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[2022] ZAKZPHC 23
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Kempston Motor Group Trust t/a Peugeot Citroen Pinetown v Hassims Packaging CC (AR 212/2021) [2022] ZAKZPHC 23 (10 June 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
Case No: AR 212/2021
In
the matter between:
KEMPSTON
MOTOR GROUP TRUST
APPELLANT
t/a
PEUGEOT CITROEN PINETOWN
(Defendant
a quo
)
and
HASSIMS
PACKAGING
CC
RESPONDENT
(Plaintiff
a quo
)
ORDER
The
following order is made:
1.
The appeal is upheld with costs,
such to include the costs of senior counsel.
2.
The order of the court
a
quo
is set aside and replaced
with the following order:
“
The
plaintiff’s claim is dismissed with costs”.
J
U D G M E N T
Delivered
on: Friday, 10 June 2022
OLSEN
J (BALTON J et BEZUIDENHOUT J concurring)
[1]
This appeal comes to us with the leave of the Supreme Court of
Appeal. The appellant
is a Trust formed by the Kempston Motor Group,
which carries on business as the Peugeot car dealer in Pinetown. The
appeal is against
the grant of an order for specific performance made
by the High Court at Durban (Kruger J) at the conclusion of a trial
in an action
in which the respondent (Hassims Packaging CC) sought
such an order. I find it convenient to refer to the parties as they
were
in the court
a quo
.
[2]
During February 2013 the plaintiff purchased two Peugeot 2.2l 4 ton
delivery vehicles
from the defendant for R270 000 each. During
or by November and December 2014 those two vehicles suffered from
mechanical
problems of a kind which caused the plaintiff to want to
replace them. Against that background the plaintiff pleaded that on 7
May 2015 a partly written and partly oral agreement was concluded
between the plaintiff (represented by Mr Sikander Hassim) and
the
defendant (represented by Mr Etienne Gerber) in terms of which the
defendant would return the two 2.2l Peugeot Boxer delivery
vehicles
to the plaintiff who would replace them with two new (2015 model)
Peugeot Boxer delivery vehicles with an engine capacity
of 3 litres.
In terms of the agreement the only amount payable by the plaintiff to
the defendant was R41 000. The defendant
repudiated that
agreement, and the plaintiff sought specific performance of it.
[3]
In its plea the defendant
(a)
denied the conclusion of the agreement
relied upon by the plaintiff;
(b)
expanded upon that denial by pleading that
anything done by Mr Gerber and relied upon by the plaintiff to
establish the agreement
was done without authority.
[4]
The plaintiff delivered a replication asserting that Mr Gerber had
ostensible authority
to conclude the contract contended for by the
plaintiff.
[5]
Mr Hassim was the only witness called by the plaintiff. The defendant
called three
witnesses concerned with the administration of its
affairs and sales. But Mr Gerber was not called. For present purposes
the only
relevance of the evidence of the three witnesses called by
the plaintiff is that it established that the price of one new
Peugeot
Boxer 3l delivery vehicle in May 2015 was R481 000, and
that Mr Gerber, who was the service manager, had no actual authority
to conclude any contract on behalf of the defendant for the sale of
new vehicles.
[6]
The trial was conducted in two parts separated by some two years. Mr
Hassim was still
in the witness stand when the first phase of the
trial ended with an adjournment. It was apparent during that first
phase of the
trial that the defendant hoped to run its defence
without the evidence of Mr Gerber. When the trial resumed the
defendant had experienced
a change of heart. It intended to call Mr
Gerber. However on the day that he was to be called the defendant
applied for an adjournment
explaining that the problem with Mr Gerber
was that he had suffered what might for convenience sake be called a
nervous breakdown,
and had been under treatment for that condition
for a considerable period of time. The psychiatrist responsible for
his care had
conveyed to the defendant’s attorneys that the
prospect of giving evidence had caused a relapse in Mr Gerber’s
condition,
and suggested that his participation in the trial be
delayed and that it would be at least more certain that Mr Gerber
would cope
with giving evidence if arrangements were made for him to
do so remotely. This was less likely to cause him the stress which
the
prospect of giving evidence in court had caused, and which had
resulted in his relapse. The defendant applied for a further
adjournment
in anticipation of putting such arrangements in place,
but the application was refused. The defendant’s case was
closed without
Mr Gerber’s evidence.
[7]
Before us counsel for the defendant advanced four arguments in
support of the appeal,
namely
(a)
that the plaintiff had not proved the
contract relied upon;
(b)
that the discretionary remedy of specific
performance should not have been granted;
(c)
that the plaintiff had failed to prove Mr
Gerber’s authority (actual or ostensible); and
(d)
that the application for an adjournment
should not have been refused, and constituted a material misdirection
which resulted in
a failure of justice.
[8]
The starting point is obviously the question as to whether the
contract was ever concluded.
