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[2023] ZAFSHC 244
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Misty Sea Trading 296 (Pty) Ltd t/a Project Logistics Managemant v Route Management (Pty) Ltd t/a Busaf Bauer (5476/2019) [2023] ZAFSHC 244 (20 June 2023)
IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION, BLOEMFONTEIN)
Case no. 5476/2019
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
In the matter between:
MISTY
SEA TRADING 296 (PTY) LTD
t/a
PROJECT LOGISTICS MANAGEMENT
Plaintiff
and
ROUTE
MANAGEMENT (PTY) LTD t/a BUSAF
Defendant
CORAM:
POHL, AJ
HEARD ON
:
25, 26, 28 OCTOBER 2022 & 28, 29 MARCH 2023
DELIVERED ON: 20
June 2023
INTRODUCTION:
[1]
The Plaintiff in this matter is in the logistics and transport
business. The
Defendant in this matter
inter alia
designs
and manufactures truck trailers for use in different transport
applications.
[2]
During September 2017, the Plaintiff approached the Defendant to
design and manufacture
a so-called tri-axle step deck trailer for use
in Plaintiff’s transport business. The Defendant then
duly designed
and manufactured the said trailer and supplied same to
the Plaintiff during March 2018.
[3]
The Plaintiff’s case is that the said trailer suffers from
latent defects.
The Plaintiff consequently returned the trailer
to the Defendant and instituted action against the Defendant for
repayment of the
purchase price based on the
actio redhibitoria
and argued further that it is entitled in the alternative, to
damages based on breach of contract if the Court does not find in its
favour on the
actio redhibitoria.
[4]
The Plaintiff in this matter was represented by Adv S. Hoar and the
Defendant was
represented by Adv W.J.Groenewald.
BACKGROUND AND FACTUAL MATRIX:
[5]
The Plaintiff’s particulars of claim consists of two claims. At
the outset of
the trial Mr Hoar however indicated that the Plaintiff
does not persist with claim 2. The only claim thus to be
adjudicated
by this Court is claim 1 for the repayment of the
purchase price in the amount of
R564 300.00
plus costs,
as well as the costs pertaining to the Defendant’s
unsuccessful application for an order of absolution from
the
instance, lodged by it after close of the Plaintiff’s
case.
[6]
The Plaintiff’s case is that in acquiring the trailer, the
Plaintiff approached
Capital Acceptances (Pty) Ltd t/a Reichmans
Capital (hereinafter referred to as “Reichmans Capital”),
to “
finance
” its acquisition of the trailer.
[7]
Plaintiff contends that pursuant to its application for finance,
Reichmans Capital
purchased the trailer from the Defendant during
March 2018 and leased it to the Plaintiff in terms of a written lease
concluded
between them.
[8]
Consequently, and prior to instituting proceedings against the
Defendant, the Plaintiff
took cession of Reichmans Capital’s
right, title and interest as purchaser in and to the sale agreement
concluded between
Reichmans Capital and the Defendant in respect of
the trailer.
[9]
The Defendant denies having sold the trailer to Reichmans Capital, it
contends that
it concluded an agreement with the Plaintiff , as
opposed to Reichmans Capital, and did so during December 2017 in
terms of which
it sold the trailer to the Plaintiff, subject to its
standard terms and conditions, and that the invoice for the trailer
would
be made out to Reichmans Capital. The Defendant further
contends that it complied with its obligations in terms of the sale
agreement with the Plaintiff, denies any breach of any sale agreement
with Reichmans Capital, denies that there are any defects
in the
trailer and contends that the trailer was built according to
instructions, specifications and dimensions specified and/or
provided
by the Plaintiff to the Defendant.
