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[2018] ZAECELLC 7
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Aristopix (Pty) Ltd v TFM Manufacturing (Pty) Ltd (EL1072/2014; ECD2372/2014) [2018] ZAECELLC 7 (26 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO: EL 1072/2014
ECD
2372/2014
In
the matter between
ARISTOPIX
(PTY)
LTD
Plaintiff
and
TFM
MANUFACTURING (PTY)
LTD
Defendant
JUDGMENT
HARTLE
J
1.
The
defendant was contracted by the plaintiff to modify several vehicles
destined to form part of a fleet which the plaintiff had
agreed to
lease to the King Sabata Dalindyebo Local Municipality (“the
municipality”) pursuant to the award of a fleet
management
tender to the plaintiff by the municipality in March 2010.
2.
Six
out of several vehicles form the subject matter of the present action
(the “affected vehicles”). Two of the
vehicles are
mounted cherry pickers, one a jetting truck and three of them
compactor trucks. The defendant refers to the
specialized
vehicles as platform vehicles, a vacuum truck and refuse trucks
respectively.
3.
The
plaintiff claims that the defendant breached the parties’
agreement to modify the affected vehicles because of which it
suffered damages. There was a loss of income consequent upon
the late delivery of the cherry pickers and the jetting truck
in the
first instance. There was a loss of income because the same
vehicles were defective and unable to perform in the manner
or
according to the purpose for which they were intended, so they had to
be returned to the defendant to repair them, all the while
being out
of commission and causing a loss of income by their unavailability.
The plaintiff further incurred vehicle hire
charges to replace the
jetting truck which was unserviceable while it was out of
commission. Finally, it had to expend monies
to rectify the
defective workmanship in the jetting truck to place it in a
serviceable condition. The compactor trucks and
the cherry
pickers were repaired by the defendant at its cost but not the
jetting truck.
[1]
4.
There
are two essential premises underpinning the breach of contract which
the plaintiff contends for. The first, says the
plaintiff, is
that the parties pertinently agreed that the defendant would return
the modified vehicles to it within 90 days of
delivery of the
vehicles to it for purposes of the modification, which time period it
flouted, and the second is that they agreed
that the defendant would
return the vehicles to the plaintiff duly modified, fit for the
respective purpose of each vehicle, which
standard it claims the
defendant did not meet in respect of the affected vehicles, although
no claim arises concerning the compactor
trucks.
5.
The
defendant does not deny its obligation in the latter respect but
claims no breach. It says that it complied in full of
all its
obligations i.e. that it duly manufactured, supplied, modified and/or
fitted the vehicles as was agreed would be done.
In respect of
the former, it denies the term of the agreement contended for by the
plaintiff or the supposed contemplation that
the plaintiff would
probably suffer damages if there was a delay in delivering the
properly modified vehicles to it in order to
place them at the
disposal of the municipality in terms of the plaintiff’s own
service level agreement entered into with
the municipality.
[2]
6.
The
plaintiff asserts that it concluded the following agreement with the
defendant:
“
5.
During June 2010, and at East London, the Plaintiff and Defendant,
duly represented as aforesaid, entered into an oral agreement
in
terms whereof the Defendant agreed and undertook to attend to the
required modifications of all the said vehicles
on
the following express material terms
,
namely:
5.1 the Plaintiff
would deliver the vehicles as set out in the schedule annexed hereto
marked Annexure “POC1”, to the
Defendant to enable the
Defendant to undertake specified modifications to the vehicles; and
5.2 the Plaintiff
would specify the precise modifications to be undertaken for each
vehicle; and
5.3 the Defendant
would be paid in advance for all work required to be undertaken in
terms of the agreement between the parties;
and
5.4 upon payment
being received by the Defendant, and upon delivery of the vehicles to
the Defendant, the Defendant would return
the duly modified vehicles
to the Plaintiff within ninety days; and
5.5 the Defendant
would be paid a total sum of R9 035 301.87, inclusive of
Value Added Tax, for all modification work
to be undertaken in
respect of all the said vehicles.”
(Emphasis
added.)
7.
The
plaintiff pleads that it was within the contemplation of the parties,
and the express basis upon which they contracted, that
in the event
that the vehicles were not returned by the defendant to the
plaintiff, duly modified, within 90 days of being made
available to
the defendant for the required modification work that the plaintiff
would: (1) then not be able to make the relevant
vehicles available
to the municipality timeously; (2) would not be able to meet its
obligations in terms of its service level agreement
with the
municipality; (3) would be obliged to hire alternative vehicles
during the time of any delay to enable the plaintiff to
meet its
obligations to the municipality accordingly; (4) and that, in the
event of such delays occurring, the plaintiff would
suffer damages
and consequential losses as a result.
8.
The
plaintiff paid in full, in advance, on 3 June 2011 for the work to be
undertaken.
9.
The
defendant was given delivery of the relevant chassis and bakkies to
be modified during 2011 to enable it to meet its side of
the
bargain. The defendant was properly primed concerning the
required modifications to be attended to in respect of all
the
vehicles so delivered to the defendant but breached its obligations
to the defendant by failing to attend to the modification
of the six
affected vehicles in a proper and workmanlike manner.
[3]
In respect of the cherry pickers the plaintiff claims that these were
not modified in accordance with the detailed specifications.
The hydraulic lifts were not functional and caused damage to the roof
of each Nissan Patrol vehicle (the chassis) on which the
cherry
pickers were mounted. Regarding the jetting truck, the
plaintiff says it was unable to use it to vacuum and provide
a jet of
water suitable for the purposes of cleaning the municipality’s
pipes and drains because the defendant did not modify
it according to
the proper specifications. It was unable to garner adequate
power because it was fitted with an incorrect
high-pressure pump,
hose and nozzle. The compactor trucks were fitted with inferior
chassis and/or chassis material which
led to the fracturing and
cracking of the chassis structures of each.
[4]
10.
As
a result, the affected vehicles fell short of being able to perform
as they were destined to or could not function correctly
or
consistently which caused them to be out of commission on an ongoing
basis.
[5]
11.
The
defendant, in a rather prolix document, admits that an oral agreement
was concluded with the defendant to modify and convert
the vehicles
based on certain specifications (albeit it says this was in March
2011) but, asserts additional terms to that agreement.
12.
The
defendant concedes the basic agreement to modify each affected
vehicle to render them fit for the purpose required by the
plaintiff.
In its plea its sets forth the way each of the
vehicles would be modified and converted including what was expected
to be manufactured,
supplied and/or fitted in each instance. It
is unnecessary to repeat this detail save to note that the exact
specifications
coincide with what is stated on the various written
quotations furnished to the plaintiff ahead of the work to be done to
each
vehicle and the corresponding pro-forma invoices issued out by
the defendant relevant to each vehicle consequent to the orders
having been placed, which documents were entered into evidence during
the course of the trial.
13.