This involves a consideration of the
evidence given by Mr Hassim. It is not disputed that by January 2015
he had lost all faith
in the two delivery vehicles he had bought in
2013 and wanted to do a deal with the defendant to replace them with
2015 models
on terms which Mr Hassim might find acceptable. To that
end he was dealing with a Mr Mangan whom he described as the general
manager
of the defendant. Although in his evidence Mr Hassim claimed
that Mr Mangan had introduced him to Mr Gerber, given that Mr
Hassim’s
anxiety was generated by the break down of the
vehicles he had bought in 2013, it is unlikely that Mr Hassim did not
know Mr Gerber.
[9]
On being referred to an email from Mr Mangan to him sent on 20
January 2015, Mr Hassim
said this.
‘
Okay,
it was during the course of January 2015 that Mr Mangan sent me an
email saying that I think he was going on leave or he was
leaving the
company and a Mr Ethienne Gerber would be contacting me and he has
explained further – basically introduced me
to Mr Gerber as my
contact point there onwards. However during this period of time I had
maintained communication with Mr Mangan
till he left the company as
well as Mr Gerber.’
The
email to which Mr Hassim was speaking actually reads as follows.
‘
I
am unfortunately tied up and so have asked my service manager
Ethienne just to give you a call for now and I will follow up as
soon
as I am free.’
Mr
Hassim’s evidence a little later on is to the effect that Mr
Mangan simply disappeared (having left the defendant) and
that he
continued thereafter to deal with Mr Gerber. Counsel for the
plaintiff accepted in argument that there was no evidence
of any
representation by the defendant that Mr Gerber had authority to
conclude the contract relied upon by the plaintiff, beyond
Mr
Hassim’s contention that Mr Mangan, before his departure, said
that Mr Hassim should deal with Mr Gerber. I have dealt
with this
subject in overview, as there is no need for this court to make any
finding on this issue. However the available evidence
on this issue
does provide some context when considering what it is that Mr Gerber
is said to have done.
[10]
Mr Hassim’s evidence was to the effect that the contract he
contends for was concluded
orally between him and Mr Gerber; and that
he asked for confirmation in writing and received it. That was on or
about 7 May 2015.
The last figures he had received from Mr Mangan,
and rejected, are reflected in an email of 5 February 2015 as
follows.
‘
2013
Boxer trade-in R260 000.00
New
2015 Boxer R475 000.00.
Balance
to pay R215 000.00.’
Mr
Hassim’s evidence as to the agreement he concluded with Mr
Gerber is as follows.
‘
The
agreement of the deal that Mr Etienne Gerber had put forth was that
he would take both my vehicles in, I would tender a payment
of
R41 000.00 and I would receive two new Peugeot Boxers the
equivalent of what I have.’
This
was done over the telephone.
[11]
The writing relied upon by the plaintiff was identified by Mr Hassim
in his evidence. There were
three emails. The first email from Mr
Gerber (dated 7 May 2015, as are the others) reads as follows.
‘
As
discussed earlier herewith a breakdown.
New
price: R481 000.00.
Trade-in:
R360 000.00.
Discount:
R80 000.00.
To
pay in: R41 000.00.
Trust
you will find the above in order.’
Mr
Hassim replied as follows.
‘
Okay
got this one
And
the one about the other being changed no charge.’
Mr
Gerber responded as follows.
‘
Sorry
I forgot to include. The other vehicle will be exchanged by Peugeot
Customer Care with a Boxer from them as soon as the stock
arrives.’
[12]
The meaning of the first of these emails is clear.
(a)
Firstly, what it spoke about was the supply
of one new vehicle. The evidence is clear that one 2015 model vehicle
was then being
sold for R481 000. The second email, Mr Hassim’s
response, shows that he too understood that the first email dealt
with
the supply of only one new vehicle to the plaintiff.
(b)
Secondly, the trade-in figure of R360 000
was in respect of the trade-in of both the 2013 models. They had been
bought two
years earlier for R270 000 each. Counsel for the
plaintiff before us candidly stated that he was unable to argue that
the
trade-in figure of R360 000 was for only one of the 2013
models. Clearly that concession had to be made.
(c)
Accordingly, what Mr Gerber was talking
about was the defendant supplying the plaintiff with one new 2015
model in exchange for
the two 2013 models and R41 000.
[13]
As to the third of the emails referred to above, the plaintiff’s
case must be taken to
be that Mr Gerber otherwise undertook on behalf
of the defendant that it would provide another 2015 model to the
plaintiff for
free. Of course that is not what the email says.
Counsel for the defendant argues that what the third email conveys is
that a loan
vehicle then in the possession of the plaintiff (because
the 2013 model, or models, were out of action) would be exchanged not
by the defendant, but by Peugeot Customer Care. (The evidence reveals
that Mr Hassim was less than happy with the loan vehicle which
was
too small.) This argument appears correct on the probabilities. But
the crucial point is that the email does not convey, and
indeed
contradicts the proposition, that the defendant undertook to deliver
a second 2015 model to the plaintiff. The defendant
is not “Peugeot
Customer Care”.
[14]
The evidence at trial covered more ground than that which I have
discussed above, but none of
it, and none of the disputes (minor in
nature) which arose in connection with it, disturbs the analysis just
given of what happened
on or about 7 May 2015.
[15]
The basis upon which the learned Judge
a quo
found for the
plaintiff is encapsulated in two paragraphs of his judgment.