[10]
During the course of the trial, the Plaintiff led a number of
witnesses and the Defendant led
a number of witnesses. From
this evidence as well as the documentary evidence placed before the
Court, it appears that it
is common cause that during or about
September 2017, the Plaintiff approached the Defendant to design and
manufacture a specific
trailer for use in the Plaintiff’s
logistics and transport business. The Plaintiff required:
10.1
A flat-bed step-deck trailer;
10.2
with a deck-height of 950 mm;
10.3
the combination length of which (the total length when coupled to a
truck-tractor) was
to be within the legal limit of 18.5 metres.
[11] It
is the Plaintiff’s case that at the time the Plaintiff
approached the Defendant, the
Defendant held itself out to be:
11.1
An expert in advising on the design manufacture and supply of
truck-trailers for use in
different transport applications;
11.2
A merchant/dealer/seller/manufacturer of specialized truck-trailers
and accessories; and
11.3
Capable of manufacturing specialized trailers, providing warranties
on the trailers manufactured
by it and attending to any repairs in
respect of trailers manufactured and/or supplied by it.
[12]
During September 2017 the Defendant’s representative, Barné
Vijoen (“
Viljoen
”) furnished the Plaintiff’s
representatives John Du Bourg (“
Du Bourg
”) and
Carl Webb (“
Webb
”) with a quotation and
accompanying drawing bearing drawing number GA3649, for the supply
and manufacture of a new tri-axle
step-deck trailer at a price of
R495 000.00 plus VAT (R564 300.00) (“
the September
quotation
”).
[13] On
6 November 2017, Du Bourg advised Viljoen that the Plaintiff would
like to order the step-deck
trailer in the September quotation, but
asked what the costs would be to change the axles to 13 ton axles.
The Defendant
confirmed that there would be no additional costs for
the 13 ton axles and the Plaintiff requested the Defendant to build
the trailer
with 13 ton axles.
[14] The
Plaintiff then approached Reichmans Capital to finance its
acquisition of the trailer.
Consequently on 13 November 2017,
Du Bourg sent an e-mail to Viljoen that was copied to Willem van
Niekerk (“
Van Niekerk
”), the representative of
Reichmans Capital so that Viljoen could liaise directly with Van
Niekerk regarding the Plaintiff’s
acquisition of the trailer.
[15]
Thereafter Viljoen and Van Niekerk liaised with one another
directly. Van Niekerk requested
that Viljoen send him a copy of
the quotation for the trailer that was to be manufactured and
supplied to the Plaintiff.
Viljoen obliged and sent through to
Van Niekerk the September quotation. Having received the
September quotation from Viljoen,
Reichmans Capital approved the
transaction.
[16]
Subsequent to Reichmans Capital having approved the transaction, Webb
and Viljoen had further
discussions, resulting in the generation of a
quotation dated 13 December 2017, accompanied by drawing number
GA3641.1 (“
the December quotation
”). The
September quotation and the December quotation have minor differences
which do not affect the outcome of this
trial.
[17]
During or about March 2018 the Defendant delivered the trailer, with
13 ton axles and suspension,
to the Plaintiff and corresponded
directly with Reichmans Capital once more.
[18] The
Defendant invoiced Reichmans Capital for the trailer.
Ex
facie
the tax invoice which appears at page 49 of Exhibit “A,
the invoice is made out to Reichmans Capital and it also
contains
the reference that “delivery on you [sic] behalf to:
Misty Sea Trading 296 (Pty) Ltd”, i.e. the
Plaintiff,
whose particulars is then contained in that box.
Reichmans Capital’s VAT number appears on the invoice and VAT
is indeed contained in this invoice in the amount of R69 300.00.
[19]
Reichmans Capital insisted that the Defendant register ownership of
the trailer in Reichmans
Capital’s name and to do so before
making payment of the purchase price reflected in the Defendant’s
invoice.
[20]
Ownership of the trailer was registered in Reichmans Capital’s
name thereafter:
20.1
Reichmans Capital then concluded a finance lease with the Plaintiff
in terms of which the
Plaintiff leased the trailer from Reichmans
Capital; and
20.2
Reichmans Capital also paid the full purchase price to the Defendant.
