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2023
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[2023] ZAFSHC 183
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Van Der Heever v Vergottini (A141/22) [2023] ZAFSHC 183 (14 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.
A141/22
In
the matter between:
Herman
Arnold Lensing Van Der
Heever
Appellant
and
Johannes
Guiseppes
Vergottini
Respondent
CORAM
:
Mbhele
DJP et Gusha, AJ
JUDGMENT
BY:
Gusha,
AJ
DELIVERED
ON
: This
judgment was delivered electronically by circulation to the parties’
representatives by way of email. The date and time for
delivery is
deemed to be at 12h00 on 14 April 2023.
JUDGMENT
[1]
This matter came before us on appeal from
the Bloemfontein Magistrate’s Court, the court
a
quo
. The appeal lies against the
decision of the court
a quo
in which absolution from the instance at the close of the plaintiff’s
case was granted. For the sake of convenience I shall
refer to the
parties as they were cited in the court
a
quo
.
[2]
The plaintiff is an adult natural person
who plies his trade as a sales representative. The defendant is an
adult natural person
who plies his trade as sole proprietor of H&R
Car Wholesalers, a used car dealership.
[3]
Prior to the submissions on the merits by
the parties, the defendant sought an order condoning the late filing
of his heads of arguments,
advancing a plethora of what I can only
deem to be excuses. Nonetheless, as the delay in filing was a mere
four days and thus not
inordinate, we could find no prejudice to the
plaintiff (in any event none was alleged) this court granted the
indulgence. I shall
therefore not take this matter any further than I
have. I would, however, be remiss if I do not remark that this
practice is to
be frowned upon.
[4]
The germane facts giving rise to the dispute between the parties are
the following;
the parties entered into a sale agreement in terms of
which the plaintiff purchased a used motor vehicle from the
defendant. Mere
hours, after taking delivery of the vehicle, the
plaintiff experienced mechanical problems therewith as the vehicle
would not start.
After being notified, the defendant caused the
vehicle to be repaired by a Mr Mouton, a mechanic in the employ of
the defendant.
This however proved to be short-lived as the plaintiff
experienced, in the following days, intermittent mechanical failures
with
the vehicle, ranging from the vehicle not starting, overheating,
stalling etc. The plaintiff informed the defendant that due to
the
recurrent mechanical failures he wanted to cancel the sale agreement
and return the vehicle. The defendant however refused
and once more
offered to repair the vehicle at his own cost.
[5]
Subsequent to causing the vehicle to be collected from the plaintiff,
ostensibly to
effect repairs thereon, the defendant made an about
turn and informed the plaintiff that he was no longer willing to
repair the
vehicle at his own cost, as a subsequent compression test
revealed that the vehicle’s pistons and sleeve were destroyed
due
to possible over-revving of the vehicle. Eager to get his vehicle
back, the plaintiff effected payment for the repairs to the vehicle’s
engine. Once more Mr Mouton, worked on the vehicle and when same was
again operable it was handed back to the plaintiff. However
these
latest “repairs” too, proved futile as the vehicle broke
down again. The plaintiff hereafter stopped driving
the vehicle.
[6]
During the trial the plaintiff also led the evidence of an expert
witness, Mr Ras
a diesel mechanic. Concisely his evidence was that,
an inspection he conducted on the vehicle some three weeks before the
trial,
revealed that the vehicle had numerous mechanical defects,
paramount of which was a defective injector which gave rise to the
piston
damage, which in turn rendered the vehicle largely inoperable.
[7]
In moving this appeal, the plaintiff primarily submitted that the
court
a
quo
,
erred in granting absolution from the instance at the close of the
plaintiff’s case. It was further submitted that the evidence
led clearly established the presence of defects, from the day the
vehicle was purchased and beyond. It was further submitted that
on a
correct application of the test for absolution from the instance as
well as the provisions of the Consumer Protection Act
[1]
,
(the Act) to the facts of this case, the court
a
quo
should not have granted absolution from the instance.
[8]
The defendant in opposition, nailed his colours to the mast of the
provisions of the
Act, specifically section 56 (1) and (2) thereof.
It was primarily submitted on his behalf that due to the repairs made
by Mr Mouton
to the engine of the plaintiff’s vehicle, the
exclusionary proviso of the implied warranty as guaranteed in section
56(1)
of the Act was triggered, as the goods were now altered
contrary to the instructions of the defendant and or after leaving
his
control.
[9]
The primary issue that this court is called upon to determine is
whether the court
a quo
erred in granting absolution from the
instance.
[10]
In order to answer the aforesaid I can do no better than have regard
to the
locus
classicus
Claude
Neon Lights (SA) Ltd v Daniel
[2]
wherein
the court held that;
“
...
when absolution from the instance is sought at the close of
plaintiff’s 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 or ought to) find for the plaintiff.”
[11]
The
court in
Gordon
Lloyd Page & Associates v Rivera and
Another
[3]
cited
the Claude Neon Lights judgment with approval and held as follows;
“
This
implies that a plaintiff has to make out a prima facie case in the
sense that there is evidence relating to all the elements
of the
claim to survive absolution because without such evidence no court
could find for the plaintiff... As far as inferences
from the
evidence are concerned, the inference relied upon by the plaintiff
must be a reasonable one, not the only reasonable one...