‘
[12]
It is, in my view, clear from the evidence presented that an
agreement was reached between Hassim,
on behalf of the Plaintiff and
Gerber on behalf of the Defendant. It is noted that it is only
Hassim’s evidence relating
to the agreement that is before the
Court. The Defendant has not presented any evidence to gainsay same.
The Defendant has submitted
that the emails forwarded by Gerber and
relied upon by Hassim are nothing more than a “breakdown”
of the costing and
that it did not constitute an agreement. However,
Mr Gerber was not called to testify. The Defendant’s counsel at
the time
informed the Court that Mr Gerber would not be testifying.
Later (and when new counsel was engaged) when it became clear that
his
evidence was crucial, Mr Gerber was not available to testify.
[13]
Mr Hassim testified in a clear and straightforward manner. It became
clear that he is an astute
businessman who carefully recorded and
filed all his dealings and interactions with the Defendant. I found
him to be an honest
and credible witness and accept his version of
the events as they unfolded. As stated earlier, there is nothing to
gainsay his
version.’
[16]
In my respectful view the learned Judge misdirected himself in two
respects. Firstly, he failed
properly to analyse the emails which
according to Mr Hassim supported his version of what had been agreed
in his conversations
with Mr Gerber. Secondly, the learned Judge
incorrectly relied upon the veracity of Mr Hassim’s evidence
without considering
the probabilities.
[17]
The fact that evidence stands uncontradicted does not mean that it
has to be accepted; or that
it suffices as proof of the facts to
which it speaks. The position was put as follows by Greenberg JA in
Schenker Brothers v Bester
1952 (3) SA 664
(A) at 670.
‘
The
evidence of these two witnesses, as was to be expected, has not been
contradicted by any evidence led on behalf of the defendants,
but
this fact does not relieve the plaintiff of the obligation to
discharge the onus resting on him. (See
Siffman
v Kriel
1909 T.S. 538
;
Katz
v Bloomfield and Keith,
1914 T.P.D 379
;
Nelson v Marich
– AD 1952, not yet reported.) In the first of these cases,
Innes, C.J. said:
‘
It
does not follow, because evidence is uncontradicted, that therefore
it is true. … The story told by the person on whom
the onus
rests may be so improbable as not to discharge it.’
Similarly,
the circumstance that evidence is uncontradicted is no justification
for shutting one’s eyes to the fact, if it
be a fact, that it
is too vague and contradictory to serve as proof of the question in
issue.’
[18]
As was held in
National Employers’ General Insurance v
Jagers
1984 (4) SA 437
(E) at 440, a consideration of the
credibility of a witness is “inextricably bound up with a
consideration of the probabilities
of the case”. It is not
“desirable for a court first to consider the question of the
credibility of the witnesses as
the trial Judge did in the present
case, and then, having concluded that enquiry, to consider the
probabilities of the case, as
though the two aspects constitute
separate fields of enquiry.”
[19]
In the present case the learned Judge
a quo
made a credibility
finding in favour of Mr Hassim, and found the contract proved on that
basis, without considering the probabilities.
In the light of the
emails referred to earlier, the learned Judge should have, but did
not grapple with the proposition that Mr
Gerber (duly authorised by
the defendants) undertook on behalf of the defendant to deliver one
of the 2015 model delivery vehicles
worth R481 000 to the
plaintiff for free. That proposition is so improbable that it had to
be rejected, which meant that,
no matter how the learned Judge viewed
the presentation of Mr Hassim’s evidence, it could not be found
to be credible.
[20]
The contract relied upon by the plaintiff was not proved. There is
accordingly no need to deal
with the other three bases upon which the
defendant advanced its claim that this appeal should be upheld.
The
following order is made.
1.
The appeal is upheld with costs,
such to include the costs of senior counsel.
2.
The order of the court
a
quo
is set aside and replaced
with the following order:
“
The
plaintiff’s claim is dismissed with costs”.
OLSEN
J
I
agree
BALTON
J
I
agree
BEZUIDENHOUT
J
Date
of Hearing:
Friday, 22 APRIL 2022
Date
of Judgment: Friday,
10 June 2022
For
Appellant:
Mr M Pillemer SC
Instructed
by:
Larson Falconer Hassan
Parsee Inc.
Appellant’s
Attorneys
2
nd
Floor, 93 Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Durban
(Ref.:
N Kinsley/jd/02/K094/071)
(Tel:
031 – 534 1600
(Email:
Nic.Kinsley@lfhp.co.za
)
c/o
E R Browne Incorporated
Suite
8, 3-On-Crescent
Cascades
Cres, Montrose
Pietermaritzburg…KZN
For
Respondent:
Mr A Potgieter SC
Instructed
by:
Thasneem Parak and
Associates
Respondent’s
Attorneys
8
Queensview Place
Umgeni
Park
Durban
(Ref:
H023(10))
(Tel:
031 – 564 6981)
(Email:
tasz@tpaattorneys.com
)
c/o
Bharath and Associates
Office
No. 8
20
Otto Street
Pietermaritzburg….KZN