[21]
Paragraph 3.1 of the lease agreement between Reichmans Capital and
the Plaintiff provides that
Reichmans Capital shall remain the owner
of the goods as described in the schedule.
[22]
Clause 1.4 of the lease agreement furthermore provides that the
Plaintiff would accept delivery
of the trailer on Reichmans Capital’s
behalf after a proper inspection of the trailer, which acceptance
would have the effect
that ownership of the trailer would pass to
Reichmans Capital. According to Mr Webb, the managing
director of the Plaintiff,
the ownership of the trailer then in turn,
and much later passed from Reichmans Capital to the Plaintiff on 31
March 2021 after
the Plaintiff paid all monies due to Reichmans
Capital in terms of the lease.
[23]
After taking delivery of the trailer, the Plaintiff encountered
various problems with the trailer
and raised these issues with the
Defendant. While some of the issues were resolved, three (3)
issues remain unresolved.
The Plaintiff complained that:
23.1
when the trailer was coupled to a truck-tractor of the Plaintiff, the
combination length
exceeded the maximum legal combination length of
18.5 metres;
23.2
the lower-deck of the trailer did not run level when the trailer was
coupled to Plaintiff’s
truck-tractors;
23.3
the trailer’s suspension (specifically the trailing arms)
snagged on the ground when
the trailer was being reversed or when the
trailer was being towed forward over gate rails, speed bumps and the
like.
[24]
These issues remained unresolved and the Plaintiff ultimately
instituted the present action against
the Defendant for cancellation
of the sale agreement and return of the purchase price.
[25] The
Plaintiff’s case is that Reichmans Capital, on 15 March 2019
ceded to the Plaintiff
all of its rights in terms of the sale
agreement it concluded with the Defendant. The Plaintiff led a
number of witnesses
in this regard and also handed in the specific
written cession, which cession also appears as annexure “POC5”
to the
Plaintiff’s particulars of claim.
[26]
When the Plaintiff approached the Defendant for the design of this
particular trailer, the Defendant
presented the Plaintiff’s
representatives with three (3) different sketches of three similar
trailers it had designed in
the past. These sketches are
contained at pages 6 to 8 of exhibit “A”. These
sketches contain measurements
of the different trailers when coupled
to different truck-tractors. The first of the sketches indicate
that the trailer is
to be drawn by a “
Freightliner Argosy 6
x4 truck-tractor
”. The second of the sketches
indicate that the trailer is to be drawn by a “
SATB 6 x 4
truck-tractor
”. The third of the sketches indicate
that the trailer is to be drawn by a “
Volvo FH 480 6 x 4
truck-tractor
”.
[27] The
coupling point where the trailer is hitched to the specific
truck-tractor, is known as the
fifth wheel. The fifth wheel
positions differ from truck-tractor to truck-tractor. As a
general rule and because of
the fact that the dimensions of the
different truck-tractors’ cabs as well as the fifth wheel
positions differ, the total
combination length of the trailer when
hitched to a truck-tractor therefore may differ. It is however
conceivable that certain
different truck-tractors have the same
dimensions. The Plaintiff however presented evidence to the
effect that it received
a number of traffic fines from traffic
authorities because the combination length exceeded 18.5 metres when
this specific
trailer was hitched to its truck-tractors.
[28] It
needs to be mentioned that the sketch which was the basis of the
Plaintiff’s acceptance
of the Defendant’s design was the
sketch contained at page 8 of Exhibit “A”. It is
the same as annexure
POC 3 to the particulars of claim. This trailer
in this sketch is hitched to the Volvo FH 480 6 x 4 truck-tractor.
The combination
length on the sketch is 18.487 metres, thus
within the legal limit of 18.5 metres and thus within the legal limit
for non-extraordinary
vehicles. The evidence presented by the
Plaintiff indicates that it did not have such a Volvo FH 480 6 x 4
truck-tractor.
Instead it had mostly Mercedes Benz
truck-tractors as well as a different Volvo truck-tractor.