In
respect of the price of each unit requested to be modified, the only
dispute between the parties concerns what deposit was required
to be
paid in each instance. The defendant pleads that the plaintiff
unilaterally and without being requested to do so paid
the full
contract price to it (for all the vehicles to be modified), rather
than a 50% deposit which was all it required on its
terms.
14.
The
most significant issue between the parties concerns the projected
delivery date of the modified vehicles agreed by them.
The
defendant says that the completed vacuum truck would be delivered by
the defendant to the plaintiff “as soon as reasonably
possible
after the delivery of the Chassis to the defendant by the plaintiff,
depending on the workload of the defendant at that
time, as well as
the availability of labour and material”. The estimated
date by which the cherry pickers could be
delivered could and would
only be determined once the defendant had acquired requisite and
suitable aerial platform units.
15.
The
defendant pleads that further additional terms were also agreed upon,
the most significant effect of which was to limit its
liability
according to a standard warranty, a template example of which was
annexed to the plea. In terms of this warranty
the defendant
pledged that the services performed, and goods supplied by it, would
be free of defects for a period of twelve months
commencing from the
date on which the affected vehicles were delivered to the plaintiff.
It would not be liable to the plaintiff
for any loss or damage
suffered because of any defective workmanship or goods supplied other
than in terms of the warranty and
would certainly not be liable for
special or consequential damages. Its guarantee in each
instance was that the material
supplied by it would be suitable for
the work to be performed in terms of the agreement and that in
performing such work it would
utilize the level of skill and
expertise as can be expected of members of the trade to which it
belongs. Finally, the plaintiff
was to assume all risk of
damage to the affected vehicles due to the operation and maintenance
thereof from the moment when delivery
of each affected vehicle passed
to the plaintiff.
16.
The
defendant pleads that on 26 March 2011 the plaintiff placed formal
written orders for the manufacture, supply, modification
and fitment
of
inter
alia
the affected vehicles. It says that it took delivery of the
relevant trucks, chassis and the bakkies to be modified on various
dates from the plaintiff’s agent and that it duly manufactured,
supplied, modified and/or fitted the affected vehicles in
compliance
with its obligations. Once modified, these vehicles were
returned to the plaintiff.
17.
It
claims to have no knowledge and does not admit that the three
compactor trucks went back to it for repairs. It concedes that
the
jetting truck was out of commission when the plaintiff says it was
and that it came back to it for repairs. Although
refuting that
it was in fact responsible to fix the vehicle, it agrees that it did
so as a gesture of goodwill. The same
applies to the cherry
pickers. It concedes that these vehicles too came back to it
for repairs and that they were out of
commission as it were but
pleads that it fixed them also as a gesture of goodwill.
[6]
18.
The
defendant is adamant that in each instance the affected vehicles did
not suffer “of any material or defective workmanship”.
To the contrary it claimed that any breakdowns, mechanical failure or
damage to the equipment was occasioned by: (1) the negligence
of the
operators thereof who failed to exercise the necessary care, caution
or to follow the prescribed procedures to operate the
vehicles; (2)
the deliberate tampering with or damaging of the vehicles by the
operators or third parties; and (3) the failure
of the plaintiff to
care for or maintain the vehicles despite it being repeatedly advised
by the defendant that it should do so.
19.
On
the issue of the alleged delay in delivery (on the term contended for
by the plaintiff) the defendant firstly firmly refutes
that it agreed
to any fixed delivery dates. Moreover, it claims that it
experienced difficulties in initially sourcing what
was necessary to
modify the cherry pickers. The delay in respect of the
completion of the jetting truck was due to circumstances
beyond its
control. In both respects however, the plaintiff was apprised
of the reasons for the delay, which explanations
it accepted without
demur. It further never placed the defendant on terms to
deliver before it could.
20.
The
plaintiff did not file a replication to the defendant’s plea
although the nature of the plea perhaps called for new allegations,
especially regarding the defendant’s averment that the parties
agreed to exclude any liability on its part for consequential
loss
and that liability for damages for defects was limited in terms of a
manufacturer’s warranty which applied for a 12
month period
only post-delivery.
21.
It
is trite law that the plaintiff bears the onus in this action.
It must prove the agreement it relies upon. This will
include
proving, on a balance of probabilities, what the terms of the oral
agreement were. It also includes the negative
onus of
disproving the version pleaded by the defendant that there were
additional terms to the agreement, more especially that
delivery was
not strictly 90 days but qualified; that a standard warranty applied
in respect of any defects; and that there was
an exclusion of
liability in respect of any damages.
[7]
22.
No
doubt in line with its understanding that there was no duty on it to
begin and adduce some evidence in support of its averments
of the
additional terms relied upon, the defendant failed to call any
witnesses.
23.
The
plaintiff on the other hand called four witnesses, two of whom
testified regarding the nature of the defects, its consequences
and
the extent of damages alleged to have been suffered by the
plaintiff. It is unnecessary for me to summarize their evidence
in any detail given the conclusion which I reach herein.
24.
Ms.
Voyiswa Mfaka and Sonwabo Canham both directors and shareholders of
the plaintiff gave testimony regarding the circumstances
under which
the supposed express term relied upon by the plaintiff regarding the
90-day delivery imperative came to be incorporated
in the parties’
agreement. They also testified about the alleged defective
workmanship in the affected vehicles to the extent
that they bore
knowledge of these problems.
25.
Ms.
Mfaka related that after gleaning what vehicles the municipality
required for the maintenance lease they sat down with Mr. Glenn
Lloyd
from their preferred supplier, Nissan, to cost the necessary
purchases of the trucks, chassis and bakkies that they would
require. The defendant was also consulted at the recommendation
of Mr. Lloyd to quote in respect of the vehicles that were
required
to be modified. This information furnished by both the
defendant and Nissan informed them as to how to pitch their
bid to
the municipality.
26.
She
says that once it was official that the plaintiff was the successful
bidder, its three directors personally met with Mr. Lincoln
Strydom
representing the defendant (with whom each of them were already
acquainted by their prior work in the fleet management
industry under
various guises) at his office in Woodbrook during June 2010. It
was at this meeting she claims that it was
impressed upon Mr. Strydom
that the lead time indicated in the plaintiff’s service level
agreement with the municipality,
according to which all new vehicles
leased to it had to be provided within 90 days of being ordered by
the municipality, was of
vital significance to the plaintiff.
He was aware, so she explained, that the plaintiff could incur
penalties in terms of
its service level agreement if it did not
deliver within the requisite time frame. He also knew that they
were keen to make
an impression on the municipality, being new in the
business. She clarified that in any event this time frame (almost
four months)
was known or standard to or in accordance with the
practice of the industry.
27.
She
claims that Mr. Strydom was not averse to meeting the plaintiff’s
requirements in this respect in the sense that he at
no time
indicated that it was a bad time for the defendant to take on the
work, or that it did not have space in its workshop,
neither did he
raise any other impediments to the defendant being able to deliver on
its “promise”. Had he done
so, she explained, they
would not have put their contract with the municipality in jeopardy
but would have gone instead to the
defendant’s competitors.
