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[2017] ZAKZPHC 44
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Thor Shipping and Transport SA (Pty) Limited and Another v Sunset Beach Trading 208 CC t/a Auto Complete (AR664/2016) [2017] ZAKZPHC 44 (3 November 2017)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR664/2016
In
the matter between:
THOR
SHIPPING AND TRANSPORT SA
(PTY)
LIMITED
FIRST
APPELLANT
MARC
KAISER
SECOND
APPELLANT
and
SUNSET BEACH TRADING 208 CC
t/a AUTO
COMPLETE
RESPONDENT
JUDGMENT
Delivered
on : Friday, 03 November 2017
OLSEN
J (MASIPA J, concurring)
[1]
The two appellants in this matter, Thor Shipping and Transport SA
(Pty) Limited (first appellant) and Marc Kaiser (second appellant)
were sued in the alternative in the court
a
quo
by the respondent,
Sunset Beach Trading 208 CC. The first appellant was first
defendant and the second appellant was second
defendant. I will
refer to the parties as they were in the court
a
quo
. The defendants
not only denied liability for the plaintiff’s claims, but made
counterclaims. The trial magistrate
found for the plaintiff on
the claims in convention and dismissed the counterclaims. The
defendants appeal against both orders.
[2]
The disputes between the parties arose out of a contract concluded
for the repair of a Mitsubishi Triton vehicle by the plaintiff,
a
motor garage. The vehicle belonged to the second defendant.
But it was known to the plaintiff, with whom the first
and second
defendants had previous dealings, that the first defendant, a company
of which the second defendant was a director,
ordinarily paid for the
repairs and servicing of the second defendant’s vehicle. An
understanding of what the case is about,
and what the learned
magistrate in the court
a
quo
had to decide, requires
an account of the facts.
[3]
On 3 June 2014 the second defendant drove into the plaintiff’s
garage and reported that he had noticed that his vehicle
was
overheating. He had warned the plaintiff’s service
advisor, Mr De Beer, of his impending arrival with that problem.
The plaintiff (through Mr De Beer and a mechanic who subsequently
worked on the car, Mr Benton) suspected a blown head gasket.
It
was apparent, if not on 3 June, then during the days which followed,
that the second defendant was anxious that the vehicle
should be
repaired as soon as possible. The cause of the overheating and
the consequences needed to be established.
Mr Benton removed
the cylinder head, and found that the head gasket (which operates as
the seal between the engine block and the
cylinder head) had blown.
The second defendant wanted a quotation for the repairs. It
ultimately was revealed to be
common cause that the cost of repairs
would depend upon the extent of any damage which might have occurred,
principally to the
cylinder head, as a result of the overheating; and
that a specialist engineering firm would have to examine the head and
associated
parts in order to establish what had to be done to put it
right.
[4]
The plaintiff sent the cylinder head to an engineering company known
as Miclin Engineering which was requested to undertake
the assessment
of the condition of the cylinder head and make a report. The
plaintiff asserted and the second defendant denied
that this was done
with the second defendant’s knowledge and consent. Miclin
Engineering has a fair amount of work,
and the production of its
report would, according to the plaintiff’s experience, take a
week to ten days.
[5]
It appears fair to say that things were moving too slowly for the
second defendant. He asked the plaintiff (through Mr
De Beer)
to investigate the cost of a brand new engine for the vehicle, of a
second hand engine if one was available, and of repairing
the
existing engine. The difficulty with regard to the last
mentioned request was that the report from Miclin Engineering
was
still awaited. In the circumstances the plaintiff prepared a
quotation for the repair of the existing engine on a so-called
“worst
case scenario”, supposing that the report from Miclin
Engineering would reveal a worst case scenario.
The quote was
R54 000. The central issue in this case is whether, as the
plaintiff asserts, the second defendant was
informed that the
quotation for repairs to the existing engine was a “worst case
scenario”, which could change depending
on the report
ultimately received from Miclin Engineering; or whether, as the
second defendant asserted, it was misrepresented
to him that
repairing the existing engine would definitely cost R54 000;
that is to say that the quotation was an informed
and immutable one.
[6]
At the same time the plaintiff obtained a price for a brand new
engine. It was so high as to exclude it from consideration.
Apparently quite fortunately, the plaintiff found that a second hand
engine was indeed available in the market. The existing
engine
had done 200 000km. The available second hand engine had
only done 13 000km before the vehicle in which
it was installed
had overturned, and was written off. If the defendants wished
to go with the second hand engine, it could
be installed and the
vehicle fully repaired for an estimated quotation of some R75 000.
[7]
It is common cause that the second defendant instructed the plaintiff
to acquire the second hand engine and install it in the
vehicle.