[29] The
evidence of Mr Webb was that the Plaintiff pulled this specific
trailer with a Mercedes
Benz truck-tractor. The Plaintiff also had a
Volvo FH 440 truck-tractor in its fleet.
[30] Mr
Webb also conceded that the fifth wheel height on different
truck-tractors may also differ.
That entails that the coupling
point of the trailer to the truck-tractor differs in height from
truck-tractor to truck-tractor.
The trailer in question is a
rigid structure. That then consequently has a bearing on the
slope or angle of the deck of the
trailer when hitched to different
truck-tractors. It must be remembered that one of the
Plaintiff’s main complaints
was the deck of the trailer so
designed by the Defendant did not run level when hitched to its
truck-tractors. The evidence was
that it in fact ran “uphill”
at an angle from the back to the front.
[31] The
Plaintiff adduced the expert evidence of a Mr Flynn. He is a
metallurgist who owns
an engineering business in Springs. He
has been manufacturing abnormal trailers for the past 20 years
and engineering
equipment for the past 40 years. He inspected
the trailer at the Defendant’s premises in Bloemfontein and
compared
it to the sketchplan with number GA 3649 referred to above.
He confirmed that the trailer conformed to the dimensions depicted
in
the said sketchplan. During his inspection the trailer was not
hitched to any truck-tractor and was standing in the mud.
The
trailer’s air suspension was deflated. In the premises he
could
inter alia,
not physically confirm the trailers ride
height or elevation of the deck.
[32]
After the Plaintiff approached the Defendant with the problems it had
with the trailer,
the Defendant had a certain Mr Oelofse
prepare a report. According to the evidence presented by the
Defendant, it did
so in an attempt to provide suggestions of
how the Plaintiff’s concerns could be addressed.
[33]
According to the report of Mr Oelofse, which is found at page
85 to 99 of exhibit A,
the trailing arms of the suspension of
the trailer was at a height of 97mm from the ground. The
trailing arms are the lowest
point of the suspension. This is
central to the Plaintiff’s complaint, as testified by Mr
Webb, namely that the
trailer was snagging as indicated in paragraph
23.3, supra. It must be mentioned that it was never put
to Mr Webb when
he testified that the trailer did not snag when it
was reversed.
[34] The
Defendant called a certain Mr Niewoudt as an expert witness. He
has a diploma in mechanical
engineering and applied mathematics he
obtained from the Central University of Technology, Free State.
He previously worked
for the Defendant where he designed trailers and
he helped with the manufacturing process. He also inspected
this trailer
after it was returned by the Plaintiff. Mr
Niewoudt found that the trailer thus designed by the Defendant was in
fact designed
in accordance with the schetchplan with number GA
3649.1.
[35] Mr
Niewoudt found that if the trailer was hitched to a Volvo FH480 6 X 4
truck-tractor,
the combination length would be 18,487 metres
and thus within the abovementioned limit of 18.5 metres. He
further testified
that if the trailing arms of the suspension sits at
a height of 97mm from the ground, it “
would be
sufficient for this trailer to be used on a flat road and reasonable
road conditions”.
He however conceded in cross
examination that many South African roads have speed bumps. He
also agreed that when these trailers
gets loaded and off loaded they
go into loading yards and cross railway lines and bridges. Mr
Niewoudt agreed that the trailing
arms of the trailers should not
snag. He however attempted to justify the 97mm clearance,
referred to in paragraph [33],
supra, by testifying that
“
the circumstances around the usage of the vehicle
will determine what clearance is needed”.
[36] Mr
Niewoudt was asked in cross examination in the context of the
combination length, whether
it was not necessary for the
Defendant in designing the trailer to know what truck-tractors the
Plaintiff was using. He replied
that it was not necessary as long as
the “clients” were using standardized (generic) truck-
tractors. He however
agreed that the Defendant did not use the
dimensions of a generic truck-tractor in its design of the
Plaintiff’s trailer.
