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[2021] ZAGPJHC 406
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Van Rensburg v Electrogrid (Pty) Limited (27845/2018) [2021] ZAGPJHC 406 (7 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 27845/
2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
7
SEPTEMBER 2021
In
the matter between:
RENIER
VAN
RENSBURG
Plaintiff
and
ELECTROGRID
(PTY)
LIMITED
Defendant
JUDGMENT
MODIBA
J
[1]
The Plaintiff’s claim is based on an
agreement concluded between the Plaintiff and the Defendant, on or
about 8 September
2015, for the supply and installation of a solar
power system at the Plaintiff’s residence (the agreement). The
Defendant
was duly represented by Norman Cherry.
[2]
The issue in dispute between the parties is
crisp. It is whether, in terms of the agreement, the Plaintiff
contracted the Defendant
to supply and install an off grid solar
power system or a start-up battery system. The Plaintiff contends
that he contracted the
Defendant to supply and install an off grid
system. The Defendant denies this. He contends that the parties’
agreement was
that the Defendant would supply and install a start-up
system, which would be upgraded as required.
[3]
Three witnesses testified on behalf of the
Plaintiff, namely the Plaintiff Renier van Rensburg, Charles van Zyl
and Jaco Botha.
Botha testified as an expert witness. Cherry is the
only witness who testified on behalf of the Defendant.
[4]
Van Zyl testified that he introduced Cherry
to the Plaintiff when he was contracted to undertake renovations at
the Plaintiff’s
residence. He had known Cherry for 15 years. On
that day, they walked through the house where Cherry assessed the
Plaintiff’s
electrical needs. They also went up to the roof to
see where the solar panels would fit. Van Zyl’s father would
later install
the steelwork for resting the solar panels on the roof
at the Defendant’s instruction.
[5]
Van Zyl confirmed the Plaintiff’s
version of the terms of the agreement as discussed on that day.
[6]
Van Rensburg testified that the Defendant,
represented by Cherry, undertook to supply a system in terms of which
solar panels would
charge the batteries during the day and supply
sufficient solar power to the residence as long as the sun was
shining. The batteries
would be sufficiently charged during the
course of the day in order to supply the household with solar power
through the night,
until the next morning, when the batteries would
recharge again, ensuring constant solar power supply to the
residence. The power
system would revert back to the grid on the days
there was no sufficient sunshine to fully supply the house and charge
the batteries.
[7]
The Defendant’s quotation, which the
Plaintiff accepted, reference an “Electrogrid Off Grid
quotation”. The Defendant
had also furnished the Plaintiff with
a quotation for a battery backup system when there is load shedding,
which he did not accept.
[8]
Installation commenced in February 2016. At
the time, van Rensburg was renovating his house. Cherry required
additional equipment
installed to increase the capacity for the solar
power supply due to the alterations and extra air-conditioners which
had been
installed during the renovations. The additional cost was
R64 809.00. The Plaintiff made full payment to the Defendant in the
amount
of R431 009.00.
[9]
Shortly thereafter, the Plaintiff started
experiencing various problems with the solar power system as
installed by the Defendant.
The system was faulty. It could never
operate as an off grid system in that the solar power supply to the
residence was always
insufficient. The system could never function
for a period of more than 2 to 5 hours even under the most favourable
circumstances.
[10]
The Plaintiff provided the Defendant with
various opportunities to rectify the solar power system, to no avail.
On 20 July 2018,
the Plaintiff served the Defendant with a final
letter to rectify the solar power system. Cherry responded in an
e-mail dated 21
July 2018 with no tender to do so. Instead for the
first time, he stated that the Defendant never sold to the Plaintiff
an off
grid system and that the Plaintiff should connect back the
timers on the geysers, which would assist in reducing the load for
the
inverters to carry out their normal operation without the system
being overloaded. This led to the cancellation of the agreement
by
the Plaintiff and the commencement of legal proceedings against the
Defendant.
[11]
In the joint minutes of experts, the
parties’ experts are agreed that the system was off, in bypass
mode and not operational
when they inspected it. A fault was present
on one of the inverters. The 3 phase needed further balancing as one
of the phases,
overshoots the load capacity of the inverters. If
phase balancing is done and inverters are operational then they
should be able
to handle the load indefinitely. However, the solar
panels and battery capacity is insufficient to run the system off the
grid.
The solar panels are installed in shaded positions, thus
rendering the system inefficient. Panels were mounted by pop
riveting.
This could interfere with their warranty.
[12]
The parties’ experts further agreed
that the hybrid inverters were of a lower quality type.
[13]
Botha also testified that the batteries
were lead acid batteries and were insufficient to support the power
demand of the premises.
The batteries only carried a 2-year warranty
and would have to be replaced typically every 3 years. Even if the
system was installed
optimally, it would on average produce 45 kWh
per day in circumstances where the premises required a daily
consumption of between
84 kWh to 148 kWh. Therefore, the system would
only provide 60% of the energy needs of the Plaintiff’s
residential premises.
This is why the system was not running off
grid.
[14]
According to Cherry, the Defendant would
never have provided the Plaintiff with an off grid system because
that would be illegal.
The Plaintiff required solar energy for some
lights and television in the event of a power outage. He offered him
two options.
The first was batteries with inverters. He could later
increase the solar energy capacity by installing more inverters and
add
solar panels resulting in the Plaintiff saving some money and not
using all of the power straight from the grid. The Defendant
subcontracted the solar power system installation at the Plaintiff’s
residence to a person Cherry referred to as Lovemore.
[15]
Cherry further testified that, later, the
Plaintiff required the whole residence to be running through the
inverters and that required
additional equipment. He attended the
Plaintiff’s residence on two occasions due to difficulties with
the solar power system.
The inverters had gone into bypass mode. Two
of the inverters had blown in this period. He could not explain what
caused the explosion.
He suspected that they had been overloaded. He
got the inverters replaced without extra charge to the Plaintiff.
Lovemore attended
the Plaintiff’s residence on behalf of the
Defendant on various other occasions to attend to the persistent
problems.
[16]
To
reconcile the mutually conflicting versions of the parties, this
court is guided by the test set out in
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others
[1]
where the court held that to resolve a dispute of fact between the
parties, the court makes a probability finding based on the
mutually
destructive factual evidence of the parties, having regard to the
credibility and reliability of the parties’ witnesses.
[17]
The evidence of the Plaintiff’s
witnesses was consistent in material respects. It was also consistent
with the Plaintiff’s
version. The witnesses were reliable and
credible.
[18]
Cherry’s evidence was replete with
inconsistencies and improbabilities.
[19]
Cherry testified that he always had a lady
named Desire van Tonder prepare quotations on his behalf. Van Tonder
would not attend
client’s premises with him where he assessed
the needs of a client. Hence, Cherry would always tell van Tonder
what to put
on the quotation. He never told van Tonder to quote the
Plaintiff for an off-grid solar power system.
[20]
It was established in cross-examination
that the Defendant never discovered relevant e-mails leading up to
the final accepted quotation.
It is improbable that it is by
coincidence that these documents support the Plaintiff’s
version and contradict the Defendant’s.
It is also improbable
that it is by coincidence that Cherry never saw these documents, that
the documents were not discovered and
that van Tonder who created
them, did not testify at the trial. Yet, the amount quoted, which the
Plaintiff paid in full, was never
an issue. It begs the question how
Cherry knew the amount quoted, if he never saw the quotation.
[21]
These factors justify the drawing of a
negative inference from the Defendant’s failure to secure van
Tonder’s testimony
during the trial.
[22]
The Defendant adduced no evidence to
contradict the evidence of the Plaintiff that the Defendant offered
him an off-grid system
or a battery backup system. The two quotations
that van Tonder sent the Plaintiff, as well as van Zyl’s
evidence, corroborate
van Rensburg’s evidence in this regard.
At no point, when the Plaintiff complained to Cherry that the system
that the Defendant
installed does not meet the needs of his
residence, did Cherry point out to him that he ordered and was
provided with only a start-up
system which would not meet the
Plaintiff’s expectations. It is absurd that at no point did
Cherry correct van Tonder’s
purported error on the quotation.