It was further indicated to him that payment for the work would be
made in advance, as an
added incentive as it were.
28.
She
was emphatic that they would never have agreed to an “open-ended”
delivery arrangement with the defendant knowing
how critical it was
to deliver timeously in the service level agreement and what was at
stake if the plaintiff did not. This
is evident from what she
explained they “spoke about” with the defendant’s
representative:
“…
did you explain to, in the meeting to Mr
Strydom the consequences of failure to meet your SLA obligations and
deadlines? --- Yes,
Sir, we spoke about everything, from us getting
the money from the funders and them doing this work, it was very much
of paramount
in essence that everybody was on a very clear page and
this was big work that had come, you know big money so there was no
way
that we would have wanted to go against the terms of the SLA, we
did speak about it, everybody was clear.”
29.
She
confirmed in this respect having specifically also discussed with Mr.
Strydom the issue of providing a replacement vehicle if
delivery was
prolonged for any reason and that there would be a cost to the
plaintiff thereby but did not elaborate on what was
said in this
respect.
30.
Asked
under cross examination how the conditions in the plaintiff’s
service level agreement with the municipality (which incidentally
was
only signed on 27 July 2010 after the month in which the plaintiff
says the oral agreement was concluded) would have found
their way
into the plaintiff’s agreement with the defendant, she reasoned
that the latter agreement would have to be “directly
tied”
to what the plaintiff was expected to deliver and that what she was
promising to the municipality had to be “in
sync” with
what the person making the vehicles for the plaintiff had to do.
If she promised delivery to the municipality
in 90 days, so she
explained, it had to be “well communicated” to the
plaintiff’s supplier. She reasoned
that “indirectly”
the defendant would become “part” of the service level
agreement signed by the plaintiff
with the municipality because it
was a supplier: “Whatever I say on the service level agreement,
my suppliers need to adhere
and conform to that”. Pressed
to indicate then whether the specifications sent by the plaintiff to
the defendant would
have included this 90-day imperative, she
asserted instead that “they know very well” and then went
on to explain that
90 days is a standard in the industry:
“
In the documents it was stated that was sent to
TFM requesting the quote that there was a 90 day period? --- Sir, it
was 90 days,
I am not sure if Sir is aware that we have got certain
standards within the industry, 90 days is a standard practise that is
why
then TFM knows that if they are to do the work, they need to put
it in writing that they will also adhere to that and on the quotes
that we got from them we were talking the same language, they know we
got the quotations that was even on the pro forma invoice
that was
saying, we will deliver within 16 weeks, which is actually the same
as the 90 days, it is equivalent to that.”
31.
In
replying as she did, the witness unwittingly acknowledged that the
defendant had put in writing on their quotes and pro forma
invoices
when delivery would take place, but without realizing that it had in
fact in respect of the affected vehicles, consistent
with its plea,
qualified the industry norm or lead times and specifically reserved
the right to deviate therefrom. This much became
apparent much later
when Mr. Jooste, who appeared on behalf of the Defendant produced
some of these written quotes dated 14 April
2010 (Exhibit “C”),
addressed to Mr. Lloyd, which clearly demonstrate that the defendant
dictated its own terms both
in respect of the crucial aspects of
delivery and limited liability for damages.
32.
She
could not explain or grasp the significance of the plaintiff’s
failure to itself have discovered the written quotes provided
by the
defendant in respect of the vehicles to be modified which by their
very nature speak to the basis upon which defendant was
prepared to
undertake the work.
33.
When
pointed to the plaintiff’s particulars of claim and what is
pleaded there regarding the expectation of the defendant
to deliver
within 90 days of initial delivery of the vehicles to the plaintiff,
she volunteered herself that the 90 days was rather
a “threshold”
based on the industry standard. This appears from the following
excerpt from her evidence:
“
---
I do not know Sir, if you understand that the 90 days is almost like
a threshold, it is kept at 90 days, it could have been
a week later,
depending on the work that they are doing, but it is known that it
will not take them 90 days or over 90 days to
do one truck or to do
one body, so that is why I am saying 90 days is what is kept at, TFM
could have given these to us in two
weeks from the time that they
received the chassis, if they were giving overtime to staff or
anything, so 90 days is a standard
Sir and it is something that does
not change anywhere in this industry, it is not going to change
today, it does not change.”
34.
She
also appeared to have difficulty understanding the suggestion put to
her that it was unclear from the particulars of claim what
event
triggered the running of the 90 days relied upon by the plaintiff for
its cause of action. She also plainly seemed
to be confused by
the concept of an “order” from by the municipality
equating this with the payment by the plaintiff
to the defendant for
the order.
[8]
35.
Ironically,
she volunteered, along a tangent to a question focused on what was
pleaded by the plaintiff, that the 90 days “is
also part of the
terms and conditions with TFM. It is part of their terms and
conditions. It is their standard “they
do their work
within … 16 weeks, which is 90 days”, again conceding in
a sense that they dictate the timeframe for
delivery in standard
written terms and conditions.
36.
The
witnesses’ cross examination was interrupted by a request by
the defendant for a postponement, the costs of which were
ordered to
be in the cause, in order to enable the plaintiff to produce
specified documents which she appeared to concede might
supplement
what the parties’ agreement was. More significantly she
appeared to be
ad
idem
that the agreement relied upon by the plaintiff was not merely oral,
but now also contained a written component.
37.
As
an aside, during the period of the postponement the defendant’s
attorneys delivered a notice in terms of Rule 35(3) in
which certain
specific documents were requested.
38.
The
witness herself deposed to the formal affidavit in terms of the
sub-rule in which she refuted that the plaintiff was in possession
of
the original invitation to tender to the municipality; the tender
package provided by the municipality to the plaintiff in order
to
verify the specifications for the tender; or the written request by
the plaintiff to the defendant furnishing the specifications
to have
enabled the defendant to provide a quotation to the plaintiff.
She averred that the absence of the tender documentation
was
attributable to a move by the plaintiff from its premises because of
which these could have either been lost or destroyed.
She
explained further that the plaintiff had sought to obtain these
documents from the municipality itself, by making a request
pursuant
to the provisions of the Promotion to Access of Information Act, No.
2 of 2000, but to no avail. She pointed out
that the defendant
had itself discovered the various written quotations that were not in
the plaintiff’s possession, not
appreciating the sting of Mr.
Jooste’s criticism that it appeared as if the plaintiff was
selectively withholding documents
adverse to its case which
coincidentally support the defendant’s version that there were
additional terms and conditions
which applied in respect of the
parties’ agreement. Lastly, she clarified that there
would be no written acceptance
of these quotes in existence because
payment by the plaintiff of the quoted amounts denoted such
acceptance.
39.
The
only document produced through this exercise was a letter of demand
addressed by the plaintiff’s attorneys to the defendant
dated
30 August 2013. Although the letter of demand does allude to
“the industry norm and (that) what was agreed …
was that
the modified vehicles would be delivered within 90 days from date of
payment to yourselves”, it very tentatively
reserves the
plaintiff’s rights to pursue a claim for damages for loss of
income and vehicle hire based on such a delivery
imperative.
