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[2013] ZASCA 196
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Motowest Bikes & ATVS v Calvern Financial Services (138/13) [2013] ZASCA 196 (2 December 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 138/13
Not
Reportable
In
the matter between
MOTOWEST BIKES
&
ATVS..................................................................APPELLANT
and
CALVERN FINANCIAL
SERVICES.........................................................RESPONDENT
Neutral citation:
Motowest
Bikes & ATVS v Calvern Financial Ser
vices
(138/13)
[2013] ZASCA 196
(2 December 2013)
Coram
:
Ponnan, Bosielo, Majiedt JJA, van
der Merwe and Zondi AJJA
Heard: 20 November 2013
Delivered: 2 December 2013
Summary: Contract of depositum - whether came into existence when
respondent left his vehicle to be washed at appellant’s car
wash - whether subject to owner’s risk clause - evidence -
appellate court’s limited powers of interfering with trial
court’s findings of fact, particularly credibility and
demeanour findings - punitive costs order - no reasons furnished -
discretion not judicially exercised and punitive costs order not
warranted - appeal upheld in part.
ORDER
On appeal from:
North
Gauteng High Court, Pretoria (Vorster AJ, sitting as court of first
instance):
1.
Save to the extent set out in paragraph
2 the appeal is dismissed with costs.
2.
The
costs order of the court below is set aside and substituted with the
following:
‘Die verweerder word gelas om die eiser
se koste te betaal’.
JUDGMENT
MAJIEDT JA (Ponnan, Bosielo JA, Van der
Merwe and Zondi AJJA concurring):
[1]
This
is an appeal from the North Gauteng High Court, Pretoria (Vorster AJ
sitting as court of first instance), upholding a claim
for damages
for the loss of the respondent’s (plaintiff in the court below)
motor vehicle when it was stolen from the appellant’s
(defendant in the court below) car wash premises. Vorster AJ issued a
declarator that the appellant is liable to the respondent
for payment
of the value of the vehicle, which was to be determined later. The
learned Acting Judge also made a punitive costs
order on the scale as
between attorney and client against the appellant. This appeal,
against both the declarator and the costs
order, is with the leave of
this court.
[2]
The
proved facts underlying the trial court’s judgment are briefly
as follows: The sole member of the respondent close corporation
in
whose name
a VW Golf motor vehicle had been registered, Mr
Callie Venter, took the vehicle in to the appellant’s car wash
to be washed
and cleaned during the early part of the morning (the
exact time is not clear on the evidence) on 12 June 2009. He left the
key
in the vehicle and indicated to Mr Thys Leibbrandt, the person in
charge there, that he would fetch the car later. Venter also
explained to Leibbrandt and one of the workers that he wanted the
leather seats and the interior cleaned as well. The
arrangement was that he would fetch the vehicle
at 1 pm. Just before 2 pm, and before he had fetched the vehicle as
per the arrangement,
Venter got word from the vehicle tracking
company and the police that his vehicle may have been stolen at the
car wash. Upon arrival
there with his brother, this information
turned out to be correct.
[3]
The
respondent sued the appellant for the value of the vehicle, alleging
that an oral agreement of depositum had come into existence
between
the parties and that the appellant was in breach thereof by failing
to return the car upon demand. Although the appellant’s
plea
and the evidence led on its behalf are not entirely clear as to
precisely what its defence was, it eventually crystallized
into a
denial of negligence on its part and, as a further defence, reliance
on an owner’s risk clause to avoid liability.
Importantly it
became common cause that a contract of depositum had come into being
between the parties.
[4]
In
his initial plea the appellant admitted the oral agreement of
depositum and only raised the owner’s risk clause as a defence.
The plea was, however, amended subsequently and a further defence was
raised, namely a denial that the agreement included the safekeeping
and/or storing of the vehicle and an averment that Venter was
supposed to remain at the car wash premises for the duration of the
vehicle’s washing and cleaning, whereafter he had to remove the
vehicle.
[5]
The
trial court had before it two mutually destructive versions of the
events in question, in particular the procedure at the car
wash. As
the learned Acting Judge correctly found, the matter was not capable
of determination on the probabilities, but had to
be decided on the
respective witnesses’ credibility. The trial court made adverse
credibility and demeanour findings against
Leibbrandt and pertinently
rejected his version on the procedures followed at the car wash.
According to this version the practice
was that clients should remain
on the premises until their vehicles had been washed, whereafter they
had to remove their vehicles.