[37] As
indicated in paragraph [9], supra, the Defendant denied
in evidence and in its
plea, that it concluded any sale with
Reichmans Capital. It contended that it concluded the sale with
the Plaintiff and because
it did so its standard terms and conditions
are applicable to their contract. The standard terms and
conditions
inter alia
provides that the Defendant would not be
liable to the Plaintiff should the goods (trailer) so supplied not be
suitable for the
purpose required by the Plaintiff, whether or
not such purpose was made known to Defendant. The terms and
conditions
do not exclude the Defendant from liability for
latent defects. The Defendant in any event did not plead that the
standard
terms and conditions were applicable to the sale agreement
with Reichmans Capital.
[38] The
trailer was delivered to the Plaintiff during March 2018 and it was
returned by Plaintiff
to the Defendant some five months later on 21
August 2018. According to the evidence of Mr Webb the Plaintiff
used the specific
trailer mainly on the route between Durban and
Johannesburg. Hence the fact that the Plaintiff received five
or six fines
for the excessive overall combination length at either
Warden or Mooi River. It appears from the evidence of the
Defendant’s
expert witness Mr Niewoudt thet the trailer in
question was fitted with a so-called “Hub Odometer”.
It measures
or reflects the distance the trailer had travelled. He
testified that upon his inspection of the trailer that according to
the
odometer it had travelled some 58 000 km. This fact
(58 000km) was not put to any of the Plaintiff’s
witnesses.
No evidence was adduced as to whether or not the
trailer was used after its return to the Defendant.
THE ISSUE OF WHETHER THE TRAILER
WAS SOLD TO THE PLAINTIFF OR TO REICHMANS CAPITAL:
[39] The
first issue that falls open for decision is whether or not the
Defendant sold the trailer
to Reichmans Capital or to the Plaintiff.
In this regard it is first of all important to have regard to the
fact that it
is common cause from the evidence presented in this
Court that the purchase price was paid to the Defendant by Reichmans
Capital
and not by the Plaintiff. It is secondly important to
have regard to the fact that the Defendant issued a tax invoice.
From this tax invoice the invoice was made out to Reichmans Capital
and not to the Plaintiff. The invoice bears the VAT number
of
Reichmans Capital and not the Plaintiff.
Ex facie
this
tax invoice the delivery of the trailer was done to Reichmans Capital
but accepted on its behalf by the Plaintiff.
[40] It
is clear from the lease agreement as referred to in paragraphs 21 and
22
supra
, that Reichmans Capital became the owner and remained
the owner of the trailer until such time as the Plaintiff paid the
last payment
in terms of the said lease agreement. It is trite
law that you can never transfer more rights to another than what you
originally
possessed. As indicated above, the full payment was
done by Reichmans capital to the Defendant and the transfer of the
movable
property (the trailer) was done from the Defendant to
Reichmans Capital, although the physical handing over of the trailer
was
accepted by the Plaintiff, it was done on Reichmans
Capital’s behalf. If one therefore has regard to the
common
law requirements for the transfer of ownership of moveable
property, the ownership of the trailer passed from the Defendant to
Reichmans Capital and not to the Plaintiff. (See:
Mondi South
Africa Ltd v Martens and another
2012 (2) SA 602
(KZP)
)
[41] The
abovementioned conclusion is furthermore fortified by the fact that
the Defendant registered
Reichmans Capital as the owner (title
holder) of the trailer on the E-Natis system. Only after
Reichmans Capital was registered
as the owner of the trailer on the
E-Natis system did it pay the Defendant the purchase price of the
trailer. Only thereafter
and when Reichmans Capital was already
registered as the owner of the trailer on the E-Natis system, did it
conclude the finance
lease with the Plaintiff.
[42]
Both the witnesses Mr van Niekerk and Mr Oliviera testified that
Reichmans Capital insisted that
the trailer be invoiced and sold to
it so that it would acquire ownership of the asset before leasing it
to the Plaintiff.