40.
When
the trial resumed several months later the witness conceded in effect
that the terms of the parties’ agreement were what
was
stipulated in the written quotations discovered by the defendant,
introduced by Mr. Jooste during his earlier cross examination
of
her.
[9]
41.
Asked
if on the plaintiff’s version of what the agreement was she had
queried the delays or placed the defendant on terms
to deliver after
90 days she replied that the plaintiff had not done so because Mr.
Strydom kept on making promises that the vehicles
were coming.
She agreed that there was an absence of any written communication
between the parties’ concerning the
notable delays.
42.
As
an aside the plaintiff discovered several email communications
between their technical advisor, Mr. Alfred Bobi, and the defendant
which ostensibly denote and record the parties’ mutual
understanding of problems with the vehicles and how they were being
dealt with from time to time. Only two of these touch upon the
issue of delays and the plaintiff being upset because of it.
The first is dated 30 May 2013, and the other 29 August 2013.
Neither suggest a breach of contract nor constitute a firm
indication
that the defendant is being placed on terms to deliver. To the
contrary, other than requesting that faults be
rectified, and
reporting generally on the status of delivery, the tone of the emails
is very accommodating. Even after the
plaintiff’s
attorneys became involved and addressed the defendant about the
plaintiff’s attempts to resolve the perceived
issues between
them on a non-litigious basis, there is an absence of any suggestion
that the 90 days was an express premise of
their agreement.
43.
This
notwithstanding, the witness volunteered that even at the time of the
hiring the replacement vehicle because the jetting truck
was out of
commission, she kept Mr. Strydom apprised of the cost being incurred
by the plaintiff because of faulty workmanship.
44.
When
it was put to her by Mr. Jooste that liability for the incidental
costs of hiring could not be reconciled with the exclusionary
clause
provided for in the defendant’s standard terms and conditions,
she justified the plaintiff’s claim on the basis
that it was
only once the warranty had run its course that such an
indemnification came into operation. In this instance
however,
everything that the plaintiff had “picked up” concerning
defects was still within the warranty period.
She did not
appear to appreciate the significance that the plaintiff’s
cause of action is not premised on a breach of warranty.
Her
lack of understanding of the concept of special or consequential
damages or what the plaintiff’s case is about exactly
is also
aptly demonstrated in her insistence why the defendant should
presently be held liable for the plaintiff’s damages:
“But Ma’am your case is not premised on a breach of
warranty, your case is premised on something different. You
didn’t say I entered into a contract with the defendant who
gave me a 12-month warranty and in that 12 months they didn’t
comply with the obligations in terms of the warranty, you pleaded a
completely different agreement. --- Perhaps you haven’t
noticed
that the units that they could not fix were taken to Vince to be
fixed and it is part of the monies that we are actually
claiming.
Ma’am [interrupted] --- So that is a warranty basically
because they should have within 12 months fixed the unit, they
couldn’t fix, hence now they are liable for the work that was
done by somebody else, because it was raised within the 12
months,
they went over years without finishing it and in the meantime we
incurred costs.”
45.
Under
re-examination she purported (unconvincingly in my opinion) to negate
her prior concession that the written quotations supplied
by the
defendant in Exhibit C and trial bundle A formed the basis for the
parties’ agreement, alluding instead to the proviso
specified
in the quote that “we are however open to negotiation on
alternative terms”. She asserted that this
is exactly
what they did when the oral agreement on the plaintiff’s
version was concluded. However, this explanation
overlooks that
this concession in the defendant’s standard terms and
conditions to negotiate on alternative terms self-evidently
relates
to price only. She also purported to deflect that the
quotations were of any significance on account of the fact
that they
were not addressed to the plaintiff, but to Glenn Lloyd of Nissan,
forgetting that she testified that Mr. Lloyd had been
instrumental in
getting the information from the defendant on their behalf in order
to pitch their bid for the tender and that
their acceptance of these
quotes had been denoted by payment of the full contract price for the
modifications. She also highlighted
the difference between the
quotations for the compactor trucks and the vacuum and jet rodding
combination unit truck around the
issue of delivery, overlooking the
fact that each quotation was different, as pleaded by the defendant,
in respect of each vehicle
for reasons that were unique to the
specifications, chassis availability, factory workload and
availability of labour and materials.
46.
She
also identified two pro-forma invoices dated 11 March 2011 (entered
into evidence marked Exhibit “D”), one in respect
of the
vacuum truck in which the exact same detail is repeated as is
reflected on the corresponding written quotations (but barring
the
standard fine print on warranties), which includes the proviso that
the defendant reserves the right to extend or shorten the
delivery
period of 16 weeks from date of official order, which terms and
conditions she claimed to have accepted instead, denoted
by payment
to the defendant of the invoiced amount.
[10]
In this respect she failed to recognize that her present
evidence on this aspect constituted a different contract entirely
than the one relied on by the plaintiff in its particulars of claim
or as held out for in her earlier evidence in chief.
47.
Mr.
Sonwaba Canham sought to corroborate Ms. Mfaka’s evidence
concerning the alleged meeting which she says took place between
the
plaintiff’s three directors and Mr. Strydom at the premises of
TFW in 2010 at which they concluded the oral agreement.
He
suggests that it happened by the time their funding had become
available.
[11]
He claims that
at the meeting they negotiated time frames, looked at specifications
and discussed the penalties that would be involved
should the
plaintiff (as opposed to the defendant) not deliver within the
specified 90-day period. He recalled that this
was their second
meeting, the first having taken place before the funding was put in
place. His recall of the minutiae of
the discussion is evident
from the following excerpt from the transcript:
“Now in regard to the work that was to be done and the fact
that you had a lead time of 90 days, was that taken up in any
way
with Mr Strydom the timing, what did you discuss about that, if
anything? --- Okay, as soon as the payment, as soon as TFM
confirmed
that they have received the payment we re-emphasise the fact that we
expect the units to be complete within that period
of 90 days as per
the service level agreement that we had with our client, but prior to
that we made them aware that should there
be any delay it was going
to compromise our contract because of the instability with the
municipality and us having come in from
this side of the Eastern Cape
and them being in the Transkei where our competitors are, so we
reiterated the point that we want
all the units to be completed
within that 90 day period.
And was there any counter proposal to that by Mr Strydom or anyone
else? --- There was no counter proposal to that M’Lady,
because
what we requested from them was that it is our wish that when all the
units arrived with them, that is from Nissan Auto
Mall that we so
wish that they have enough space to cater for those units and having
spoken to Mr Strydom at the time he said that
they were busy
finishing up Public Works trucks and by the time our units arrive so
they won’t have any hassles when it comes
to space availability
and workforce to work on the trucks.
Should it have happened that he said no, I am sorry we have got a big
project coming in from somewhere and we won’t be able
to start
you for the next 4 months, what would you have done? --- Yes M’Lady
prior to us going to TFM we had other companies
in mind, like MNH
Bodies, and Ranco which are TFM’s competitors, we told TFM that
TFM if you don’t have space or you
are tied in working on our
trucks you know we have been approached by other competitors, so
assure us that you are able and you
have got the capacity to finish
the units, working stability and time frames.
And did they? Did he I am sorry? Did Mr Strydom give you that
assurance or not? --- He did M’Lady, he said he does
have
enough capacity to finish the job he went as far as showing us on the
screen on his desktop the trucks that they have done
which are
similar to ours, so he said the issue of design and material that
will meet our deadline are there, are in place so they
won’t
battle to finish the trucks in time.
If Mr Strydom had said to you we would love to do your work, but we
can’t give you any assurance when we will be finished
we might
take 6 months, we might take a year or longer, like an open-ended
finishing time, what would you have done? --- M’Lady
we would
have gone to the competitors and I have mentioned before like Renco
and MNH Bodies, because should that have been the
case it would have
compromised our delivery promise with our client and the contract
would have been cancelled by our client.”
48.
He
claims too that they took Mr. Strydom through the aspects of the
service level agreement that involved penalties should the plaintiff
not deliver timeously. Asked regarding any discussion about
replacement vehicles, he related that:
“--- The three of us which is myself, Ms Mfaka and Unathi we
told Lincoln that if we don’t deliver the units on time
the KSD
requires that we hire a replacement vehicle then we said, because our
contract is structured over a period of 5 years,
which then means
that we charge a lesser amount a month than it would have been if the
contract was a short contract, so we said
to him that the cost of
hiring would put a burden on our cash flow so they must make sure
that we get our trucks on time because
if not it will be dire for our
company to hire out trucks, because trucks in Mthatha are very
expensive to hire so it would have
dire impact on our cash flow as a
company.”
49.
Under
cross examination, when presented with Exhibit C, he confirmed that
although the written quotations had been addressed to
Mr. Lloyd of
Auto Mall, the latter had obtained the quotes on the plaintiff’s
behalf for the modifications and that the information
was indeed
vital in order to submit their tender documentation to the
municipality.
50.
Whilst
agreeing that it was important - given that servicing a government
tender was the objective, that the relevant documentation
had to be
in writing and had to exist in writing prior to the tender
being awarded and the service level agreement being
entered into, he
yet asserted that his recollection of “all of this, all that
was said with TFM … was based on oral
agreement”.
51.
He
denied any sinister motive behind the fact that neither the plaintiff
nor the municipality could provide copies of the tender
package.
52.
He
was firm that in the meeting in 2010 they had drawn to the attention
of Mr. Strydom the negative consequences should they not
deliver
their modified units within the 90 days and now also added “and
also should they deliver them in a poor standard
of quality”.
He claims that Mr. Strydom “agreed”, I suppose meaning
that he acknowledged that the plaintiff
would incur penalties.
53.
Asked
if they plaintiff had placed the defendant on terms to remedy the
alleged breach of terms contended for by the plaintiff,
he delivered
a lengthy reply which was not quite on point and demonstrated his
misunderstanding of the concept of a fixed term
for delivery and the
legal consequence of the breach of such a term:
“Now one of the things that must happen when there is a time
clause and then is non-compliance by a contracting party is
to put
the party who is in breach on terms to comply with that term that he
is breaching in this instance the 90 days. You
understand what
I am saying to you? To put it in simple terms if I tell
you you must build me a swimming pool within
30 days, if you are not
finished with this building in 30 days then I must put you on terms
to finish it, that had not happen in
this matter at all, as far as I
can see it. --- Practically that would have been the case, however,
due to our relationship with
TFM and having been engaging for all
these years prior to the award of the contract it was all verbal
agreement when it reached
a stage where we got frustrated with them
not listening to us, that was a point where e-mails started flowing
between ourselves
and them, two we wouldn’t have anticipated
that TFM was not going to meet the requirements as set out by us in
that oral
agreement that we had with them, due to them being a
reputable company, that is based on East London which some of us have
worked
with them through the companies that we were working with,
like in the case Fleet Africa and also as we were busy tendering we
knew exactly once we get the tender TFM is there next door of which
it cuts down all the logistics of going to a manufacturer that
is in
PE. And also because we made, we were assured by TFM that no we
will be able to supply you with these units we don’t
have
issues with space, we don’t have issues with capacity, you know
hence we gave TFM there was that trust, element of trust
between
ourselves and them emanating from that long term relationship that we
had with them.”
54.
Ultimately,
he replied that the plaintiff did not have any formal written
agreement with the defendant: “all was oral”,
and that it
was unnecessary at first “to engage in any formal written
agreements or breach of contract issuing a breach of
contract”
because the defendant up to a point had delivered.
55.
Asked
what was meant by the plaintiff’s attorneys requesting
confirmation that an extended warranty on the jetting truck would
be
provided when the latter became involved in trying to sort out those
challenges between the parties, he explained that everybody
in the
manufacturing industry issued a warranty for their work and that the
defendant was no exception. According to him
the defendant did
“talk” of the warranty on one of their agreements or
pro-forma invoices. He understood it to
mean that they would
not cover wear and tear, but poor workmanship or a defect within a
certain period.
56.
He
conceded that the affected vehicles got sent back to the defendant to
remedy repairs on the understanding that they would make
good on the
warranty alternatively, they repaired the vehicles because of their
longstanding relationship. Ultimately, he
agreed that
requesting an extension of a warranty meant that there was an
existing warranty in place at the time.
57.
He
acknowledged that more than a year had elapsed after delivery of the
jetting truck to the plaintiff when the warranty had run
its course
before any complaints were raised in writing in respect of the
problems with this vehicle. However, he deferred
to the casual
relationship between the parties suggesting that their staff spoke to
the defendant’s employee/mechanic Manus
over the phone several
times regarding their issues with the jetting truck. It was only
later, so he explained, that it became
necessary to reduce matters to
writing for record purposes. He acknowledged that an initial
issue of the water pump had been
dealt with by the defendant’s
technician from Johannesburg because it was within the one-year
warranty period but was unable
to explain convincingly why there was
nothing in writing recording the problems with the jetting truck
which the plaintiff alleges
were there from the outset until well
after the warranty period had expired.
58.
He
agreed that at the instance of the defendant Vest Technologies had
replaced the pump at no cost to the plaintiff although he
was
reluctant to concede that it was as a gesture of goodwill.
59.
Ultimately,
he agreed that a warranty had been of application in respect of the
jetting truck, which was extended for a period of
a year. He
was however not prepared to agree that the warranty was a term of
parties’ agreement because in his view
the warranties were only
“sent” after Mr. Vince Harmon of Ergon Cranes “summoned
the (defendant) to issue (them)”.
60.
Mr.
