About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 68
|
|
HVH Transport CC v Kriel t/a Supreme Truck and Trailer Spares and Another (446/2016) [2016] ZAECPEHC 68 (4 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case Number:
466/2016
Dates Heard: 17
, 18 , 19 , 22 , 23
and 25 August 2016
In
the matter between:
HVH
Transport
CC
Plaintiff
and
Martin
Kriel, t/a Supreme Truck & Trailer
Spares
First Defendant
Wesbank,
A Division of First Rand Bank Limited
Second Defendant
JUDGMENT
MALUSI AJ:
[1]
This is an action for damages arising out of an alleged fraudulent
misrepresentation. The action is defended only by the first
defendant. The second defendant did not participate in the case. When
I refer to the defendant in this judgment it must be understood
to be
reference to the first defendant.
[2]
A vast amount of evidence was either common cause or not disputed.
For a better appreciation of the issues I intend to set out
this
evidence before providing an analysis.
[3]
The plaintiff is a close corporation whose core business is haulage
of goods utilising trucks and trailers. During November
2011 it
concluded a contract of sale with CJ partners an entity involved in
transport business. The conclusion of this contract
necessitated that
the plaintiff must purchase a super link tautliner trailers.
[4]
During the trial I was presented with photographs depicting the
trailers. A super link is a combination of two trailers pulled
together at the same time by a truck tractor. The front trailer is
usually six metres long with an underslung chassis protruding
at the
rear. The front trailer axles are located under this protruding
chassis. On top of the axles is attached a coupling mechanism
known
as a “fifth wheel”. The rear trailer is usually 12 metres
long. It has an overhang at the front. Underneath the
overhang is the
safety pin which attaches the rear trailer to the fifth wheel. A
tautliner is a trailer with a head board (front)
and tail board
(rear) usually the same height as the truck tractor or even taller.
The edges on both sides of the trailer
have tarpaulin canvass
curtain. The curtain is attached to the roof of the trailer by a
railing and to the deck of the trailer
by straps.
[5]
The managing member of the plaintiff, Hendrick Vorster (“Vorster”),
instructed the plaintiff’s agent, Pieter
Vorster (Pieter”),
to source trailers for the plaintiff. Pieter reported to Vorster that
the defendant was selling the trailers.
[6]
The defendant is a sole proprietor trading as Supreme Truck and
Trailer Spares primarily retailing truck and trailer spares
for the
last 14 years. He had purchased the trailers during March 2011 from
TSE Big Max (“TSE”) a Johannesburg based
company. TSE had
in turn procured the trailers from their manufacturer, UBT. It is UBT
which placed a false vehicle identification
number (VIN) on the rear
trailer. They also allowed their business associate to use the rear
trailer in his transport business.
The defendant knew the trailers to
have been manufactured in 2011. He converted them to tautliners from
being flatdeck trailers.
He used them from March 2011 to December
2011.
[7]
There is dispute about the time but it is common cause that Vorster
twice visited the defendant’s premises to view the
trailers. On
inspection the trailers appeared to be freshly painted and bore
temporary permits as they had not yet been licensed.
[8]
The defendant made some representations to Vorster which led to the
plaintiff purchasing the trailers. The purchase agreement
provided
that the plaintiff would pay a deposit of 10% of the purchase price
in the sum of R36 480,00. The balance in the
sum of R328 320,00
was financed by the second defendant. The plaintiff took delivery of
the trailers on 11 January 2012.
[9]
When the trailers were used during the first trimester of the year
2012, they manifested significant mechanical problems. Vorster
and
his son inspected them during January 2013 when they observed cracks
on the chassis. They approached the defendant who told
them to obtain
an expert report. R. Arnold (“Arnold”) of Eales &
Meyers loss adjusters inspected the trailers on
31 January 2013. He
found significant damage inconsistent with the purported year of
manufacture. On the rear trailer he discovered
that the VIN on the
manufacturer’s plate differed to that stamped on the chassis.
On 5 March 2013 the plaintiff’s insurer
declined insurance
cover for the trailers. On 17 February 2014 plaintiff initiated this
action against the defendant.
[10]
The plaintiff’s particulars of claim asserted that the true
state of affairs of the trailers which was allegedly misrepresented
by the defendant was the following:
“
11.1.1
the year of manufacture was 2009,
11.1.2
the trailer was registered to be a flatbed unit,
11.1.3
the trailer was modified and reconditioned to be a tautliner unit,
11.1.4
the trailer was not a demonstration model, but manifested damage
consistent with excessive
use and overloading over a long period of
time
”
.