They told the Court that it was imperative
for Reichmans Capital to acquire ownership of the trailer as it
serves as Reichmans
Capital’s security in the finance
transaction that it intended concluding with its client, the
Plaintiff. This evidence was
not contested by the Defendant.
[43] The
significance of the tax invoice referred to earlier is furthermore of
extreme importance.
The tax invoice in question,
complied
with the provisions of the Value Added Tax Act, of 1991
(“
the
VAT Act
”). (My emphasis) Tax invoice is defined in
the VAT Act as being a document provided as required by Section 20 of
the
VAT Act. Section 20 requires that a supplier when making a
taxable supply to a recipient, within twenty one (21) days of the
supply, issue a tax invoice containing the particulars specified in
Section 20(4) of the VAT Act. These particulars require
that
the tax invoice contain the words “
TAX INVOICE
”
or “
VAT
INVOICE
” on it, the name, address and VAT number of both
the supplier and the recipient, and an individualized serial number,
a full
description of the goods supplied, the quantum or volume of
the goods supplied and the value of the supply. The term
“
supply
” is defined in the VAT Act as including
performance in terms of a sale and all other forms of supply.
[44] The
only evidence before the Court as to why the Defendant supplied the
trailer to Reichmans
Capital is that the trailer was purchased by
Reichmans Capital. No reliable alternative version has been
advanced by the
Defendant as to why it supplied Reichmans Capital
with and invoiced it for the trailer. In the premises I find
that the Defendant
sold the trailer to Reichmans Capital for
R564 300.00, that the trailer would be fit for the purpose for
which it was manufactured
and sold and in doing so the Defendant was
well aware of the fact that:
44.1
The acquisition of the trailer was not for the use and benefit of
Reichmans Capital;
44.2
Reichmans Capital was financing the trailer that would be supplied to
the Plaintiff;
44.3
The Plaintiff would use the trailer in the conduct of its transport
and logistics business.
THE CESSION:
[45] The
evidence of the witness Mr Duncan Rowe, and the cession document
itself which is found at
p. 120 to 122 of Exhibit “A”
clearly establish that Reichmans Capital ceded to the Plaintiff all
of its right, title
and interest, as purchaser in and to the sale
agreement. The production in evidence by the Plaintiff of the
written cession
document serves as
prima facie
proof of its
existence and the onus thereafter rests on the Defendant to disprove
the cession. The Defendant failed to do
so. (See in this
regard:
Hippo Quarries v Eardley
[1991] ZASCA 174
;
1992 (1) SA 867
(A)
at p. 873
).
THE
ACTIO REDHIBITORIA
AND/OR BREACH OF CONTRACT:
[46]
From the decision of
Mkhize v Lourens and another
,
2003 (3) SA 292
(T) at 294 B
, it is clear that in an action based
on the
actio redhibitioria
, a purchaser must allege and prove
that:
46.1
The object sold has a defect which, viewed objectively,
substantially impaired
the object’s utility or effectiveness
for the purpose for which it was sold or for which it was commonly
used;
46.2
The defect existed at the time of the sale;
46.3
The defect was latent and
not visible or discoverable upon
inspection;
( My emphasis)
46.4
The purchaser was unaware of its existence;
46.5
The purchaser would not have purchased the object had he known of the
defects; and
46.6
The purchaser is willing and able to make restitution.
[47] The
following important
dicta
appears from the decision of
Holmdene Brick Works v Roberts Construction
1977 (3)
SA 670
(A) at p. 683 – 684
:
“
A merchant who
sells goods of his own manufacture or goods in relation to which he
publically professes to have attributes of skill
and expert knowledge
is liable to the purchaser for consequential damages caused to the
latter by reason of any latent defects
in the goods. Ignorance
of the defect does not excuse the seller. Once it is
established that he falls into one of
the abovementioned categories,
the law irrefutably attaches this liability to him, unless he has
expressly or impliedly contracted
out of it…
The liability is additional to, and
different from the liability to redhibitorium relief which is
incurred by a seller of goods
found to contain a latent defect …
Broadly speaking in
this context, a defect may be described as an abnormal quality or
attribute which destroys or substantially
impairs the utility or
effectiveness of the res vendita, for the purpose for which it has
been sold or for which it is commonly
used …
Such a defect is
latent when it is one which is not visible or discoverable upon an
inspection of the res vendita.