[23]
At no point either, did Cherry call on the
Plaintiff to install recorders to assess the required capacity, or to
increase the capacity
of the system, yet he was aware that the
inverters would go into by-pass mode or blow up due to overloading.
[24]
It is apparent from the correspondence and
the evidence that even on Defendant’s own version, the system
never functioned
properly. The expert evidence confirms this. Cherry
testified that some 8 months after installation, he even tried to
contact the
supplier to establish why the system was not working
properly.
[25]
It became apparent from Cherry’s
evidence that the Defendant’s website created a false
impression as to the Defendant’s
experience in installing solar
power systems. He used pictures on his website of solar power system
installations not done by the
Defendant.
[26]
When Cherry was confronted with the website
where the Defendant advertises the installation of off grid solar
power system, and
it was pointed out that on his own evidence, off
grid solar power systems where illegal, he changed his version to
say, off grid
solar power systems are legal in Cape Town. Yet, van
Tonder had quoted van Rensburg for an off grid system. In addition,
in two
letters dated 19 April 2018 and 21 July 2018 respectively,
Cherry states that the ultimate goal was for the system to become
fully
off grid.
[27]
It is clear that the Defendant lied to
potential customers when it created its website and put false
information therein as it was
a company that was still in its infancy
and did not have much experience. This misconception was furthermore
pursued in this Court
during the evidence. This evidence reflects a
serious lack of credibility on Cherry’s part.
[28]
From the evidence presented during the
trial, it is evident that the Defendant lacked the knowledge, skill
and experience to install
the solar power system of the type the
Plaintiff contracted it to install at his residence.
[29]
These factors render the improbabilities in
the Defendant’s version astounding.
[30]
Even more problematic for the Defendant is
that aspects of the evidence of the Plaintiff’s witnesses,
which was consistent
with the Plaintiff’s version, were not
disputed. This includes:
30.1
Van Zyl’s evidence that when he
introduced Cherry to van Rensburg at the latter’s residence,
they walked about the house
for Cherry to assess his electrical needs
and went up the roof to see where the solar panels would be
installed;
30.2
Van Zyl’s evidence confirming the
Plaintiff’s version of the agreement;
30.3
that Lovemore informed van Rensburg that:
30.3.1
placing the timers on the geysers would
merely give an extra hour’s power;
30.3.2
this was the first time they ever did such
a big job and they did not know how to resolve the problems;
30.3.3
Botha’s evidence that the solar power
system which the Defendant installed at the Plaintiff’s
residence could have been
an off-grid system for a smaller residence
and it was certainly not a start-up system having regard to the
equipment and the price
thereof;
30.3.4
Botha’s evidence that the system
could only generate 45 kWh per day when the residence required at
least 84 kWh per day;
[31]
Further, it was never put to Van Zyl that
he was asked to bypass the inverters when he did grinding work;
[32]
When asked whether he implemented the
recommendations of the Defendant’s expert, Cherry replied that
the timers were installed
to do the load balancing. The Defendant
clearly did not implement the recommendation of its own expert to fix
the defects in the
solar power system the Defendant installed at the
Plaintiff’s residence.
[33]
In the premises, the Plaintiff’s
version that he contracted the Defendant to install an off grid solar
power system at his
residence is more probable. It is therefore
accepted. The Defendant’s version is found to be improbable. It
is therefore
rejected.
[34]
The Plaintiff has made out a case, on a
balance of probabilities, for an order as prayed for in his
particulars of claim.
[35]
In the premises, the following order is
made:
ORDER
1.
The Defendant shall pay the Plaintiff an
amount of R431,009 including interest on the said amount, from date
of service of the summons
to date of payment.
2.
The Defendant is liable for the Plaintiff’s
costs of suit.
MS
LT MODIBA
JUDGE
OF THE HIGH COURT
Counsel for the
Plaintiff:
Mr A. P. Den Hartog instructed by Lizl Smith, Lizl Smith Attorneys
Date of hearing:
26-29 November 2019, 24 March 2021, 21 April 2021
Date
of judgment:
7 September 2021
[1]
(427/01)
[2002] ZASCA 98
(6 September 2002).