Additionally, in
respect of only the rear trailer it was asserted that:
“
11.2.4
The
VIN number was false, as the correct VIN number as stamped in the
trailer was in fact AA9H232AM9AKM 1725
”
[11]
The plaintiff asserted that at the material time the defendant
deliberately remained silent regarding the true state of affairs
of
the trailers and that alternatively, third party service providers
acting on his behalf, had taken steps to conceal it despite
an
obligation to disclose to plaintiff.
[12]
It was alleged the omission to disclose was a breach of the
defendant’s obligation and /or the material representation
constituted a material misrepresentation
[13]
In his plea the defendant asserted that at the time of the agreement
he was not aware of the trailer’s true age; not
aware of the
false VIN on the 12 metre trailer; had informed Vorster of the
conversion of the trailers to tautliners; had never
represented the
trailers as demonstration models; had informed Vorster that he had
used the trailers and delayed registering them
until 2012; denied
that the trailers manifested damage, it occurred after delivery to
plaintiff; he did not market the trailers
for sale.
[14]
The requirements to prove fraudulent misrepresentation are trite in
our law
[1]
. The onus is the
ordinary civil onus though fraud will not be lightly inferred.
[2]
If cancellation is claimed restitution must be tendered.
[15]
Mr Gajjar , who appeared on behalf of the defendant, submitted that
on a conspectus of all the available evidence it is clear
that the
defendant did not know the true year of manufacture of the trailers,
the prior use before taking delivery from TSE and
the false VIN on
the rear trailer.
[16]
I find merit in the submission. It appears from the evidence that it
was Arnold’s inspection on 31 January 2013 that
revealed the
false VIN. It was the further investigation by the police that led to
UBT who disclosed the true year of manufacture
and the history of the
trailer. There is no evidence whatsoever from which it can be
inferred that the defendant knew. A court
is not allowed to engage in
conjecture and speculation.
[17]
During the trial it was common cause that the trailers were
registered as flatdeck units and they had been modified and
reconditioned
to be tautliner units. Vosrter testified that these
facts were never disclosed to him by the defendant. The defendant’s
evidence
is that full disclosure was made to Vorster.
[18]
The two versions are mutually destructive and cannot be reconciled.
It has been held that where there are two mutually destructive
versions, the court must be satisfied upon adequate, sound and
substantial grounds that the plaintiff’s version is true and
the other is false
[3]
. The
correct approach in resolving factual disputes of this nature is
settled law.
[4]
[19]
Vorster’s uncontested evidence is that at the time of
concluding the agreement he requested the defendant to provide
him
with a copy of the registration certificates for the trailers. The
defendant failed to handover the copies to Vorster for no
apparent
reason. The probability is that he wanted to conceal that the
trailers were registered as a flatdeck.
[20]
Vorster’s evidence was not disputed when he said a converted
tautliner was probably worth a quarter of the price of a
new one.
Yet, he paid the defendant R30,000.00 more that the price of a new
tautliner. Vorster gave the impression that he was
an astute
businessman. I do not believe he would have paid the inflated price
if the defendant had told him the tautilners were
converted. The
probabilities favour his version that he was told that the tautliner
was new and had only been used once. That is
why he paid a premium.
[21]
The defendant insisted that as Vorster was experienced with
tautliners he ought to have seen that the trailers were converted.
This is strange from a person who says he never inspected the
trailers from the time he bought them until he sold them. If he never
inspected them I can not understand how he can say Vorster ought to
have seen the conversion.
[22]
The defendant denied saying to Vorster the trailers were
demonstration models in the sense of having been used once since new.
He gave evidence of extensive use transporting spares over a period
of months. But the probabilities indicate he must have told
Vorster
they were used once. Pieter, the plaintiff’s agent, deposed to
an affidavit and stated he told Vorster “…
there
is a new superlink trailer that
according
to the owner
was
used only once by Supreme Trade & Trailer
.”
(own emphasis) The defendant admitted Pieter spoke to him enquiring
about the trailers. The second defendant’s schedule
describes
the trailers as “demo”. They could only have obtained
this information from the defendant as it is common
cause he provided
the particulars of the trailers to the second defendant.