”
[48] The
fact of the matter is that the Defendant designed a trailer with
trailing arms which forms
part of the suspension, a mere 97 mm from
the ground. The Defendant’s representatives knew that
this trailer was going
to be used for the transport of agricultural
equipment in the transport and logistics business carried out by the
Plaintiff.
It is to my mind important to have regard to the
fact that 97mm is approximately the width of a grown man’s
hand. The
net result of this design was that the trailer’s
suspension snagged on the ground when the trailer was reversed or
towed
over speed bumps, gate rails, rail crossings and other
protrusions in the road. The Defendant did not lead evidence to
establish
or even try to suggest that it was normal or acceptable in
the industry for the suspension of truck-trailers to snag on the
ground.
The suggestion by the Defendant’s witness
Nieuwoudt, that the trailer would not snag if it is towed on “
normal
road
” does not take the Defendant’s case any
further. The snagging problems that the Plaintiff experienced
with the
trailer are in themselves sufficient proof that the 97mm of
clearance is neither suitable or acceptable for a trailer being used
on South African roads. Trailers are not loaded on freeways and
normal roads. They enter loading yards, harbours, railing
yards, etc., as conceded by the Defendant’s expert, Mr
Nieuwoudt.
[49] The
question is whether or not the trailer thus designed and manufactured
with the trailing arm
sitting at 97 mm and its consequences as
described in paragraph [48], supra, amounts to a “latent
defect”
as described by the Court in
Mkhize v Lourens,
supra.
[50] The
snagging of the trailer as described above, viewed
objectively, clearly had the
effect that the trailer thus
designed, manufactured and sold, substantially impaired
the trailer’s utility and
effectiveness for the purpose
for which it was sold and commonly used. It clearly is a defect
and the defect existed
at the time of sale. Reichmans Capital
and the Plaintiff who received the trailer on their behalf were,
subjectively
speaking, not aware of the defect. The Plaintiff
also handed the trailer back to the Defendant. This must also
be viewed
in the context of this Court’s finding that Reichmans
Capital was the purchaser and not the plaintiff, which has the
nett result that the Defendant’s standard terms and conditions
are not applicable to the sale agreement with Reichmans Capital.
As indicated above, Defendant did not plead that it is
applicable to Reichmans Capital, nor did it plead it in the
alternative. The standard terms and conditions therefore do not
advance the Defendant’s case.
[51] The
pertinent question is however whether or not this defect can be
described as a “latent
defect”, i.e. a defect which
was not visible or discoverable upon inspection. The diagrams
in the report of Mr
Oelofse referred to in paragraph [33],
supra, clearly depicts that the lowest point of the suspension
is almost on
the ground. I therefore find that when the
Plaintiff took possession of the trailer on behalf of Reichmans
Capital,
a mere glace at the trailer’s suspension would
have revealed this visible or “patent defect” as opposed
to a
“latent defect”. In other words, the
defect was visible and discoverable upon inspection. It must
be
remembered that Mr Webb, the managing director of the Plaintiff
is not a novice in the transport business. When
he testified,
he had been in that position for 15 years.
[52]
This finding that the said defect does not amount to a latent
defect, has the nett result
that the Plaintiff cannot succeed
with its claim based on the
actio redhibitoria.
That
leaves the question whether or not the Plaintiff succeeded in proving
its claim based on breach of contract.
