that it would
have
cost more to repair the vehicle than what the difference would be
between its value before and after the fire. No evidence
was
presented in respect of the value of the vehicle after the fire. It
must at least have had a scrap metal value.
[13]
The appellant's evidence, even if he was an expert, did not prove
either the difference in the value of the vehicle before
and after
the fire or the reasonable cost of repairing the vehicle. He just
wanted to be paid back what the vehicle had cost him
plus a profit of
R10 000,00. The magistrate, in my view, correctly held that the
appellant had failed to prove the quantum of his
damage, and
correctly granted absolution from the instance. There simply was no
evidence to support the quantum of the appellant's
claim on which a
court might have found for the appellant.
[14]
It was submitted in the appellant's heads of argument that no rule
exists which requires that damages be proved by a so-called
expert in
circumstances similar to the case in casu. Reliance was placed on the
following passage in Hersman v Shapiro & Co,
1926 TPD 367
at 379,
which was approved in Lazarus v Rand Steam Laundries 1946 (Pty) Ltd
1952(3) SA 49 (D) and Benson v Meyer 1960(4) SA 520
(T):
'Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain
that pecuniary damage
has been suffered, the Court is bound to award damages. It is not so
bound in the case where evidence is
available to the plaintiff which
he has not produced; in those circumstances the Court is justified in
giving, and does give, absolution
from the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive character
and does not permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available, the Court
must use it and arrive at a conclusion
based upon it."
[15]
The difficulty with this argument is that no evidence was presented
to the court below that the appellant's own evidence was
the best
evidence available, and that no expert evidence was available to
prove the value of the vehicle before and after the fire,
or the
reasonable cost of repairing it. On the appellant's own evidence,
similar vehicles are advertised in the Auto Trader magazine.
There
must therefore be a market for such vehicles. It seems obvious that
there must be persons who are sufficiently qualified
or experienced
to testify as to the market value of such vehicles.
[16]
In any event, as I have said, the appellant's own evidence, even if
it is the best available evidence, did not establish either
the value
of the vehicle before and after the fire, or the reasonable cost of
repairing it.
[17]
In the circumstances, I would dismiss the appeal with costs.
J
W LOUW
JUDGE
OF THE NORTH GAUTENG HIGH COURT
a672-2010
I
AGREE
JJ
GOODEY
ACTING
JUDGE OF SOUTH GAUTENG HIGH COURT
HEARD
ON:
FOR
THE APPELLANT:
INSTRUCTED
BY:
FOR
THE RESPONDENT:
INSTRUCTED
BY: