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[2018] ZAGPPHC 696
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Imperial Select v Pinto and Another (A175/2017) [2018] ZAGPPHC 696 (27 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: A175/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
IMPERIAL
SELECT
Appellant
And
EDUARDO
JORGE DA SILVA
1
ST
RESPONDENT
ABEGAO
PINTO
MOTOR
FINANCE CORPORATION
2
ND
RESPONDENT
Coram:
Maumela J and Rangata AJ
JUDGMENT
INTRODUCTION
[1]
This is an appeal against the whole judgment of the regional
magistrate, Mr D
h
Makhoba, of Pretoria Regional Court granted on 081 July
2013. At the commencement of the appeal, the appellant made an
application
for condonation of the late filling of the appeal. The
application was unopposed and was granted.
BACKGROUND
[2]
The appellant, Imperial Select and the 151 respondent, Mr Eduardo
Jorge Da Silva Abegao Pinto, entered into a verbal sale
agreement
wherein the appellant sold a Tata Safari motor vehicle (motor
vehicle} to the respondent, financed by the 2nd respondent,
Motor
Finance Corporation. It was an explicit term of the agreement that
the motor vehicle shall be provided with a warranty which
will be
activated from date of purchase. It is common cause that the motor
vehicle is as described in the particulars of claim.
[3]
After taking delivery of the motor vehicle, the first respondent
reported to the appellant certain non-conformities experienced
on the
motor vehicle which the appellant undertook to fix. Despite the
confirmation by the appellant that the non-conformitieswere
attended
to; the motor vehicle broke down necessitating repairs to the value
of R76 965.31. SA Warranties (motor vehicle warranty
provider}
indicated that the damage will not be covered by warranty and that
the damage is a consequential damage. The first respondent
instituted
legal proceedings for the cancellation of the said agreement and that
the appellant pay an amount of R130 399.97 to
the respondent and the
order was granted.
[4]
The Appellant averred that the regional magistrate misdirected
himself on the following issues:
(a)
That the first respondent made an election to abide by the
agreement which amounted to a waiver of his right to cancel the
contract
(i)
The appellant relies on the fact that the first respondent by
enforcing his rights, delivering the motor vehicle to the appellant
for the non-conformities to be fixed was an election to enforce the
agreement. The appellant averred that the right to cancel the
contract lapses once the party who is entitled to rescind fails to do
so within a reasonable time or such person loses the right
to rescind
if his conduct and the circumstances are such that the defaulting
party could reasonably infer that he did not intend
exercising his
rights to rescind. In this case it is the appellant's case that the
first respondent showed by his conduct an unequivocal
intention to
enforce the agreement by submitting non-conformance list to the
appellant to be replaced.
(Ii)
The first respondent averred that he did not waive his right to
cancel the contract. Further that waiver as averred by the
appellant
remained incomplete until accepted by the first respondent. He
further averred that the appellant cannot rely on the
defence of
waiver without pleading such defence. Further that the appellant
failed to demonstrate to the court that the respondent
had full
knowledge of the abandoned right. The first respondent averred he at
no stage intended to waive his right to cancel the
contract.
(b)
Reliance on the Consumer Protection Act 68 Of 2008 (CPA)
The
appellant averred that without pleading reliance on the CPA by the
first respondent, the regional magistrate found that the
respondent
made out a case in terms of the CPA. In response, the first
respondent averred that the regional magistrate merely made
reference
to the fact that the plaintiff ( first respondent) had duly complied
with the provisions of the said Act, as such does
not place reliance
thereon.
(c)
The mechanical defects to the water pump
was as a
result
of a latent
defect
in
the engine.
(i)
The appellant averred that the first respondentdrove the motor
vehicle for 13 000 kilometres before it broke down.
Further that
according to Mr Carel Johannes Stefaanis Riekert, (appellant's}
expert witness stated in his report that, "the
motor vehicle was
in good working order at the time the cambelt was replaced and that
if the water pump was faulty then, it would
have been replaced....".
The
expert further reported that had there been fault with the water
pump, the cambelt would have snapped within the first 1000km
after it
was replaced.
(ii)
The first respondent averred that the motor vehicle had a latent
defect on the water pump at the time
of sale and this was not known
to him. He averred that according to Mr Andre Van Rooyen, the
defendant (appellant's) expert witness,
his inspection of the motor
vehicle revealed that the main shaft or bearing appears to have
failed which caused lots of play on
the drive pulley. The expert
further reported signs that the coolant had been leaking from the
bearing. It is his conclusion that
the damage to the motor vehicle
was as a direct result of the water pump failure which led to the
timing belt failure, damaging
the pistons and valves. The respondent
averred that when he experienced problems with the vehicle he
submitted the list of non-conformities
to the appellant to be fixed
and the problems
were
persistent.
(d)
The mechanical defects In the vehicle were serious latent defects
of which the first respondent was not
aware
of
when he concluded the contract with the
applicant
The
appellant averred that the motor vehicle had no latent defects at the
time of the sale. The first respondent averred that the
motor vehicle
had defects to the water pump as detailed by Mr Van Rooyen in his
report. The expert witnesses agree that the motor
vehicle would not
have travelled further than 1000 kilometres with a defective water
pump. Further that the first respondent had
travelled for an
approximate distance of 13 000 kilometres before the vehicle's engine
broke down. This aspect will be dealt with
in detail herein below.
THE
ISSUES
[5]
The court has to deal with the issues indicated below:
(a)
Did the first respondent waive his right to cancel the contract when
he submitted the motor vehicle to the
appellant to be repaired.
(b)
Was the defect on the motor vehicle present at the time of the
conclusion of the contract.
THE
LAW
[6]
Ntsebeza AJ in the case of Miller and another NNO v Dannecker
2001
(1) SA 928
(C)
at 936 C stated that:
"Waiver
is
the deliberate
abandonment, renunciation or su"ender of an existing legal right
by the right holder, acting with full knowledge
of the right".
In
the case of the Road Accident Fund v Mothup,i Nienaber AJ
[1]
,
uput
it clear that waiver is
a
matter
of intention. It is simply put
as
a
unilateral decision not to avail oneself of
a
right
or remedy, privilege or power, an interest or benefit".
Further
,Innes CJ
[2]
held that when the
renunciation though not communcated, is evidenced by conduct
inconsistent with the enforcement of the right or
clearly showing an
intention to surrender it, then also the intention be acted upon and
the right perishes. Like any other term
of the contract , should a
party thereof, intend to waive his or her right, the intention has to
be clear, and appreciated by the
party intending to exercise his
right to waive. Such intention has to be communicated to the other
party.
[7]
In the case of Sandown Travel (Pty) Ltd v Cricket South Africa
2013(2) SA 502, Wepener J, held that
"while, ordinarily,
a
party had to choose which remedy to pursue on breach by the other
of
a
contract and
was
bound by the choice, there is
authority for the view that the innocent party could change that
election after giving the party in
breach the opportunity to perform.
If he or she persisted in the repudiation, thus failing to repent,
the innocent party could
change his or her election and choose to
treat the contract
as
at an end".
[8]
In applying the principle indicated above, in the case of Primat
Construction CC v Nelson Mandela Metropolitan Municipality
(1075/2016) [2017] ZASCA73; 2017 (5) SA (SCA) (1 June 2017) Lowe J
held that
"in order for the aggrieved party to change his or
her election, there had to be
a
further act of repudiation
after the election had been made. Only then could
a
new
election be made"
ANALYSIS
[9]
The first respondent in submitting the list of problems to be
attended to by the Appellant, which in any event did
not make a
difference as the motor vehicle broke down after it was fixed, was
considered by the appellant as a waiver of rights
by the respondent.
The appellant contends that the respondent is not entitled to cancel
the contract. The appellant submitted that
the first respondent had
the opportunity to cancel the contract if he was not happy with the
motor vehicle. Instead he elected
to enforce the contract and
demanded that the appellant fix the non-conformities It further
submitted that the respondent had the
opportunity to return the motor
vehicle upon the first encounter, wherein he experienced problems:
[10]
The first respondent submitted that he had no intention to abandon
his right to cancel the contract. When he experienced
problems with
the vehicle he submitted a list of non conformities, hoping that
the appellant would fix them. He submitted
that when the motor
vehicle returned from the appellant he still experienced the same
problems until the motor vehicle broke down
on the highway. The first
respondent submitted the findings by Mr Van Rooyen that the breakdown
of the motor vehicle was caused
by the collapsed water pump which
then caused the failure of the timing belt which in tum led to the
damage to the engine.