Having
said
this, absolution at the end of a plaintiff’s case, in the
ordinary course of events, will nevertheless be granted sparingly
but
when the occasion arises a court should order it in the interests of
justice.”
[12]
The court
a quo
framed the issue it was called upon to
determine after the closure of the plaintiff’s case thus;
“
I
am called upon to determine whether or not upon evidence presented at
the close of the plaintiff’s case an application for
absolution
from the instance can be granted and whether there are latent defects
on the vehicle….”
[13]
This approach was manifestly erroneous, the essential issue that
should’ve been considered,
at the close of the plaintiff’s
case, was whether the plaintiff had discharged the onus of showing
the existence of a
prima
facie
case
against the defendant
[4]
. Had
the court
a
quo
followed the approach as set out in Claude Neon Lights
supra
,
it would not have granted absolution, as the evidence before court
patently evinced that the defendant had a
prima
facie
case to answer.
[14]
The used motor vehicle purchased by the plaintiff, at the time of
purchase, fell squarely within
the protection afforded to all
consumers by section 55 and 56 of the Act. As can be gleaned from
hereunder, these 2 sections ought
to be read together and not in
isolation, (as it would appear the defendant did). Section 56 flows
from section 55. In my view
even before the implied warranty as
provided for in section 56(1) becomes applicable, the consumer, at
the time of purchase, is
already imbued with the right to receive
goods that are reasonably fit for purpose as provided for in section
55. The relevant
sections provide as follows;
55.
(1) …
55
.
(2) Except
to the extent contemplated in subsection (6), every consumer has a
right to receive goods that—
(a)
are
reasonably suitable for the purposes for which they are generally
intended;
(b)
are of
good quality, in good working order and free of any defects;
(c)
will be
useable and durable for a reasonable period of time, having regard to
the use to which they would normally be put and to
all the
surrounding circumstances of their supply; and…
56.
(1)
In
any transaction or agreement pertaining to the supply of goods to a
consumer
there is an
implied provision that the producer or importer, the distributor and
the retailer each warrant that the goods comply
with the requirements
and standards contemplated in section 55,
except
to the extent that those goods have been altered contrary to the
instructions, or after leaving the control, of the producer
or
importer, a distributor or the retailer (my emphasis)
,
as the
case may be.
(2)
Within six months after the delivery of any goods to a consumer, the
consumer may return the goods to the supplier, without
penalty and at
the supplier’s risk and expense
, if the goods fail to
satisfy the requirements and standards contemplated in section 55 (my
emphasis),
and the supplier must, at the direction of the
consumer, either—
(a)
repair or
replace the failed, unsafe or defective goods; or
(b)
refund to
the consumer the price paid by the consumer, for the goods…
[15]
From the facts placed before the court
a quo
, the vehicle
purchased by the plaintiff was never fit for purpose, it wouldn’t
start, it stalled etc. Albeit the vehicle
in question was bought as a
used vehicle, the expectation was that it was reasonably fit for
purpose, in other words driveable,
in casu
, this vehicle never
was. It had only travelled for about 7 kilometers when it broke down.
On this aspect alone, the court
a quo
ought not to have
granted the application for absolution. The misery for the plaintiff
however did not end there, for even after
the vehicle’s engine
(pistons) were repaired by Mr Mouton, the vehicle broke down again.
[16]
Even on the reliance placed by the defendant on section 56(1), still
the plaintiff had set forth
a
prima
facie
case. In the circumstances of this case, it can never follow that
that vehicle has been altered contrary to the instructions of
the
defendant, or after leaving his control. Mr Mouton is a mechanic who
was employed by and acted under the direction of the defendant.
At
the time Mr Mouton worked on the engine, the vehicle was under the
control of the defendant, it was after all taken to the workshop
at
the latter’s behest. The fact that he now somehow refuses to
pay for the repairs in this regard, is in my view, of no
consequence.
[17]
It is after all an established principle of our law that a court
should be wary to grant absolution
from the instance at the close of
the plaintiff’s case, as it should not at that stage, evaluate
and reject the plaintiff’s
evidence. It must instead assume
that in the absence of very special considerations, such as the
inherent unacceptability of the
evidence, the evidence presented is
true
[5]
.
In
casu
,
on a careful reading of the transcribed record, we could find no
instance of any special considerations, even on the version as
advanced by Mr Ras.
[18]
Resultantly, I make the following order:
18.1. The
appeal succeeds with costs, which costs shall include costs of
counsel.
18.2. The
order of the court
a quo
is substituted with the following
order:
18.2.1 Application for
absolution from the instance is dismissed.
_______________
NG
Gusha, AJ
________________
Mbhele
DJP
On
behalf of the applicant
Adv.
W.A Van Aswegen
Instructed
by:
McIntyre
Van Der Post
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
A Sander
Instructed
by:
Eugene
Attorneys
BLOEMFONTEIN
[1]
Act
68 of 2008
[2]
1976
(4) SA 403
(AD) at 409 G – H see also
Build-A-Brick
BK en 'n Ander v Eskom
1996 (1) SA 115
(O)
at
123
[3]
[2000]
4 ALL SA 241
(AD) at 243 B:
[4]
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at
37G-38A
[5]
Atlantic
Continental Assurance Co. of S.A. v Vermaak
1973 (2) SA 525
(ECD) at
527 C)