[53] A
lot of evidence and time was spent during the trial on whether or not
the Defendant is to blame
and thus liable to Plaintiff because when
the trailer was coupled to Plaintiff’s truck-tractors,
the 18,5 metres combination
length was exceeded and the trailer’s
deck ran at an angle upwards from the back. As indicated in
paragraph [28],
supra, the Defendant designed the trailer
to be drawn by a Volvo FH 480 6X4 truck-tractor. The sketch
indicating that
the trailer coupled to such a truck tractor was part
of the quotation which was accepted by the Plaintiff. When
coupled to
such a truck-tractor, the combination length is
within the 18.5 meter limit and the deck ran level. The
Plaintiff accepted
that quotation which was linked to that sketch.
Whether the specifics of different truck-tractors were discussed or
not,
matters not. It was the Plaintiff who chose to draw
the trailer with its Mercedes Benz truck-tractor.
[54]
Based on the totality of the evidence presented before me, and
specifically the expert
evidence, I find that the reason why
the trailer’s deck ran upwards at an angle and why the
combination length of 18,5
metres was exceeded was exactly because of
the fact that the Mercedes Benz truck-tractor of the Plaintiff had
different dimensions
and different fifth wheel position to a Volvo
FH480 6x4 truck-tractor. The Plaintiff did not succeed to prove on a
balance of probabilities
that the Defendant’s design or
construction with regards to these two aspects amount to latent
defects or breach of contract.
[55]
That leaves the question whether or not the design and construction
of the trailer with the trailing
arms sitting at 97mm and the
consequential snagging of the trailer referred to above amount to
breach of contract despite the fact
that it does not amount to a
latent defect. In my judgment it certainly does amount to
breach of contract for the following
reasons:
55.1
The continual snagging of the trailer when reversed or towed over
speed bumps, gate
rails, rail crossings and the like
amounts to a trailer that was designed and manufactured which was not
fit for the purpose
for which it was sold;
55.2
the nature of this breach is material and goes to the root of the
sale agreement;
55.3
the Defendant were afforded numerous opportunities between June and
August 2018 to rectify
this defect but it failed to do so;
55.4
the trailer was returned to Defendant on 21 August 2018 and the
Plaintiff cancelled the
sale agreement in May 2019 after taking
session of Reichmans Capital’s rights;
55.5
At no stage prior to cancellation of the agreement did the Defendant
purge its default
or effect the necessary repairs to the trailer so
as to deliver to Plaintiff a trailer that was free of defects and fit
for the
purposes for which it was designed, manufactured and
sold.
55.6
The Defendant’s conduct was a clear and unequivocal indication
not to be bound by
the terms of the sale agreement and amounted to
repudiation which entitled Plaintiff to cancellation.
COSTS RE: APPLICATION FOR
ABSOLUTION:
[56] As
indicated above, the Defendant brought an unsuccessful
application for absolution from
the instance after the Plaintiff
closed its case. I ordered that those costs will stand over for
determination at the end
of the trial. In my judgment it should
have been clear to the Defendant that at the conclusion of the
Plaintiff’s case
that the Defendant would need to adduce
evidence to answer the Plaintiff’s case and that the
application for absolution ought
never to have been brought.
There is thus no reason why the order as to costs pertaining to the
application for absolution
should not follow the result.
ORDER:
[57] In
the premises I make the following order:
“
1 The lawful
cancellation of the of the sale agreement is confirmed
2. The Defendant is
ordered to pay the Plaintiff the amount of
R564 300.00.
3. The Defendant is
ordered to pay the Plaintiff interest
a tempore morae
on the
aforesaid amount.
4. The Defendant is
ordered to pay the Plaintiff’s costs of suit, which costs
will include the costs pertaining
to the application for absolution
from the instance which was brought at the conclusion of the
Plaintiff’s case.”
L. LE R. POHL AJ
On
behalf of the Plaintiff
:
Adv.
S. Hoar
Instructed
by:
Lovius
Block Attorneys
Bloemfontein
On
behalf of the Defendant
:
Adv.
W. J. Groenewald
Instructed
by:
Symington
& De Kok Attorneys
Bloemfontein