[11]
The onus of proving waiver is on the party alleging it. In this case
the first respondent submitted a list of non-conformities,
after
which the motor vehicle was recalled for repairs. The repairs
performed did not assist in fixing the motor vehicle as the
breakdown
pursued. Taking into account the events that led to the breakdown of
the vehicle, the applicable legislation as to the
right of the party
to a contract, wherein the subject matter had defects that were not
known to the buyer, the question will be,
was the seller aware of the
defect? From the report by the appellant's expert witness, it is
clear that the motor vehicle had problems
with the water pump. It is
recorded that the water pump was replaced at 21397 Km, due to water
leakage from the shaft seal. It
will be unfair to accept that by
bringing to the attention of the appellant the problems that the
first respondent experienced
on the motor vehicle, with the hope that
they will be fixed should be viewed as waiver of ones' rights.
[12]
The court views that the first respondent did not at any stage intend
to waive his right to cancel the contract
and such intention could
not be bilateral. The court therefore finds that the respondent had
no intention to waive his rights .As
such he is entitled to cancel
the contract.
[13]
The second aspect to deal with is that the regional court found that
the first respondent in its action made out
a case in terms of the
CPA. This aspect shall not be dealt with in detail as it is conceded
by the first respondent that the judgment
was not founded on the
enforcement of the CPA, but on the common law action redhibitoria.
[14]
The other aspect to be dealt with is whether the defect to the water
pump was a result of a latent defect in the
engine itself. It is the
respondent's submission that the breakdown was caused by the
defective water pump which led to the failure
of the timing belt
resulting in the damage to the engine. Mr Andre Van Rooyen, pointed
out that his examination of the motor vehicle
revealed that the main
shaft or bearing appears to have failed which has caused a lot of
play.
[15]
The appellant submitted that at the time of the sale the motor
vehicle was in a good working order and contends
the submission that
the defects were present at that time. Having considered the problems
which the first respondent experienced
from the time he bought the
vehicle, and his insistence for the appellant to make right the cause
of the complaints that he submitted,
is an indication that the motor
vehicle was not free of problems. For the appellant to simply say
that when the motor vehicle was
checked, it had no defect could not
be correct.
[16]
In the case of De Vries v Wholesale Cars and another
1966 (2) SA 22
(OPA), the following was stated,
"The question which has to
be answered in considering the issue whether the latent defect in the
merx
is serious enough for a successful reliance on the
actio
redhibitoria,
is whether the defect(s) is or are so serious that
a
purchaser would not have bought had he been aware thereof on
conclusion of the contract. In determining the question whether the
purchaser would have bought or not, an objective test should be
applied. The
ipse dixit
of the purchaser is not decisive."
[17]
Reference is therefore made to the case of Du Plessis v West
[1998]
JOL 202
(N) at para 5, wherein Combrinck J stated that:
"Where
the purchaser chooses to pursue redress by way of the actio
redhibitoria
he will, in addition, have to show that, had he
known about the defect in the
res vendita,
he would not have
entered into the sale and a/so that he is willing and able to effect
restitution of the
res,
or is excused therefrom. Whilst there
is
a
subjective element to the buyer's assertion that he would
not have entered into the sale if he had been aware of the defect
that
must notwithstanding be objectively sustainable. At the end of
the day the court must
be
satisfied on all the evidence that
a
reasonable man in the buyer's shoes would have held
a
similar
view."
[18]
It is therefore my view that the latent defect was serious to the
extent that had the first respondent known of
it prior to the sale,
he would not have proceeded with the sale of the motor vehicle. As
submitted by the first respondent, functionality
of the water pump at
the time of the sale does not take away the possibility that there
could have been a fault on the part. The
court agrees with the
decision by the regional magistrate that the mechanical defects in
the motor vehicle were serious latent
defects of which the first
respondent was not aware when he concluded the contract with the
appellant.
[19]
Accordingly, I propose the following order:
(a)
The appeal is dismissed with cost
B
Rangata
Acting
Judge of the High Court Gauteng, Pretoria
It
is so ordered
Maumela
T.A.
Judge
of the North Gauteng High Court, Pretoria
[1]
Road accident fund V Mothupi(2003)3AII
SA181(A)
[2]
Mutual life insurance Co of new York V Ingle
1910 TPD 540
at 550