Jooste made much of Ms. Mfeka’s concession that the parties’
agreement was indeed based on the standard terms and
concessions as
provided for in Exhibit C and the other written quotations in the
trial bundle (Exhibit “A”). He argued
at the close of the
plaintiff’s case, and without leading any evidence on behalf of
the defendant, that the concession in
effect put paid to the
plaintiff’s case that the agreement was concluded on the
express terms contended for by the plaintiff
rather than on the
extended written terms contended for by the defendant in terms of
which delivery was qualified by the peculiar
exigencies that applied
in respect of each order, and that its liability was limited by a
standard warranty, an aspect concerning
which Mr. Canham appeared
also to be in agreement. He also submitted that no adverse
consequences could ensue for the defendant
because Mr. Strydom and
those employed by the defendant had elected not to testify, whether
to gainsay the plaintiff’s evidence
that an oral agreement was
concluded on the terms testified to by the plaintiff’s
directors, or that the jetting truck was
supposedly defective from
the outset as testified to by the plaintiff’s expert witness,
Mr. Vincent Harmon, because the onus
was on the plaintiff both to
prove the alleged express oral terms of the agreement as well as to
negate the defendant’s pleaded
case that the agreement was
concluded on additional terms. As startling as it might sound, there
is indeed no evidentiary burden
on the defendant to prove the
additional terms relied upon by it, neither any duty to begin.
61.
In
Topaz
Kitchens (Pty) Ltd v Naboom SPA (Edms) Bpk
[12]
the court set the record straight regarding the position of a
plaintiff such as in the present instance who bears the onus, even
though it was the defendant who relied on an alleged additional term,
which was denied by the plaintiff. Before reaching this conclusion,
the court considered the opinion of Hoffman,
The
South African Law of Evidence
,
[13]
who notes the practically difficulty of proving a negative or
adducing positive evidence to establish a negative proposition. The
suggestion of the author relied upon by the appellant’s counsel
in
Topaz
Kitchens
is that in cases where the situation is analogous to those in
Kriegler
v Minitzer
and Another
[14]
, according to
which the burden of proof was on the plaintiff, there was
nevertheless a duty on the defendant to begin and to adduce
at least
some acceptable evidence in support of the contention that there was
an additional term of the contract. The anomaly,
so the author
explained following his own analysis of
Kriegler
,
is that the plaintiff in such an instance could hardly be expected to
lead positive evidence that no further terms had been agreed
to, and
unless the defendant adduced some evidence in his favour, no
reasonable man could have found that such terms existed. But
once the
defendant adduced sufficient evidence to leave the court in doubt, so
he went on, that defendant was entitled to succeed
because the
onus
was upon the plaintiff. To counter this practical difficulty
perceived by Hoffman, he suggested that this point can be met by
placing a duty to adduce evidence upon the party who denies a
negative proposition, without necessarily making him bear the onus
as
well. He noted that this accorded with cases where the party has the
onus of proving a negative without necessarily having a
duty
to
adduce evidence on the point
.
So in the situation that pertained in
Pretorius
v Van der Merwe
[15]
where the plaintiff had
sued on an
actio
redhibitoria
claiming the right to rescind an agreement of sale of a bull on
account of the fact that it had a latent defect in it (it turned
out
to be impotent), and wherein the defendant had asserted that
the contract had provided for the sale to be voetstoots
(i.e. an
express term excluding Aedilitian liability for latent defects),
he opined that although the onus was on the plaintiff
to establish
that the contract did
not
contain
a voetstoots clause, since all the other terms of the contract were
not in issue, the defendant should have started with
a duty to adduce
evidence. This is so because in his view the plaintiff could not be
expected to produce positive evidence to negative
the existence of a
voetstoots clause.
62.
To
bring the matter home to
Topaz
Kitchens
,
the Appellate Division was not enamored with this proposition and
reaffirmed that there was no duty on the defendant in such a
situation to begin and to adduce some evidence in his favour. This is
evident from the
dictum
below:
“
Counsel
did not cite any authority in support of the propositions stated by
Hoffmann
in
the above passages, namely that, in cases such as
Kriegler
v.
Minitzer,
supra
,
where the burden of proof is on the plaintiff, there is nevertheless
a duty on the defendant (
a
)
to begin, and (
b
)to
adduce some evidence in his favour.
Indeed,
counsel informed us that he was not aware of any such authority. Nor
am I.
From
the decision in
Kriegler
v.
Minitzer and Another, supra
,
it is clear that the burden of proof was on the plaintiff, even
though it was the defendant who relied on an alleged additional
term,
which was denied by the plaintiff. The burden of proof therefore
involved proving a negative assertion. There is, in my opinion,
no
justification for the proposition that in cases such as the present
case, where the plaintiff seeks to enforce a contract and
the
onus
is on him to prove the terms thereof, which would involve his
proving a negative, that burden is alleviated by a duty imposed on
the defendant to begin and to adduce some evidence in support of his
averment that the additional term relied on by him was agreed
upon.
In
Kriegler
v.
Minitzer and Another, supra
, GREENBERG,
J.A., dealt fully with the particular aspect now under consideration,
namely that the burden of proof, in cases such
as the present one,
involves proving a negative. There is, in my view, no suggestion in
his judgment that the position is as stated
by
Hoffmann.
For
the reasons stated I cannot agree with counsel's first submission.
The position we are faced with is that evidence was adduced
by both
sides, and, as the burden of proof was on the plaintiff, it was for
the trial Court to decide whether, regard being had
to all the
evidence and the probabilities of the case, it had discharged that
burden.”
63.
The
circumstances in the present matter being analogous to
Kriegler
and
Topaz
Kitchens
,
it is for this court to decide whether, regard being had to all the
evidence and the probabilities of the case, the plaintiff
has
established that there were not additional terms as contended for by
the defendant.
64.
In
ordinary circumstances I have no doubt that a plaintiff who bears a
negative onus such as the plaintiff in this instance might
acquit
itself of its burden by simply providing acceptable evidence that
these were the express terms upon which it contracted
which
would negate by necessary implication that there were other
terms applicable on its say so, but I am inclined to agree
with Mr.
Jooste’s submission that the plaintiff’s evidence,
albeit uncontroverted, was dealt a blow by
admissions
made by Ms. Mfaka and Mr. Canham both that give credence to the
defendant’s pleaded case, and what was put during
cross
examination to the plaintiff’s witnesses, namely that the
defendant contracted with it on its own standard terms and
conditions.
65.
Whilst
I believe that the directors were certainly mindful of their own
obligations in terms of their service level agreement with
the
municipality (and the consequences of their failure to deliver
timeously) and must have voiced these concerns aloud to Mr.
Strydom
(indeed I accept even that he was aware of what the municipality
expected because the defendant also competed for the same
tender),
assuming the service level agreement was already in existence by the
time they were engaging with the defendant to provide
the necessary
modification services, neither of the witnesses went so far as to
state in clear unequivocal terms that there was
a meeting of minds
concerning this aspect of delivery that was crucial to the
plaintiff’s case. Speaking it does not mean
that there was
agreement. Both were careful to describe the nuances of the
meeting, right down to their being impressed that
the employee who
served the tea was hearing impaired, but neither really got down to
the nitty gritty of what was supposedly the
parties’ agreement
on the specific terms. This aspect was vaguely and very tersely
related.