[23]
Vorster’s evidence indicates that there were serious problems
with the trailers when they used them. The back trailer
was higher
than the front trailer; the chassis in the area of the fifth wheel
were touching each other; the backboard of the front
trailer was
touching the frontboard of the rear trailer; some tyres on the back
trailer were getting worn quickly. Defendant
simply distanced
himself from all these problems. He had never inspected the trailers.
His driver had never reported any problems
which is highly
improbable. He never noticed the anomaly on the registration
documents of the trailers. I got the impression he
tailored his
evidence to meet the case confronting him.
[24]
Vorster was an impressive witness. His demeanor indicated that he was
truthful. I had granted him permission to be seated while
testifying
due to his advanced age and he had been slightly unwell. On a few
occasions he rose to his feet when refuting the defendant’s
version such was his conviction. He had a clear recall of material
aspects despite his age. I am alive to his latent bias as he
is a
member of plaintiff but I gained the distinct impression he was
truthful.
[25]
The defendant was a poor witness. He was evasive in his answers and
claimed not to recall simple things like the colour of
the trailers
when he purchased them. He was untruthful on many peripheral issues
let alone the material aspects. I gained the distinct
impression his
evidence was fabricated to answer the case against him. I have no
hesitation in rejecting his evidence as false.
[26]
In my view the defendant’s omission to disclose the true state
of affairs and misrepresentation were intended for Vorster
to act
upon them. He later concluded a contract on behalf of plaintiff with
the defendant. Vorster repeatedly stated he would not
have concluded
the contract if he knew the true state of affairs. All the other
requirements are likewise fulfilled. There can
be no doubt the
defendant knew the representations were false. I have already made a
finding that a representation was made and
the content thereof. I am
satisfied all the requirements for the fraudulent misrepresented were
established by plaintiff.
[27]
Mr Jooste, who appeared for the plaintiff implored me to award costs
on a punitive scale as a mark of displeasure at defendant’s
conduct. Mr Gajjar submitted that costs should follow the result. The
defendant’s conduct is totally unacceptable from a
person
conducting business with members of the public. The plaintiff
will be awarded an amount substantially less than it
claimed. In the
exercise of my discretion I believe it is just and fair for costs to
be awarded on a party and party scale.
[28]
It is trite that the plaintiff ought to be put in the same position
it would have been if it had not entered into the contract.
The
plaintiff claimed under four heads of damages. The plaintiff claimed
the deposit paid in the sum of R36 480,00 as well
as the
licensing fees in the sum of R52 595.20 paid for the trailers. I am
of the view that the plaintiff is entitled to have these
amounts
reimbursed. The parties ventilated the issue of the amount paid for
the license fees during the trial. The balance of the
purchase price
including additional financial charges was agreed and amended to R
237 901,78. The fourth head of damages was
conceded not to have
been proved by Mr Jooste. The concession was proper. I relied heavily
on Counsel regarding the calculation
of the total sum awarded.
[29]
In the circumstances it is ordered that:
i)
the first defendant pays the plaintiff the sum of R326 976,98 as
and for damages,
ii)
the first defendant pays interest on the aforesaid amount at the
legal rate from 18 February 2014
to date of payment,
iii)
the trailers, having VIN Numbers AA9H232AM9AKM1764 AND
AA9H232AM9AKM1725, may be collected by the first
defendant within 14
(fourteen) days from the granting of this order from wherever the
plaintiff may point them out to be ;
iv)
should the trailers be collected by the first defendant as set out
above, the plaintiff shall procure
that the original registration
certificates relating to then together with all such documentation as
may be necessary to enable
the first defendant to register the
trailers in his name, which documentation shall be duly executed, is
delivered to the first
defendant together with the trailers.
v)
the defendant pays the plaintiff’s costs of suit.
______________________________
T.
MALUSI
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the plaintiff:
Adv Jooste
Instructed
by:
Greyvensteins
Port
Elizabeth
On
behalf of the first defendant:
Adv Gajjar
Instructed
by:
BLC Attorneys
Port
Elizabeth
[1]
Ruto Flower Mills (Pty) Ltd v Moriates 1957 (3)
SA 112 (T)
[2]
Gilbey Distillers v
Vintners (Pty) Ltd v Morris N.O
1990 (2) SA 217
(SE )at 226A
[3]
National Employers Mutual General Insurance
Association v Gary
1931 AD 187
at 199
[4]
(SFW Group Ltd & Another v Martell et Cie &
others
2003 (1) SA 11
at para 5; National Employer’s General
Insurance v Jagers 1984 (4) 432 (ECD) at 440 D-G