[6]
Venter’s
version was that this particular occasion was the third time that he
had taken his car to be washed there. On the
first occasion he
remained present throughout, not because he was required to do so,
but due to the fact that he wanted to observe
whether the service was
adequately performed. It was common cause that Venter was a very
finicky customer and was insistent upon
his car being washed and
cleaned in strict accordance with his instructions. On the second
occasion he left the car there, after
handing the keys to Leibbrandt,
on the assumption that the latter would keep the keys with him.
Venter also left there on the understanding
that after having been
washed, his car would be parked inside the premises. He was adamant
that he would never have permitted his
car to be parked outside in
the street. According to him Leibbrandt raised no objection on the
second and third occasions about
him leaving his vehicle there. This
aspect is one of the central disputes between the parties, since both
Leibbrandt and his brother
Piet (the two of them co-owned the car
wash) alleged in their testimony that they had on more than one
occasion berated Venter
for leaving his car there. The trial court
found in favour of Venter and against the Leibbrandts on this issue,
primarily on the
basis of the credibility of the respective
witnesses. In respect of Thys Leibbrandt the trial court found him to
be an unimpressive,
evasive witness who had fabricated the
explanation as to why customers’ cellphone numbers were
recorded by them on the invoices.
It was the respondent’s
contention, which the trial court accepted, that the reason for this
was that customers were to be
contacted on their cellphones to be
advised when their vehicles which they had left at the car wash had
been washed and were ready
for collection. Apart from this, the trial
court also found that there were a number of contradictions in Thys
Leibbrandt’s
version of where the keys of customer’s
vehicles were kept in the office.
[7]
The
respondent also adduced the evidence of two independent witnesses,
namely Mr Johan Theron, an assessor who had investigated
the
respondent’s claim on behalf of the insurance company, and Mr
Johannes van Wyk, the owner of a signage business. Theron
testified
that he went to the car wash to ascertain what the procedure was and
where the keys to customers’ cars were kept.
His evidence
corroborated broadly Venter’s, rather than the Leibbrandts’
version. Van Wyk testified that he had also
attempted to have his car
washed at the appellant’s car wash on a previous occasion, but
decided against it when it became
evident that he was expected to
leave his keys in the car for the staff to move it when required. He
testified further that shortly
after this incident Thys Leibbrandt
came to his signage business to have a large board made which
indicated that the washing of
cars was at the owners’ risk and
excluded the car wash’s liability in the event of damage or
loss to the vehicles.
Van Wyk’s evidence also tends to
corroborate Venter’s version.
[8]
An
appellate court’s limited powers to interfere with a trial
court’s finding of fact is well established - see, inter
alia,
S v Kekana 2013(1) SACR 101 (SCA) para 8; Fourie v First Rand Bank
Ltd & another 2013(1) SA 204 (SCA) para 14. This is
particularly
so in the case of credibility and demeanour findings. In my view
there is nothing at all on the record on which the
trial court’s
factual findings can be faulted.
[9]
Depositum
is an agreement in terms whereof a thing is delivered for
safekeeping, returnable on demand - see F du Bois, Wille’s
Principles of South African Law, 9 ed at 962. A depositum agreement
imposes upon the depositary a legal obligation to exercise
reasonable
care in respect of the goods entrusted to him. In the event of the
goods being damaged, lost or destroyed while in his
possession, the
depositary would be liable in damages to the owner thereof, unless he
can show that the damage, loss or destruction
occurred without dolus
or culpa on his part (Stocks & Stocks (Pty) Ltd v T J Daly &
Sons (Pty) Ltd
1979 (3) SA 754
(A) at 762 A-B, Mercurius Motors v
Lopez
[2008] ZASCA 22
;
2008 (3) SA 572
(SCA) para 33. In the present instance, once
the appellant took possession of the vehicle to be washed and
cleaned, it became a
depositary with the concomitant duty of care
imposed upon it (Silhouette Chemical Works (Pty) Ltd v Steyn’s
Garage [Brooklyn]
[Pty] Ltd
1967 (3) SA 564
(T) at 568 H). The
appellant conceded that this was indeed the case.
[10] I turn to consider whether the owners risk
provision was indeed a term of the contract. In Essa v Divaris
1947
(1) SA 753
(A) at 768-769, Tindall JA stated:
'In the case of an ordinary contract by a
parking-garage owner to garage a car for consideration (that is, an
ordinary contract
of deposit for a consideration), the onus which
lies on the bailee arises as an inference from the nature of the
contract which
places him under an obligation to return the article
or to prove the reason why he has failed to do so. Where, however, an
owner's
risk clause is part of such a contract, the effect of such a
clause is that, though the garage owner undertakes to take care of
the car in the garage, the parties also agree that the car will be
kept in the garage at the risk of the owner of the car.'