The plaintiff sues on the contract for the performance of that work.
A R40 000 deposit was required for
the acquisition of the second
hand engine and it was paid. The work was done for an ultimate
contract price of some R77 000.
[8]
Whilst the plaintiff’s work was underway, and shortly after the
contract to install the second hand engine was concluded,
the second
defendant apparently coincidently met up with a Mr S Clark. Mr
Clark is a trained mechanic and has wide experience.
For about
15 years he has been involved inter alia in technical investigations
into engine failures. The second defendant gave
Mr Clark an account
of his problems with his motor vehicle, and Mr Clark suggested that
the price which had been quoted by the
plaintiff to repair the
original engine appeared a bit high. He asked the second
defendant whether he would like him (Mr
Clark) to have a look at the
failed engine and furnish an opinion, and the second defendant
answered in the affirmative.
[9]
Without any objection from the plaintiff Mr Clark then visited the
plaintiff’s premises more than once. He took
possession
of the original cylinder head and submitted it to an engineering
company for an assessment of its condition in the light
of the
overheating episode. (When the second defendant had given the
plaintiff instructions to acquire and install the second
hand engine
the plaintiff had retrieved the as yet unexamined cylinder head from
Miclin Engineering.) There is no need to
furnish an account of
all the comings and goings of Mr Clark at the plaintiff’s
premises.
[10]
Mr Clark advised the second defendant that the whole job of repairing
the original engine could have been done for some R26 000.
(There is some conflict in the evidence about that figure which does
not matter. The important thing is that it was somewhere
around
one-half of the quotation furnished earlier by the plaintiff.)
The cylinder head and its associated parts had not
been too badly
damaged.
[11]
When the plaintiff advised the second defendant that his vehicle was
ready for collection the second defendant refused to pay
the account,
claiming that he repudiated the contract because it was induced by
the plaintiff having misrepresented to the second
defendant that the
reasonable cost of repairing the original engine was the elevated
price mentioned above. Faced with that the
plaintiff refused to
release the motor vehicle to the second defendant, exercising a
lien. A high court application eventuated.
It was settled
upon the basis that, under protest, the defendants (presumably, in
fact, the first defendant) would pay the plaintiff
an amount of some
R16 000 which, together with the R40 000 deposit, would
cover the plaintiff’s out-of-pocket expenses.
The
defendants would also provide a guarantee for the balance of the
price charged by the plaintiff for the installation
of the second
hand engine. That was done, the vehicle was restored to the
possession of the second defendant and this litigation
commenced.
[12]
Having got back his vehicle, the second defendant arranged for the
second hand engine to be removed and for the original engine
to be
repaired and installed.
[13]
The plaintiff sued both defendants, professing to be uncertain as to
which of them was liable under the contract admittedly
concluded with
the plaintiff for the installation of the second hand engine.
Before us it was common cause that the contracting
party was the
first defendant. The parties (and for that matter the learned
magistrate) seemed to think that this carried
some implications,
perhaps as to costs. However, as was accepted by counsel during
argument, the presence of two defendants
made no measurable
difference to the costs of the proceedings. What is more, the
criticism of the plaintiff for having sued
the defendants (in the
alternative) rings hollow given that the counterclaim was expressed
to be one made jointly by the defendants.
A non-charitable
reading of the magistrate’s order made in favour of the
plaintiff on the claim in convention suggests that
the magistrate
gave judgment against both defendants. I do not read the order
that way, but the confusion is easily cleared
up.
[14]
Against this background the plaintiff sued for
(a) payment of the sum of some
R20 000, being the unpaid portion of the contract price;
(b) delivery of the original engine
which the defendants had uplifted from the supplier of the second
hand engine, it having been
a term of the contract between the
plaintiff and the supplier that the original engine would become the
property of the supplier;
alternatively for payment of some R9 500
in substitution for the engine; and
(c) R49 200 being storage costs
allegedly due to the plaintiff for the period during which it
withheld delivery of the vehicle
exercising its lien.
[15]
The defendants counterclaimed for
(a) damages in the form of the costs
of hire of a replacement vehicle for the second defendant in the sum
of some R23 700;
(b) R7 500 being the alleged cost
of replacing a fuel injector on the original engine which had been
damaged whilst the engine
was under the plaintiff’s control;
(c) some R36 000 being the cost
of replacing the original engine’s turbo charger which appeared
to have gone missing,
each party blaming the other for that;
(d) some R11 500 being insurance
premiums paid in respect of the vehicle whilst possession of it was
withheld from the second
defendant;
(e) some R42 500 being
instalments paid under the finance contract relating to the vehicle
whilst possession of it was withheld
from the second defendant; and
(f) R450 being the cost of re-gassing
the vehicle’s air-conditioner which appeared to have lost its
gas whilst the vehicle
was being stored by the plaintiff.
[16]
For reasons which do not need to be explained, because counsel were
in agreement on this during the course of argument in the
appeal,
none of the defendants’ counterclaims can be sustained unless
we find that the defendants have discharged the onus
admittedly on
them to prove that the first defendant was entitled to avoid the
contract because of the plaintiff’s alleged
misrepresentation
concerning the high cost of repairing the original engine, which
allegedly induced the contract.
[17]
The question as to whether there was misrepresentation in this case
is one of fact. The magistrate accepted the plaintiff’s
version on this fundamental issue and rejected the defendants’
claim that there had been misrepresentation. An appeal
court’s
powers with regard to findings of fact made by a trial court are
limited. The appeal court will be slow to
interfere with those
findings. An appellant must convince the appeal court on
adequate grounds that the trial court was wrong
in making a
challenged factual finding. The trial court enjoys the
advantage of seeing, hearing and appraising the witnesses.
In
the result it is only in exceptional cases that the appeal court will
interfere with factual findings made by the trial court.
(See
R
v Dhlumayo and Another
1948
(2) SA 677
(A);
Taljaard v
Sentrale Raad Vir Koöperatiewe Assuransie Bpk
1974
(2) SA 450
(A); and
S v
Francis
1991 (1) SACR 198
(A). The test in civil and criminal cases is the same.)
[18]
In evaluating the evidence the magistrate said of the three witnesses
who testified for the plaintiff (Mr Nossiter, the principal
member of
the plaintiff; Mr De Beer, the service advisor; and Mr Benton, the
mechanic who worked on the vehicle) that their evidence
was concise
and to the point. Ultimately he believed them. To the
extent that a reading of a record can serve to support
or contradict
such a credibility finding, in this case it supports the magistrate’s
clear impression that the plaintiff’s
witnesses were credible.
[19]
The magistrate was not similarly impressed with the evidence of the
second defendant and Mr Clark, who testified for the defendants.
The magistrate identified at least eight features of the evidence
tendered by these witnesses which ought to have been, but were
not
put to the plaintiff’s witnesses. Each of these features
was raised in argument before us, and counsel for the
defendants
accepted that the magistrate was correct to raise the issue in each
instance. Reading the record there is reason
to be concerned
that in some respects the defendants’ account of events
developed during the trial.
[20]
The principal argument for the defendants is that it is improbable
that the second defendant would have made a decision to
go with the
second hand engine at some R75 000 when the cylinder head of the
original engine had not yet been assessed; and
when, as contended by
the plaintiff, the second defendant knew that the question as to
whether the repairs to the original engine
could be done at a lower
cost had not yet been answered. The magistrate thought
otherwise, pointing to the fact that an engine
with 13 000km of
use on it is a more attractive proposition than the one which had
200 000km under its belt. Furthermore,
it was common cause
that the second defendant was in a hurry to have his vehicle
returned, having explained to the plaintiff that
he had arranged a
hunting trip for which the vehicle was needed.
[21]
It is indisputable that subsequently the second defendant regretted
the decision he made to go with the second hand engine.
Upon
the assumption that his subsequent election to repair the original
engine was in fact the best option, the observation may
be made that
the second defendant is not the first person to make a rash and
ill-advised decision in the heat of the moment.
The magistrate
found that, having realised what he regarded as his mistake, the
second defendant fabricated his version.
That may be correct.
But I do not think that it is necessary to go quite so far. It
is a common human failing almost
unintentionally to modify
recollections and to disregard inconvenient features of a course of
events, in order to place the blame
for one’s own mistake
elsewhere.
[22]
I conclude that the magistrate’s decision that the defendants
did not prove the misrepresentation upon which they relied
cannot be
faulted. There is accordingly no need to consider the
defendants’ counterclaims any further.
[23]
However the magistrate was not correct in allowing all of the
plaintiff’s claims. The claim for payment of the
balance
of the contract price is obviously good. That is not disputed.
[24]
The defendants challenge the claim for delivery of the original
engine or payment of the sum of R9 500 in substitution
for it.
As already mentioned, in terms of the agreement under which the
plaintiff acquired the second hand engine from the
plaintiff’s
supplier, the original engine was to be traded in. In a sense
the claim for return of the engine was one
made by the plaintiff as
“unappointed” agent for the supplier. However the
unchallenged evidence tendered by
the defendants established that Mr
Clark negotiated with the supplier and reached an agreement which
allowed them to take possession
of the original engine for a price of
R5 000, which was paid. No evidence was tendered at the
trial to suggest that
the arrangement was improper or that any
subsequent demand had been made of the plaintiff that it should
either return the engine
to the supplier or pay compensation.
Accordingly the claim ought not to have been allowed.
[25]
Counsel for the plaintiff advisedly did not press with much vigour
his argument for payment of the sum of some R49 000
on account
of storage charges. The main claim for this amount was made in
contract, and in the alternative an enrichment
claim was pleaded.
[26]
The plaintiff pleaded that the agreement upon which it relied was
concluded orally. It was said to have been a term of
the
agreement that delivery of the vehicle would be taken (against
payment, of course) upon completion of the work. It was
alleged
that the defendants breached the agreement by failing to collect the
vehicle, thereby compelling the plaintiff to store
it at a cost of
R200 per day.
[27]
No evidence was led to support the proposition that the defendants
had undertaken orally to pay storage charges if for whatever
reason
the vehicle was not collected on time. The plaintiff’s
standard form job card contains fine print which would
place such an
obligation on a customer, but it was not signed by the second
defendant; and neither were the defendants called upon
to answer the
proposition that the contract was partly written. The
magistrate allowed the claim on the basis that there
were signs on
the premises recording that if vehicles were not collected, storage
charges would be raised. This was put to
the second defendant
in cross-examination. His answer was that he believed that
there were some signs but he had not registered
whatever was on
them. A claim that consensus had been reached on the issue
because of the signs, or that the claim could
be sustained on the
basis of quasi-mutual assent, were not pleaded. ( As to what
might have been pleaded, see
Durban’s
Water Wonderland (Pty) Ltd v Botha and Another
1999
(1) SA 982
(SCA) at 991-2.)
[28]
As to the enrichment claim, counsel for the plaintiff made no
submissions in support of it. Assuming it to be arguable
that
some level of enrichment (and matching impoverishment) arose because
the second defendant had his vehicle kept safe without
charge for the
storage period, the answer to the claim would probably lie in the
proposition that a lien-holder keeps possession
for its own benefit,
as a result of which it is not entitled to claim compensation by way
of storage charges. (See in this
regard the full court decision
in
Wessels v Morice
(1913)
34 NPD 112
; and
Laingsburg
School Board v Logan
(1910)
27 SC 240.)
[29]
The defendants are accordingly substantially successful in this
appeal. The judgment for two of the three claims made
by the
plaintiff must be set aside. Counsel were in agreement that if the
judgment on the merits of the appeal should turn out
as it has, it
serves the interests of both parties that they should each pay their
own costs in the appeal, but that they should
share the costs of the
record. Given that the appeal against the dismissal of the
counterclaim fails, and that much of the
evidence in the case went
equally to both the claim and the counterclaim, that seems a sensible
approach.
The
following order is made.
1.
The
appeal against the judgment in favour of the plaintiff on the
claim-in-convention is upheld in part.
2.
The
magistrate’s order on the claim-in-convention is set aside and
the following order is substituted for it.
“
Judgment
is granted in favour of the plaintiff against the first defendant for
(a)
payment of the sum of R20 763.81,
together with interest thereon at the prescribed rate of interest
from 19 June 2014 to date
of payment;
(b)
costs of suit.”
3.
The
appeal against the dismissal of the claim-in-reconvention with costs
is dismissed.
4.
Each
party shall bear one half of all the costs of obtaining, preparing
and presenting the requisite copies of the appeal record.
Save
for that each party shall pay its own costs in the appeal.
OLSEN J
MASIPA J
Date of Hearing
: Heard
at Durban on FRIDAY, 20 OCTOBER 2017
Date of Judgment:
: FRIDAY,
03 NOVEMBER 2017
For the Appellant
: MR
G H THOMAS
Instructed
by: BARKERS
Appellants’
Attorneys
8
RYDALL VALE CRESCENT
LA
LUCIA RIDGE OFFICE ESTATE
LA
LUCIA
(Ref.: D
Bohnen@barkers.co.za)
(Tel.: 031 –
580 7400)
c/o CAJEE
SETSUBI CHETTY INC.
195 BOSHOF STREET
PIETERMARITZBURG
KWAZULU-NATAL
(Ref.: A
Essa/ND)
(Tel.: 033 –
034 6719)
For the
Respondent:
MR R M HAND
Instructed
by:
MEUMANN WHITE ATTORNEYS
RESPONDENT’S
ATTORNEYS
2
ND
FLOOR, WAKEFIELD
HOUSE
150 STEPHEN DLAMINI
ROAD
BEREA….DURBAN
(Tel.: 087 –
350 7800)
c/o E R
BROWNE INCORPORATED
167 – 169
HOOSEN HAFFEJEE STREET
PIETERMARITZBURG
KWAZULU-NATAL
(Tel.: 033 –
394 7525)