66.
One
further gets the impression that the directors, although they both
placed themselves in a room with their third director and
Mr. Strydom
on an occasion when they had visited the premises of the defendant to
see their set up and have a discussion around
services which were
going to be needed, were speaking of different times in the context
of when exactly this meeting of minds purportedly
happened. Ms.
Mfaka’s testimony that it happened in June 2010 is improbable
on her account because she would not have
had the benefit of a signed
service level agreement yet in order to speak to the punitive terms
thereof having a bearing on a discussion
around delivery dates or a
presumptive contemplation that damages could result from a breach by
the defendant of those terms.
I expect that she must at that
stage have had some knowledge about the municipality’s specific
requirements but what exactly
was known is speculative because none
of the documentation that must have existed at the time was available
to inform the correct
position. On Mr. Canham’s version the
defendant had already been paid when the express term was discussed
and supposedly
agreed (this timing would have been more realistic),
but that then casts doubt on Ms. Mfaka’s recollection and the
Plaintiff’s
pleaded case that the agreement was concluded in
June 2010 already. It also raises a flag about both being
firm about
the peculiar nuances of a meeting which on their
respective versions could never have happened at the same time. I
have also noted
in my summary of their evidence above that not only
were the witnesses vague in asserting how the supposed agreement on
their terms
came to be concluded (the main thrust of the case
been on the defects in the affected vehicles instead), but Ms. Mfaka
when
pressed about the delivery term eventually watered it down to a
“threshold” rather than an express term.
67.
It
was not surprising that the witnesses themselves revealed that the
defendant had standard terms and conditions and that this
was the
basis upon which it did business. This firmly accords with both
the written quotations provided at a time before
the tender was even
submitted as well as the pro forma invoices generated closer to the
time once the plaintiff had paid the contract
price. If ever
there was a time to reinforce the supposed oral terms it was at the
point when payment of the full contract
price was imminent, yet the
plaintiff’s evidence was very vague regarding the basis upon
which it did so, offering this evidence
only in support of the
perceived improbability that it would have parted with 100% of
the contract price before a spanner
was even lifted unless the
defendant was going to meet the 90-day imperative on its terms.
Whilst on this point, it is most
improbable in my view that the
purported express term of the parties’ agreement concerning
payment would have been in the
bag as it were in June 2010 already,
long before orders were officially placed or funding for the numerous
vehicles became available.
68.
When
the evidence is considered holistically it is more probable than not
that the plaintiff parted with all the funding at the
outset due to
its fledgling naivety, leaving no leverage to itself to control
matters going forward if problems ensued as an astute
experienced
business would, and over zealousness. This accords with the professed
trust (misplaced with hindsight) that it wholeheartedly
put in the
defendant and the peculiar way it handled the relationship when it
started to fall apart. There is indeed no written
record when
it mattered of their unhappiness with the defendant. Not only
were they prepared to do business with the defendant
on the basis of
an oral agreement involving the payment of a substantial amount of
money for which they were putting themselves
at risk professionally
and financially, but they failed to take decisive legal steps once it
dawned on them that they had been
let down by the defendant. If
on the plaintiff’s version the defendant had agreed to a 90-day
imperative, why did it
not place the defendant on terms? And why,
when it eventually consulted an attorney, did the plaintiff not adopt
a hardnosed business
attitude that it was not going to tolerate the
situation any longer. Instead it espoused a non-litigious
approach.
Whilst the directors’ desire to talk rather
than fight is commendable when it comes to personal relationships,
the basis
upon which they sought to resolve their perceived problems
demonstrates, on the probabilities, that they were not in a position
of strength and that they had done business on the defendant’s
unreasonable terms, and moreover that they had acquiesced
in the late
delivery without raising any objections.
69.
I
do not necessarily agree with Mr. Jooste’s submission that the
directors were willfully withholding discovery of documents
adverse
to their case. In my view their significance in a litigious context
was simply not understood. I have alluded above to
their lack of
understanding of numerous legal concepts. This was most notable
around their appreciation of why they consider the
defendant should
be held liable for defective workmanship, in effect on the admitted
basis of the warranty that they consider was
timeously actioned,
which is however not the premise of the plaintiff’s case.
It is for this reason that Mr.
Jooste’s cross examination of
Ms. Mfaka proved to be tortuous. She was simply not understanding
where he was going with the
so called negative onus or the import of
her concession ultimately that they must have contracted with the
defendant to provide
the modifications on the latter’s standard
terms and conditions and could not have agreed to do so on the
plaintiff’s
professed express oral terms instead.
70.
It
is against the general probabilities that the parties did not
contract on the defendant’s standard terms and conditions.
Firstly, it is most unlikely that a seasoned manufacturing business
of the defendant’s stature (recognized by the plaintiff
as
leaders in the field of modifications to vehicles) would ever do
business other than on their standard terms and conditions
for which
there is a printed template styled manufacturer’s warranty
provisions. They would naturally also quote in writing
and give
estimates regarding projected delivery dates based on the peculiar
features of each order relative to the client’s
specifications
of vehicles to be modified. It is not to say, as Mr. Cole who
appeared for the plaintiff suggested, that the
delivery date
contended for by the defendant was open ended. Rather it makes
good business sense that their projections would
be based on aspects
unique to each order, such as chassis availability or other
constraints bearing upon their ability to produce
the ordered goods.
It is no coincidence in my view that the evidence (which includes the
admissions made by the directors)
confirms that the defendant
quoted in writing and made their standard terms and conditions as
well as its projected delivery dates
known to the plaintiff well in
advance through the admitted agency of Mr. Lloyd, and that it
repeated the basis upon which the
work would be undertaken
again at the time the official orders were placed as is reflected in
the pro forma invoices. There
is also the inherent improbability in
my view that the defendant would go along with a strictly 90-day
delivery timeframe (contrary
to its usual manner of offering its
services) without reducing it to writing.
71.
How
the parties conducted themselves thereafter is also of some
significance. In this respect one only has to take into account
the correspondence and the evidence of Mr. Vincent Harmon to know
that the defendant from time to time attended to the repairs
to some
of the vehicles, if not as a gesture of goodwill then on the basis of
the basis of a standard manufacturer’s warranty
(albeit this is
denied by the defendant). The fact that this happened, and that
the defendant was willing to extend the warranty
period in respect of
the jetting truck for a further period of 12 months based on a good
relationship that it hoped to sustain,
supports its case that
there were these additional terms to the basic agreement to modify
the vehicles in question than those relied
upon by the plaintiff.
72.