An owner’s risk clause undermines the
very essence of a contract of deposit and should therefore be
pertinently brought to
a customer’s attention - Mercurius
Motors v Lopez, supra at para 33; see also: Durban’s Water
Wonderland (Pty) Ltd
v Botha & another
1999 (1) SA 982
(SCA) at
991D-J. The trial court correctly found that the evidence had failed
to establish that an owner’s risk clause was
a term of the
agreement. In any event on the appellant’s version the notice
to this effect was placed at an obscure spot
on a table in the car
wash office, instead of being prominently displayed, for example, on
the wall. Venter testified that he had
never entered that office and
that his attention had never been drawn to it, while Leibbrandt
testified to the contrary. The trial
judge preferred Venter’s
testimony to that of Leibbrandt on the basis of credibility and the
probabilities. Again, this finding
cannot be faulted in my view. It
should perhaps be added that the notion that vehicles would be left
at the risk of their owners
is not entirely compatible with the other
evidence that it was the policy of the car wash that owners were to
be in attendance
throughout whilst their vehicles were being washed.
[10]
On
the proved facts the court below correctly found in my view that the
appellant’s negligence was manifest. The car wash
is located in
a part of the Krugersdorp CBD where crime was rife. The gate to the
car wash was left open for the entire day and
there were no access
control measures in place. A suspicious looking vehicle had been
observed close to the premises by Thys Leibbrandt
but, apart from
asking one of the workers to jot down the car’s registration
details, no measures were taken to safeguard
the vehicles on the
premises. The finding of negligence cannot be faulted in my view. The
appeal on the merits must therefore be
dismissed.
[12]
This
brings me to the punitive costs order. It is trite that the rationale
for a punitive attorney and client costs order is more
than mere
punishment of the losing party. Tindall JA explained it as follows in
Nel v Waterberg Landbouwers v Ko-operatiewe Vereeniging
1946 (1) AD
597
at 607:
‘[t]he true explanation of awards of
attorney and client costs not expressly authorised by Statute seems
to be that, by reason
of special consideration arising either from
the circumstances which give rise to the action or from the conduct
of the losing
party, the court in a particular case considers it
just, by means of such an order, to ensure more effectually than it
can do by
means of a judgment for party and party costs that the
successful party will not be out of pocket in respect of the expense
caused
to him by the litigation.’
And see further:
Swartbooi
v Brink
2006 (1) SA 203
(CC) para
27. Costs is a matter for the discretion of a trial court. Smalberger
JA elaborated on the
nature of this
discretion as follows (in the context of an agreement between parties
that attorney client costs be paid) in
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2)
SA 1045
(SCA) para 25:
The court’s discretion is a wide,
unfettered and equitable one. It is a facet of the court’s
control over the proceedings
before it. It is to be exercised
judicially with due regard to all relevant consideration. These would
include the nature of the
litigation being conducted before it and
the conduct before it and the conduct of the parties (or their
representatives). A court
may wish, in certain circumstances, to
deprive a party of costs, or a portion thereof, or order lesser costs
than it might otherwise
have done as a mark of its displeasure at
such party’s conduct in relation to the litigation.’
[13]
The
court below did not furnish any reasons at all for its punitive costs
order. Absent such reasons this court is left in the dark
as to the
basis for such an order. It is thus difficult to conclude that there
was a proper judicial exercise by the trial court’s
of its
discretion on costs. The punitive costs order must therefore be set
aside.
[14]
I
make the following order:
1.
Save to the
extent set out in paragraph 2 the appeal is dismissed with costs.
2.
The
costs order of the court below is set aside and substituted with the
following:
‘Die
verweerder word gelas om die eiser se koste te betaal’.
S A MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For Appellant: J du Plessis with P J Theron
Instructed
by: Hlatswayo du Plessis Van der Merwe Nkaiseng
c/o Petzer du Toit & Ramulifho, Pretoria
Symington & De Kok, Bloemfontein
For
Respondent: J E Ferreira
Instructed
by: Hardam & Associates
c/o
J WWessels & Partners Inc, Pretoria
McIntyre
& Van der Post, Bloemfontein