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[2023] ZAFSHC 406
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Route Management (Pty) Ltd t/a Busaf Bauer v Misty Sea Trading 296 (Pty) Ltd t/a Project Logistics Management (5476/2019) [2023] ZAFSHC 406 (23 October 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
REPORTABLE:
YES/NO
Case No: 5476/2019
In
the matter between:
ROUTE
MANAGEMENT (PTY) LTD t/a BUSAF BAUER
Applicant/Defendant
and
MISTY
SEA TRADING 296 (PTY) LTD t/a
PROJECT
LOGISTICS MANAGEMENT
Respondent/Plaintiff
Coram:
Opperman, J
Heard:
20
October 2023
Delivered:
23 October
2023.
This judgment was handed down in
court and electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 23 October 2023. The date and time of
hand-down is deemed to be 15h00 on 23 October 2023
Judgment:
Opperman, J
Summary:
Application
for leave to appeal
JUDGMENT
[1]
The application for leave to appeal that lies before
court relates to
a matter that served on trial before Pohl, AJ. His term as acting
judge lapsed and the matter is entertained in
terms of
section
17(2)(a)
of the
Superior Courts Act
10 of 2013
read with Rule
49(1)(e) of the
Uniform Rules of Court
in that leave to appeal
may be granted by the judge or judges against whose decision an
appeal is to be made or, if not readily
available, by any other judge
or judges of the same Court or Division.
[2]
The application for leave to appeal was filed on 4 July
2023 but the
matter could not be set down for hearing due to the fact that the
judge to whom the matter was allocated, went on
sick leave and the
matter was transferred to myself on 17 August 2023. Dates were
immediately suggested to the parties and the
first suitable date for
both parties was 20 October 2023. The matter was finalised on virtual
platform at 08h00 on 20 October 2023.
[3]
The background of the case is the following according
to the court
a
quo
:
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.
[4]
A further issue that came to the fore is the position
of an entity
called Reichmans Capital, that might be a party to the litigation.
[5]
This is the order
a quo
:
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.
[6]
The atmosphere of this case cautioned and directed this
court to the
words of the Constitutional Court in
Shinga v The State and
another (Society of Advocates (Pietermaritzburg Bar) intervening as
Amicus Curiae); S v O'Connell and others
2007 (2) SACR 28
(CC)
that defined the judicial character of the task conferred upon a
presiding officer in determining whether to grant leave to
appeal.
It should be approached on the footing of intellectual humility and
integrity, neither over-zealously endorsing the
ineluctable
correctness of the decision that has been reached, nor over-anxiously
referring decisions that are indubitably correct
to an Appellate
Court.
[7]
The Supreme Court of Appeal in
Ramakatsa and others v African
National Congress and another
[2021] JOL 49993
(SCA) in March
2021 ruled that:
[10]
… If a reasonable prospect of success is established, leave to
appeal should be
granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to appeal
should be granted.
The test of reasonable prospects of success
postulates a dispassionate decision based on the facts and the law
that a court of
appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words, the appellants
in this matter
need to convince this court on proper grounds that
they have prospects of success on appeal. Those prospects of success
must not
be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the conclusion that there are
prospects
of success must be shown to exist.
[8]
The applicant maintains that the agreement of sale was
concluded
between the applicant and the respondent. Reichmans Capital merely
financed the sale of the trailer on behalf of the
respondent.
Further:
46
The Court therefore respectfully erred in finding that Reichmans:
46.1
purchased the trailer from the applicant, and
46.2
ceded to the respondent all of its rights, title, and interest as
purchaser in and to
the sale agreement.
47
47.1
The exemption clause contained in clause 8.1 of the conditions of
sale is applicable to
the sale agreement concluded between the
applicant and the respondent.
47.2
Because the trailer be supplied by the applicant to "the client'
(the respondent)
in accordance with the instructions and/or
specifications and/or dimensions as specified by the respondent, as
envisaged in clause
8.1 of the conditions of sale, the respondent
cannot claim against the applicant.
47.3
According to the respondent Reichmans purchased the trailer from the
applicant in terms
of the sale agreement. Reichmans is therefore "the
client"' as envisaged in clause 8.1 of the conditions of sale.