Whilst
my empathies lie with the plaintiff which found itself in a
compromising position when delivery took longer than anyone imagined
(and in respect of which delay it did not place the defendant on
terms) and then again when the jetting truck and cherry pickers
were
out of commission, I cannot find on the evidence or probabilities
that the defendant is liable on any basis to compensate
the plaintiff
for such delays or states of affairs. The plaintiff has simply
failed to acquit itself of the burden on it
to prove that the
additional terms contended for by the defendant did not constitute
the basis for its dealings with it, or conversely
stated, failed to
prove the absence of such terms. I highlight clause 7 of that
warranty which provides in unequivocal terms that:
“
TFM’s
liability under this warranty is limited to the
repair/replacement/reinstatement of parts/components/workmanship. TFM
shall not be liable for any claim whatsoever by the customer or 3
rd
party for costs, loss, charge or damages whether direct, indirect or
consequential (including, without limitation, loss of profits
and
loss of use) howsoever suffered, and irrespective of whether such
damages arose under a claim in delict or in contract or otherwise.”
73.
The
provisions of clause 12 are also necessary to give a context to the
defendant’s defence that no claim for damages can
arise against
it based on an implied warranty against latent defects or
ex
lege
by virtue of its liability for defects as a merchant selling goods of
their own manufacture by reason of a latent defect in the
goods:
[16]
“
This
warranty supersedes all prior warranties and/or guarantees whether
expressly or impliedly, orally or in written format and
the customer
expressly renounces any common law or statutory rights which it may
have against TFM whether for damages, rescission
or reduction of the
purchase price.”
74.
Even
if the warranty was not formalized or validated in the sense
suggested by Mr. Cole by entry into the warranty register or the
handover of the relevant service manuals or sub contractor’s
warranties when Mr. Harmon started involving himself, it can
hardly
be gainsaid that the plaintiff did not consider the defendant
released from the obligation to hold good on its promises
in respect
thereof. To the contrary it is on the basis of the
manufacturer’s warranty that there were purported comebacks
after the risk in the vehicles had passed to the plaintiff.
Warranties cannot exist to suit the plaintiff’s case on one
hand but be nonexistent for want of compliance with strict register
formalities on the other hand.
75.
As
for the cost of the repairs to the jetting truck paid to Mr. Harmon
which the plaintiff seeks to claim by way of damages, such
a claim,
in effect based on the warranty which according to Ms. Mfaka was
timeously actioned, is not borne out by the pleadings
and is not the
basis for the plaintiff’s case. Once it is accepted that
the plaintiff has failed to discharge the onus
which it bears to
prove that it did not contract on the additional terms contended for
by the defendant, there is, as Mr. Jooste
submitted, nothing more to
be salvaged from the plaintiff’s case.
76.
In
the result I issue the following order:
1.
The
plaintiff’s action is dismissed with costs.
_________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATES
OF HEARING: 12 and 13 December 2016
and
30 and 31 May 2017
DATE
OF JUDGMENT: 26 March 2018
Appearances:
For
the plaintiff: Mr. S H Cole instructed by Conlon & Associates
Inc., East London (ref. Mrs. Conlon/sp/ARI1/0002/U9)
For the defendant: Mr. P Jooste instructed by Gravett
Schoeman Inc., East London (ref. Mr. Theophilus)
[1]
It is not clear why reference
was made to the compactor trucks at all as they do not feature in
the quantification of the plaintiff’s
claim for damages.
Mr. Cole who appeared on the plaintiff’s behalf placed on
record in its opening address that the
“compactor truck
problem was perceived and that the evidence (would be) that the
defendant repaired it at (its) own cost
and it does not come into
the quantification of damage ... But the evidence will still
cover the quality of the work done
on the compactor trucks”.
[2]
The service level agreement
was only concluded on 29 July 2010, but the tender was awarded in
March 2010.
[3]
The particulars of claim are
awkwardly framed. Reading between the lines the plaintiff
appears to suggest that the consequential
damages sustained during
the downtime of the vehicles, because they were defective and needed
to go back to be repaired, arise
on the basis that the defendant is
a manufacturing seller to which the law irrebuttably attaches
liability for consequential
losses flowing from a latent defect
unless he contracts out of it, but the lines become blurred because
the emphasis in the pleadings
is placed more on a delay in delivery
as being causal to all the plaintiff’s woes.
[4]
As I have indicated above, I
am not sure why the plaintiff included the compactor trucks among
the affected vehicles. No
claim arises from their late
delivery and the plaintiff makes the point in its particulars of
claim that these vehicles were
repaired by the defendant at the
latter’s cost.
[5]
Here the emphasis is on the
non-availability of the vehicles because they are defective and not
because there was a delay in delivery.
The alleged
contemplation of the 90 days delivery time frame does not make sense
in such a context. It would have made
better sense if the
claim was framed in this respect on the principle of the law of
contract that manufacturing sellers are liable
for consequential
damages caused to the purchaser by reason of a latent defect in the
goods.
[6]
The basis upon which it says it repaired vehicles is recorded in a
letter addressed to the plaintiff’s attorneys dated
31 March
2014 in response to their letter of demand.
[7]
Kriegler v Minitzer and Another
1949 (4) SA 821
(A); Topaz Kitchens
(Pty) Ltd v Naboom Spa (Edms) Bpk
1976 (3) SA 470
(A) at 474A - D;
Abraham Johannes Van Huyssteen N.O. and Another v Milla Investment
and Holding Company (Pty) Ltd
[2017] ZASCA 84
(2 June 2017) at par
[26].
[8]
I noted that the witness was
confused about a number of legal concepts such as order, delivery,
terms and conditions, warranties
and damages.
[9]
The
written quotations referred to in the bundle marked exhibit “C”
relate only to a compactor truck and the jetting
truck, but among
the earlier documents discovered by the defendant and which already
formed part of the trial bundle (Exhibit
A), are detailed quotations
addressed to Mr. Nathi Mfaka, also a director with the plaintiff,
with the standard terms and conditions
of the defendant which were
ostensibly also provided in respect of the cherry pickers and a
tipper truck. In these the
defendant clearly reserves the
right to extend or shorten projected delivery dates. They also
assert that liability arising
from the defendant’s obligations
to modify are limited to their standard warranty that the bodywork
and components fitted
are to be free from defects in material and
workmanship for a period of 12 months only, which separate warranty
document in turn
record that it contracts out of liability for
consequential loss and damage howsoever arising.
[10]
An invoice doesn’t necessarily contain terms and conditions to
form part of the contract. This is especially so since
payment
had by then already been made. The quotations, all of which refer
to,
inter alia
, the
standard warranty of application clearly does however appear to
constitute the offer to do business in respect of each order.
The fact that the defendant’s qualification of lead times is
coincidentally also stated on the invoices however strengthens
the
probabilities in favour of the defendant’s case that its
general conditions governed the contractual relationship between
the
parties rather than the express oral terms contended for by the
plaintiff.
[11]
The dates do not accord. According to her testimony funds
became available towards the end of 2010. Payment of the
contract price was ultimately effected in June 2011.
[12]
Supra
, at pages 473h
– 474d.
[13]
The court in that matter referred to the 2
nd
edition of the author’s work, at pages 352-3 and 359.
[14]
Supra.
[15]
1968 (2) SA 259 (N).
[16]
I will assume for present purposes that it is a “manufacturing
seller”.