The
conditions of sale are therefore applicable, even if the sale
agreement was in fact concluded between the applicant and Reichmans,
on the respondent's version.
48
The applicant duly manufactured and supplied the trailer to the
respondent
and the Honourable Court respectfully erred in finding
that the applicant breached and repudiated the sale agreement in any
manner.
49
It is humbly submitted that the Honourable Court erred in granting
judgment in favour of the respondent against the applicant.
50
It is further submitted that the Honourable Court erred by not
dismissing
the respondent's claim against the applicant with costs.
CONCLUSION:
51
It is humbly submitted that the applicant has made out a proper case
for
the relief that it seeks.
52
It is therefore humbly submitted that the following order should be
granted:
52.1
That leave be granted to the applicant to appeal to the Full Bench of
the Free State High
Court, Bloemfontein against the whole of the
order and judgment granted by this Court on 20 June 2023;
52.2
That the costs of this application for leave to appeal be costs in
the appeal.
[9]
The respondent opposes the above and maintains that:
INTRODUCTION
1.
The applicant was the defendant and the respondent the plaintiff
in
the principal action. The parties shall hereinafter be referred to
(sic) plaintiff and defendant.
2.
During September 2017, the plaintiff approached the defendant, an
expert in designing, manufacturing and supplying of truck trailers to
the transport industry, to design and manufacture a specific
trailer
for use in the plaintiff's logistics and transport business.
3.
The defendant designed and manufactured the trailer (chassis number
AAH123296LR30050) and suppled (sic) it to the plaintiff during March
2018 ("the trailer").
4.
The plaintiff immediately encountered numerous problems with the
trailer, which included that the deck of the trailer "ran
uphill' (i.e. did not sit level) when the trailer was coupled to
the
plaintiff's truck tractors, the trailing arms of the suspension on
the trailer were snagging (dragging on the ground) when
the trailer
was reversed, or towed over speed bumps, rail crossings and gate
rails and the combination length of the trailer, when
coupled to the
plaintiff's truck tractors, exceeded the legal length of 18,5 meters.
5.
The plaintiff complained about the defects in the trailer and the
defendant acknowledged that there were "problems” and put
forward "proposed solutions". These were not acceptable
to
the plaintiff.
6.
At no stage prior to the defendant's attorney becoming involved in
the matter did the defendant seek to:
6.1
exonerate itself from liability for the defects in the trailer;
6.2
contend that there was nothing wrong with the trailer; or
6.3
contend that it had supplied the trailer according to the plaintiff's
specifications
and that it was not responsible for any
problems/defects in the trailer.
7.
Ultimately, the defendant never rectified the situation, resulting
in
the plaintiff cancelling the sale agreement returning the trailer to
the defendant and claiming repayment of the purchase price.
8.
The defendant refused to reimburse the purchase price to the
plaintiff
and the plaintiff instituted action against the defendant,
ultimately succeeding at trial.
9.
This was always a simple matter, rendered unnecessarily complicated
by the defendant's attempts to evade liability to the plaintiff for
the obvious defects in the trailer. That the defendant, a
self-proclaimed trailer manufacturing specialist, continues to
contend that a trailer, the suspension of which drags on the ground,
rips out gate rails and catches on speedbumps, is fit for the
purposes for which it was sold, is somewhat astounding.
Res ipsa
loquitur.
[10]
Reading of the evidence, having heard the arguments of counsel for
the parties
and with due regard to the complexity of the issues in
dispute and the evidence tendered; it is concluded that there is a
real
and reasonable prospect of success on appeal and that a court of
appeal could reasonably arrive at a conclusion different to that
of
the trial court.
[11]
ORDER
1.
Leave is granted to the applicant to appeal
to the Full Bench of the
Free State High Court, Bloemfontein against the whole of the order
and judgment granted by this court
on 20 June 2023.
2.
The costs of this application for leave to
appeal be costs in the
appeal.
M
OPPERMAN, J
APPEARANCES
On
behalf of the applicant
N
SNELLENBURG SC
W.J.
GROENEWALD
Bloemfontein
Symington
De Kok Inc
.
Bloemfontein
On
behalf of the respondent
S
HOAR
Durban
Lott
Attorneys
Kloof
c/o
Lovius Block Attorneys/Honey Attorneys
Bloemfontein